text:
    Frederick Silgar v. The People of the State of Illinois.

      Filed at Mt. Vernon November 16, 1883.

    Criminal law—whether murder, or only manslaughter. On tlie trial of a person upon tbe charge of murder, and of which he was convicted, it appeared the person who was killed had entered upon the premises of the prisoner in a menacing manner, and during the quarrel which ensued, and which he commenced, he was killed. The circumstances attending the difficulty and the result, as detailed in the opinion of the court, were held not to justify a conviction for murder, but, at most, would make a case of manslaughter.
    Writ of Error to the Circuit Court of Jackson county; the Hon. 0. A. Harker, Judge, presiding.
    Mr. Green P. Harben, and Mr. H. H. Howe, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
    Mr. Benj. W. Moore, and Mr. Wm. A. Schwartz, also for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the August term, 1882, of the Jackson county circuit court, Frederick (alias Fritz) Silgar was tried and convicted for the murder of John Eararth, the jury fixing his punishment at death. Motions for a new trial and in arrest of judgment having been severally overruled, he was duly sentenced by the court to be hung, in pursuance of the verdict. The accused brings the record here for review, and has assigned thereon various reasons why the judgment and sentence should be reversed, and the cause submitted to another Wi-y.

The homicide occurred on the premises of the accused, near the hour of five o’clock of the afternoon on the 7th of May, 1882, in an altercation between the deceased and the prisoner, which was witnessed by but two persons outside of the parties engaged in it, namely, Charles Woolsey and Joseph W. Blaylock,—the former a lad not quite fourteen years of age, being, as he claims, most of the time within a few yards of the parties, and the latter a man of mature age, though of defective hearing, and some two hundred and twenty-five yards distant at the time of the occurrence. The parties were evidently under á high state of excitement, for other witnesses, at a distance of from four to six hundred yards off, swear that their attention was attracted by the quarrel, and that they could distinctly recognize the voices of two persons engaged in it. The accused and deceased were both Germans, and much of the conversation between .them during the altercation was in the German language, and was not understood by either of the two witnesses who claim to have heard and seen the difficulty.

The parties were near neighbors, and we infer had been for several years past, and the evidence clearly shows that their relations were not at all of a friendly character. Catherine Cutrell, a witness for the People, testifies that some three or four years ago the accused told her that if Eararth did not let him alone he would kill him; that he had repeated this threat several times since, the last time being about six months ago. Mathew Murray, another witness for the People, says: “I had a' conversation with the defendant last spring, shortly after I returned from the penitentiary. He (referring to the accused) said, if John Eararth ever bothered him he was going to kill him.” To the same effect is the testimony of Madison Peppers. He says: “About three or four years ago I heard the prisoner say he would kill Eararth some time. They had been quarreling. Eararth had accused the prisoner of stealing his garden vegetables. ” On the other hand, Charles Woolsey, the same witness heretofore mentioned, swears that some time in the fall before the killing Eararth exhibited to witness and Charles Cutrell, at the house of Eararth, a pole about six feet long, split at one end, with the blade of a butcher knife about seven inches long inserted and fastened in the split, With which he said he was going “to' cut Fritz Silgar’s heart out if he fooled with him any more. ” Martin White testifies that Eararth, about six months before the killing, showed him the same instrument described by Woolsey, and said “that he intended to cut Fritz Silgar’s head off with it.”

Such were the relations of the parties when the deceased and Charles Woolsey, the main prosecuting witness, entered the field of the prisoner, where he was plowing, as heretofore stated. The circumstances which led them to go there, and the purpose or object with which they went, so far as the evidence discloses, are in substance as follows: Some time in the day of the homicide, the wife of Silgar informed Margaret Watkins, and her son, Charles Woolsey, that her husband had driven Eararth’s horses out of his field and over the river, and requested them to inform him of that fact. Accordingly, in the evening of that day, they started to the house of Eararth, as the mother says, for the sole purpose of delivering this message, but as the son swears, for the purpose, chiefly, of borrowing some single-trees. They found Eararth some two' hundred yards from his house, engaged in splitting rails. Young Woolsey, in giving an account of their interview, says: “I told him that Fritz’s wife had told me to tell him that Fritz had driven his horses out of the field and across the river. John said that he would go down and s.ee about it, and if he did not find his horses he would sue Fritz the next day. He wanted me to go with him and show him where the horses had crossed the river, and I went with him. When we found John he was barefooted, and before starting to Fritz’s field we went to John’s house, and John got his shoes and put them on, and picked up a hickory stick about two and a half or three feet long, which was lying beside the fire-place, and then we started down to Fritz Silgar’s field, where he was plowing. We crossed the fence .and went np to where Fritz was laying off corn rows. ” The mother, in her account of the interview, says: “I told him (referring to Eararth) what Mrs. Silgar had said, and he said he would go right down and see what made Fritz do so. He wanted my boy, Charley, to go along to show him where the horses had crossed, but I objected to Charley going, as I was afraid he would do something to Fritz or Fritz to him, and that my boy might get hurt, and I would not let Charley go until John had promised he would not raise any quarrel with Fritz. They then started to John’s house, and I started home.”

Resuming the narrative of young Woolsey, which closed with the statement that he and Eararth crossed the fence and went into the field where Silgar was laying off corn rows, he proceeds to say: “I heard the conversation they had, but did not understand it all, as most of the time they spoke German. John said, ‘Fritz, what made you drive my horses over the river?’ Fritz said, ‘They were in my timothy.’ Then they talked excitedly in German, and I could not understand -what they said. I walked on towards the fence, past a walnut tree, then down the bluff a little, and then came back to the fence and waited, while they talked, and watched them. John started off, and then said, ‘I shall look for my horses this evening, and if I don’t find them I shall sue you to-morrow.’ John was then walking away from Fritz towards me, and was about forty-five yards from Fritz. Fritz said, ‘I'll kill you so dead you can’t find your horses, damn you,’ and leaving his plow he picked up a piece of fence rail, and he run up towards the walnut tree, where John was. I stood with one foot over the fence. I saw Fritz strike John three times with the stick. The first lick John dropped to his knees, and seemed to throw up his hands to ward off the blow, and said ‘enough.’ The next lick John fell down flat. I got scared, and then started across the river.” On cross-examination the witness is shown a stick, described in the record aa “a heavy hickory club, about.two and a half or three feet long, burned at one end, ” which he identifies as the stick which Eararth took from his house with him, and he further states that Eararth was not in the habit of using a walking stick,—that he had never seen him use one, and that he was not a cripple. He also states, that when Fritz and John commenced talking, he was afraid, and that he walked on by the walnut tree towards the high bank; that he left them behind him, and that they were talking just tolerably loud; that Eararth threw down his stick before he was struck.

Blaylock, in giving an account of the affair, says: “I was standing near a large tree across the field, and east from the little walnut tree in Fritz Silgar’s field, and about one hundred yards away, I guess. I saw John Eararth and a little boy come into the field where Fritz was. Eararth had in his hand a stick or walking cane. He came up to where Fritz was, and commenced a conversation with him about his horses. They talked plenty loud enough for me to hear what was said. John said, ‘What did you drive my horses over the creek for?’ I heard Fritz tell John that he would kill him so dead he would never find his horses. John walked on past the walnut tree, and Fritz followed up to the tree. When he said he would kill him so dead that he never would find his horses, John turned around and started back, and Fritz jumped to one side, and grabbed up a club and struck him. John threw up his hands, and said he had enough. Fritz struck one or two more licks, and John fell to the ground. John threw down the stick before he was struck. When John fell, Fritz said something in German I did not understand, and then he took some water out of a bucket and gave him. When I saw this I hurried away to get some other persons. ” This witness admits; on cross-examination, that he is not on good terms with the accused, and also that he supposed, at the time, the deceased was Mart White.

Mrs. Watkins further states in her testimony, that after parting with her son, Charley, and Eararth, as they started for Silgor’s, she had just got home when she heard “a loud noise, as of two persons, in the direction of Fritz’s,” and upon calling Elias Cutrell’s attention to it they both started there on a run; that on getting within about thirty steps of the walnut tree in the field, Fritz ran to it and picked up the club which Eararth had brought with him, and turned to her and Cutrell, “twirling it in his hand, ” and speaking excitedly in German; that she became alarmed, and ran away; that on her return she found the body of Eararth in the corner of the fence, but a few feet from the walnut tree.

Elias Cutrell, who accompanied Mrs. Watkins over to Silgar’s, says, that when he got within observing distance Silgar was sitting on the ground trying to give Eararth water to drink, or was washing his head,—he could not tell which; that when he went up, a short time afterwards, he found Eararth dead.

Dr. Davis, who examined the body of Eararth after his death, testified that he found two wounds on the head of the deceased, and one on his left wrist; that the skull was fractured in one place only; that this wo.und was sufficient to cause death.

John Stephenson testifies that he saw the body of John Eararth on the 7th of May, 1882, against the fence in the prisoner’s field; that it looked like it had been dragged up to the fence; that the creek was just outside the fence.

Martin White testified that the bank of the river for forty or fifty yards south, and sixty or seventy-five yards north, is very steep,—almost perpendicular; that it might be possible for a person to run down the bank without getting into the water, but not probable.

' Thomas Logan testified that he had examined and measured distances in the field of the prisoner; that from the walnut tree to the fence on the west side is four steps, and from the tree to where the defendant’s horse and plow stood when deceasedmame into the field is forty-five yards; that the bank'near the walnut tree is almost perpendicular for about fifty yards south and seventy-five yards north; that it would be impossible for any one to see what was going on in the level of the field after going down the bank.

Martin White further testifies that the character of the deceased for peaceableness was bad; that he was very quarrelsome, abusive and high tempered, and in this statement he is sustained by other witnesses.

