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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If the defendants had inter- same note; the indorsement which they had posed the defense that complainant had con- originally made on the note to William Grant veyed the property for the purpose of de- having been erased.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 of ted to the court without a jury by agreement, controlling importance. We do not, how- and upon the issue presented by the plea setever, 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 of the state of Illinois, held, as a legal conclusion, that a judgment in favor of the defendants upon the merits in the suit brought in the state of Ohio against them by the assignee was no bar to the action by the payees, and therefore the plaintiff was entitled to recover. On appeal to the appellate court the judgment of the superior court was reversed.

(130 III. 498)

LESLIE et al. v. BONTE et al. (Supreme Court of Illinois. Oct. 31, 1889.) RES ADJUDICATA.

A judgment for the defendant, upon a plea of want of consideration, in an action by the indorsee of a promissory note against the maker, is a bar to a subsequent action, in another state, by the payee against the maker.

Appeal from appellate court, first district. Tenney, Driggs & Hawley, for appellants. Francis A. Riddle and John S. Stevens, for appellees.

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There is but one question presented by this record, and that is whether the judgment rendered in Hamilton county, Ohio, is a bar 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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be reduced to writing, and signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix by two or more credible witnesses, two of whom declaring on oath or affirmation, before the county court of the proper county, that they were present, and saw the testator or testatrix sign said will, testament, or codicil in their presence, or acknowledge the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament, or codicil to admit the same to record: provided, that no proof of fraud, compulsion, or other improper conduct be exhibited, which in the opinion of said county court shall be deemed sufficient to invalidate or destroy the same."

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 the 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 the first indorsee, upon the same principle, had the payee of the note brought the action, he would have been barred. In Drake v. Perry, 58 Ill. 122, a judgment in favor of the maker in an action on a note in the name of the payee for the use of the holder was held to be a bar to a second action on the same note in the name of the assignee. In Iowa, the supreme court of that state in Levi v. McCraney, 1 Morris, (Iowa,) 124, held that a judgment in favor of the maker of a note on the merits, in an action by the assignee, was a bar to a subsequent action brought by the payee. The same doctrine has been held by the supreme court of Kentucky in the late case of Soward v. Coppage, 9 S. W. Rep. 389. No reason occurs to us why the Leslies should not be barred and concluded by the judgment. They indorsed the note, and delivered it, indorsed, to Grant; thus placing the absolute title and ownership in him. By this act they clothed him with authority to 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. 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 judgment ically 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 acquired Grant's title to the note subject to all defenses the makers might interpose against him. Among these defenses was a judgment in bar of the note. We think the judgment of the appellate court correct, and it will be affirmed.

(130 I11, 397)

CANATSEY et al. v. CANATSEY. (Supreme Court of Illinois. Oct. 31, 1889.) PROBATE OF WILL.

Owen P. Thompson, for plaintiffs in error. James M. Riggs, for defendant in error.

By

to the county court of Scott county by Jackson Canatsey, the executor, who was also one of the sons, and was admitted to probate by that court on May 17, 1888. The probate of the will was resisted before the county court by Henry Canatsey and Ellen McCarty, claiming to be grandchildren of the testator, children of a deceased son. They are not mentioned in the will. They are described as such grandchildren in the order of the county court admitting the will to probate. They took an appeal from such order to the circuit court, where a trial was had, by consent, before the circuit judge without a jury, result

Under Rev. St. Ill. c. 148, § 2, which makes it a prerequisite to the probate of a will that two 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 acknowledged the will in his presence, and the other identifies his signature, says that he does not recollect who was present when he attested the will, but that the testator, "or some one for him," asked him to attest it. WILKIN, J., dissenting.

court.

The testator could not write. He signed the will by making his mark, and affixed his seal. The only evidence introduced upon the 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 by Henry Canatsey and Ellen Mc-man of the will. It is urged by the contest

ants that the proof of the execution of the recollection of witness is that "Uncle George will was not sufficient, under the require- or some one 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 11. 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 showned so to do, either by Mr. Canatsey or some to him on the trial was "in the exact form in which he wrote it;" that it is his recollection that he wrote it at the dictation of George Canatsey; that the testator signed his name to the instrument "by his mark;" that the will was written in the office of the witness, on the south side of the square in Winchester, Scott county, and that he and the testator were present at the time; that "the old gentleman came in, and had me prepare the will; and my impression is that he had some memorandum. He might have had it on the leaf of a book. My recollection is that he * * * told me what he wanted done, and pulled out some papers;" that he (the witness) would not have written a will, and signed George Canatsey's name to it, except at the dictation of George Canatsey. Second. The will is attested by two credible witnesses, -Frank McGlasson, who was then, and had been for 12 years, clerk of the circuit court of Scott county; and Thomas P. Rowen, who had been county clerk 8 years, and county 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 v. COMMISSIONERS er conduct, made out such a prima facie case as justified the court in admitting the will to probate. McGlasson swears that he had lived in Scott county 50 years. That he had known the testator about 12 years. That his name was signed to the will as a witness. That the signature was unquestionably that of the witness. That the testator frequent-after giving reasonable notice, may remove such ly came into the office of witness, and they had talks together. That witness always called him "Uncle George." That the best

one for him in his presence. I don't remember who was present. I don't remember where it was. I suppose, though, it was in the court-house. I was in the court-house every day. The testator came to town nearly every Saturday, and I generally saw him every time he came to town. He would come to the court-house. Either George Canatsey or Callans, or some one for him, sure,' asked me to sign it, [the will.] I don't remember of seeing the old man make his mark to the will. I don't remember half the wills I have written or attested. I never witnessed any instrument unless it was either signed or acknowledged by the signer in my presence." The judgment of the circuit

court is affirmed.

