author: Mr. Justice Soott

text:
    William Heneke et al. v. John Floring.

      Filed at Springfield September 23, 1885.

    1. Resulting teust—evidence after great lapse of time. The evidence to establish a resulting trust after the lapse of fifteen or sixteen years, and especially after many of the principal witnesses having knowledge of the facts are dead, should be of the most satisfactory kind. If the evidence fails to satisfy the court that the money paid for the land was that of the party-seeking to establish the trust, no resulting trust can be declared.
    2. Where a resulting trust is sought to be established after the lapse of many years, on the ground that complainant’s money was used in paying for the same, and that complainant’s wife, by conspiracy and fraud, had the conveyance made to her imbecile son by a former marriage, it is incumbent on the plaintiff to establish these facts by very clear and satisfactory evidence, and failing to do so, he can have no relief.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. E. B. Esher, Mr. William Ritchie, and Mr. S. Corning Judd, for the appellants :
    The party alleging fraud must clearly and distinctly prove it. The burden' of proof lies on him. The law in no ease presumes fraud, but in favor of innocence. In no doubtful matter does the court lean to a conclusion of fraud. Kerr •on Fraud, 382, 384, 494.
    A resulting trust in lands may be proved by parol, or by the admissions or declarations of the purchaser. But the ■evidence should be clear and unequivocal, and not merely preponderating. ' There should be no room for reasonable doubt as to the facts. Where there has been a long lapse of time, and the parties have died since the transaction, the case should be looked upon with suspicion, and the trust allowed only upon the most satisfactory evidence. Bigelow on Fraud, 489; Enos v. Hunter, 4 Grilm. 211.

      By whom could the circumstances here be better proved than by Mrs. Floring; who is dead, and by Heneke himself, who is a lunatic ? The facts in all cases of resulting trusts must be proved with great clearness and certainty. Perry on Trusts, sec. 137.
    The relations between Floring and the half-witted son of liis wife, are such as to suggest the probability that the deed to Heneke was meant as a provision in his favor. Perry on 'Trusts, secs. 143, 144.
    Mr. L. Y. Febbis, and Mr. Simeon Stbaus, for the appellee: .
    Where there is evidence to support a decree it will not be •disturbed, although the evidence might, in the opinion of this court, justify a different result. Railway Co. v. Moore, 77 Ill. 217; Coari v. Olsen, 91 id. 273; Wiggins Ferry Co. v. Higgins, 72 id. 517; Wiegleb v. Thomsen, 102 id. 156; Long v. Fox, 100 id. 43.
   Mr. Justice Soott

delivered the opinion of the Court:

The title to the tract of land in controversy is, or was, in William Heneke, an insane person. His conservator, Caroline Merwitz, had brought an action in ejectment against John Floring, to recover possession of the land for her ward. That suit it w'as expected would be called for trial at the June term, 1884, of the Superior Court of Cook county, and thereupon the defendant in that suit filed this bill, alleging the land, although conveyed to William Heneke, was, in fact, bought by him, and with his own money, but by the fraud practiced by his wife, Dorothea, since deceased, and the former owner, Caroline Merwitz, the deed was made to William Heneke, without the knowledge or consent of complainant, when it should have been made to him. To this bill the insane owner and his conservator were made defendants. An answer was filed by the conservator, for herself and on behalf of her ward, in which most of the principal allegations of the bill are denied, and in which the conservator claimed the land for her insane or lunatic ward as his rightful property, free from any claim of complainant. A replication to the answer was filed, and the cause was submitted for hearing on the pleadings and the evidence, and the court rendered a decree finding the complainant, on or about the 4th day of March, 1878, bought the land in controversy; that the whole of the purchase money was paid by him, and that the deed to William Heneke was made without his knowledge or consent, and was made with intent to defraud him. It was thereupon decreed that by the conveyance from Caroline Merwitz to William Heneke, of the land, a resulting trust in such land was created in complainant, and it was ordered that the conservator should, within a certain period, convey the land to complainant, and in default thereof it was further ordered the master in chancery should make such conveyance, and the injunction that had previously been awarded restraining the conservator from the further prosecution of the ejectment suit, was made perpetual. An appeal was allowed defendants, and by an agreement of parties, made in open court, the appeal was taken to the Supreme Court in the Central Grand Division.

It appears that on the 4th day of March, 1878, the tract of land in controversy, and another ten acres adjoining it, were both bought of Caroline Merwitz and her husband, since deceased. The deed for the ten acres which are the subject of this litigation, was made to William Heneke, and the deed to the other ten acres was made to the complainant. Both deeds were made on the same day, as a part of the same transaction, and both were recorded at the same time.

Two questions are made on the record: First, whether the land was bought and paid for with the money of complainant; and second, whether the deed was fraudulently made to William Heneke, without the knowledge or consent of complainant. The evidence bearing on the questions stated is very conflicting, and in some respects is unsatisfactory. Complainants claims he paid the entire purchase money of both tracts of land with his own money,—a part of the purchase price consisting of $1200, money previously loaned to the grantors, and the balance having been paid in money,— $500 at the time of making the deed; and the balance at another subsequent time. On the other hand, it is claimed that Dorothea, then the wife of complainant, paid a large portion of the purchase money from her separate means, and had the deed made to her invalid son, William Heneke, to make suitable provision for his maintenance in case of her death. Some explanation of the conduct of the parties may be found in the fact that William Heneke is the son of the deceased wife of complainant by a former marriage. He was always rather feeble in health, and by some of the witnesses termed a cripple, and years before these events transpired he became a confirmed idiot, or harmless insane person. From the time of his mother’s marriage with complainant the boy resided with them, up to the time of his mother’s death, which occurred July 25, 1883. It will be remembered both tracts of land were bought March 4, 1878, and soon after the making of the deed complainant erected a small house on the ten acres deeded to the invalid boy, in which the parties after-wards resided. Shortly after the death of the boy’s mother he was sent away to the home of his aunt, who is now his conservator. It does not appear that during all the time complainant resided on this tract of land he ever made any complaint, to his wife or to any one else, that the title to this particular ten acres was in William Heneke, until a day or two before the death of his wife, and not until after he had become satisfied her death would soon take place. The evidence bearing on this branch of the case will be referred to again, further on in this opinion.

Concerning the first question made, the difficulty lies in ascertaining whose money was, in fact, used to buy the land. Unless complainant’s money was used in making the payment for the land, of course no resulting trust ¡¡could arise in his favor. The law applicable in such cases is well understood, and needs no discussion. The evidence to establish a resulting trust after the lapse of so many years should be of the most satisfactory character, and -especially since so many of the parties who had most knowledge of the actual facts are now dead. It is obvious the evidence in this record is not of that character. That which tends to support complainant’s theory of the case comes mostly from himself. Without conceding he is a competent witness, under the statute, as against the conservator of the insane defendant, still, if his testimony shall be considered with the other testimony in the case, it fails to make any satisfactory case in his favor. As to the payment of the money by himself, his testimony has but little, if any, corroboration from any other source. There is some evidence that his wife paid some, if not all, of the purchase money for the tract of land conveyed to her son. In the conflict that exists it can not be insisted, -with any show of reason, that it is so clearly proven that complainant paid his own money for this particular tract of land, that a resulting trust should be declared in his favor,—at least it is not so in the opinion of this court.

As respects the other question raised, it may be said no such conspiracy as is alleged in the bill, to practice a fraud on complainant as to the making of the deed to Heneke, is proved. It is alleged that Caroline Merwitz, one of the grantors, and Dorothea, his wife, combined to defraud complainant, and procured the scrivener, one Senf, to prepare two separate deeds,—one for each ten acres,—and exacted a promise from him that he should not inform complainant of the fact. So far as the wife of complainant is concerned, there is not a scintilla of evidence to connect her wflth any wrongful conduct in regard to the'making of the deed to her son, either by herself or in connection with any other person. It is doubtful, even, whether she was in Chicago the day on which the deeds were executed. How that may he, however, matters little, for there is no proof from any source that she did anything to practice a fraud on her husband. Nor is there any satisfactory evidence that Caroline Merwitz did anything to deceive or defraud complainant in the making of the deed to the boy, as was done. ' It is certain she had no personal acquaintance with the scrivener prior to the time she went there, as all parties agree, to procure him to make the deed. She had heard of him before, but had no personal acquaintance. The scrivener resided in Oak Park, and Mrs. Merwitz in Chicago, and complainant resided in the town of Proviso, not far from Oak Park. Complainant was personally well acquainted with the scrivener selected, and had been for many years. It is singular, indeed, if Mrs. Merwitz intended to perpetrate a fraud on complainant, she would go out of the city to a personal friend of complainant, and to one who was almost a total stranger to herself, to procure his assistance to consummate the fraud. She says she was directed by complainant himself to go to Senf to have the deeds prepared, and that does-not seem to he denied by him. The whole accusation against her has the air of the utmost improbability. The scrivener says that she asked him riot to tell complainant two deeds were prepared,—one for each ten acres,—and he says he promised her he would not. If he made any such promise he did not observe it, for at the time the deeds were made he swears he read both deeds to him, and undertook to explain them to him in German. It is said complainant is an ignorant man; but he was present when the deeds were executed, and no one would claim he was so ignorant he did not know there were two papers or deeds executed at the time. He admits in his testimony he knew two deeds were executed. It is also fully proved he went with the scrivener to the recorder’s office, at least a part of the way, alone, when no one of the alleged conspirators was present, and if he wished any explanation why two deeds were executed, there was ample opportunity to obtain it. The witness Senf says that when he undertook to explain the deeds to complainant, at the house where they were executed, the parties talked so much to complainant, and drew his attention to such an extent, that he could not make him understand the explanation; but they left the house soon after, alone, to go to the recorder’s office, carrying with them both deeds, and there was certainly nothing to prevent him from explaining the contents to the complainant, had he wished to do so. It is all a sham and pretence the scrivener was prevented from explaining the contents of the deeds to complainant. Abundant opportunity was afforded him to do so, if he had been prevented, as he says he was, from making any explanation at the house by the parties interested, and especially would he have done so after he had been made aware there was a design to conceal from complainant the making of the deed to the boy. The testimony of this witness adds nothing whatever in support of complainant’s theory of the case that he was overreached by these two women in the making of the deed. It rather shows, if it proves anything, the deeds were made precisely as the parties all agreed they should be made. The subsequent conduct of complainant strengthens this hypothesis. It is in proof he had both deeds in his possession a long time before the death of his wife, and during all that time he made no complaint, to her or to any one else, the deed to the boy had been wrongfully procured, or that it had been made in fraud of his rights. The scrivener who prepared them, as he well knew, was his friend and acquaintance, and lived only a few miles from him. He could have taken the deeds to him any day and had them explained to him, but this he did not do.