The account of the difficulty given by the accused, in very broken English, is in substance as follows: That on the '¡fth of May, 18S2, near sundown, while laying off corn rows in his field, he saw John Eararth, accompanied by a boy, coming into the field with a club in his hand, (being the same identified by Charles Woolsey,) and that when he came up he said, ‘What did you drive my horses over the river for ? ’ when he replied that he had been bothered enough with having his fence torn down and the horses in his timothy; that the deceased thereupon told him if he did not bring his horses back he would beat him over his head till his eyes were out; that he told him he would not bring them back, to which the deceased replied that he would beat him over the head till he was dead, and walked on past the walnut tree; that the accused then stopped his plow, and went under the walnut tree to get a drink of water, where he had some in a bucket; that when he stooped to get the water he saw. the deceased coming toward him, with a long stick in one hand and the stick he had brought with him in the other, saying, at the time, ‘Eritz, I will kill you; ’ that he, the defendant, thereupon jumped to the fence and grabbed a piece of three-cornered paling, and as he did so the deceased hit him on the shoulder with the pole, and then raised the short stick in his left hand as if he was going to throw it, when the accused struck at him to knock the club out of his hand, and in doing so hit his left hand and also his head; that the deceased had his left hand raised, as if in the a'et of throwing, when this lick was given; that the accused then struck him again over the head, and he fell, and the club beside him; that when he saw he had hurt him he picked him up, and gave him some water to’drink, and washed his head, telling him he was sorry for what had happened,—that he did not want to hurt him, but that he had forced him to do it. He further states, that when the fuss commenced Charles Woolsey ran out of the field and down the bank, and could not have seen all that took place, and that the most that was said between them was in German. He also states that Mart White had told him that the deceased had fixed up a knife to kill him with. Moreover, that he had, on a previous occasion, concealed himself behind a tree on the roadside, where witness was passing with his team, for the purpose of assaulting him, but that witness, on discovering him, drove by with such rapidity he did not accomplish his purpose. The prosecution offered some general evidence in rebuttal, tending to impeach the general reputation of the accused for truth.

The foregoing is, in substance, all the evidence in the case, and we may say, that under a deep sense - of the responsibility we owe to the State, as well as the prisoner, whose life is involved in the issue, we have faithfully and maturely considered it with whatever of skill or ability we possess, with an earnest desire and purpose to ascertain the real facts •and true merits of the controversy which terminated with such fatal results. We have been met, however, at the very threshold of our inquiries, with the conceded fact, if we leave out of view the account which the prisoner himself gives of the affair, that the most that was said on the occasion is not, and never can be, known, by reason of having been spoken in a language not understood by either of the persons who witnessed the affray and quarrel between them. For aught that appears, the language of the deceased may have been of the most offensive and provoking character, or it may, as testified to by the accused, have consisted of threats against the prisoner’s life, which, in view of the existing relations between the parties, may have well aroused in the-mind of the accused the most serious apprehensions of danger; and if the taking of the life of the deceased was induced by either of these causes, and was not done in wantonness, or from a mere spirit of revenge, it is clear the killing would not be murder. That the parties at the time were laboring under a high state of excitement is conclusively shown, as already seen, by the almost unprecedented high tone of voice in which they were speaking. Both their voices were distinctly heard by Elias Cutrell and Mrs. Watkins at the latter’s house, which the witnesses fix at from four to six hundred yards from the place of the affray, and this must have been immediately before the killing, for, as already stated, Mrs. Watkins swears that upon hearing the quarrel she and Cutrell started in a run to the place, and he swears that when he got in sight, about two hundred yards from the parties, they were down on the ground, and that Silgor seemed to be giving the deceased water, or was bathing his head, so that, at most, but a minute or two could have intervened between the loud quarreling and the giving of the fatal blow. Indeed, neither young Woolsey nor Blaylock, who witnessed the affair, claims there was any intermission in the quarrel. According to all accounts given of it, it must have been a very hasty affair.

But waiving this embarrassing feature of the ease for the present, and assuming that in the consideration of it it must be treated just as though what was seen and understood by the witnesses was all there was of it, it is clear the conviction can not be sustained, if it can be sustained at all, except upon the hypothesis young Woolsey’s version of it is the correct one. In several important particulars Woolsey, Blaylock and the prisoner himself substantially agree, and it is important that the extent of this agreement should be distinctly understood and kept in view in considering the real and vital points of difference in their statements. Without going into the details, we may say, in general terms, their several -statements, when taken in connection with the uncontradicted testimony of other witnesses, fully establish the following facts: The deceased, being armed with a bludgeon, between five and six o’clock in the afternoon of the 7th of May, 1882, accompanied by Charles Woolsey,. entered the field of the accused, where he was plowing; that the latter, upon their coming up, stopped his team about forty-five yards from, a walnut tree standing near the fence on the west side of the field, under which the defendant at the time had a bucket of drinking water; that a quarrel at once ensued between the prisoner and the deceased, the latter commencing it; that upon the commencement of the quarrel young Woolsey became frightened, jjassed on by the walnut tree to the fence, crossed it, and ran down the river bank; that the banks at this point are almost' perpendicular, and continue so fifty yards south and seventy-five yards north, so that it would have been highly improbable, if not impossible, for him to have got down the banks within the distances specified without getting into the river;.that after the quarrel had proceeded for some time both parties moved in the direction of, and as far as to, the .walnut tree, the deceased going in advance and the accused following; that while at or near the tree the accused seized a stick or bludgeon of some kind, with which he struck the deceased as many as two blows, and, as claimed by Woolsey, three, which caused his death; that upon his body were found three wounds, two on the head and one upon the left wrist, only one of the blows causing a fracture of the skull.

So far there is no controversy as to the facts. It being conceded that the killing occurred at the walnut tree, and that Silgar on leaving his plow only went to that tree, it follows that if Eararth, who immediately preceded him, passed .by and beyond the tree, as Silgar and Blaylock both swear he did, he must, at some time between that and the assault upon him, have returned to the tree, which is entirely in harmony with Silgar’s account of the transaction, though this important fact is not at all noticed by Woolsey in his testimony, and he may therefore be regarded as impliedly contradicting it. Silgar says, as will be remembered, that Eararth, on threatening to beat him over the head, etc., walked off, passing by and beyond the walnut tree, and that he (Silgar) then left his plow and went to the tree to get some water, and that while there he discovered Eararth coming towards him in a threatening attitude, whereupon he (the accused) sprang and seized a stick, etc.

Leaving out of view the statement that Eararth was armed in the manner claimed by Silgar, the latter’s account of the affair is strongly corroborated by Blaylock. He says: “John walked on past the walnut tree, and Eritz followed up to the tree. When he said that he would kill him so dead that he never v,Tould find his horses, John turned around and started back, and Eritz jumped to one side and grabbed up a club and struck him.” How strikingly these two accounts agree in this, perhaps the most important, circumstance connected with the ease, and yet there is no express contradiction of it by any one. The expressions “jumped, ” and “grabbed,” as used by Blaylock, are significant in this connection. If the deceased, as is claimed by the accused, was at this instant armed with two deadly weapons, and approaching him in a threatening attitude, we should expect that his action under such circumstances, in availing himself of a defensive weapon, would be well expressed by the words “jumped” and “grabbed.” But if, on the other hand, the deceased was standing quietly by the walnut tree, as is to be inferred from the testimony of Woolsey, it is not reasonable to suppose there would be any occasion to use these terms in describing the action of the accused induced or inspired by such circumstances.

There is another fact corroborative of Silgar’s statement as to the circumstances of the assault which we regard as of some significance. It will be remembered he claims that his first lick was aimed at the left hand or arm of the deceased, which was elevated as if he was in the act of throwing a club at him, for the purpose of disarming him and warding off the blow. Subsequently, upon the post mortem examination, it turns out there was a wound on the left hand or wrist', which corresponded with the blow which the accused says he gave him.

There are other favorable circumstances which tend to negative the hypothesis that there was any deliberate purpose on the part of the accused to take life. When the fatal blow was given, and his victim fell prostrate at his feet, instead of leaving him to his fate without any apparent remorse or sympathy,—as most men do who deliberately and in cold blood take the life of a fellow being,—he at once commenced deploring and interposing excuses for the act, and applying such simple remedies as were within his power to restore him. Of course circumstances of this character are by no means conclusive, for where the killing is deliberate, and without any considerable provocation, such evidences of a returning sense of humanity and consciousness of responsibility can not avail. But where there are extenuating circumstances, as there manifestly are in this case, such indications are not to be disregarded.

Even accepting young Woolsey’s version of the affair without qualification, and rejecting all that is said by both Blaylock and the accused, which, as we have already seen, contradicts him in some vital particulars, the unquestioned facts are, that the accused had been injured and vexed by the horses of the deceased breaking into his meadow. The deceased had deliberately prepared an instrument of the most deadly character, with which, he declared on several occasions, to different persons, he intended to take the life of the prisoner, and these threats were communicated to him. Thus matters stood when the deceased, armed with a deadly bludgeon, and evidently on no peaceable mission, entered the prisoner’s field. The claim that he was going there to learn why the accused had driven his horses over the river was a mere shallow pretense, for he was distinctly told by young Woolsey and his mother he had driven them over there because they had broken into his timothy. The real object of his mission was evidently to provoke a quarrel. His entry for such purpose was wholly unwarranted. He found the accused at home molesting no one, but quietly attending to his own business. He proceeded directly to him with stick in hand, and his only salutation was, “Why did you drive my horses over the river?” when at the same time he knew the reason fully as well as the prisoner did himself. The quarrel thus commenced by the deceased waxed warmer and'warmer, their voices growing louder and louder, until they were distinctly heard from four to six hundred yards, wdien finally the deceased moved off, saying if his horses were not found he would sue the accused on the following day, whereupon the accused, already under a high pressure of excitement, being goaded by this additional threat, seized a stick, the first thing within his reach, and felled his adversary to the ground, inflicting a wound causing his death,—and it is said this is murder. We do not think so. Viewing the case from this aspect, which is the most unfavorable one to the accused w'hich the evidence warrants, we regard it as a case of manslaughter, and nothing more. To say the least of it, there is such a manifest, well-founded doubt of his guilt of murder,, as the case is now presented, as to entitle liim to an acquittal on that charge, and the jury should, if they accepted young Woolsey’s version of the affair as the true ofie, have found the prisoner guilty of manslaughter, and not murder. Another trial of the cause may materially change the legal aspects of the case, which may be better or may be worse for the accused. We can not tell.

