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impeached, and, so far as this record shows, ments of the answer, and upon the issues his evidence is reliable.

thus made up a trial was had before a jury It appears that the sheriff called upon com- upon the merits of the case, resulting in a plainant with executions, and demanded verdict and judgment in favor of the defendproperty, and that complainant told the sher- ants to the action. October 16, 1886, a year iff that he had no property; and that admis- and a half after the rendition of the judgsion, it is insisted, is strong evidence that ment in Hamilton county, Ohio, George and complainant had no interest in the property John H. Leslie brought this action upon the in controversy, If the defendants had inter- same note; the indorsement which they had posed the defense that complainant hall con- originally made on the note to William Grant veyed the property for the purpose of de- having been erased. To the declaration the frauding creditors, such evidence might have defendants filed, with others, a special plea an important bearing on the decision of the setting up the judgment rendered in Ohio in case; but that defense was not relied upon, bar of the action, and to this the plaintiffs reand we do not regard the declaration made plied nul tiel record. The case was submitto the sheriff, under the circumstances, as ofted to the court without a jury by agreement, controlling importance. We do not, how- and upon the issue presented by the plea selever, regard it necessary to enter upon a close ting up the Ohio judgment, after the evianalysis of all the evidence contained in the dence was all in, the court held the following: record; but we are inclined to hold, after due “And the court, finding that the note was consideration of the evidence, that it is suffi- made and assigned in the state of Illinois, cient to sustain the decree. The decree will and that at the time the note became due, be affirmed.

and ever since hitherto, the makers thereof

were residents of the state of Ohio, and not (130 Ill. 498)

of the state of Illinois, lield, as a legal conLESLIE et al. v. BONTE et al.

clusion, that a judgment in favor of the de(Supreme Court of Illinois. Oct. 31, 1889.) fendants upon the merits in the suit brought RES ADJUDICATA.

in the state of Ohio against them by the asA judgment for the defendant, upon a plea signee was no bar to the action by the payees, dorsee of a promissory note against the maker, is and therefore the plaintiff was entitled to rea bar to a subsequent action, in another state,' by cover.” On appeal to the appellate court the the payee against the maker.

judgment of the superior court was reversed. Appeal from appellate court, first district.

There is but one question presented by this Tenney, Driggs & Hawley, for appellants. record, and that is whether the judgment Francis A. Riddle and John S. Stevens, for rendered in Hamilton county, Ohio, is a bar appellees.

to this action. The appellate court held that it was.

If Grant had recovered judgment on CRAIG, J. This was an action of assump- the note in the action in Ohio, the note sit brought by George and John H. Leslie, in would have been merged in the judgment, the superior court of Cook county, on the fol- and no other action could be maintained lowing promissory note: “$3,000. Cincin- against the defendants on the note.

This nati, Ohio, August 24, 1883. Six months principle was clearly established in Wayman after date we jointly or severally promise to v. Cochrane, 35 Ill. 152, where it is said: pay to Geo. and Jno. H. Leslie or order three “The general rule is that by a judgment at thousand 00-100 dollars, value received. law or a decree in chancery the contract or Payment at Third National Bank of Cincin- instrument upon which the proceeding is nati, Ohio. CHARLES E. BONTE. J. WEL-based becomes entirely merged in the judgLER. GEORGE H. BONTE." Indorsed on ment." In Freem. Judgm. § 216, in disback: "Please pay to William Grant or order. cussing this question, the author says: “The Geo, and JNO. H. LESLIE.” The note was weight of authority in the United States given for shares of stock in a mining com- shows that whatever may be a cause of acpany known as the “Santos Manufacturing tion will, if recovered upon, merge into the & Mining Company.” The note was in-judgment or decree.” No judgment was dorsed and transferred in Chicago to William rendered upon the note against the makers, Grant, and delivered to him. After Grant but the validity of the note was in issue, and had procured the note, he brought suit upon the makers had judgment against the owner it in Hamilton county, Ohio, where the mak- of the note upon the merits. The judgment ers resided. All of the makers were defend thus rendered, on principle, ought to operate ants in that suit, and on February 25, 1885, as a satisfaction of the note, and a complete filed an amended answer therein, in which bar to any subsequent action brought upon they denied that Grant had received the note it by any person in whose hands it might be before maturity, and set up as a defense found. Zimmerman v. Zimmerman, 15 Ill. want of consideration; alleging, among other 84, is an authority in point. There Jacob things, that the stock of the Santos Manu- Zimmerman executed his note payable to facturing & Mining Company which they re- Runnley. He assigned it to Peter Zimmerceived from the payees of the note was fraud- man, and Peter assigned the note to Thomas ulently represented by them to be of value, Craft. Thomas Craft brought suit before a when, in fact, it was worthless. To this an- justice of the peace on the note, and on a swer Grant filed a reply, traversing the aver-'trial judgment was rendered against him ·