Assuming, then, as it is thought the evidence warrants the court in doing, the deed to Heneke was made as it was intended it should be, with the knowledge and consent of com-0 plainant, his subsequent conduct is consistent with this theory of the case. It will be remembered the boy was always in delicate health, and constantly grew more infirm, until he became a hopeless idiot. No doubt it was believed by complainant that he and his wife Dorothea would both survive him, and that they would still have the land. This is evident from his interview with the minister, the Eev. Mr. Alberding. He had then become satisfied the death of his wife would soon occur, and his solicitude was how he might still retain the land. The advice he wanted of the minister was, how to get the land. No complaint was made the land had been wrongfully deeded to Heneke. He brought both deeds to the minister from his own custody, and after he had read them he told. complainant he could do nothing for him, as the land belonged to the boy. Complainant then told the minister he should do the best for him. The witness then took complainant to the room of his sick wife, and he asked her if complainant should have the land if Wilhelm died, and she said yes, if he would care well for the boy. Prior to the time of the interview with the minister, complainant had both deeds in his possession perhaps for a period of well nigh, if. not quite, five years, and when he brought them out for examination there was no pretence he did not know the land had been conveyed to Heneke, or that it was wrongful, but his whole solicitude was to secure the land in some way, now that his wife was about to die and the boy would survive. Another fact not of much consequence, but it tends in some degree to support this view of the case, is, that after the death of his wife he sued Heneke for his board while he resided in his family, and for the taxes he had paid on the land.' That suit was, however, abandoned when this 'suit was commenced. On the whole record considered, no case is made, by any such clear and satisfactory testimony as the law requires, that would warrant the relief decreed to complainant.

The decree will be reversed, and the cause remanded, with directions to the court to dismiss the hill.

Decree reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Mulkey

license: Public Domain

text:
    The Jacksonville Railway Company v. The City of Jacksonville.

      Filed at Springfield September 23, 1885.

    1. Special assessments for improvement of street—necessity for an ordinance—and requisites thereof. A valid ordinance is essential to proceedings by special assessment for the improvement of a street by a city. If the ordinance is invalid, a judgment confirming an assessment on property is not authorized.
    2. An ordinance for the improvement of a public street, the cost of which is to be assessed, in whole or in part, upon abutting property, must specify the nature, character, locality and description of the proposed improvement.
    3. An ordinance for paving a street partly by special assessment and the residue by general taxation, required the pavement to be what is known as the “Bloomington brick pavement,” and the foundation thereof to be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, etc. The estimate of its cost, approved by the city council, showed that cinders were to be used. It was held, the ordinance was not obnoxious to the objection of uncertainty as to the materials to be used for the brick to rest upon. In such case the words, “or other materials,” etc., may be treated as surplusage.
    4. An ordinance for the paving of a street is not void for uncertainty, because it requires the brick pavement to be laid upon a foundation of sand, gravel or cinders.
    5. Nor is such an ordinance rendered invalid by a provision requiring all the work done and materials used to be subject to the approval of the city engineer, and in accordan.ee with the plans and specifications to be furnished by the city council. Such provision does not give him the power to determine the kind of materials to be used, but only the right to see that the materials required are used, and the work done as directed by the ordinance.
    6. Municipal indebtedness—constitutional limitation—as affecting power to improve streets, etc. The fact that a city has already exhausted its constitutional power to incur a debt, can not be shown to defeat a proceeding by it to improve a street by special assessment in part, and partly by general taxation. That question can not arise until the city seeks to borrow money or incur an indebtedness in that regard.
    Appeal from the County Court of Morgan county; the Hon. Montreville T. Layman, Judge, presiding.

      Messrs. Morrison & Whitlock, for the appellant.
    Mr. Richard Yates, and Messrs. Springer & Rummer, for the appellees.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This appeal brings before us for review a judgment of the county court of Morgan county, confirming an assessment by the corporate authorities of the city of Jacksonville, against the road-bed and franchise of the Jacksonville Railway Company, for its ratable portion of the costs and expenses of constructing» a brick pavement on that part of East State street which lies between the east line of East street and the east line of Illinois avenue, in said city of Jacksonville, to be known as the “Bloomington brick pavement. ” The commissioners estimated the cost of the entire improvement at $17,569.31. Of,this amount $915.43 was charged to the city, to be raised by general taxation, and the balance was assessed upon the abutting property, the appellant’s portion being fixed at $1920. On appeal by the company from this assessment, it was reduced by the jury to $1062. Pending a motion for a new trial, the city entered a remittitur of two per cent on the amount found by the jury, which reduced it to $1040.76, for which sum the court entered final judgment, and the company appealed.

A reversal is urged, mainly on the alleged ground that the ordinance under which the assessment was made, as passed by the city council, is invalid. The objection, of course, goes to the foundation of the whole proceeding, and if well taken the judgment can not stand. The other points made in the brief go to the form rather than the substance of the proceeding.

It is claimed the ordinance is fatally defective in this, that it does not specifically determine the material of which the foundation of the pavement is to consist; that the power to determine whether it shall be of sand, gravel, cinders, or other like material, is, by the ordinance, given to the city engineer, and if not given to him, then ho means are provided for determining the question at all, and that in either case the ordinance would be void. In support of this view of the subject the cases of Foss v. Chicago, 56 Ill. 354, Andrews v. Chicago, 57 id. 239, Lake Shore and Michigan Southern Railroad Co. v. Chicago, 56 id. 454, and Lake v. City of Decatur, 91 id. 600, are cited. We fully concede the general principle recognized by these cases, viz: that an ordinance providing for the improvement of a public street, the cost of which is to be assessed, in whole or in part, upon the abutting property, must specify “the nature, character, locality anti description of such improvement. ” This is nothing more than an express requirement of the statute authorizing municipal authorities to make assessments for such purpose. It is clear, therefore, that an ordinance which does not substantially conform to the requirements of the statute in this respect will confer no power on the corporate authorities to make the assessment. The question then resolves itself into this: Is the ordinance under which the present assessment was made, obnoxious to the objection urged against it?

The first section of the ordinance, after specifying the location of the improvement, and providing, that it shall be paved with brick, p'roceeds as follows: “The pavement shall be what is known as the ‘Bloomington brick pavement.’ The foundation thereof shall be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, conforming to the grade to be established by the city, through the city engineer, surfaced by at least one inch of sand. The first course of brick shall be hard paving-brick, laid flat, all joints to be thoroughly filled in with sand,—this course of brick to be covered by at least one inch of sand. The upper course of brick shall be extra hard-burnt paving brick, laid on edge, all joints to be thoroughly filled with sand, leaving one inch of sand on top,—all of the work done and material used to be subject to the approval of the city engineer, and to be done in accordance with the plans and specifications to be furnished by the city council of said city.”

In pursuance of the ordinance, the city council appointed three commissioners to make estimates of the cost of the improvement, including labor and materials, and all other expenses attending the same, who, on the 5th day of September, 1884, submitted to the city council a written report of their action in the premises, wherein all the labor and materials required for the improvement, together with the cost thereof, are specifically enumerated, the items being as follows:

8832 square yards of labor, at 28 cents, - - - $2472.96
706,000 top brick, at $11.65,....... 8224.90
353,280 bottom brick, at $9.65,..... 3406.45
92 cars cinders, at $7.50,........ 690.00
98 cars sand, at $9,......... 882.00
Bring car track to grade, etc.,....... 985.00
Engineering,.....1...... 200.00
Commissioners’ fees and court costs, - - - - 60.00
Collector’s fees, .......... 344.00
Total, ...........' $17,569.31

This report, which was accepted and approved by the city council at the time of its presentation, shows conclusively that sand and cinders alone were estimated for the foundation of the proposed pavement. That the ordinance expressly provides for the use of just such material is conceded. Wherein, then, is the uncertainty in the ordinance complained of ? Do counsel wish to be understood as holding that an ordinance is necessarily void because it gives a municipality or contractor the right to choose between two or more kinds of material equally suitable for a proposed improvement? Or do counsel maintain that the present ordinance, in order to be good, should have taken away absolutely all option in respect to the use of the sand, gravel or cinders, by declaring "specifically which should be used ? We have no hesitancy in holding that such a construction of the statute would be exceedingly narrow, and wholly unwarranted by the words of the act. In many cases, we have no doubt, it would materially embarrass municipal authorities in making local improvements, by confining them lo a particular kind of material, when other equally good material of the same general class might be had on as favorable or better terms, if an election were given.

• The objection, however, is probably based mainly on the expression, “or other materials equally suitable,” etc., which immediately follows the words, “cinders, sand, gravel,” the position being, that inasmuch as the ordinance is confessedly uncertain as to the materials intended to be comprehended in the expression in question, it is sufficient to bring it within the principle of the cases above cited. If the phrase in question was used with any specific purpose or object, it was doubtless intended to include all material of the same kind or class as that mentioned, if any such existed. Inasmuch as the articles proposed to be used, and upon which the estimates ■were made, are specifically named in the ordinance in question, whether the assessment would be good if the estimates were made upon other material not so specified, does not arise, and need not therefore be discussed. In the view we take of the matter, it may be admitted the expression, “or other materials equally suitable,” is inoperative and void, on the ground suggested. But it does not at all follow that the ordinance is therefore invalid as to the kinds of material it specifically mentions. The objectionable part of the ordinance may be rejected as mere surplusage, and the ordinance still be good as to the residue.