It is evident from the record before us, that if the examination of the witnesses had been more careful and exhaustive, many material facts might have been drawn out that would have thrown additional light on the subject, which would have relieved the case of much embarrassment. This is particularly true with respect to the cross-examination of the People’s witnesses, and affords an additional reason why we would be better satisfied to have the cause submitted to another jury. Had the conviction been for manslaughter only, we should not, at least on the merits, have interposed. In one aspect of the case, as we have already seen, the jury would have been warranted in returning a verdict for that offence; - but as the case is now presented there is no theory of it that will justify a conviction for murder.

The judgment, therefore, of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Walker : I concur in the reversal, but express no opinion on the evidence in the case. '


source: Caselaw Access Project

author: Per Cubiam:

license: Public Domain

text:
    Joseph Schertz v. Indianapolis, Bloomington and Western Railway Company.

      Filed at Springfield November 19, 1883.

    1. Baileoad—liability for injury to animals caused by fright. Under the act in relation to fencing and operating railroads, in force July 1, 1874, as amended by the act of 1879, where a party’s horse gets on the railroad track for want of such a fence as the law requires the company to erect and maintain to inclose its track and right of way, and while on the track is frightened either by the approaching train, or the sound of the bell or whistle, or all of them combined, and in its flight is injured, either by jumping a cattle guard, or by coming in contact with a wire fence, or both, and no negligence or willful misconduct is chargeable to the agents of the company in charge of the train at the time, and where no injury is done to the horse by any actual collision or contact with the engine or cars of the train, the railroad company will not be liable to the owner of the horse for such injury.
    2. Same—statute relative to fencing, construed. The true meaning of section 1 of “An act in relation to fencing and operating railroads,” as amended in 1879, is, that the injury to stock must be caused by actual collision,—that is, it must be done by the “agents, engines or cars” of the company, or the willful misconduct of the train men, to make the company liable.
    3. Consequential damages resulting from fright to animals, not caused by actual collision, or any negligence or willful misconduct on the part of the servants of the company, are not embraced in the statute.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. W. E. Gafen, for the appellant:
    One great object of the statute was to protect persons and property from tlio dangers of stock getting on the tracks of railroads, and the construction of it should be such as most effectually to carry out that object. The ground of recovery under this statute is the failure to build the fences required. ¡No other fault in such case need be shown. Cairo and St. Louis R. R. Co. v. Murray, 82 Ill. 76.

      While appellee continued to run its ears on the track through appellant’s field without fencing its track, it undertook, at its peril, that no harm should come to appellant’s horse for want of a proper fence. McCoy v. California P. R. R. Co. 40 Cal. 532.
    Messrs. Rowell & Hamilton, for the appellee:
    Under the statute, which is penal, and must be strictly and literally construed, the railroad company is only liable, in any event, for the damage which may be done by the “agents, engines or cars” of the railroad. If, then, it is clearly shown that the horse was not injured or struck by the “agents, engines or cars,” but ivas injured by being frightened by one passing train, and ran against some one else’s fence, the company could not be liable, unless its servants willfully and maliciously frightened the animal.
    This case is almost identical, in facts and circumstances, with P. and I. R. R. Co. v. Haskett, 10 Ind. 409, and the court there held the law to be just as the Appellate Court held it in this case. This decision was also strongly and expressly reaffirmed in Ohio and Mississippi Ry. Co. v. Cole, 41 Ind. 331; Indianapolis, Bloomington and Western Ry. Co. v. McBrown, 46 id. 229; B., P. and C. Ry. Co. v. Thomas, 60 id. 107; J., M. and I. R. R. Co. v. Downey, 61 id. 287. The case of Lafferty v. Hannibal and St. Joseph R. R. Co. 44 Mo. 291, is also exactly in point, and approves the Indiana eases. The same construction has also been given our statute by a court of high authority in this State, besides in this case. Chicago and Northwestern R. R. Co. v. Taylor, 8 Bradw. 108. See, also, Redfield on Railways, 493.
   Per Cubiam:

This action was brought by Joseph Sehertz, before a justice of the peace, against the Indianapolis, Bloomington and Western Railway Company, under section 1 of “An act in relation to fencing and operating railroads, ” in force July 1, 1874, as amended by the act in force July 1, 1879, to recover for injuries done to his horse by defendant operating its road. On the trial before the justice of the peace plaintiff recovered a judgment, and on the appeal of defendant to the circuit court, where a trial ele novo was had, plaintiff recovered a judgment in a like amount, with an attorney’s fee. That judgment, on the appeal of defendant, was reversed in the Appellate Court for the Third District, and final judgment rendered against plaintiff for costs. A majority of the judges of the Appellate Court having certified that the case, in their opinion, involves a question of law of such importance, on account of collateral interests, it should be passed upon by the Supreme Court, plaintiff brings the case to this court on appeal.

But a single question arises on the record, as the case now comes before this court, and that has relation to the true construction of section 1 of the act cited supra,. That statute provides, when the fences it requires shall be erected are not made as therein required, or when such fences are not kept in good repair, such railroad corporation shall b,e liable for all damages which may be done by the “agents, engines or cars” of such corporations, to cattle, horses, or other stock. On the hypothesis plaintiff’s horse got on the track of defendant’s road for want of such a fence as the law requires it to erect and maintain to inclose its track and right of way, and while on the track the horse was frightened either by the approaching train, or the sound of the bell or whistle, or all of them combined, and in its flight was injured, either by jumping a cattle guard, or by coming in contact with a wiro fence, or both, that no negligence or willful misconduct can be imputed to the agents of defendant in charge of the train at the time, and that no injury was done to the horse by any actual collision or contact with the engine or ears of the train, a majority of the court are of opinion the defendant is not liable. It is thought the true meaning of the section of the statute cited is, the injury must be caused by actual collision,—that is, it must have been done by the “agents, engines or cars” of defendant. Here no direct injury was done either by the “agents, engines or cars” of defendant,, nor by any willful misconduct of the train men.

In P. and I. R. R. Co. v. Haskett, 10 Ind. 409, in construing a statute on the same subject, which made the corporation liable for stock that should be “killed or injured by the ears or locomotives or other carriages of the company, ” the court held that these words, in their ordinary import, evidently involved the idea of actual collision, and hence would not cover a case of consequential damages. In Lafferty v. Hannibal and St. Joseph R. R. Co. 44 Mo. 291, it was admitted that at the place where the injury was done to plaintiff’s horse defendant’s railroad was not fenced as required by statute. The words of the statute cited in that case are identical with the words contained in the statute of this State on the same subject,—that is, in case of a failure . to comply with the provisions of the statute, the railroad corporation should be liable for all damages that might be done by its “agents, engines or cars.” In that ease, as in the one being considered, there was no collision, and the horse was not injured by any actual contact, and it was held the defendant corporation was not liable. It is thought the statute of this State admits of the same construction, and in a case where the stock is not killed or injured by any actual collision there is no liability on the railroad corporation. Consequential damages resulting from fright to animals, not caused by any negligence or willful misconduct on the part of the servants of the corporation, are not embraced in the statute.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    The People of the State of Illinois v. Emeline Reat et al.

      Filed at Springfield November 19, 1883.

    1. Taxes—assessor’s plat—requisites. A plat of lands, for the purpose of description for taxation, caused to be made by the assessor, is insufficient, under the law, if it does not purport to be made by the county surveyor by order of the assessor. If it purports to be made by A B, who, in the certificate thereto, adds to his name the word “surveyor,” and there is no proof that A B was county surveyor, it will not be a sufficient compliance with the statute to authorize judgment against lots therein for delinquent taxes.
    2. Same—sufficiency of description of lots in plat, for taxation. In a plat of lots in a piece of land, lot 8 appeared to be rectangular, and to extend across the entire plat, and to be bounded by four lines, the length of each of which is given, and its south boundary was not far from the south line of the plat, but how far from' such line did not appear, though it seemed to be parallel with the south line of the plat: Held, that such plat failed to show the location of the lot with precision.
    3. A plat of the subdivision of a tract- of land for the purpose of description of its parcels for taxation, is fatally insufficient, under the statute, if it fails to state the number of acres in the lots, and if from it neither the exact location nor the quantity can be known; and even where a lot is well located on a plat, a description of “part of” such lot is wholly indefinite and uncertain, and judgment for taxes thereon is properly refused.
    1. Same—back taxes need not be kept separately for each year. Where lands or lots have been forfeited for the non-payment of taxes for several successive j-ears, the statute does not require the back taxes to be stated separately for each year, but they may be grouped in bulle by the clerk in extending the same on the tax books, and by the collector in his application for judgment.
    Appeal from the County Court of Coles • county; the.Hon. J. R. Cunningham, Judge, presiding.
    Joseph E. Goar, county collector for the year 1881, of Coles county, reported on May 9, 1882, a list of lands and town lots as delinquent for taxes and special assessments, interest, and costs due thereon, with a petition for judgment and order of sale against said lands and town lots,, among which were some assessed in the name of E. 0. Beat. Emeline Beat, the widow of B. C. Beat, and others, filed objections .to the judgment being entered, claiming, mainly, that the plats are illegal, and that the notice for judgment for back taxes on forfeited lands does not show the 'amount of taxes due for each year separately. The county court sustained the objections, and the case was appealed to this court.
    Mr. A. 0. Eioelin, and Mr. S. M. Leitch, for the appellant :
    On application for judgment the presumption is that the assessor, and all persons connected with the revenue, did their duty. Durham v. People, 67 Ill. 414; Mix v. People, 86 id. 312.
    The collector’s report makes a prima facie case, and judgment should be rendered upon it, unless objectors show good cause.why it should not. If there are any valid objections why it should not, they must point them out and make them appear. Durham v. People, 67 Ill. 414; Buck v. People, 78 id. 560; Mix v. People, 86 id. 312.
    The plats are in substantial compliance with the statute. The number of the acres in each lot is given except as to lots 20, 21 and 22, and there the metes and bounds are given so that the number of acres can readily be computed. Irregularities not affecting the substantial justice of the taxes will not be considered. Rev. Stat. 1874, chap. 120, sec. 191; Fisher v. People, 84 Ill. 491; Edwards v. People, 88 id. 340 ; Beers et al. v. People, 83 id. 488; Thatcher v. People, 79 id. 597; Chiniquy v. People, 78 id. 570; Purrington et al. v. People, 79 id. 11.
    Notice which shows taxes from “1871 to 1881” on two lots, and from 1878 to 1881 on one lot, is sufficient. Hurd’s Stat. 1881, chap. 120, sec. 129, p. 914; Pike v. People, 84 Ill. 80; Durham v. People, 67 id. 414; Law v. People, 84 id. 142.