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for costs. Subsequently Peter Zimmerman Carty against Jackson Canatsey, executor of brought suit on the note before a justice, and George Canatsey, deceased, as to the probate this court held that the first action brought of decedent's will. Contestants bring error. on the note was a bar to any other action Rev. St. Ill. c. 148, § 2, is as follows: "All which might be brought on the note against wills, testaments, and codicils by which any the maker. If the action brought by tlie sec- lands, tenements, hereditaments, annuities, ond indorsee on the note was a bar to a recov- rents, or goods and chattels are devised, shall ery on the instrument in a second action by be reduced to writing, and signed by the testhe first indorsee, upon the same principle, tator or testatrix, or by some person in his had the payee of the note brought the action, or her presence, and by his or her direction, he would have been barred. In Drake v. and attested in the presence of the testator Perry, 58 Ill. 122, a judgment in favor of the or testatrix by two or more credible witnessmaker in an action on a note in the name of es, two of whom declaring on oath or affirthe payee for the use of the holder was held mation, before the county court of the proper to be a bar to a second action on the same county, that they were present, and saw the note in the name of the assignee. In Iowa, testator or testatrix sign said will, testament, the supreme court of that state in Levi v. or codicil in their presence, or acknowledge McCraney, 1 Morris, (Iowa,) 124, held that a the same to be his or her act and deed, and judgment in favor of the maker of a note on that they believed the testator or testatrix to the merits, in an action by the assignee, was be of sound mind and memory at the time of a bar to a subsequent action brought by the signing or acknowledging the same, shall be payee. The same doctrine has been held by sufficient proof of the execution of said will, the supreme court of Kentucky in the late testament, or codicil to admit the same to case of Soward v. Coppage, 9 S. W. Rep. 389. record: provided, that no proof of fraud,

No reason occurs to us why the Leslies compulsion, or other improper conduct be should not be barred and concluded by the exhibited, which in the opinion of said counjudgment. They indorsed the note, and de- ty court shall be deemed sufficient to invalilivered it, indorsed, to Grant; thus placing date or destroy the same.” the absolute title and ownership in him. By Owen P. Thompson, for plaintiffs in error. this act they clothed him with authority to James M. Riggs, for defendant in error. sue in his own name the makers of the note. He brought an action on the note, and upon MAGRUDER, J. George Canatsey, of Scott a trial on the merits he was defeated. After county, died testate on March 21, 1888. By judgment was rendered Grant returned the his will bearing date March 14, 1883, after note to the Leslies. Under what arrange- providing for the payment of his funeral ment he obtained the note and returned it is expenses and debts, he devised all his pernot shown by the evidence, nor is it material. sonal property and real estate, the latter conThey can only be regarded as purchasers sisting of 325 acres of land in Scott and Mafrom Grant. He had the title when the trial coupin counties, to his eight children, specifoccurred in Ohio, and when the judgmentically naming three sons and five daughters. was rendered against him. This title he He made no other gifts or devises, and the transferred to the Leslies. They, after pur- eight children so named were to take the real chasing the note from him, stood in his and personal property "share and share shoes. If he could not maintain a second alike.' The will was presented for probate suit on the note, neither could they. They to the county court of Scott county by Jackacquired Grant's title to the note subject to son Canatsey, the executor, who was also one all defenses the makers might interpose of the sons, and was admitted to probate by against him. Among these defenses was a that court on May 17, 1888. The probate of judgment in bar of the note. We think the the will was resisted before the county court judgment of the appellate court correct, and by Henry Canatsey and Ellen McCarty, claimit will be affirmed.