WILKIN, J., (dissenting.) I dissent. In my opinion, the testimony of the subscribing witness Rowen, as it appears in the record, is not sufficient to entitle the will to probate under our statute.

OF HIGHWAYS.

(130 III. 482)

(Supreme Court of Illinois. Oct. 31, 1889.)

MANDAMUS-OBSTRUCTION OF HIGHWAY.

1. Under Rev. St. Ill. 1889, c. 121, § 2, which gives the commissioners of highways charge of roads and bridges, and section 71, which provides that when a road is obstructed the commissioners,

obstruction, the commissioners may be compelled tion from an existing public highway, the word by mandamus to remove an impassable obstruc"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 in such case that there is a statutory remedy by indictment, since by Rev. St. Ill. c. 87, § 9, the remedy by mandamus is not affected by the existence of another legal remedy.

the doctrine was chiefly placed was that, there being a complete and adequate remedy by indictment, relief by mandamus was precluded; and another ground stated in some of the cases was that no statute expressly imposed upon the commissioners the duty of removing such obstructions. The ground that there is another remedy equally convenient and effectual, and therefore mandamus does not lie, is abrogated by section 9 of the act to revise the law in relation to mandamus, in force July 1, 1874, which provides that "the proceedings for a writ of mandamus shall not be dismissed, nor the writ denied, because the petitioners may have another specific legal remedy, where such writ will afford a proper and sufficient remedy." Rev. St. c. 87, § 9. Whether or not mandamus will lie since the Revision of 1874, and under the present road laws, against highway commissioners, to compel the removal of obstructions from a public road, and, if so, under what circumstances it will lie, does not appear to have been passed upon by this court.

Appeal from appellate court, third district. James S. Ewing and James S. Neville, for appellant. Tipton & Beaver, for appellees. BAKER, J. This is a petition filed in the McLean circuit court by Abraham Brokaw, to compel the commissioners of highways of Bloomington township to remove an obstruction from a highway. The petition alleges that petitioner is the owner of the east half of section 27, township 23 N., range 2 E., in McLean county, and that there is a public highway running north and south on or near the center line of said section, which public highway has been in use for more than 20 years. The petition then proceeds as follows: "Petitioner further represents that some one has built a stake-and-rider fence across said public highway, causing an obstruction therein, 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. Ill., 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. 121,871)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 digand 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 was subsequently affirmed in the appellate court for the third district. The case is now brought here by further appeal.

Prior to the revision of the statutes in 1874, the doctrine, as held in this state, was that where a highway had been obstructed, after having been opened and traveled by the public, the proper remedy was by prosecution under the statute against the party causing the obstructions, and not by mandamus to compel the commissioners of high ways to remove the obstructions and open the road. Commissioners v. People, 73 Ill. 203; Commissioners v. People, 66 Ill. 339; People v.

owners, or person so obstructing or plowing or digging ditches upon such road, of the obstruction, may remove any such fence or other obstruction, fill up any such ditch or other excavation, except ditches necessary to the drainage of an adjoining farm emptying into a ditch upon the highway, and recover the necessary cost of such removal from such owner or other person obstructing such road aforesaid, to be collected by said commissioners before any justice of the peace having jurisdiction." Section 74, Rev. St. Ill. (Ed. 1889) c. 121, § 74, provides for the recovery of fines and penalties in the name of the 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 authorities not to be within the limrequires them to exercise such care and super-its of the highway. Here the truth of ali 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 highway 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 be construed as "shall." The word "may" in a statute will be construed to mean "shall" whenever the rights of the public or of third persons depend upon the exercise of the power of the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be 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. Railroad Co., 13 Ill. 1; Schuyler Co. v. Mercer Co., 4 Gilman, 20.

In the statute before us it is clear that a duty is imposed upon public officers, and that the rights and interests both of the public and of third persons are involved, and that they have a claim as matter of right that the highway commissioners should exercise the power given them, and the duty devolved upon them of keeping the public road clear and free from fences or other obstructions that render it impossible to travel thereon. It is to be noted that the statute provides the

missioners, in proceeding to remove the fence in conformity with the provisions of the statute, could be trespassers. The writ of mandamus, even since the revision of the statute relating thereto, is only issued in a clear case, and in the discretion of the court. People v. Weber, 86 Ill. 283. If, therefore, another case should arise which is like the Yorktown Case, supra, where the alleged obstruction is maintained by a third person under a claim of right, and is believed by the commissioners

court might, under its discretionary power, refuse the writ of mandamus, and leave the petitioner to the remedy by indictment, without he had, by a writ prosecuted by him in the name of the town, under the privilege given him by section 74 of the road and bridge act of 1883, first established, as against the person maintaining the supposed obstruction, that the locus in quo was in fact a part of the public highway. Various minor objections are made to the petition. Suffice it to say that we do not regard them as well made, and that, in our opinion, it shows a good prima facie case for the awarding of a writ of man

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