      Lands not being assessed in the names of objectors, they must show some interest in them before their objections will be considered. People v. Quick, 87 Ill. 435; Hosmer v. People, 96 id. 58.
    If their lands are described, but not with the certainty desired, they should tender taxes and demand a receipt, with proper description. Law v. People, 84 Ill. 142.
    Messrs. Adams & Stoddeet, for the appellees:
    When special proceedings are authorized by statute by which the estate of one man may be divested and transferred to another, every material provision of the.statute must be complied with. The owner has the right to insist upon a strict performance of all the material requirements. Sanderson v. City of LaSalle, 57 Ill. 445.
    The plats introduced in evidence do not show the location of each lot, nor the description of the tract or tracts of land of which such lot or lots are a part, nor the quantity of land in each lot. The statute authorizing a subdivision of land requires that this shall be done. Stat. 1858, pp. 1042, 1043, secs. 46, 47.
    A plat, to be in conformity with the statute, and valid, must be made by a county surveyor, and a certificate thereof made by him, and the plat containing the certificate must be filed and recorded in like manner as the plats of towns are required to be certified to and recorded. Stat. 1858, pp. 1042, 1043, sees. 46, 47; Thomas v. Eckard et al. 88 Ill. 593.
    An assessor is only authorized to make a plat or subdivision of land, under the statute, when such land can only be described by noting the metes and bounds. Stat. 1858, secs; 42, 43.
    South end of the east half of section 11, town 12 north, range 9 east, 37J acres, can be easily described without noting the metes and bounds.

      The assessor, in platting land, had no authority to plat in one plat or subdivision distinct tracts of lands that could not have been described in one tract on the assessor’s book for taxation. Stat. 1858, pp. 1042,1043, secs. 46, 47.
    Where back taxes are due, the collector’s report should show the amount due for each year, and not the aggregate amount due for a number of years. Mann v. People ex rel. 102 Ill. 346.
    . Mr. James McCartney, Attorney General, for the People, in reply.
   Mr. Justice Dickey

delivered the opinion of the Court: '

In People ex rel. v. Chicago and Alton R. R. Co. 96 Ill. 369, this court held that 'lands assessed for taxation must be described by reference to government surveys, or if land is divided into lots, then by reference to authenticated plats, and that a description of land as a lot of a given number in a known government survey does not designate any ascertainable part of the survey, unless a plat has been made and recorded by competent authority, which divides the survey into lots, and in making such plat the provisions of the statute must be complied with in all matters of substance. The lands in question in the case at bar are not designated in the delinquent list by any known government survey, but one tract .as lot 8, in “Assessor’s subdivision of the E. J of the S. E. I, and of the S. E. i of N. E. £, Sec. 11, T. 12 N., B. 9 E., 37J acres,” and one tract as part of lot 20, of “Assessor’s subdivision of west half of the south-east quarter” of same section, “1-j7^- acres,” and one tract as lot 22, of “Assessor’s subdivision of west half of the south-east quarter” of the same section, “15-j^-5g acres.” The lands assessed for taxation here not being described merely by reference to the government surveys, but by reference to supposed plats, it becomes- necessary to inquire whether the plats in question are properly authenticated, whether made and authenticated by competent authority, and whether, in making them, the provisions of the' statutes have been complied with in all matters of substance.

In the absence of proof, courts will presume that public officers have done their duty in compliance with law. In this case, however, proofs were introduced. The objectors, after showing their interest in the property, produced from the records in the recorder’s office two plats purporting to have been made and recorded, under the direction of the assessor, in the month of July, 1867; one purporting to be a survey and plat of the wést half of the south-east quarter of this section, and one purporting to be a' survey and plat of the east half of the south-east quarter, and of the south-east quarter of the north-east quarter of the same section. The only statute authorizing such plats for such purpose in force at that time, was the act of February 12, 1853. (Sess. Laws 1853, page 3.) It is there provided, that where land has, for purposes of sale, been divided into parcels less than one-sixteenth of a section, or otherwise so divided' that the parcels can not be described in the usual way, the owner may cause a plat to be made by the county surveyor, which shall particularly describe and set forth the lots or parcels, showing the location of each and the quantity of land in each, and certified by the surveyor, and recorded, as plats of towns are required to be certified and recorded; and the statute declares that lands described, for the purpose of taxation, in accordance with the description set forth in the plat aforesaid, shall be deemed a good description. The act then provides that in such case the assessor may require the owner to do so, and in default of the owner’s action, the assessor shall cause such survey to be made and recorded.

These plats, when produced, do not seem to meet the requirements of the statute. They do not purport to have been made by the county surveyor. They do purport to have been made by Daniel Parker, by the orders of the proper town assessor; and Daniel Parker, in the certificate to one of the plats, adds to his name the word “surveyor.” Nor was any proof offered tending to show that Parker was the county surveyor. Nor does either of the plats show the location of either of the lots in question. Lot 8, on the plat, appears to be rectangular, and to extend clear across the entire plat, and to be bounded by four lines, the length of each of which is given, and its south boundary is not far from the south line of the plat, but how far from the south line does not appear. The entire plat is bounded by dark lines, while the parcels are bounded by red lines where the boundary of the lot or parcel does not conform to some' outside boundary of the whole tract. The south line of lot 8, marked by a red line, is drawn a short distance north of the south boundary of the entire tract, and, apparently, about parallel thereto, but the breadth of the strip left south of lot 8 is not given. No surveyor, from this plat alone, could locate with precision this supposed lot 8. As to lots 20 and 22, the plat fails to state the number of acres in either of them, as required by the statute. Nor does the plat locate with precision either of them. Neither the exact location nor the quantity can be known from the plat. Lot 22 appears to be bounded by five right lines, the length of each of which is given. One of the angles appears to be a right angle, but this is not so stated upon the plat. While it is true that with the length of each of the sides of a triangle given, the angles may be told, yet this is not true of a four-sided figure. One angle, at least, must, in such case, be given, before the exact form and location can be ascertained. As to lot 20, it is bounded, on the plat, by seven lines, the length of each of which is given, yet none of the angles are given, and none of the angles even appear to be right angles. Even if this lot were well located on the plat, the description, “part of lot 20, ” is wholly indefinite and uncertain. We think the county court, for imperfection of these plats, was fully justified in refusing the judgment sought.

It may be well to notice another objection urged by appellees. There were charges against one tract for “back tax, interest and costs forfeited prior to July 1, 1879, (years 1871 to 1878,) $643.24,” and, in another column, for back tax, interest and costs forfeited subsequent to July 1,1879, (years 1879 to 1881,) $177.76. It is insisted that the amounts claimed as back taxes should be separately stated for each year, and that such back taxes for several forfeitures can not lawfully be grouped in bulk, as is done here. As has been heretofore said, the statute does not require the back taxes on forfeited property to be stated separately for each year. (Pike v. The People, 84 Ill. 80.) Nor do we perceive any necessity therefor arising from any provision of the statute. The time intervening between the forfeiture .of land, for any given amount, and the time of adding the amount to the taxes of a current subsequent year, does not increase or decrease the amount to be charged as such back taxes. Ten per cent -is to be added to the back taxes, interest, penalty and printer’s fee, in cases of forfeitures prior to 1879, and twenty-five per cent is to be added in all cases of forfeiture after July 1,1879. The forfeitures are a matter of record, and the amounts for which the property stands forfeited are also of record. If the clerk has made any mistake in collecting the amounts, the owner who is in default may ascertain the same by resort to the public records. There all the details may be found, and if, on their production, the aggregate of the clerk appears too great, the court can render judgment for what is right. Nothing is produced in this ease tending to show that the aggregates are not correct. Counsel seem to think that the judgment in Mann v. The People, 102 Ill. 346, was reversed because back tax on forfeited property was claimed for several years, in bulk, without stating the amount for each year. This is a misapprehension. That judgment was for back taxes for 1879 and previous years, and no claim for previous years was in the collector’s, return. The return-was of a delinquency as to back tax of 1879 and subsequent years. The judgment had no foundation in the claim of the collector. We think this objection to the mode of stating back taxes on forfeited property can not be sustained. The defects of the plats, however, were valid objections, and fully support the judgment of the county court. The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    John Plain v. Henry Roth et al.

      Filed at Ottawa November 20, 1883.