ing to be grandchildren of the testator, children of a deceased son. They are not men

tioned in the will. They are described as (130 III, 397) CANATSEY et al. o. CANATSEY.

such grandchildren in the order of the county

court admitting the will to probate. They (Supreme Court of Illinois. Oct. 31, 1889.)

took an appeal from such order to the circuit PROBATE OF WILL.

court, where a trial was had, by consent, beUnder Rev. St. Ill. c. 148, § 2, which makes fore the circuit judge without a jury, resulta of the witnesses shall testify that the testator ei-ing in an order admitting the will to probate. ther Signed or acknowledged the will in their From such judgment of the circuit court the presence, a will may be admitted to probate when contestants prosecute their appeal to this one subscribing witness swears that the testator court. acknowledged the will in his presence, and the other identifies his signature, says that he does not rec

The testator could not write. He signed ollect who was present when he attested the will, the will by making his mark, and affixed his but that the testator, “or some one for him," asked seal. The only evidence introduced upon the him to attest it. WILKIN, J., dissenting.

trial before the circuit judge, besides the will Error to circuit court, Scott county; itself, consisted of the testimony of the two GEORGE W. HERDMAN, Judge.

subscribing witnesses, and of the draughtsContest hy Henry Canatsey and Ellen Mc-Iman of the will. It is urged by the contestants that the proof of the execution of the recollection of witness is that “Uncle George will was not sufficient, under the require- or someone else came to me, and asked ments of the statute. We have said that, me to go and witness his will." That it “to entitle a will to probate, four things was in the old court-house, “I think. I remust concur: It must be in writing, and member of the old gentleman being present. signed by the testator or testatrix, or in his I witnessed it in his presence. I am satisfied or her presence, by some one under his or her of that, because here is my signature to the direction; it must be attested by two or more will. * He most assuredly was prescredible witnesses; two witnesses must prove ent at the time I signed it. I think Mr. that they saw the testator or testatrix sign Rowen was present, and I don't know but the will in their presence, or that he or she what Mr. Callans was present. I don't know acknowledged the same to be his or her act that I could say that I saw him [the testator] and deed; they must swear that they believed sign it. He acknowledged it. I am satisfied (or believe) the testator or testatrix to be of of that. I don't know just what he said, sound mind and memory at the time of sign- but I know that he said it was his will, and ing and acknowledging the same." Dickie he wanted us to attest it.” Rowen testifies v. Carter, 42 Ill. 376; Crowley v. Crowley, as follows: “I knew the testator 45 or 50 80 Ill. 469. It is not necessary to say any- years. I was very well acquainted with thing as to the fourth requisite, as it is not him. I never saw him write. I don't think claimed that the testator was not of sound he could write. That first signature [to the mind and memory.

will] is mine. I wrote that first signature First. The will of George Canatsey was under that attesting clause; or, at least, that signed in his presence, and under his direc- is my signature, and I am satisfied that I tion, by James Callans; he, at the same time, wrote it. I have written a great many wills making his mark. Callans swears that he for different parties. As county clerk and has been a practicing lawyer in Scott county county judge, I became familiar with wills, 17 years; that he knew the testator 25 years; and the execution of wills, and what was that he was county judge on March 14, 1883; requisite. I never witnessed a will except at that he wrote the will in question for George the request of the testator, or some one actCanatsey, and signed the latter's name to it; ing for him in his presence. I never signed that he never signed the testator's name that will as a witness without being requestwithout his request; that the will as shown ed so to do, either by Mr. Canatsey or some to him on the trial was “in the exact form in one for him in his presence. I don't rememwhich he wrote it;" that it is his recollection ber who was present. I don't remember that he wrote it at the dictation of George where it was. I suppose, though, it was in Canatsey; that the testator signed bis name the court-house. I was in the court-house to the instrument “by his mark;" that the every day. The testator came to town nearwill was written in the office of the witness, ly every Saturday, and I generally saw him on the south side of the square in Winches- every time he came to town. He would ter, Scott county, and that he and the testa- come to the court-house. Either George tor were present at the time; that “the old Canatsey or Callans, or some one for him, gentleman came in, and had me prepare the sure,' asked me to sign it, [the will.] I don't will; and my impression is that he had some remember of seeing the old man make his memorandum. He might have had it on the mark to the will. I don't remember half the leaf of a book. My recollection is that he wills I have written or attested. I never