In respect to the claim that the ordinance is an attempted delegation of power to the city engineer to determine what kind of materials is to be used, we regard it as clearly unfounded. The ordinance attempts to do nothing of the kind. By a provision in it the engineer is simply given a supervisory power over the work,—not for the purpose of determining what kind of materials is to be used, but rather for the purpose of seeing that the materials used are of the kind and quality specified in the ordinance, and that the work is done as therein directed.

Appellant offered to show, on the trial, that the city of Jacksonville had no power to incur further indebtedness,— that its existing indebtedness already largely exceeded the constitutional limitation which forbids any county, city, etc., from becoming “indebted * * * to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of taxable property therein,” etc. (Const, art. 9, sec. 12.) The court declined to admit the evidence, and this is assigned for error. The position of appellant, as we understand it, is, that a town or city which has exhausted its constitutional power to incur a debt, has no power to pass an^ordinance providing for local improvements which contains a provision, as was the case here, that a part of the cost of the improvement shall be raised by general taxation. We fail to perceive any force in the point made, and the authorities cited by appellant clearly do not sustain that view of the law. No question as to the power of the city of Jacksonville to incur a debt is presented by this record. It does not appear from anything before us that the city has ever asked any one to credit it on account of the proposed improvement. It has not incurred a debt in respect to it, nor is it threatening to do so. The city simply proposes to raise its share of the expenses by general taxation. It is not even attempting to anticipate a tax levy. Should it fail to raise the money in the manner proposed, and it should then attempt to borrow it, or to hire some one to do the work on the city’s credit, then, upon the complaint of a tax-payer, the constitutional provision referred to might be invoked, but until then no question of that kind can arise. It may be assumed that if the city finds it can not raise its share of the necessary funds by taxation, as contemplated in the ordinance, it will abandon the enterprise altogether, rather than attempt to raise it in violation of the constitution.

The claim is also made that the assessment was too high, that the verdict of the jury is not supported by the evidence, and that the judgment should be reversed for this reason. It was the peculiar province of the jury to settle this question, and they have done it. As we see nothing to the contrary, we must assume they faithfully and conscientiously discharged this duty to the best of their ability. Opinions of witnesses in respect to the value of property of this kind most always take a very wide range, and can seldom he harmonized. The present case is no exception to the rule.

Upon a careful review of the evidence we are unable to say the verdict is clearly contrary to the weight of the evidence, and unless we could do this we would not be warranted in reversing the judgment on the ground ,the evidence does not sustain the verdict.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Herald Catlett et al. v. John H. Dougherty et al.

      Filed at Springfield September 23, 1885.

    1. Arbitration and award—attempt by one of the parties to improperly influence an arbitrator—ground for setting aside the award. It is sufficient to authorize a court of equity to enjoin a suit at law upon an award, and set aside the award, that one of the parties in interest made a statement to one of the arbitrators, in the absence of the adverse party, designed and having a tendency to improperly affect his decision as an arbitrator, without showing that such statement, in fact, produced any harmful result to such other party.
    2. A party to an arbitration who by overt acts attempts to corrupt or improperly influence the arbitrators, or any one of them, to make an award in his favor, will not be heard to say that he was impotent to accomplish what he sought, and to raise an issue.thereupon.
    3. Sworn answer in chancery—effect of testimony of the defendants in its support, as to the weight of evidence to overcome the answer. Where a defendant in a suit in equity answers under oath, as required, denying the allegations of the bill, his testimony as a witness in his own behalf can not add any weight to his sworn answer, as evidence, and it may be overcome by the testimony of two witnesses, or what is equivalent thereto.
    4. Where two defendants to a bill in chancery requiring sworn answers, each answers, and also testifies as to his own conduct and declarations, alone, and the proof shows that only one is a party in interest, neither the answer nor the testimony of the one will strengthen or aid the answer or evidence of the other, and the testimony of two witnesses, or what is equivalent thereto, will overcome the answer.
    Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. W. R. Lawrence, and Mr. J. L. Ray, for the appellants:
    In a suit to set aside an award, the arbitrators may testify that a mistake was made by them, or that certain matters were not acted upon. Spruck v. Crook, 19 Ill. 425 ; Knox v. Symonds, 1 Ves. Jr. 369; Burchell v. Marsh, 17 How. 349; 2 Greenleaf on Evidence, sec. 78.
    A court of equity will set aside an award when it is clearly shown by evidence that the same, or any part, was the result of mistake upon the part of the arbitrators. Pulliam v. Pensoneau, 33 Ill. 374; Bouck v. Wilber, 4 Johns. Ch. 406; Williams v. Warren, 21 Ill. 541; Stone v. Atwood, 28 id. 41.
    If one of the parties converses with an arbitrator, or in any way attempts to influence him, and the award shall be in favor of such party, it will be set aside, as it will be conclusively presumed that such conduct had an improper effect, and the arbitrator is a competent witness to prove this fact. Struck v. Crook, 19 Ill. 415; Moshier v. Shear, 102 id. 169; Drew v. Leburn, H. L. C. 1; 1 Jacobs’ Fisher’s Digest, 371.
    If the arbitrators do not award of all matters in difference of which they have notice, the award is void in toto, and the converse is alike true. Whetstone v. Thomas, 25 Ill. 326; Watson on Arb. and Award, 121; Alfred v. Railroad Co. 92 Ill. 610.
    Misconduct of arbitrators will avoid the award; and that which would be misconduct on the part of a juror would be the same on the part of an arbitrator in common consultation. Moshier v. Shear, 102 Ill. 169; In re Hare, 6 Bing. (N. C.) 158; Morse on Arb. and Award, 537.
    The arbitrators must be present at each and every step of the proceeding. The parties are entitled to the thought and consideration of each arbitrator. Smith v. Smith, 28 Ill. 56; Wade v. Dowling, 4 El. & Bl. 44; Eads v. Williams, 24 L. J. Ch. 531; Wright v. Grahame, 3 Exch. 131; 13 M. & W. 466; Morse on Arb. and Award, 152.
    Messrs. Mann, Calhoun & Frazier, for the appellees:
    There was no error in refusing to allow an amendment to the bill. That was a matter of discretion.
    The circuit court could not review the testimony before the arbitrators, it not being a court of appeals to correct errors.
    A mistake in making an award must be that of all the arbitrators. Stone v. Atwood, 28 Ill. 41.
    The allegations of gross misconduct on the part of the arbitrators is denied, and not sustained by the evidence. The answer is made under oath, and required two witnesses to overcome the same, and the defendant James M. Dougherty denies making the alleged admissions.
    The matter of Lee’s affidavit was not material, and if communicated could not have influenced the arbitrators.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, exhibited by Herald Catlett and Hiram Catlett, against John H. Dougherty and James M. Dougherty, to enjoin the prosecution of a suit upon a bond given to secure the performance of an award, and to set aside the award. The decree of the circuit court denied the relief prayed, and dismissed the bill. That decree was affirmed on appeal to the Appellate Court for the Third District, and the record is brought to this court by appeal from the decision of that court.

Herald Catlett and John H. Dougherty having certain matters of difference between them, submitted the same to the arbitrament of John Sidell, Henry C. Forbes and Daniel Gregg. Herald Catlett entered into bond, with Hiram Catlett as surety, conditioned that he would perform the award. The arbitrators awarded that Catlett should pay Dougherty $1899.98. Catlett not paying the award, suit was brought on the bond in the name of John H. Dougherty, for the use of James M. Dougherty.

An amendment to the bill is as follows: “Complainants show that since the filing of the original bill herein, they have been informed, and believe the fact to be, and charge the same to be true, that after the adjournment of the hearing by the said arbitrators, and before they made their said award, and while they were considering of their said award, the said James M. and John H. Dougherty procured from one Lee an affidavit stating that a certain note constituting one of the claims of the said Herald Catlett before said arbitrators, had been improperly procured of him, the said Lee, by said Catlett, and which affidavit denied and disputed certain statements made by said Catlett in reference thereto, before said arbitrators, and that said Dougherty communicated to said arbitrators, before the finding of said award and after the said hearing, the contents of said affidavit. And these complainants do charge that said arbitrators did receive information concerning the said Lee notes, after said hearing and before the making of the said award.” The answer of the defendants is under oath, and denies this allegation. The defendants were examined as witnesses, on the trial, and then again denied the allegation; but, in our opinion, this added nothing to the weight of evidence on their behalf, under this issue. They have the full benefit of their denial in their answer, and it is not possible that the mere repetition of the same thing in a different form, by the same person, can add to its effect. The question is, whether the denial is overcome by the evidence of two witnesses, or what is equivalent thereto.

The arbitrator Sidell testified, that after the evidence was heard in the arbitration, and before the arbitrators had made any award, James M. Dougherty told him, that they (meaning himself and John H. Dougherty,) had procured an affidavit of Lee, in which he swore that Herald Catlett had obtained the note from him (Lee) at a time different from that at which Catlett swore that lie obtained it,—in substance, that Lee had, in that affidavit, sworn altogether differently from the testimony of Catlett. Herald Catlett testified, that about ten or fifteen days after the arbitration, James M. Dougherty told him that he (Dougherty) had told the arbitrator Sidell, at the time and place named by Sidell, that Catlett did not have the Lee note-as.soon as he said he did. DeWitt C. Frazier testified, that he. saw- James M. Dougherty on the same day during which Sidell testified that Dougherty made the communication to him; that they were then on a train going to Danville; that Sidell was on the same train; that Dougherty then said he had an affidavit of Lee, in which it was set out that the note, about which it was given, was turned over to Catlett at a different time from what Catlett claimed it was. Lee proves the making of the affidavit, and the participation therein of John H. and James M. Dougherty, and the starting of James M. Dougherty to the depot a little while before the train went east to Danville.,

It is to be observed that neither the answer nor evidence of James M. or John H. Dougherty strengthens or aids the answer or evidence of the other. Each is independent, and testifies to his own conduct and declarations, alone. We think the evidence on behalf of complainants overcomes the answer, and establishes that James M. Dougherty made the alleged communication to the arbitrator Sidell.