    1. Application op payments—when creditor may apply on unsecured debt. Where a creditor holds notes of his debtor, some of which are secured by mortgage, and others, and a judgment, are unsecured, and rents due his debtor are, by the direction of the latter, paid to the creditor, the latter will have the right to apply such payments on the unsecured notes or indebtedness, and if he does not so apply them the law will make the application that way, unless the debtor directs otherwise.
    2. Same—what is a direction as to application. Where a debtor, in his lease of property, specifies therein that the rént shall be payable to his creditor (“who holds a mortgage”) so long as the tenant occupies the premises, “or until the mortgage is paid off,” etc., this will be evidence tending to show the purpose of the debtor that the rents should apply on the mortgage indebtedness, instead of other unsecured indebtedness.
    3. Marshaling assets—rule applies only between different creditors. The rule as to compelling a mortgagee or creditor having a lien on two funds to satisfy his claim out of one of them, to the exclusion of the other, has no application between debtor and creditor. ■ It applies only as between different creditors.
    A The fact that a mortgage covers a homestead, and also other property which is subject to a subsequent judgment lien, gives the debtor no right to have the latter property applied first to the payment of the mortgage debt, so that he may save his homestead.
    5. Where a creditor has a mortgage covering only a store lot, and another on the store property and the homestead of the debtor, in which there is a waiver of the homestead, and he has also a judgment which is junior to that of a third person, it is to the interest of such creditor to have the homestead property first sold, so that there will be more left out of which to make his judgment, and he should be left to have the sale made in the order he chooses.
    G. Witness—competency of one interested, as against heir defending. Where a mortgagee assigns the note and mortgage of his deceased debtor to another without recourse, who files his bill against the heir and others to foreclose, and it is set up in defence that the mortgagee had received rents and payments which he ought to have applied on the mortgage debt instead of on other indebtedness not secured, and the estate of the mortgagor is insolvent, the mortgagor is not a competent witness, as against the heir, to show wiry the payments were not applied on the mortgage debt, as he is interested in the record, being liable to his assignee upon his implied warranty that the amount is due on the note, which appears to be on its face.

      7. In such case a witness can not testify in his “own behalf,” either as a party to the suit or as a witness for another, in favor of his own interest.
    8. Same—exception when party may testify against heir. On bill to foreclose a mortgage against an heir of the mortgagee, where the heir testifies as to a conversation between his ancestor and the complainant, in which a direction was given as to the application of certain payments, the complainant, as to such- conversation, is made a competent witness.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.
    May 1, 1874, John Althen made to Richard L. Divine his promissory note for $2500, for money borrowed, payable three years after date, with ten per cent interest, and secured the same by mortgage, made by himself and wife, of a store and lot in Sycamore, Illinois. August 11, 1874, John Althen made to Daniel Pierce his promissory note for $1000, payable three years after date, with ten per cent interest, and secured the same by mortgage, executed by himself and wife, of the same store and lot, and also of a house and lot in Sycamore, which was then, and since has been, the homestead of himself and his family. The homestead right was waived by the mortgage. February 18, 1875, John Althen made to Henry Roth his note for $400, payable five years after date, and secured the same by mortgage, executed by himself and wife, upon said store and lot. December 21, 1877, Divine assigned his note aforesaid to John Plain, “without recourse, ” there being indorsement on the note of interest paid to May 1, 1877, and also executed to Plain a ■written assignment of the mortgage, which was recorded, and at about that samé time Pierce assigned his $1000 note and mortgage to said Plain. August 11, 1876, John Plain recovered judgment against John Althen, in the DeKalb county circuit court, for $417.56, upon which execution issued August 12, 1876, and March 1, 1877, Plain recovered another judgment against John Althen for $575.95. No execution issued thereon. August 19, 1877, Divine recovered judgment against John'Althen for $66. Execution issued August 19, 1877. There were other -judgment creditors wdio held judgments against John Althen, which were liens upon the mortgaged premises.
    October 20, 1879, John Althen died, leaving Frederica Althen, his widow, and John E. Althen, his only child, surviving him. On the 4tli day of May, 1880, Henry Roth, the third mortgagee, filed a bill to foreclose his mortgage, making parties defendant said Frederica Althen and John E. Althen, John Plain, assignee of the Divine and Pierce notes and mortgages, and all the judgment creditors. All the defendants answered the bill. John Plain filed a cross-bill to foreclose the Divine and Pierce mortgages.
    The original bill made the following allegation as to payments on the Divine mortgage. After averring that in 1874 Althen built a two-story brick building, with basement, on the mortgaged premises, the bill proceeds: “That ever since its completion, and up to the present, time, said Divine and said Plain had rented for cash rent, to divers tenants, the first and second stories of said building, and received to their own use the moneys so paid, with the understanding that such rent should be applied to said mortgage so given to Divine; that Divine and Plain, one or both, have received from such rents about $4000, which would more than pay said note and mortgage.”
    The decree found that while Divine held the note and mortgage given to him, he received rents amounting to $2,-002.08; that Divine applied said rents in payment of interest on said note to May 1, 1877, and the balance to the indebtedness due from Althen to Divine, but decreed that the rents received should be applied on'the note and mortgage, and that the rents received by Plain should be applied on his notes and mortgages, and not on the judgments held by him. There was decree of foreclosure for the balance, the decree ordering that the store lot be first sold. Plain appealed.
    Mr. M. 0. Soutiiworth, Mr. A. -J. Hopkins, and Mr. N. J. Aldrich, for the appellant:
    "Where a creditor holds two debts against another, and one is secured and the other not, and payments have been made by the debtor without any direction as to their application, it will be presumed that such payments were credited on the unsecured debt, and the creditor may so apply them. Hare v. Stegall, 60 Ill. 280.
    In order to bar a party as a witness in a suit where the defendants are sued in a representative capacity, he must be interested in the event of the suit. He must have a legal, fixed interest in the event of the same,—one that will obtain for him, or exclude him from, the relief he seeks. Where the party has no such interest, any objection goes to his credibility, and not to his competency. Greeley v. Dow, 2 Metc. 176; Stockham v. Jones, 10 Johns. 21; Ely v. Forward, 7 Mass. 24; Bean v. Bean, 12 id. 19; Kinsley v. Robinson,
      21 Pick. 327; Bigelow v. Hyer, 2 Allen, 243; Jones v. Huggeford, 3 Metc. 515; Van Nuys v. Terhune, 3 Johns. Ch. 82; Rapelyed v. Mackie, 6 Cow. 250; Jackson v. Van Dusen, 5 Johns. 144; Corbley v. Wilson, 71 Ill. 209; 1 Greenleaf on Evidence, sec. 400; Illinois Central R. R. Co. v. Weldon, 52 Ill. 290.
    Whatever the mortgagee’s rights may be to take steps to put himself in possession, it lies entirely with him whether he will exercise such rights, and until he does he has no more control of the property than a stranger. 2 Washburn on Real Prop. 157.
    The court erred in the order marshaling the assets. The rule of compelling a-mortgagee to satisfy-his-claim out-of-one fund to the exclusion of another, has no application between debtor and creditor. It applies only as between different creditors. Rogers v. Meyers, 68 Ill. 92.
    The fact that a mortgage covers a homestead and also other property which is subject to a subsequent judgment lien, gives the debtor no right to have the latter property applied first to the payment of the mortgage debt, so that lie may save' his homestead. White v. Polleys, 20 Wis. 503; Dodds v. Snyder, 44 Ill. 53; Jones on Mortgages, sec. 1632; Thompson on Homesteads, sec. 714; Webster v. Bronson, 5 Bush, 522; Jones v. Dow, 18 Wis. 241.
    Mr. A. B. Coon, and Mr. J. J. Elanneky, for the appellees Roth, Althen, Schmidt and Glade:
    In both the original and cross-bills complaint was made against Erederica Althen, widow of John Althen, and JohnE. Althen, as heir of the mortgagor, and also against Divine, who were all real and necessary parties to the proceedings. Hence, both Divine and Plain, as such parties to the record and of interest, were incompetent to testify of their own motion, or on their own behalf, or the one for the other, against any person, such as an administrator or heir of any deceased person, as to anything that transpired previous to the death of, or any conversations had with, such deceased person. Laws 1877, chap. 51,_ sec. 2, p. 475; Boynton v. Phelps, 52 Ill. 219; Merrill v. Atkin, 59 id. 19; Langley v. Dodworth et al. 81 id. 86; Pyle v. Oustatt, 92 id. 209; Branger v. Lucy, 82 id. 91; Forbes v. Snyder, 94 id. 374; Pratt v. Pratt, 96 id. 184.
    Divine was interested in the event of the suit. Indorsement of the note “without recourse” does not relieve him from liability over to Plain for any deficiency in the amount claimed to be due by him on the note, and as it appeared from its face at the date of the assignment. In either case there was an implied. warranty on the part of Divine that the amount called for by the note at that date was due and unpaid. 2 Parsons on Notes and Bills, (2d ed.) 21; Linton v. Porter, 31 Ill. 107; Robinson v. McNeil, 51 id. 225; Tyler et al. v. Bailey, 71 id. 35.
    We do not deny the rule stated as to the application of payments, but contend the evidence abundantly shows there was a direction by the debtor as to their application. We also contend that there was no error in requiring the homestead to be last sold, or requiring the creditor to first exhaust his other securities for his debt before resorting to the homestead. The legislation on the subject shows a clear intent to preserve the homestead superior to paying one’s debts, however honest they may be, unless it is expressly waived.
    Mr. Charles Blanchard, for the appellant, in reply:
    In chancery a defendant might always testify for a co-defendant, if his evidence did not necessarily involve his own interest. 3 Greenleaf on Evidence, see. 318 ; Smith et al. v. West et al. 103 Ill. 336; Smith v. Newton, 38 id. 230.
    Even if Divine was interested in the event of the suit, if that interest was balanced he was competent at common law. Dyer v. Martin, 4 Scam. 150; Mixell v. Lutz, 34 Ill. 388;
      Smalley et al. v. Ettell, 36 id. 503; Reman v. Buckmaster, 85 id. 405; 1 Greenleaf on Evidence, secs. 399-420; 2 id. sec. 318.
    If neither Althen nor Divine had made the application of the payments, the court would have applied them as Divine did. Wilhelm v. Schmidt et al. 84 Ill. 183; Hare v. Stegall, 60 id. 380.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The main question is as to the aqjplication of payments. During the time Divine held his note and mortgage he received rents from the store building. But he did not receive them as mortgagee in possession. He never was in possession of the mortgaged premises. The leases were all made by Althen, the mortgagor. It is found by the decree that during the time Divine held the note and mortgage, Althen was indebted to him on other notes to an amount which, with the interest on the note in question, exceeded all the rents Divine received, and that such other notes were paid during that time. We can have no doubt, from the evidence, that thes„e other notes were paid from these rents. The notes being unsecured, Divine had the right to apply the moneys received to their payment, instead of to the payment of his secured note, and if he had not so applied them, the law would make that application, unless Althen had directed otherwise. (Hare v. Stegall, 60 Ill. 380; Wilhelm v. Schmidt, 84 id. 183.) There is no pretense of any direction of Althen upon the subject, more than as may be shown by a certain lease from Althen to one Eriedman, made August 7, 1874, for a term of five years, at the rent of $650 per year, payable monthly, the rent being made “payable to B. L. Divine (who holds a mortgage) so long as Eriedman occupies the same, or until the mortgage is paid off, if he occupies as long. ” This would be evidence tending to show the purpose of Althen that the rents should apply on the mortgage, had all the rents received been under this lease. But Friedman occupied only one year, and paid $350 to Divine. This, and more, was applied on the Divine note, the interest for three years, to May 1, 1877, ($750,) being indorsed on the note as paid. We do not find, then, that there was any direction from Althen how the rents received should be applied, further, at least, than as to $350, and that it was erroneous to hold that they should be applied upon the mortgage debt, and not upon the unsecured indebtedness of Althen to Divine. We arrive at this conclusion entirely irrespective of the testimony of Divine in the case. Most,' if not all, of the unsecured indebtedness to Divine which was paid from the rents received, is established by independent testimony, but as, perhaps, it may not establish the entire amount, and a part may rest upon Divine’s testimony, it may be proper to consider the question of the admissibility of his testimony.