told me what he wanted done, and witnessed any instrument unless it was either pulled out some papers;" that he (the wit- signed or acknowledged by the signer in my ness) would not have written a will, and presence.' The judgment of the circuit signed George Canatsey's name to it, except court is affirmed. at the dictation of George Canatsey. Second. The will is attested by two credible witnesses,

WILKIN, J., (dissenting.) I dissent. In -Frank McGlasson, who was then, and had my opinion, the testimony of the subscribing been for 12 years, clerk of the circuit court witness Rowen, as it appears in the record, of Scott county; and Thomas P. Rowen, who is not sufficient to entitle the will to probate had been county clerk 8 years, and county under our statute. judge 4 years. Third. The testimony of the subscribing witnesses, in the absence of any proof of fraud, compulsion, or other improp- PEOPLE ex rel. BROKAW O. COMMISSIONERS

(130 Ill. 482) er conduct, made out such a prima facie case

OF HIGHWAYS. as justified the court in admitting the will to probatė. McGlasson swears that he had (Supreme Court of Illinois. Oct. 31, 1889.) lived in Scott county 50 years. That he had MANDAMUS-OBSTRUCTION OF HIGHWAY. known the testator about 12 years. That his 1. Under Rev. St. Ill. 1889, c. 121, $ 2, which name was signed to the will as a witness. gives the commissioners of highways charge of

roads and bridges, and section 71, which provides That the signature was unquestionably that that when a road is obstructed the commissioners, of the witness. That the testator frequent- after giving reasonable notice, may remove such ly came into the office of witness, and they obstruction, the commissioners may be compelled had talks together. That witness always tion from an existing public highway, the word

by mandamus to remove an impassable obstruccalled him “Uncle George.” That the best “may” in the statute being construed "must,” and the only discretion vested in the commissioners | Curyea, 16 Ill. 547. The ground upon which being as to the character of the notice.

2. It is no objection to granting a mandamus the doctrine was chiefly placed was that, there in such case that there is a statutory remedy by being a complete and adequate remedy by inindictment, since by Rev. St. Ill. c. 87, $ 9, the rem- dictment, relief by mandumus was precluded; edy by mandamus is not affected by the existence and another ground stated in some of the of another legal remedy.

cases was that no statute expressly imposed Appeal from appellate court, third district. upon the commissioners the duty of remov

James S. Ewing and James S. Neville, for ing such obstructions. The ground that there appellant. Tipton & Beaver, for appellees. is another remedy equally convenient and ef