It is important to further observe, that the evidence shows that at the time of the arbitration James M. Dougherty was, in truth, the real party in interest, though the arbitration was carried on-in the name of his brother, John H. Dougherty. Lee testified that at the time the affidavit before alluded to was made, John H. Dougherty said: “This matter,”—evidently alluding to the matter of the arbitration,—“was in the hands of his brother, now,—his brother James.” And James M. Dougherty testified that in the conversation which he had with Sidell in regard to the arbitration, he used this language in regard to one of the arbitrators: “I said it was very gratifying to me to have the only man I had in the matter, so acceptable, ”—thus showing that lie regarded the arbitration as his arbitration. Moreover, the award, as has been seen, was assigned to James. M. It is unimportant whether Sidell was, in point of fact, improperly influenced by the conduct of Dougherty, or not. It is sufficient to authorize the enjoining of the suit at law and the setting aside of the award, that James M. Dougherty—one of the real parties in interest,—made a statement to him, in the absence of his adverse party to the arbitration, evidently designed and having a tendency to improperly affect his decision as an arbitrator. Courts will not enter upon an inquiry of how far such conduct may, in fact, have produced harmful results, but will, at the instance of the party intended to be thus injured, set aside the award. A party attempting, by overt acts, to corrupt or improperly influence such a tribunal to make an award in his favor, is not to be heard to say that he was impotent to accomplish what he sought, and to raise an issue thereupon. Strong v. Strong, 9 Cush. 574; Cleland v. Hedley, 9 R. I. 163; Sisk et al. v. Garvey, 27 Md. 401. See, also,. Morse on Arbitration and Award, 534; 2 Story’s Equity, sec. 1452 a.

The court erred in dismissing the bill.

The decree of the circuit court, and the judgment of the Appellate Court affirming that decree, are reversed, and the cause, remanded to the circuit court, for further proceedings in conformity with this opinion.

Decree reversed.


text:
    John Meyer et al. v. Moses Krohn et al.

      Filed at Springfield September 23, 1885.

    1. Partnership—interest in profits—whether a partnership. A person may contract with a particular member of a firm for an interest in his share of the profits, without making himself a member of such firm ancl liable for its debts.
    2. Same—dissolution—of the notice required, to protect retiring partner. As to persons who have never had any business transactions with a partnership firm, notice by publication in a newspaper published at the place of business of the firm, of its dissolution or the withdrawal of a member, is sufficient; but as to those who have had previous dealings with it, actual notice or its equivalent must be shown, to protect the retiring member from liability for debts subsequently incurred in the firm name.
    3. Same—notice of dissolution by mail—presumption. Proof of the mailing of notices of the dissolution of a partnership and of the retirement of certain members thereof, properly addressed to persons having had prior dealings with the firm, is prima facie evidence that the notices have been received by the parties to whom they were addressed; but such presumption may be rebutted by proof that they were not received.

      4. Pleading—effect of a traverse, as properly denying the allegations in a prior pleading, or, as amounting to an admission. In an action against several as partners, where the plaintiff’s replication to a plea denying the joint liability of one of the defendants as a partner, alleging that for two years prior to the contracting of the indebtedness sued on, such defendant was a partner, during which time plaintiff dealt with such firm and gave it credit, and that at the time the debt sued on was contracted in the firm name, the plaintiff had no notice that such defendant had ceased to be a member of the firm, a rejoinder traversing the allegations of the replication is good. But if the replication further alleges that at the time of contracting the debt sued on, the defendant so claiming to have retired from the firm, and one of his co-defendants, constituted one firm, and that such firm sued was composed of his firm and two others sued, the rejoinder will be bad, as admitting his joint liability.
    5. And where a replication to such a plea alleges that up to a day named the defendants were partners, and as such had dealings with the plaintiff, and that after that date he, without notice of the withdrawal of such defendants from the firm, gave the firm credit, and the defendants rejoin that at the time of making the promises they had ceased to be such partners, of which fact the plaintiff had notice, etc., this will, so far as the issue on such rejoinder is concerned, constitute an admission of record of the existence of the partnership up to the day and date named in the replication.
    6. Evidence—question assuming the existence of particular facts. On an issue as to the joint liability of two defendants as partners, one of them testified quite fully as to their withdrawal from the firm, and to the fact of having given the plaintiff both general and special notice of such withdrawal before the credit was given to the partners left after such withdrawal, who continued the firm name, and he was then asked what other steps he took to notify the parties with whom the old firm had been dealing, of the dissolution of the firm: Held, that the question was objectionable, as assuming that some other steps than those mentioned had been taken.
    7. Presumption to sustain a judgment. On an issue of fact as to the giving of notice of the dissolution of a firm, where the evidence of the defendants show the mailing of such notice to the plaintiff, properly addressed, and that of the plaintiff that it never was received, and the jury find for the plaintiff, it will be presumed in favor of the judgment below that the jury found, as matter of fact, that such notice was never received.
    8. Error—what may he assigned as error. A party can not assign for error the exclusion of evidence offered by him, which, if admitted, would establish the issue in favor of his adversary.
    Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.

      This was an action of assumpsit, brought by Moses Krohn and Leopold Feiss, partners, under the firm name of Krohn, Feiss & Co., against John Meyer and Moses Bachrach, together with Solomon Hoffheimer and Eva Hoffheimer, as partners, doing business at Galesburg, Illinois, under the firm-name of Hoffheimer & Co.
    The declaration contains six special counts on as many bills of exchange accepted by Hoffheimer & Co., and also the common counts. The first of these bills was dated August 12, 1879, and the last November 10, 1879. Appellees, subsequent to August 12, 1879, sold merchandise to Hoffheimer & Co. John Meyer pleaded in abatement, denying the defendants’ partnership as alleged, and averring that the several promises in the declaration mentioned, if made, were made by Solomon and Eva' Hoffheimer, under the firm name of Hoffheimer & Co., and not by himself and his co-defendants, as alleged. Bachrach filed a separate plea precisely the same as that of Meyer. To each of these pleas the plaintiffs filed replications, as follows:
    First—A traverse of the allegations of said pleas, concluding to the country, upon which issue was joined.
    Second—A special replication that before the making of the promises in the declaration mentioned, on, to-wit, the 1st day of January, 1878, and for two years prior thereto, the defendant John Meyer was a partner in business with his co-defendants, under the firm name of Hoffheimer & Co., and that at divers times during the said two years, the plaintiffs, together with one Louis Krohn, who was then, but before the making of the said promises ceased to be, a partner in business with the plaintiffs, under the firm name of Krohn, Feiss & Co., sold goods and extended credit to the said John Meyer and his co-defendants, under the firm name of Hoffheimer & Co., and further averring that at the time of the making of the said promises the plaintiffs had had no notice that the said John Meyer had ceased to be a partner with his co-defendants, under the firm name of Hoffheimer & Co., concluding with a verification.
    To these two special replications each of the defendants filed two rejoinders:
    First—The first denying that on the said 1st day of January, 1878, he was, or ever had been, a partner of his co-defendants, under the firm name of Hoffheimer & Co., but averring that at the said time, to-wit, January 1, 1878, he and his co-defendant, John Meyer, were partners, under the firm name of John Meyer & Co., and that the said firm of Hoffheimer & Co. was composed of the said Solomon Hoffheimer and Eva Hoffheimer and the said firm of John Meyer & Co., and not of the said Moses Bachrach and his co-defendants, as alleged in the replication, concluding with prayer of judgment, and that the writ and declaration be quashed.
    Second—The second averring that at the time of the making of the promises in the declaration mentioned, he had ceased to be a partner in business with his co-defendants, under the firm name of Hoffheimer & Co., of which the plaintiffs before the making of the said promises did have notice, concluding to the country, upon which issue was taken.
    To the first rejoinders of both John Meyer and Moses Bachrach, the plaintiffs demurred specially, which demurrer was sustained, and defendants abided their rejoinders.
    Mr. William W. Berry, and Messrs. Davis & Poling, for the appellants:
    The rule of law, if not already so, should be, that the notice of the dissolution addressed and mailed, postage prepaid, to correspondents at a distance, should suffice to discharge the retiring members of a firm from liability for debts thereafter incurred. This rule is not restricted to notice of the dishonor of negotiable paper. Dunlap v. Higgins, 1 H. L. Cases, 381; Hands case, 20 W. R. 690; Jenkins v. Blizzard, 1 Starkie, 418.