It is objected to the competency of Divine’s testimony that he was interested in the event of the suit, and that he was not admissible as a witness against John E. Althen, the heir of the deceased mortgagor. The statute, in abolishing interest as a disqualification of a witness, makes the exception, that a party, or one interested in the event of the suit, shall not, of his own motion and in his own behalf, be allowed to testify therein when any adverse party sues or defends in certain representative capacities, one of them being that of heir. We are of opinion that Divine was interested in the event of the suit,—that he was interested in the record. Although he transferred the note to Plain without recourse, there was an implied -warranty on his part that the amount appearing upon the face of the note to be due was unpaid. (2 Parsons on Notes and Bills, 21; Robinson v. McNeill, 51 Ill. 225.) If the result of this suit should establish the application of the payments to be on the mortgage note, then there would be a breach of the warranty as to non-payment, and in a suit by Plain against Divine on the warranty, the record would establish the breach, and the amount of the liability,—hence the interest of Divine to show that the payments were on other indebtedness than the note.

But it is claimed that it was indifferent to Divine on which indebtedness the application is made,—that if made on the mortgage note, and so he be made liable to an action by Plain, he would have his action over against the estate on the unsecured indebtedness, and hence his interest is balanced. Without stopping to inquire how this might be were the estate solvent, so that the remedy over would be productive, we are satisfied, from the evidence, that the estate is insolvent, and that the remedy over would be unproductive in satisfaction, in which case the interest of the witness can not be said to be balanced. It is said that under this exception of the statute the witness must testify in his “own behalf,” and that the witness did not here so testify. He did not testify in his own behalf as a party, but he did testify in his own behalf as a witness. We agree with the court below in holding this witness to be incompetent.

At the time John Plain received rents, when he was the holder of the Divine and Pierce notes and mortgages, he held two judgments against John Althen, one of which was a lien on the mortgaged premises subsequent to the mortgage liens, and subsequent to the lien of one other judgment, and his other judgment was not a lien, no execution having been taken out. The same remarks may be repeated, as to him, as have been made with respect to Divine, as to not being a mortgagee in possession, and as to having the rents received by Plain apply on his judgments, instead of on the mortgages he held. We must hold in regard to Plain, as we do with respect to Divine, that there is no sufficient evidence of any direction from Althen on which indebtedness of Althen the rents received should be applied, and therefore it was the right of Plain to have them applied on the judgments which he held which were unsecured, and not on the mortgages. There was no evidence whatever of any direction of John Althen upon the subject, except the testimony of John E. Althen, that two or three months before his father died he heard a conversation between him and Plain, wherein Plain asked his father what he should do with the money received as rents from the store, and asked if he could apply it on the judgments he held, and his father told him he wanted it applied on the mortgage. John Plain contradicts this, testifying that he never received any directions from John Althen how to apply the money received for the rent, and denying that there was any such conversation as that .testified to by John E. Althen. We are not able to make out of this testimony any direction from John Althen as to making application of the rents received. Plain is competent to testify in regard to the conversation testified to by John E. Althen, although he would not otherwise be a competent witness.

We think the decree improperly ordered that the store lot should first be sold. The rule as to compelling a mortgagee to satisfy his claim out of one fund to the exclusion of another has no application between debtor and creditor,—it applies only as between different creditors. Rogers v. Meyers, 68 Ill. 92.

The fact that a mortgage covers a homestead, and also other property which is subject to a subsequent judgment lien, gives the debtor no right to have the latter property applied first to the payment of the mortgage debt, so that he may save his homestead. Jones v. Dow, 18 Wis. 241; White v. Polleys, 20 id. 503.

It is suggested that this order of sale can do no harm to Plain, and therefore there is no error to give him any just cause of complaint; that as both his mortgages are prior to Roth’s mortgage, all he has to do is to first offer the store lot at public sale, and if there is not sufficient bid upon it to satisfy both his mortgages, then to have the homestead lot offered and sold. This entirely overlooks Plain’s judgment, which is a lien on the mortgaged premises,—the second judgment lien in order. The situation is, that Plain has a mortgage which covers only the store property; and another which covers the store property and the homestead, property, in which there is a waiver of the homestead, and he has a judgment which comes next after the Seus judgment. Now, it would he for the interest of Plain to have the homestead property first sold here, so that there will he more left which he may resort to for the payment of his judgment, and we think he should he left at liberty to have sale made in the order he may choose.

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

Decree reversed.


author: Mr. Justice Scholeield

text:
    Henry H. Gage v. Sheldon Pease et al.

      Filed at Ottawa November 20, 1883.

    1. Arpead—in suit to foreclose. An appeal does not lie from a decree of the circuit court foreclosing a mortgage or deed of trust, directly to this court, where no adverse claim of title is set up in defence by any of the defendants.
    2. Pleading—allegations in amswer to bill to foreclose, construed. A person was made a defendant to a bill to foreclose a mortgage, under the allegation that he had, or claimed to have, some interest in the mortgaged premises, etc. In his answer he alleged that he held a tax title upon certain of the property, but did not claim title thereby, and then made a statement of the amount he was entitled to upon a redemption from the tax sale, and concluded by praying that his said statement be allowed: Held, that the answer did not set up any claim of title, but only sought to have allowed to him, out of the proceeds of the sale, such a sum as he would be entitled to on a redemption.

      Appeal from the Circuit Court of Cook county; the Hon. W. W. Paewell, Judge, presiding.
    Mr. Henry D. Beam, and Mr. Augustus N. Gage, for the appellant.
    Mr. C. 0. Clark, and Mr. J. B. Skinner, for the appellees.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was a bill in equity for the foreclosure of a trust deed in the nature of a mortgage, by Sheldon Pease and Horace P. Waite, against Lorenzo P. Sanger, Henry H. Gage, and others. The decree was in accordance with the prayer of the bill, and the case is brought here by the appeal of Gage.

Yery clearly no freehold is involved, and the appeal should have been to the Appellate Court for the Pirst District. The main purpose of the bill is that of foreclosure and sale, and the allegation, as respects Gage, is as follows: “That” certain named parties and “Henry H. Gage have, or claim to have, some interest (the precise nature whereof is unknown to your orators) in the said mortgaged premises, as purchasers, mortgagees, trustees, holders of indebtedness secured by the same, creditors by judgment or decree, or otherwise; but such claims or interest, if any there be, have accrued since, and are subject to the liens of your orators by virtue of the said trust deed and indebtedness thereby secured and held by your orators.” In Gage’s answer he alleges that he holds a tax title upon certain of the property. He does not claim to be owner by virtue thereof, but, after this allegation, he proceeds to make a statement of the amount to which he is entitled upon a redemption of the property from a tax sale, and concludes by praying “to have his said statement allowed and to be hence dismissed with his reasonable costs, ” etc. The prayer can only be understood as seeking an allowanee, out of the proceeds of the sale under the decree to he rendered, equivalent to the amount to which he would be entitled on a redemption from the tax sale. The decree found that Gage had no interest in the premises. The question of title was, therefore, in no manner before the court, nor affected by the decree rendered by the court.

The following cases are conclusive that we have no jurisdiction : McIntyre v. Yates et al. 100 Ill. 475; Gage v. Starkweather, 103 id. 559; Sawyer et al. v. Moyer et al. 105 id. 192; Chicago, Burlington and Quincy R. R. Co. v. Watson et al. id. 217; Conkey et al. v. Knight et al. 104 id. 337; Illinois Furnace Co. v. Vinnedge, Jones & Co. 106 id. 652.

The appeal is dismissed, and appellant will be allowed to withdraw record, abstracts and briefs, if he shall so desire, for the purpose of suing out a writ of error from the Appellate Court for the First District.

Appeal dismissed.


author: Mr. Justice Walkeb

text:
    Anthony C. Hesing v. W. L. Scott et al.

      Filed at Ottawa November 20, 1883.