fectual, and therefore mandamus does not BAKER, J. This is a .petition filed in the lie, is abrogated by section 9 of the act to reMcLean circuit court by Abraham Brokaw, vise the law in relation to mandamus, in to compel the commissioners of highways of force July 1, 1874, which provides that “the Bloomington township to remove an obstruc- proceedings for a writ of mandamus shall tion from a high way. The petition alleges not be dismissed, nor the writ denied, bethat petitioner is the owner of the east half cause the petitioners may have another speof section 27, township 23 N., range 2 E., in cific legal remedy, where such writ will afMcLean county, and that there is a public ford a proper and sufficient remedy.” Rev. highway running north and south on or near St. c. 87, § 9. Whether or not mandamus the center line of said section, which public will lie since the Revision of 1874, and under highway has been in use for more than 20 the present road laws, against highway comyears. The petition then proceeds as follows: missioners, to compel the removal of obstruc“Petitioner further represents that some one tions from a public road, and, if so, under has built a stake-and-rider fence across said what circumstances it will lie, does not appublic highway, causing an obstruction there-pear to have been passed upon by this court. in, so that it is impossible to travel said high- The second section of the act of 1883, in reway. Petitioner is informed and believes gard to roads and bridges in counties under that said obstruction was placed there by the township organization, (Rev. St. lli., Ed. permission of the said highway commission-1889, c. 121, § 2,) provides that the commisers; and by reason of the said obstruction, sioners of highways shall have charge of the and the failure of said commissioners to keep roads and bridges of their respective towns. said road in repair, the travel theretofore Section 71 of the act (Rev. St. Ill., Ed. 1889, thereon has been directed and the most of it c. 121,$ 71)provides as follows: “If any person now passes through petitioner's land. Peti- shall injure or obstruct a public road by felltioner further represents that said highway ing a tree or trees in, upon, or across the commissioners have had full knowledge for same, or by placing or leaving any other obat least six months last past of the existence struction thereon, or encroaching upon the of such obstruction in said public highway, same with any fence, or by plowing or dig. and have taken no steps to cause the same to ging any ditch or other opening thereon, or be removed. Petitioner further represents by turning a current of water so as to satthat he has notified said commissioners, in urate or wash the same, or shall leave the writing, of the existence of such obstruction, cuttings of any hedge thereon for more than and requested them to take steps to have said ten days, they shall forfeit for every such ofobstruction removed; that the said commis fense a sum not less than three dollars, nor sioners have failed, refused, and neglected, more than ten dollars, and, in case of placing and now absolutely refuse, to act in the prem- any obstruction on the highway, an addiises, or to take any action with reference to tional sum of not exceeding

three dollars per said road whatever.” The prayer of the pe- day for every day he shall suffer such obstructition is for a writ of mandamus "ordering tion to remain after he has been ordered to and directing the commissioners of highways remove the same by any of the commissionto proceed to have said obstruction removed." ers; complaint to be made by any person Upon the demurrer of the commissioners of feeling himself aggrieved:

* * * and, highways to the petition there was final judg- provided, further, that the commissioners, ment in the circuit court in their favor, and after having given reasonable notice to the against the petitioner, and that judgment owners, or person so obstructing or plowing was subsequently affirmed in the appellate or digging ditches upon such road, of the obcourt for the third district. The case is now struction, may remove any such fence or brought here by further appeal.

other obstruction, fill up any such ditch or Prior to the revision of the statutes in other excavation, except ditches necessary to 1874, the doctrine, as held in this state, was the drainage of an adjoining farm emptying that where a highway had been obstructed, into a ditch upon the highway, and recover after having been opened and traveled by the the necessary cost of such removal from such public, the proper remedy was by prosecution owner or other person obstructing such road under the statute against the party causing aforesaid, to be collected by said commissionthe obstructions, and not by mandamus to ers before any justice of the peace having jucompel the commissioners of highways to re- risdiction.” Section 74, Rev. St. Ill. (Ed. move the obstructions and open the road. 1889) c. 121, § 74, provides for the recovery Commissioners v. People, 73 Ill. 203; Com- of fines and penalties in the name of the missioners v. People, 66 Ill. 339; People v.' town, and that it shall be the duty of the commissioners to reasonably prosecute for fences or other obstructions are to be reall fines and penalties under the act, and moved by the commissioners after they have that, “in case of a failure of said officer to so given the notice mentioned therein. The prosecute, complaint may be made by any number of days' notice thus to be given is not person, provided said person shall, before designated, and it is only required it shall be a bringing suit in the name of the town, give reasonable notice. There is, then, necessaa bond for costs, as is provided for in the rily, some discretion in the commissioners in case of non-residents. But, whenever any this regard. The duty on them to act is imperson shall enter complaint to any commis-perative, and the discretion given them is sioner, it shall be the duty of such commis- merely in respect to a matter which is incisioner to at once proceed to investigate as to dental to the performance of such duty. It the reasons of such complaint, and, if such is as much incumbent upon the commissioncomplaint is found to be just, he shall at once ers to exercise this merely incidental discreproceed to prosecution."