      Where a partner retires from a firm, notice is usually given by public advertisement, or by letters to the customers of the firm, or both. (Parsons on Contracts, 169.) To require more would be unreasonable, if not impracticable.
    But the rule as to actual notice has no application, for the-reason that appellees never had any dealings with Hoffheimer & Co. prior to the dissolution of that firm in January, 1878. Louis Krohn, together with appellees, constituted the firm of Krohn, Feiss ^ Co. at that date. A year thereafter, and six months before the creation of the present indebtedness, Louis Krohn retired from the firm, and by this act the old firm of Krohn, Feiss & Co. was dissolved. Parsons on Partnership, 415 ; Story on Partnership, secs. 269, 272; 3 Kent, 53; Bank of Mobile v. Andrews, 2 Sneed, 535; Mudd v. Bart, 34 Mo. 465.
    In the second replication it was averred that appellants had been partners, etc. In the first rejoinder thereto this-was denied, and the averment made that at the time stated in the replication, John Meyer & Co., of which firm appellants were members, were partners with the Hoffheimers,. under the name of Hoffheimer & Co., and the rejoinder was-sworn to. It was, in everything save the name, a plea in abatement. The statement in it was literally true, as the articles of co-partnership of Hoffheimer & Co. were between the Hoffheimers and John Meyer & Co. The court erred in sustaining the demurrer to this rejoinder.
    The court erred in disallowing the question, “State what other steps you took to notify the parties with whom the firm of Hoffheimer & Co. had been dealing, of the dissolution of the firm. ” This ruling precluded the defendant from making all the defence that was legitimate.
    The partnership articles between the Hoffheimers and John Meyer & Co. should have been admitted to show by what authority the signature of John Meyer & Co. was attached to the contract of dissolution.

      The court erred in refusing to admit in evidence the conversation with Gideon, an agent of the plaintiffs, as notice to him was notice to the principals. Page v. Brant, 18 Ill. 37; Hottgrave v. Wintker, 85 id. 470.
    Messrs. Carter & Govert, for the appellees:
    The rejoinder to the second replication was bad in substance, in setting up in abatement that the firm of Hoffheimer & Co. was composed of two individuals, Solomon and Eva Hoffheimer, and another firm, John Meyer & Co., which in turn was composed of appellants.
    A partnership is a combination of two or more persons. Parsons on Partnership, 6;cCollyer on Partnership, see. 3; 3 Kent’s Com. 24.
    As to persons having previous dealings with the firm, actual notice is necessary to relieve a retiring partner from further liability. Whiteside v. Lee, 1 Scam. 550; Page v. Brant, 18 Ill. 38; Warren v. Ball, 37 id. 76; Hottgrave v. Wintker, 85 id. 470; Hicks v. Russell, 72 id. 230; Austin v. Holland, 69 N. Y. 246; Haynes v. Carter, 12 Heisk. 7; Rose v. Cofield, 53 Md. 18; Mitcham v. Bank of Kentucky, 9 Dana, 166; Prentiss v. St. Clair, 5 Vt. 156; Kenney v. Altwater, 77 Pa. St. 34.
    Mailing notice of dissolution of partnership to one who has had dealings with the partnership, would be a step in the direction of actual notice, but the question whether it was received or not is a question of fact for the jury,' and not a question of law. And proof that the letter was not returned from the dead letter office, does not establish its receipt by the customer. (Kenney v. Altwater, 77 Pa. St. 34.) To make notice to an agent notice to the principal, it must be shown, the agent had authority to represent the principal in such matters. (Stewart v. Sonneborn, 49 Ala. 178.) And the agent must be acting within the scope of his agency, and must relate to the business in which he is engaged. Conger v. Railroad Co. 24 Wis. 157.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

Moses Krohn and Leopold Feiss, wholesale merchants at Cincinnati, Ohio, doing business as partners, under the firm name of Krohn, Feiss & Co., brought to the June term, 1883, of the Adams county circuit court, an action of assumpsit, against John Meyer, Moses Bachrach, Solomon Hoffheimer and Eva Hoffheimer, as partners, lately doing business at Galesburg, Illinois, under the name and style of Hoffheimer & Co. The declaration was in the usual form, containing the common counts and six special counts, on bills of exchange payable to appellees, and drawn by them upon and accepted by Hoffheimer & Co. The bills Were given at different times, in due course of trade, for goods and merchandise sold by the plaintiffs to the defendants. The first of these bills bears date August 12, 1879, and the last, November 25 of the same year, and the whole series, interest included, together with a small account, amounts, in the aggregate, to near $1100. The Hoffheimers made no defence. The appellants severally filed pleas in abatement, denying the partnership at the time of making the bills of exchange and the purchase of the goods sued for. The plaintiffs traversed these pleas, and also severally replied, in substance, that appellants, on the 1st day of January, 1878, and for two years prior thereto, were members of the firm of Hoffheimer & Co., during which two years appellees had sold goods to said firm, and that at the time of making the said bills of exchange, etc., appellees had no notice that appellants had ceased to be members of the firm of Hoffheimer & Co. Appellants took issue on these replications, and also severally rejoined that they were, during the said two years, as between themselves, partners, under the firm name of John Meyer & Co., and that this firm and their co-defendants composed the firm of Hoffheimer & Co., and that the appellants were not otherwise members of the latter firm. The court sustained demurrers to these rejoinders, and the appellants stood by them. By a second rejoinder the appellants severally alleged that at the time of the making of the alleged promises sued on, the appellees did have notice of the withdrawal of the appellants from the firm of Hoffheimer & Co., concluding to the country. The cause was then tried upon the issues formed as above stated, resulting in a verdict and judgment in favor of plaintiffs, for $1093.21. On appeal to the Appellate Court for the Third District this judgment was affirmed, and the present appeal brings before us for review the judgment of the latter court.

The first point made by appellants questions the correctness of the ruling of the trial court in sustaining a demurrer to appellants’ rejoinder to appellees’ second replication. We have no doubt of the soundness of the ruling of the court on that question. Had the rejoinder concluded with the denial contained in it of the averment in the replication, to the effect that appellants had been members of the firm of Hoffheimer & Co., it would have been good as a mere traverse of the replication. But the effect of this denial, considered as a mere traverse, is entirely neutralized by the additional allegation “that the said firm of Hoffheimer & Co. was composed of the said Solomon Hoffheimer and Eva Hoffheimer, and the said firm, of John Meyer é Co.” Now, as the firm of John Meyer & Co. could have no existence outside of the appellants, who composed it, the conclusion is manifest that they were also members of the firm of Hoffheimer & Co.,—so that in truth the rejoinder, instead of presenting any defence to the matter set up in the replication which it assumed to answer, was and is, when taken as a whole, a substantial admission of the facts therein stated. In thus holding, we at the same time recognize the right of a third party to contract with a particular member of a firm for an interest in his share of the profits without making himself a member of the firm. Thus, if A and B are partners, G may purchase an interest in A’s share of the profits without making C a partner with A and B. But the rejoinder in question presents no such case as this. As indicated by the pleadings, and as the evidence tends to show, appellants were members of the firm of Hoffheimer & Go. prior to the 2d of January, 1878, and, as such members of the firm, were customers of appellees. On that day appellants withdrew from the firm, but the business continued to be carried on by the Hoffheimers just as it had been before, and as claimed by appellees, without any notice of appellants’ retirement from the firm. Whether appellees had such notice or not, was put directly in issue by the pleadings, and this was the controlling question in the case. The question of fact thus put in issue has been decided adversely to appellants, and this court is not permitted to review it.

Appellant Bachrach, when upon the stand as a witness, after having testified very fully as to his and Meyer’s withdrawal from the firm, and to the fact of having given to appellees both general and special notice of such withdrawal, was asked this additional question: “State what other steps 3'ou took to notify the parties with whom the firm of Hoffheimer & Go. had been dealing, of the dissolution of the firm, ” —which the court, on objection, held improper, and this is assigned for error. The question was clearly objectionable, on the ground it assumed that some other steps than those mentioned had been taken. But waiving this objection, it is dear the appellants could not have been injured by the ruling of the court in this respect, for, as just stated, the witness had already fully set forth, with great particularity, the fact of notice, and the different ways in which it had been given. Moreover, the same question, differing somewhat in form, was subsequently put to and answered by the witness.

It is also objected the court erred in refusing to permit the articles of co-partnership to be read in evidence to the jury. Had they been offered by appellees, we are of opinion they would have been competent evidence under their first repli•cation, which simply put in issue the pleas of the defendants denying the partnership. But how the appellants could have been injured by the ruling of the court it is difficult to perceive. Upon the issue made by the first replication the appellees were bound to prove the partnership, and the articles of partnership themselves were certainly the most available •evidence for that purpose. So far as that issue is concerned the admission of them in evidence, at the' instance of appellants, would have been but permitting them to establish appellees’ case. The fact the court refused to allow them to ■do this, certainly affords no ground for complaint on the part of the appellants. So far as the issue made by the second rejoinder to the second replication is concerned, the fact that the partnership existed up to the 2d of January, 1878, is admitted on the record by both parties, and hence the evidence ■offered was irrelevant under that issue.

The point is also made that the court erred in refusing to permit Jacob Hoffheimer, a witness on behalf of appellants, to detail a conversation which he claimed to have occurred, only a month or so after the dissolution, between himself and Joseph Gideon, an alleged traveling salesman of appellees. The object of the proposed evidence was to prove appellees had notice of the dissolution of the partnership. There is nothing in this objection, for the record clearly shows that so far as notice could be established in this manner by Hoffheimer’s testimony, it was done. He says: “Representatives ■of the house of Krohn, Feiss & Co. visited Galesburg after this dissolution. We have been dealing with them right along. Joseph Gideon, one of them, to the best of my recollection,— I can’t say exactly when,—visited Galesburg on one of his regular trips,—it must have been two or three months after the dissolution. On this trip I had a conversation with him in reference to the dissolution of the firm. I think he (Gideon) had knowledge of the dissolution, from a personal conversation I had with him. * * * When I notified him of this dissolution, Gideon was representing the house of Krohn, Feiss & Co., and selling goods for them. The new firm of Hoffheimer & Co. bought goods from Krohn, Feiss & Co. through Gideon, at that time. These goods were shipped to and received by Hoffheimer & Co., and a bill was rendered for them. At the time of the conversation above alluded to, we spoke about the matter of the dissolution of the firm, and Gideon said that the credit would be just as good for the new firm, or something to that effect. I asked him if he thought the credit would be just as good as before the Quincy house withdrew, and he thought it would. ” Thus, notwithstanding the ruling of the court complained of, it is clear this witness told all he knew on that subject, and the conversation as to other-matters, of course, would have been improper. Moreover, the weight of evidence seems to show that at the time of the-alleged conversation Gideon was not in the employ of appellees at all, and they consequently would not have been bound by anything Hoffheimer may have told him. In addition to-all this, the court afterwards told the witness he could state-to the jury the whole conversation between him and Gideon,, so there is not the slightest cause for complaint on the ground suggested.