    1. Chanceby—when it will enjoin public authorities from vacating a street. A bill to enjoin tbe closing up and obstructing of a public street, under an order of the city council vacating the same, which fails to allege that the vacation wiil impose the slightest additional burthen or tax on the complainant, or that he will be in any other wise injured or suffer the slightest inconvenience or loss, is fatally defective, and obnoxious to a demurrer. ,
    2. Unless a party is liable to sustain some special injury different from that of all other tax-payers, or others in the vicinity, by the vacation of a public street, he can not maintain a bill to enjoin the vacation.
    3. Munioipaii cobpobations—enjoined from abuse of taxing power and misapplication of public funds. The courts of this State will restrain the abuse of the taxing power by municipalities, when exercised without charter power, or for purposes not warranted, or the expenditure of corporate funds for purposes not authorized; and it may be the courts would interfere where the corporation is endeavoring to squander corporate funds in violation of its charter powers, where it will unnecessarily increase the burthens of taxation.
    Writ op Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Edward Boby, for the plaintiff in error:
    Any tax-payer of a municipal corporation can maintain a bill to prevent the payment of money of the corporation for an unlawful purpose. City of Springfield v. Edwards, 84 Ill. 631.
    Inhabitants of a municipal corporation may maintain a suit for protection and relief against breaches of trust and other fraudulent alienations of property by the acting part of the corporation. Inhabitants v. Corporation of Alnwick, cited in 1 Ves. & B. 242; Bromley v. Smith, 1 Sim. 8; Attorney General v. Mayor and Council of Dublin, 1 Bligh’s New Rep. 336; Schofield v. Eighth District School, 27 Conn. 499; Place v. City of Providence, 12 R. I. 1; Hurd v. Walters, 48 Ind. 148; Phumphrey v. Mayor and Council of Baltimore, 47 Md. 147; Mayor and Council of Baltimore v. Gill, 31 id. 375; Sinclair v. Winona County Court, 23 Minn. 404; Walton v. Greenwood, 60 Maine, 346; Brown v. Manning, 6 Ohio, 129 ; Willard’s Eq. Jur. 737; Dillon on Mun. Corp. secs. 914, 915 ; High on Injunctions, secs. 1269, 1236-1239, 1241, 1243, 1259, 1263.
    If corporate property is collusively alienated, this is a breach of trust of which equity will take cognizance at the suit of any corporator. 2 Dillon on Mun. Corp. (3d ed.) secs. 910, 914; Sherlock v. Winnetka, 59 Ill. 389, and 68 id. 530; Blakie v. Staples, 13 Grant, (Canada,) 67; State, Gregory, Taylor & Co. v. Jersey City, 34 N. J. 398.

      Giving the ordinance to donate and pervert the property the form of an ordinance vacating a street, does not make it valid. “It is the thing done or sought to be accomplished that must determine the power of the mayor and common council to pass the ordinance.” Sherlock v. Winnetka, 59 Ill. 389; Mayor of Baltimore v. Hall, 31 Md. 375; The People v. Cooper, 83 Ill. 585; Milhau v. Sharp, 15 Barb. 193; Dummer v. Corporation of Chippenham, 14 Ves. 245; The People v. Sturtevant, 5 Seld. (N. Y.) 273.
    The mere fact, that the forms of legislation are used in committing such a breach of trust, will make no difference in the character of the act. Milhau v. Sharp, 15 Barb. 193.
    It is also well settled that the parties may resort to evidence ab extra to show the true object and intent of municipal action. Place v. City of Providence, 12 R. I. 5.
    Such is the rule as to prohibitions. The matter is shown to be without the jurisdiction by proof of facts outside of the record. Caton v. Burton, Cowp. 330; State v. Hudnall, 2 Nott & McC. 419.
    Courts of equity will intervene in such case if the ordinance sought to be annulled is valid upon its face, and the alleged invalidity consists in matters to be established by extrinsic evidence. Ewing v. St. Louis, 5 Wall. 413; Brown v. Trustees, 11 Bush, (Ky.) 439; Hamilton v. Cummings, 1 Johns. Ch. 517.
    An inhabitant of a city or town may sue out an injunction to prevent the paying out of money unlawfully appropriated. New London v. Brainard, 22 Conn. 553; Hooper v. Emery, 14 Maine, 375; Perkins v. Milford, 59 id. 315; Barr v. Deniston, 19 N. H. 170; Merrill v. Plainfield, 45 id. 126; Henderson v. City of Covington, 14 Bush, 312; N. O. and C. R. R. Co. v. Dunn et al. 51 Ala. 128; Adriance v. Mayor of New York, 1 Barb. 19; Christopher v. Mayor of New York, 13 id. 567; Milhau v. Sharp, 15 id. 193; Stuyvesant v. Pearsall, 15 id. 244; De Baum v. Mayor, 16 id. 392.

      Mr. A. McCoy, for the defendants in error:
    It appears from the face of the bill that this suit relates to a public right, and can only be prosecuted by a public officer duly authorized by law. It nowhere appears in the bill that the vacation of the part of the street complained of deprived the complainant of any private right different in kind from the one held by the rest of the world. That being so, the demurrer was properly sustained. City of Chicago v. Union Building Association, 102 Ill. 379.
    Mr. C. Beckwith, also, for the defendants in error.
    Mr. W. C. Goudy, for the Board of Trade of the City of Chicago:
    The motives which influence a city council to pass an ordinance can not be inquired into any more than the motives of the legislature in enacting a statute. Fletcher v. Peck, 6 Cranch, 129; Wright v. Defrees, 8 Ind. 298; McCullough v. State, 11 id. 431; Cooley on Const. Lim. 186, 208, note 3; Dillon on Mun. Corp. 313.
    There is no authority holding that a court of equity may interfere to control the public authorities in the opening, management and vacation of streets. They are held for the use, not of the citizens alone, but of the entire public, of which the legislature is the representative. Chicago v. Rumsey, 87 Ill. 355; The People v. Walsh, 96 id. 248.
    This court has decided that for any obstruction of streets not resulting in special injury to an individual, the public only can complain. McDonald v. English, 83 Ill. 236; Chicago v. Union Building Association, 102 id. 391.
    The action of the city council in vacating a street can not be reviewed or set aside by any judicial tribunal. Chicago, Rock Island and Pacific R. R. Co. v. Lake, 71 Ill. 330; Brush v. Carbondale, 78 id. 77; Dunham v. Hyde Park, 75 id. 377; Dillon on Mun. Corp. secs. 465, 94.
   Mr. Justice Walkeb

delivered the opinion of the Court:

Appellant filed a bill in chancery against the city of Chicago, the board of trade, and a number of persons, praying to have an ordinance vacating a portion of La Salle street, in Chicago, declared void, and that portion of the street cleared of obstructions, and to compel the city to perform the trusts reposed in it regarding such highway, and thereby enable the public to enjoy their rights in the street; also, to enjoin the other defendants from interfering with the street.

Complainant alleges that he is an inhabitant and tax-payer of the city and State. He alleges in his bill that the street had previously been established and improved at large expense to the city; that the abutting property holders, to enhance the value of their property, desired that portion of the street vacated, so that the hoard of trade might erect a building thereon, and for that reason they petitioned for the vacation of the street; that the object of its vacation was to enable the board of trade to erect such a building, to be used for private and not for public purposes. He also states his belief that bribes were offered to aldermen to induce them to vote for the ordinance vacating the street, and insists the ordinance should be annulled and vacated. He fails to allege that the vacation of the street will impose any, the slightest, additional burthen or tax, or that he will be in anywise injured or suffer the slightest inconvenience or loss. The bill seems to proceed on the ground that the city held the street in trust for the public, and by vacating the street was guilty of a breach of the trust; that complainant is a cestui que trust, and has the right to invoke the aid of a court of equity to compel the city to execute the trust; that inasmuch as public necessity, or even public convenience, did not require the vacation of the street, the council had no power to perform the act, and it was a violation of duty, and repugnant to law, to vacate the street. Defendants demurred to the bill, and the court below held that it failed to show equity on its face, and sustained the demurrer, and dismissed the bill. Prom that decree complainant appeals to this court, and asks a reversal.

After a careful examination we find no facts in this case to distinguish it from the ease of City of Chicago v. Union Building Association, 102 Ill. 379. In fact, there were facts in that case which appealed more strongly to the chancellor for relief than do the facts in this case. There it appeared that complainant would, in common with others, suffer an appreciable loss in the reduction of the rents of its property, yet it was held that there was no ground for equitable interference. Here complainant shows no special injury. If he sustains injury, it is the same as every other tax-payer of the city. He does not even claim that it will subject him to the slightest loss, or produce the least inconvenience whatever. All the material facts of that and this ease are similar, and that case must be held decisive of this. The difference in the facts of the two cases is unimportant and non-essential. It is true that the complainant in that'case was a private corporation, and in this the complainant is a natural person; but such bodies, under our laws, are entitled to the same protection as are natural persons, in all of their legal and equitable rights. This is required by the clearest principles of justice. There it was held that complainant having no separate and distinct interest, nor having suffered any peculiar injury not common to all other residents of the city, it could not maintain its suit for its part of the common injury sustained by the public.

The courts of this State have exercised the jurisdiction of restraining the abuse of the taxing power by municipalities when exercised without charter power, or for purposes not warranted, or the expenditure of corporate funds for purposes not authorized, and it may be the courts would interfere where the corporation were endeavoring to squander corporate funds in violation of the charter powers, where it would unnecessarily increase the burthens of taxation. In such cases it may he a court of equity has the power, on the application of a resident tax-payer, to restrain such abuse of power. But appellant has made no such case by his bill. He does not allege that it will imjiose on him a particle of loss, nor that he has, or will, sustain the slightest injury or inconvenience distinct from the general public. He has, therefore, shown no right to the relief sought, and the court below did not err in sustaining the demurrer and dismissing the bill.

The decree of the court below is therefore affirmed.

Decree affirmed.

Mr. Justice Sheldon took no part in the decision.


author: Mr. Justice Mulkey

text:
    Andrew Langdon et al. v. Minot J. Wilcox et al.