tion, for the public good, by determining The averments of the petition are not based what is a reasonable notice in the particular upon the failure of the commissioners to sue case, and by giving it, as it is to remove the for the fines and penalties imposed by section obstruction from the road. When a discre71, but upon their neglect and refusal to re- tion is abused, and made to work injustice, move the fence from the public road, and the it is advisable that it shall be controlled by only relief prayed for is a writ commanding mandamus. Village of Glencoe v. People, them “to proceed to have such obstruction 78 Ill. 382; Tapp. Mand. (Amer. Ed.) 66. removed, as is their duty according to law.” The claim is made by appellees that the It is urged that, as the commissioners have court cannot tell from the petition whether charge of the roads in their town, they have they, appellees, in removing the fence, would a discretion in respect to the matter of their be trespassers or not, and that the case is like management, and that the courts will not the case of Yorktown v. People, 66 Ill. coerce them by mandamus in regard to mat- 339. At the time of that decision there was ters that are placed under their control and no statute which expressly imposed upon left to their discretion. Many of the powers commissioners of highways the duty of regiven to the commissioners are discretionary, moving obstructions in a highway. Besides but, in our opinion, the power here in ques. this, the obstructions in that case were of long tion is not of that character. By section 2 standing, were maintained under a claim of of the act it is made their duty to keep the right by land-owners, and were believed by roads of their town in repair, and section 5 the road anthorities not to be within the limrequires them to exercise such care and super- its of the highway. Here the truth of all the vision over such roads as the public good may averments in the petition is admitted by the require. The language of section 71 is "that demurrer, and the conceded facts are that the commissioners, after having given rea- the fence and obstruction are across an existsonable notice, * * may remove any ing public high way that has been used as such fence or other obstruction,” etc. We such for more than 20 years, and that such think it was intended by the statute to im- obstruction makes it impossible to travel such pose upon the commissioners the imperative highway. It is not perceived how it is possiduty of removing obstructions from the pub-ble, under such circumstances, that the comlic highway, and that the word “may” is to missioners, in proceeding to remove the fence be construed as "shall." The word “may” in conformity with the provisions of the statin a statute will be construed to mean “shall” ute, could be trespassers. The writ of manwhenever the rights of the public or of third damus, even since the revision of the statute persons depend upon the exercise of the pow- relating thereto, is only issued in a clear case, er of the performance of the duty to which and in the discretion of the court. People v. it refers, and such is its meaning in all cases Weber, 86 ill. 283. If, therefore, another where the public interests and rights are con- case should arise which is like the Yorktown cerned, or a public duty is imposed upon pub-Case, supra, where the alleged obstruction is lic officers, and the public or third persons maintained by a third person under a claim of have a claim de jure that the power shall be right, and is believed by the commissioners exercised. Kane v. Footh, 70 Ill. 587; Fow- not to be within the highway, perhaps the ler v. Pirkins, 77 Ill. 271; Gillin water v. court might, under its discretionary power, Railroad Co., 13 Ill. 1; Schuyler Co. v. Mer- refuse the writ of mandamus, and leave the cer Co., 4 Gilman, 20.

petitioner to the remedy by indictment, withIn the statute before us it is clear that a out he had, by a writ prosecuted by him in duty is imposed upon public officers, and that the name of the town, under the privilege the rights and interests both of the public and given him by section 74 of the road and bridge of third persons are involved, and that they act of 1883, first established, as against the have a claim as matter of right that the person maintaining the supposed obstruction, high way commissioners should exercise the that the locus in quo was in fact a part of the power given them, and the duty devolved up- public highway. Various minor objections on them of keeping the public road clear and are made to the petition. Suffice it to say free from fences or other obstructions that that we do not regard them as well made, and render it impossible to travel thereon. It is that, in our opinion, it shows a good prima to be noted that the statute provides the facie case for the awarding of a writ of mun

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