Other points are made in appellants’ brief, of a similar character, none of which we regard as well taken, or of sufficient importance to require special notice.

The evidence relating to the question of notice of appellants’ withdrawal from the firm is circumstantial, and by no-means conclusive. That a general notice was prepared and inserted in a newspaper published in Galesburg, at the time of their withdrawal, is conceded, and that a copy of this notice-was mailed at Galesburg by appellants, in an envelope properly addressed to appellees at Cincinnati, their place of business and residence, is proven by the testimony of appellants. •That no such notice was ever received by appellees is established just as clearly by their testimony. This question, with. other questions of fact, was properly left to the jury. If, as matter of law, in order to relieve appellants from further responsibility, it was necessary for them to prove, not only the preparing and mailing of the notice of their withdrawal, but also that it was actually received by appellees, then, for the purpose of supporting the judgment below, we must assume that the jury found, as matter of fact, that the notice was never received. The important question in the case, so far as this court is concerned, is, whether the law is as just suggested, and this question is presented by the instructions, both given and refused.

The court, on behalf of appellees^ instructed the jury, in substance, that although they might believe, from the evidence, that the appellants prepared and sent, in a letter or envelope properly addressed to the appellees at Cincinnati, a notice of their withdrawal from the firm, yet if they further believed, from the evidence, that appellees never received such notice, and that neither they nor their lawfully authorized agent otherwise received notice, or had knowledge of such withdrawal or dissolution of the firm, then the appellants had failed to establish notice, within the meaning of the law. On the other hand, the court refused to instruct the jury, at the instance of the appellants, that it was sufficient, for the purpose of establishing notice, to prove the preparing and sending a notice in the manner above stated. We have no doubt of the correctness of the ruling of the court on this subject. The general rule, as we understand it, is this: As to persons who have never had any business transactions with the firm, notice by publication is sufficient; but as to those who have had previous dealings with it, actual notice, or its equivalent, must be shown. This rule seems to be supported by an unbroken current of authority, and it is certainly promotive of justice and fair dealing. To hold that the mere mailing of notices to patrons of a firm is sufficient, without regard to whether they were ever received or not, as is claimed by appellants, would be to establish, by judicial legislation, a species of constructive notice hitherto unknown to the law, so far as we are advised. It is doubtless true that proof of the mailing of notices, properly addressed, is prima facie evidence of their having been received by the party addressed; but this is a mere presumption of fact, which may be rebutted, as was done in this case. To give it the effect contended for, would be to declare it a presumptio juris et ele jure, for which we find no authority. Moreover, it would be but to invite the grossest frauds upon distant merchants, who. would have no adequate means of protecting themselves. We prefer to leave the question with the jury, where we understand the law leaves it, unfettered and unembarrassed by any artificial rule of evidence that might prevent them from finding the real truth.

Perceiving no cause for disturbing the judgment of the Appellate Court, it will therefore be affirmed.

Judgment affirmed,.

Mr. Justice Shope took no part in the consideration of this case.


author: Mr. Justice Scott

text:
    Thomas B. Shaw v. Azilda Shaw.

      Filed at Ottawa November 14, 1885.

    1. Stbiking- answeb in chancery from the files—in sxdt for divorce. It is error to strike a defendant’s answer to a bill of divorce from the files, after it has been filed by counsel, merely upon proof of a communication sent by the defendant to his solicitor, which the latter never received, to let the suit go by default.
    2. Alimony—whether by annual allowance, or land m fee. . Under the decisions of thi's court the practice has been, unless for special reasons,—as, where the property has been bought with the wife’s money, or where the proof shows the property has been accumulated by the personal labor of the wife,—to give her an annual allowance or life estate in the real property of the husband, to be held under the control of the court, and not to give her the fee to the husband’s real estate as alimony, on a decree of divorce.
    Writ of Error to the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    This was a bill for divorce, brought by the appellee, against the appellant, alleging extreme and repeated cruelty, and habitual drunkenness, for a period of over two years. The defendant, by his counsel, filed his answer to the bill, denying the material charges, and charging her with improper conduct and neglect of duty, and alleging condonement of all grounds of complaint up to a day stated.
    In the absence of the defendant and his counsel, the court heard the following testimony, to-wit: James H. Goárd says : “I am deputy sheriff of Jo Daviess county, Illinois, and well acquainted with Thomas B. Shaw, the defendant. On November 14, 1884, I had a conversation with Shaw, in which he told me he would not appear or make any defence in this cause, and directed me to see Moses Bees, his attorney, who had filed his answer, and tell him to let the case go by default. I communicated this to Bees, who replied that he would pay no attention to it, and would go on with the case unless he received a written order from Shaw. On November 34, 1884,1 had another conversation with Shaw, in which he read to me the letter hereto attached, marked ‘Exhibit A,’ and said, ‘Give this to Mr. Bees,—I guess that ought to satisfy Mr. Bees.’ ”
    The letter is as follows :
    “Elizabeth, III.,-, 188-.
    “Mr. Bees—Kind Sir: Please let that suit go by default,
    and oblige. T. B. Shaw.”

      It was indorsed, “filed Nov. 24, 1884.” Thereupon the court ordered the answer to he stricken from the files, and the defendant’s default was taken.
    Messrs. Bedford & Rees, for the plaintiff in error.
    Messrs. D. & T. J. Sheean, and Mr. McHugh, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

It was error to strike the answer of defendant from the files, and render a decree against him as on default. It had been filed by counsel, and presumably with the consent of defendant. It was not withdrawn by defendant, nor by his counsel, in open court, nor by any written communication addressed to the court. The only written authority from defendant was a letter or note directed to his counsel, but which was never-delivered. Had it been delivered to his counsel, as it was expected would have been done, on further consultation it might have been deemed best to allow the answer to stand. Be that as it may, there was no sufficient reason shown for striking the answer from the record.

In the decree providing alimony for complainant, the court vested the fee of certain lots, on which there were situated a hotel, barn, and other buildings, in her, on condition she would pay to defendant the sum of $500, in sums of $50 every six months, from the entering of the decree until the whole sum should be paid. There is no evidence in the present record that would seem to warrant the divestiture of the fee of the real estate that was in the husband, and placing it in the wife. Under the decisions of this court, the practice has been, unless for special reasons,—as, where the property was bought with the wife’s money, and, it may be added, in cases where the proof shows the property was accumulated by the personal labor of the wife,—to give her an annual allowance or life estate in the real property, to be held under the control of the court. Nothing contained in this record would warrant a departure from the rule so generally observed in such cases. There would seem to be some equitable consideration, in support of the decree in this respect, but as the case now comes before this court there is nothing that would warrant a departure from the usual rule on this subject. Keating v. Keating, 48 Ill. 241; Ross v. Ross, 78 id. 402; Von Glahn v. Von Glahn, 46 id. 136.

The decree will be reversed, and.the cause remanded.

Decree reversed.


author: Mr. Justice Sheldon

text:
    Henry H. Gage v. Christian C. Busse et al.

      Filed at Ottawa November 14, 1885.

    1. Redemption prom tax sake—under the statute—wpon what terms —and within what time. The statute, except as to persons under disability, makes no provision for redemption after the expiration of two years from a sale of land for taxes. Where the redemption is made after that time by one under a disability, he is required to pay ten per cent on double the amount of the sale from and after the expiration of such two years.
    2. Same—in equity. Where a court of equity allows a redemption from a sale of land for taxes, on the ground that the amount of the sale includes illegal taxes, the party redeeming will be required to pay the redemption money allowed by the statute on the amount of the legal taxes and costs, and six per cent upon the redemption money from the expiration of the time for redemption fixed by the statute, and all taxes paid by the purchaser after the two years allowed for redemption, with six per cent thereon.
    3. Judgment roe taxes—how far conclusive as to legality of taxes. A judgment of the county court against lands for taxes, where there is no personal appearance of the owner, is not conclusive as to the legality of all the taxes included in it, but is open to attack collaterally.

      Appeal from the Appellate Court for- the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. A. N. Gage, for the appellant:
    This court, on a former appeal, held that appellees could only be entitled to relief upon their paying the redemption money allowed by the statute, while the decree herein grants relief upon paying a less amount. Gage v. Busse, 102 Ill. 592.
    The statute provides for redemption from tax sale after the expiration of two years from the date of sale, upon payment of ten per cent per annum on double the amount for which the land was sold, from and after the expiration of the two years. Rev. Stat. 1874, chap. 120, sec. 210.
    The county court having general original jurisdiction of the subject matter and the res, -with power and authority to investigate and determine whether taxes are due, and the amount of the delinquency, its judgment upon these questions must be conclusive while it remains in operation. Mays v. Ahloy, 32 Cal. 479; Porter v. Purdy, 29 N. Y. 106; People v. Brislin, 80 Ill. 423; Andrews v. People, 84 id. 28; Railroad Co. v. People, 83 id. 467; Graceland Cemetery Co. v. People, 92 id. 619.
    The action of the county court in such matters is in rem against the real estate. Rev. Stat. 1874, chap. 120, sec. 191; Pidgeon v. People, 36 Ill. 249; Chesnut v. Marsh, 12 id. 173 ; Spellman v. Curtenius, id. 409; Olcott v. People, 5 Gilm. 481; Brown v. Joliet, 22 Ill. 123; People v. Nichols, 92 id. 517; St. John v. East St. Louis, 50 id. 92; Atkins v. Hinman, 2 Gilm. 437.
    Mr. John P. Wilson, and Mr. James E. Munroe, for the appellees:
    The terms upon which the decree gives relief are in conformity with the opinion of this court upon the former appeal, and do full justice to the appellant.