      Filed at Ottawa November 20, 1883.

    1. Attachment oe water craft—of the pleadings and practice. In a proceeding under tie statute relating to the attachment of water craft, the petition, the answer, and the replication, are all the pleadings contemplated by the act, and all that are proper in such a ease.
    2. In a suit commenced under the statute, a petition was filed, and there was a seizure of the craft, and a bond given releasing the craft from the attachment. There was an answer to the petition, and a replication. In addition to these pleadings there was a common law declaration in assumpsit, a plea of non assumpsit, and issue joined on the plea. The plaintiff moved the court to set the case for trial on the common law pleadings, which the court refused to do. The defendant thereupon entered his motion that the common law pleadings be stricken from the files. This motion the court sustained; and in this there was no error, because these common law pleadings were irregular, and foreign to the proceeding.

      3. Had the plaintiff, however, desired to abandon altogether the statutory proceeding already commenced, and with such view had asked permission to change the form of action by the substitution of an action of assumpsit, and further, had asked that these common law pleadings might stand as the pleadings in the cause, it is thought the motion should have been allowed.
    4. The giving of a bond, under the 15th. section of the act, for the release of the vessel from the attachment, in nowise affects the mode of procedure, except that the judgment, if for the plaintiff, instead of ordering the attached vessel to be sold for the satisfaction of the amount found to be due, will be entered against the defendant and his sureties on the bond, with an award of a general execution. The bonding of the vessel does not relieve the plaintiff from the burden of proving his case as made in the petition. So much of the proviso, in section 21 of the act, as declares that in case of a release of the attached vessel upon bond, “the subsequent proceedings shall be the same as now provided by law in personal actions in the courts of record in this State,” refers to the awarding of a general execution, and the subsequent proceedings thereunder.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Messrs. Stoeck & Shuman, for the appellants:
    The court erred in overruling the motion of appellant to set the case for trial on the common law pleadings. Every state of facts which gives a lien under the statute, constitutes a good cause of action against the owner in personam. Where proceedings are commenced under the statute they are in rem, hut where the owner gives a bond under section 15, the character of the proceeding is changed, and it becomes an action in personam, to the same extent as though it had been originally commenced by summons. People v, Cameron, 2 Gilm. 468; Williamson v. Hogan, 46 id. 504; Hill v. Harding, 93 id. 77; Fitch v. Ross, 4 S. & R. 557; Albany City Ins. Co. v. Whitney, 70 Pa. St. 248; Parker v. Farr, 2 Brown, 331; Myers v. Smith, 29 Ohio. St. 120; Harper v. Bell, 2 Bibb, 221; Phillips v. Hines, 33 Miss. 163; Morrison v. Alphin, 23 Ark. 136; Shirley v. Byrnes, 34 Texas, 625; Auvray v. “The Pawnee,” 19 Mo. 537; Gaddess v. Howell, 31 N. J. L. 313;
      Demming v. Smith, 2 Wend. 639; Wakeman v. Newton, 21 id. 260; Delaney v. Brett, 4 Robt. 712; “The Odd Fellow” v. Stewart, 2 Ind. 240; “The Lawrenceburgh” v. Smith, 7 id. 522.
    The lien is created by the statute, and not by the levy. “ The Great West No. 2” v. Oberndorf, 57 Ill. 168; “The E. P. Dorr” v. Waldron, 62 id. 221. And this lien is destroyed by the giving of the bond. Fife v. Clark, 3 McCord, 347; Reynolds v. Jordan, 19 Ga. 436; Rev. Stat. chap. 12, sec. 17.
    The giving of the bond waives all antecedent irregularities in the proceedings. (Demming v. Smith, 2 Wend. 304; Gaddis v. Howell, 31 N. J. L. 331.) And the judgment, after the execution of the bond, must be against the debtor personally. Lane v. Leet, 2 Ind. 535; Jones v. Gresham, 6 Blackf. 291; Scott v. McDonald, 27 Ind. 33; Auvray v. “The Pawnee,” 19 Mo. 537.
    The attachment is only the remedy to enforce the lien. Germain v. Steam Tug, 11 Ill. 535; Kinsely v. Parker, 34 id. 481; “The Clarion” v. Moran, 18 id. 561.
    Messrs. Schuyleb & Eollansbee, for the appellees:
    The Attachment act being in derogation of the common law, and creating privileges and benefits not conferred on other creditors, will be strictly construed, and persons seeking its benefit must bring themselves within its provisions. Huntington v. Barton, 64 Ill. 502.
    There was no error in striking from the files the common counts and plea joining issue thereon, because chapter 12, known as the “Water Craft act, ” contains within itself a complete code of practice. This revision operates as a repeal, by implication, of all former acts on the same subject. Culver v. Third National Bank, 64 Ill. 534; Andrews v. People, 75 id. 613; Devine v. Commissioners of Cook County, 84 id. 590.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming ak judgment of the Superior Court of Cook county, in an attachment proceeding brought by appellants, against appellees, under chapter 12 of the Revised Statutes, known as the “Water Craft act.” The amount in controversy being less than $1000, the case comes here on a certificate from the judges of the Appellate Court.

The object of the proceeding was to enforce a lien against two steam dredges belonging to appellees, for $456.20, on account of supplies alleged to have been purchased by appellees for said dredges. Upon the filing of the petition and accompanying bond, as required by the 4th and 5th sections of the act, a warrant or writ directing the attachment of the dredges, and containing a summons clause to the defendants, was issued by the clerk, and duly executed by the sheriff. On the 24th of December, 1881, the defendants filed a bond releasing the dredges from the attachment, as provided by the 15th section of the act. The record discloses considerable confusion in the pleadings and procedure subsequent to the filing of the petition, resulting, as would seem, from a misapprehension of the .proper practice in such cases. In addition to the joetition, answer and replication, which are all the pleadings contemplated by the statute, and all that were proper in the case, we find a common law declaration in an action of assumpsit, containing all the common counts, a plea of non assumpsit filed thereto, and issue joined on the plea. While the pleadings were in this condition, and before the hearing of the cause, counsel for plaintiffs moved the court to set the cause down for trial on the common law pleadings, which the court, upon consideration, refused to do, and thereupon entered an order denying the motion, to which the plaintiffs at the time excepted. Upon the overruling of the plaintiffs’ motion the defendants then moved the court to strike the common law pleadings from the files, which motion the court allowed,'and-they were accordingly stricken from the files, and the plaintiffs excepted. The ruling of the court upon these motions presents the main ground relied on for a reversal.

It is manifest these common law pleadings were irregular, and foreign to the proceeding in which they were filed, and it was therefore proper to strike them from the files, so long as they were to be regarded as a part of the files of that ease. Had the plaintiffs, however, desired to abandon altogether the statutory proceeding commenced by them, and with such view had asked the bourt’s permission to change the form of action by substituting an action of assumpsit for such statutory proceeding, and had further asked that these common law pleadings might stand as the pleadings in the cause, we are of opinion it would have been the duty of the court to have allowed the motion; but nothing of this kind was asked, or, as we presume, desired. All the plaintiffs asked was, that the attachment might be quashed, and the cause set down for trial on the common law pleadings. So far as the attachment was concerned, that had already practically served its purpose, and the alleged lien on the dredges was discharged by the giving of the bond under the 15th section, as heretofore stated. But that did not relieve the plaintiffs from the burden of proving their case as made by the petition. The allegations required to be made in the petition are jurisdictional in their character, and when put in issue by the answer, as they were in this case, must be proved substantially as laid, otherwise the action will fail. And' the fact the defendants may have released the attached vessel from seizure by giving bond under the 15th section, will make no difference in this respect. The bond, when given under this section, is a mere substitute for the attached vessel. After such substitution the suit proceeds in every respect as it would have done had no bond been given until the time of entering judgment, when, if the plaintiff is successful, instead of entering a judgment against the defendant alone for the amount found due, and ordering the attached vessel to be sold to pay the same, as would be done if no bond had been given, the judgment is to be entered against him and his sureties on the bond, with an award of a general execution. So much of the proviso in the 21st section as declares “the subsequent proceedings shall be the same as now provided by law in personal actions in the courts of record in this State,” clearly refers to the awarding of a general execution against the defendant and his sureties,' where the vessel has been bonded out, and the subsequent proceedings thereunder. As the plaintiffs did not ask to change the form of action, as suggested, we regard the motion to have the case set down for trial on the common law pleadings as a mere adroit movement on the part of counsel to escape the difficulties that lay in their way of making out a case under the statute, and at the same time, if successful, avail themselves of the benefit of the bond that had been substituted for the vessel, which should not have been permitted. However this may be, we are of opinion there was no error in overruling plaintiffs’ motion to have the cause tried on the common law pleadings, and from what we have already said, it follows they were properly stricken from the files on the defendants’ motion.

We do not think this ease comes within the principle laid-' down in Hill v. Harding, 93 Ill. 77, and like cases. A proceeding under the “Water Craft act” differs essentially from an ordinary attachment, as was the ease there. The latter is, in most respects, a mere adjunct of a common law suit, which does not affect, in any material degree, the pleadings or practice thereon; hence, when the attachment is released or quashed, the common law suit remains wholly unaffected by'the former attachment. Of course, we are now speaking of cases where there has been - an appearance to the merits, or personal service. A proceeding under the “Water Craft act,” however, is essentially, in many of its features, like a proceeding in rem in admiralty, though differing from the latter sufficiently, it is believed, to avoid any conflict with the constitution of the United States, which gives to the Federal courts exclusive jurisdiction in admiralty. There being no complaint in this case of an improper exclusion of testimony, and the Appellate Court having found the jurisdictional facts adversely to the appellants, it follows there can be no recovery in this form of action. It is therefore unnecessary to notice the other questions discussed in the briefs. We will say, however, in general terms, we find no error in the record requiring a reversal.

The judgment will be affirmed.

Judgment affirmed.