      In no other ease has this court required the land owner to pay more than the amount of the legal taxes for which his land has been sold, and six per cent simple interest thereon. Phelps v. Hardin, 87 Ill. 442; Barnett v. Cline, 60 id. 205; Reed v. Tyler, 56 id. 288 ; Gage v. Nichols, 112 id. 269 ; Gage v. Hervey, 111 id. 305; Wilmerton v. Phillips, 103 id. 78.
    The judgment of the county court is not conclusive as to' the legality of all the taxes included therein, there being no personal appearance. McLaughlin v. Thompson, 55 Ill. 249; Belleville Nail Co. v. People, 98 id. 399; Gage v. Bailey, 102 id. 11; Stamposki v. Stanley, 109 id. 210.
    There is another class of cases arising upon the effect of a judgment of court confirming a special assessment, in which this court has held that the order of confirmation was final and conclusive as to all questions which might have been raised upon the application for a confirmation. The following are some of the cases involving this point, all of which are relied upon by counsel for appellant: People v. Brislin, 80 Ill. 423; Lehmer v. People, id. 601; Prout v. People, 83 id. 154; Gage v. Parker, 103 id. 528.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, brought by appellees, against appellant, before the time for redemption had expired, to set aside certain tax sales, because certain of the city taxes of the city of Chicago, included in the judgments for the sales, were illegally levied by the city, and under which judgments appellant’s assignor had purchased. A former decree in the case, in favor of appellees, was reversed by this court at the March term, 1882, upon the ground that the terms upon which the decree granted relief were incorrect. (See Gage v. Busse, 102 Ill. 592.) The cause was remanded, and a second decree entered by the Superior Court, which was affirmed by the Appellate Court for the First District, and the present appeal taken.

Appellant makes two points against the decree, the first of which is, that the decree is not in conformity with the former opinion of this court in respect of the terms of relief. It was said in that opinion: “The decree ought to have been, that complainants be allowed to redeem from the sale by paying the redemption money allowed by the statute, had the judgment and sale been for the proper amount of taxes, which can be readily ascertained by deducting the erroneous tax from the amount of the judgment. ” By section 210, chapter 120, of the Revised Statutes of 1874, page 892, the right of redemption must be exercised (except in the case of persons under disability) within two years from the date of the sale, and the party redeeming is required to pay the amount for which the land was sold, and a penalty of twenty-five percent for each six months of the two years after the date of the sale, and all taxes paid by the purchaser within two years from the sale, with ten per cent interest thereon. This is “the redemption money allowed by the statute, ” and the decree, after deduction of the illegal taxes, requires the payment of all this, as so provided by the statute, and requires, in addition, the payment of six per cent interest on such redemption money from the expiration of the time of redemption fixed by the statute, and also payment of all taxes paid by appellant after the two years from the sales, with six percent interest thereon. We are unable to see wherein there is want of conformity with the former opinion in this decree. It was payment of “the redemption money allowed by the statute” that was to be paid, and this is decreed. The statute (except in the case of persons under disability). makes no provision for redemption after the expiration of two years from the sale. By section 210, above referred to, minor heirs, idiots, etc., are permitted to redeem after their disability is removed, upon the terms specified in that section, and the payment of ten per cent per annum on double the amount for which the land was sold, from and after the expiration of two years from the date of sale. It is supposed by appellant’s counsel that this was the redemption to which the former opinion referred, and it is claimed that ten per cent interest should have been allowed on double the amount for which the land was sold, from and after the expiration of two years from the date of sale. This is clearly a misapprehension of the language of that opinion. No persons under disability were involved in the ease, the decision was with respect to persons not under disability, and “the redemption money allowed by the statute, ” spoken of, had reference to the redemption money in the ease of persons not under disability.

The other point made by appellant is, that the judgment of the county court, under which appellant’s assignor purchased, is conclusive as to the legality of all taxes included therein,—that the judgment is res judicata, and can not be collaterally attacked. The owners of the property did not appear and file objections to the application for judgment in the county'court. The decisions of this court have been such in number, and upon such due consideration, some of them, that a judgment for taxes, where there was no personal appearance, is not conclusive, and is subject to collateral attack, that we must adhere thereto as the settled doctrine of the court. See McLaughlin v. Thompson, 55 Ill. 249; Belleville Nail Co. v. People, 98 id. 399; Gage v. Bailey, 102 id. 11; Stamposki v. Stanley, 109 id. 210; Riverside Co. v. Howell, 113 id. 256.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    Thomas Pool et al. v. Henrietta Breese.

      Filed at Ottawa November 14, 1885.

    1. TiiiAL EE NOTO—on appeal—effect as vacating judgment appealed from. The effect of an appeal from an inferior to a superior tribunal, when the latter is required to try the question appealed from de novo, and render thereon such decision as in its opinion should be rendered under the law and the evidence, is to vacate and set aside the decision of the inferior tribunal. This applies to appeals from the orders of commissioners of highways on petition to lay out or vacate roads.
    • 2. Highways—appeal from commissioners of highways to three supervisors—grounds of appeal—powers of the commissioners pending the appeal. An appeal from the decision of commissioners of highways in respect to laying out, etc., of roads, may be taken on grounds affecting the jurisdiction of the commissioners and going to the validity of the entire proceedings, or it may be taken on grounds affecting the appellant, only. In the latter case ' the appeal will suspend only so much of the order of the commissioners as affects the party appealing.
    3. Even the power to vacate proceedings to lay out a highway, conferred on the commissioners of highwaj’s by section 87 of the Boad law, has been held to be suspended until the expiration of one year from the decision of the supervisors, on appeal,—that is, until the expiration of the time during which, by section 100, their decision in regard to laying out, altering, widening or vacating the road; or in refusing to do the same, is made final.
    4. Where the grounds of appeal from an order laying out-a highway go to the jurisdiction of the commissioners of highways, to the legality of their proceedings, and their failure to attempt to agree with the land owners in respect to damages, and to give notice of their application to have the damages assessed, and is also that the assessment of damages' to the land owner's is unjust, unfair and unlawful, its effect, though taken by only two land owners, is to vacate and set aside the entire order and decision of the commissioners as an entirety, and until the appeal is decided the commissioners have no authority of law to do any act to lay out or open any part of the road under their order.
    5. During the pendency of an appeal from a decision of commissioners of highways laying out a road, to three supervisors, upon grounds affecting the validity of the order to lay out and open the road as an entirety, and until a final order is made and filed by the supervisors as required by the statute, neither the commissioners of highways nor those acting under them can lawfully do any act to open any part of the road, even over the lands of land owners who did not join in the appeal, although the appellants may be es-topped by their acts from afterward questioning the existence of the road as a legally laid out highway.
    6. Same—action of the supervisors on an appeal—of the proper filing of the order to establish a road. The making of an order for the laying out and opening of a public road by the supervisors, on appeal, and filing the same with a justice of the peace of the town, is not a compliance with the statute requiring the supervisors to file their order in the office of the town clerk, and the filing of a copy of such order by the justice of the peace with the town clerk will not cure the omission. Such order affords no justification for an-entry upon the lands of a party and opening the proposed road. Compliance with the statute in proceedings to lay out roads, and in respect to the making and filing of the order authorizing the laying out and opening of the same, is mandatory.

      7. Same—estoppel to deny the legal existence of highway—by joining in appeal, etc. Where a party, after appealing from an order of the commissioners' of highways for the laying out of a public road upon grounds going to the validity of the entire proceeding, and before the appeal was decided, agreed with the commissioners as to his damages for the right of way over his premises, and accepted the same, it was held, that this estopped him from denying the existence of the highway, no matter whether it was a lawful existence .or not, but could not have that effect upon other persons over whose land the alleged road ran, and who did not join in the appeal.
    8. Same—necessity of having authority to enter upon premises to open a highway—burden of proof. Neither the commissioners of highways, nor others representing the public, have the right to enter the premises of another to lay out and open a highway, unless they can show a valid order of the commissioners conferring that authority, or a like order of the supervisors in case of an appeal to them. The burden is upon them to show, affirmatively, the existence of such order. Without it their acts are a nullity, and they become trespassers as to all persons not estopped by some act from denying the legal existence of such highway.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. George W. Stipp, Judge, presiding.
    This was a hill, filed by the appellee, to enjoin the appellants from opening what was claimed a newly laid out highway, they being commissioners of highways. A- temporary injunction was granted, but on final hearing it was dissolved and the bill dismissed. Upon the appeal of the complainant in the bill, the decree of the circuit court was reversed, and the cause remanded, with directions to enter a decree making the injunction perpetual. From this judgment the defendants in the bill prosecute this appeal.
    Mr. M. T. Moloney, for the appellants:
    From sections 98, 99 and 101 of the Boad law of 1879, an appeal is allowed for the benefit of the party who prosecutes it. The parties taking it could, at any time, abandon or waive it, and thus have the order appealed from in full force. Section 88 of the same act requires the commissioners to file their final order in the town clerk’s office within ten days after its date, and this may be conceded as mandatory. By section 99 the supervisors, on appeal, are given the same powers and authority as are conferred on the commissioners, and section 101 requires the supervisors to make a report of their proceedings and decisions in like manner as required by the commissioners. It does not say “within the same time,” and if it so means it may be treated as directory. Wheeler v. Chicago, 24 Ill. 107; Pond v. Negus, 3 Mass. 000; Gott v. Eves, 12 Conn. 243; Whalin v. Macomb, 76 Ill. 52; Town v. Town of Blackberry, 29 id. 140; Allison v. Commissioners, 54 id. 170.
    It is objected that the original order of the supervisors has never yet been filed, but only a certified copy thereof. In a collateral proceeding like this, mere errors not affecting the jurisdiction of the supervisors can not be availed of to defeat their order. Henline v. People, 81 Ill. 269; Hankins v. Galloway, 88 id. 156.
    The filing with the town clerk of a certified copy of the order of the supervisors, in equity, is such a substantial compliance with the law as will sustain the proceedings of the supervisors. The failure to file the final order of the supervisors can. not work a discontinuance. At most it leaves the appeal still pending, and the fact that the appellants accepted their damages; operates as an abandonment of the appeal, leaving the order of the commissioners in full force.
    Messrs. Richolson & Gentleman, for the appellee:
    The burden of proof to justify the threatened invasion of appellee’s rights, rests upon appellants to show, from the record, the locus in quo is a highway. Green v. Green, 34 Ill. 236; Wragg v. Penn Township, 94 id. 25 ; McIntyre v. Storey, 80 id. 129.
    By the appeal the supervisors acquired jurisdiction, and became invested with all the powers of the commissioners. Allison v. Commissioners, 54 Ill. 172; Wood v. Commissioners, 62 id. 395.
    Where the property of one is to be divested by proceedings against his will, a strict compliance must be had with all the provisions of law. Supervisors v. Magoon, 109 Ill. 150.
    • All questions as to the legality of proceedings to take private property Will be considered in cases where the issues are the same as in this case. Commissioners v. Supervisors, 53 Ill. 320; Anderson v. Wood, 80 id. 15 ; McPherson v. Holdridge, 24 id. 38; Hankins v. Galloway, 88 id. 156.
    The existence of a highway can be shown only by the record. When an appeal has been taken from the order of the commissioners to three supervisors of the county, the record of the proceedings of the supervisors, and their final order, properly certified, determine as to whether or not a legal highway exists. Frizell v. Rogers, 82 Ill. 109; Hankins v. Galloway, 88 id. 105; Commissioners v. Barry, 66 id. 499; McIntyre v. Storey, 80 id. 131; Owens v. Crossett, 105 id. 354; Wood v. Commissioners, 62 id. 395; Commissioners v. Durham, 43 id. 90; Hyslop v. Finch, 98 id. 183; Commissioners v. Harper, 38 id. 103; Keech v. People, 22 id. 482; Corley v. Kennedy, 38 id. 109; Tower v. Pitstick, 55 id. 117.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The questions in this case arise under the provisions of the Boad and Bridge act, in force July 1, 1879. (Laws of 1879, p. 258, et seq.) By section 98 of that act, “any person interested in the decision qji the commissioners of highways in determining to or in refusing to lay out, alter, widen or vacate anyroad, * * * or in the verdict of any jury,” in “assessing damages in opening, altering * * * any road, may appeal from such decision to three supervisors "of the county. ” Notice is required to be given within ten days, and a written petition must be presented to a justice of the peace, asking for the appeal, and stating on what grounds it is taken. The 99th section provides, that “upon such appeal the said supervisors shall have the. same power and authority that is by this act conferred on the commissioners of highways, not only in regard to the laying out, altering, widening or vacating any road, but * * * to cause a jury to be called to assess damages.” And by section 100 it is declared that the decision of such supervisors shall be final in regard to laying out, altering, widening or vacating such road, or in refusing to do the same, for one year after such decision.

Dominy and Lewis, who have appealed, stated in their petition praying an appeal, as the grounds upon which it was taken, the following: “First, the commissioners did not proceed according to law, nor take any of the steps required by the statute in such cases, to lay out said road, or give the proper notice, and therefore did not acquire jurisdiction of all the persons damaged by the laying out of such road, or the persons whose lands would be taken, nor did they acquire jurisdiction of the subject matter of said proceedings, and therefore had no authority to lay out said proposed road; second, said commissioners did not, twenty days after their first meeting to hear reasons for and against laying out said road, publicly announce and indorse on the petition a memorandum of such decision; third, said commissioners did not, before proceeding to ascertain and assess damages, cause a survey and plat of such of the road to be made, giving the courses and distances, and specifying the lands over which it should be laid out, but assessed the damages without such survey; fourth, after the damages were assessed they made a survey and drove stakes, whereby the original half-section line established by the government survey was changed twelve feet, wherefore damages were assessed to the owners by the government survey, and not with reference to the line fixed upon the ground by the new survey; fifth, the commissioners did not make any effort to agree with the land owners in regard to damages, nor did they cause the land owners to be .notified that they would apply to some justice, giving the time and place when and where, to have a jury impaneled to assess damages; sixth, the assessment of the damages to the land owners ivas unjust, unfair and unlawful; seventh, the proposed road is unnecessary, and the public do not require it, and is an unreasonable burden upon the tax-payers of the township.”

The effect of an appeal from an inferior to a superior tribunal, where, as here, the superior tribunal is required to try the questions appealed ele novo, and render thereon such decision as in its opinion should be rendered under the law and the evidence, is to vacate and set aside the decision of the inferior tribunal. (See Freeman on Judgments, sec. 328, and cases cited in note.) In effect this rule has been applied by this court to proceedings like the present. (Allison et al. v. Com’rs of Highways, 54 Ill. 170; and see, also, McPherson et al. v. Holdridge, 24 id. 38.) Even the power to vacate the proceeding, conferred upon the commissioners of highways by the S7th section of the act, has been held to be suspended until the expiration of one year from the making of the order by the supervisors,—that is, until the expiration of the time during which, by the 100th section, their decision in regard to laying out, altering, widening or vacating the road, or in refusing to do the same, is made final.

It will be observed that the appeal may be taken on grounds affecting the jurisdiction of the commissioners and going to the validity of the entire proceedings, or it may be taken on grounds affecting the appellant only; and in the latter case the appeal will obviously suspend only so much of the order of the commissioners of highways as affects the appellant. In the present ease, the first, second, third, fourth, fifth and sixth grounds of appeal plainly present questions affecting the jurisdiction of the commissioners to take and condemn every part of the right of way, as against each and all of the respective.land owners; and the seventh presents a question in which every tax-payer in the township has a like interest. If either the first, second, third or seventh grounds of appeal had been sustained, (waiving all questions that might arise upon sustaining either or all of the others,) the supervisors must have refused the prayer of the petition; and such refusal is, as has been seen, by the express terms of the statute, made to be binding and conclusive upon the commissioners, so that they can not thereafter proceed to lay out and open the road under their former order. Whether this result should be produced by the appeal of one or all of the land owners could not be material, for the scope and effect 'of the order is not, in the least, made to depend upon that question. .

Conceding, then, this to be so, and that, as we have before herein said, the appeal vacates the order appealed from, it would seem it must follow, upon like principle, that where there is an appeal, like the present, upon grounds affecting the validity of the order to lay out and open the road as an entirety, while it is pending, and until a final order is made and filed by the supervisors as required by the statute, neither the commissioners of highways nor others can lawfully do any act to lay out or open the highway under or by virtue of the order of the commissioners from which the appeal is taken. It is doubtless true that Mrs. Breese, not being a party to this appeal, is not bound by it,—that is to say, that she can not be held to have waived or to be estopped by it in respect of rights as to which an appellant would be held to be affected by waiver or estoppel. But we have seen that the commissioners are bound by it. They, nor others representing the public, have power to enter upon the land of Mrs. Breese to lay out and open a highway, unless they can show a valid order of the commissioners of highways conferring that authority, or a like order of three supervisors, in case of appeal from the order of the commissioners. The burden is upon them to show, affirmatively, the existence of the order. Without it their acts are a nullity, and they are trespassers. The question is not what rights she derives from the appeal, but, how does the appeal affect the order under which the commissioners attempt to justify.

Assuming that we are thus far correct, the further question arises and is discussed in the arguments before us, whether Mrs. Breese is not concluded, as to the record under which the commissioners seek to justify, by an estoppel. The estoppel is claimed to arise thus: Dominy and Lewis alone appealed from the order of the commissioners of highways. Their appeal was taken on the 11th of August, 1882, and the only action that it is pretended was ever taken thereon by the supervisors to whom the appeal was taken, was on the 2oth of the same month. On the 2d of July, 1883, ten months and seven days after this pretended action of the supervisors, the commissioners of highways paid Dominy and Lewis, each, a sum of money, which each accepted in satisfaction of the damages sustained and to be sustained by him in consequence of the laying out and opening of this highway. This could not affect the appeal, nor any action thereunder, of the supervisors, for the obvious reason that it was long subsequent. Whatever effect the appeal or the order of the supervisors thereon could produce, had been produced before that time. If the appeal, vacated the order of the commissioners, it had been vacated, and the supervisors had either made an order de novo, or had neglected to do so, and the rights of the commissioners and others, with reference to such action or non-action, had become fixed before that time. The estoppel was personal to Dominy and Lewis, and to their privies, only. By accepting the money they are precluded from denying that it was lawfully paid to them. They admit, by that act, the existence of the highway, whether it be true or not that it lawfully existed before. But as to others than them or their privies, whose mouths are not thus closed, the commissioners must show affirmatively a record justifying their acts,—and this estoppel is not a record. Filing the order of the supervisors with the justice of the peace was not a compliance with the statute, and the act of the justice of the peace in filing the copy with the town clerk was entirely extra-judicial. With the wisdom of the policy adopted by the statute in this respect, we have nothing to do. Compliance with the law in proceedings of this kind, and in respect of the making and filing of the order authorizing the opening and laying out of the highway, is mandatory. Hyslop et al. v. Finch, 99 Ill. 183, and authorities there cited.

Inasmuch as no order authorizing the opening of the highway has ever been filed by the supervisors in the office of the town clerk, the commissioners of highways fail to show authority to open the highway across the land of Mrs. Breese; and it would moreover seem, on the authority of Commissioners v. Barry, 66 Ill. 496, that jurisdiction to hereafter make such order is lost.

We perceive no cause to disagree with the Appellate Court •in the conclusion which it reached, and we concur in the views expressed in the opinion filed in that court. Its judgment must therefore be affirmed.

Judgment affirmed.