torney's fees, in collecting the note. Obvi- | and attorney's fees incurred in the other. ously the meaning of the language used was, Here Brown, by the terms of his guaranty, if costs and expenses and attorney's fees bound himself to pay costs and expenses, inwere incurred in the collection of the note cluding attorney's fees, which might be inand interest from the maker, then such curred in an action to collect the note, but he costs, expenses, and attorney's fees should saw proper not to agree to pay such costs be paid by Brown. If the contract of New- and expenses as might be incurred in an acell, the maker of the note, and the contract tion brought on the contract of guaranty; of guaranty by Brown, was but one contract, and in the absence of such an agreement we the position of appellant that the action on are aware of no principle which would make the guaranty was an action on the note might him liable. Had a suit been brought on the be regarded more plausible; but such is not note against the maker, under the contract the case. Daniel, Neg. Inst. § 1752, defines of guaranty, Brown would have been liable a contract of guaranty as follows: "A guar- for such costs and expenses, including atanty' is defined to be a promise to answer torney's fees, as might have been incurred for the payment of some debt or the per- in that action; but no such action was formance of some duty in case of the failure brought, and there has been no breach of his of another person who is in the first instance contract so far as costs and expenses are conliable to such payment or performance." 2 cerned. Pars. Cont. 3, says: "Guaranty is held to be the contract by which one person is bound to another for the due fulfillment of a promise or engagement of a third party." Story, Prom. Notes, § 457, says: "A guaranty, in its legal and commercial sense, is an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty, by another person, who himself remains liable to pay or perform the same." In Dickerson v. Derrickson, 39 Ill. 574, this court, in speaking of a guaranty, says: "The contract of an absolute guaranty is that if the principal fails to pay the guarantor will. If it were not so, it would not be a guaranty, but an independent undertaking." See, also, Rich v. Hathaway, 18 Ill. 548. Here Newell, as maker of the promissory note, agreed to pay a certain sum of money at a certain time. By his contract he became liable on the note; but Brown, as guarantor, was not liable with him. No joint lability existed. In Baylies, Sur. 389, the author says: "In an action to enforce a contract of guaranty the guarantor is the proper party defendant, and the principal debtor should not be joined. As has been shown, all the parties to a contract of suretyship may be joined as defendants; but a guarantor cannot be sued with his principal, for his engagement is strictly an individual contract, and not an engagement jointly with his principal." One other question remains to be considered: On the trial the appellant offered to show that he employed counsel to "watch Brown from 1878 to 1882, and the business operations in which he was engaged, to see when there was a reasonable prospect for collecting the note out of him." Also that in April, May, June, and July, 1882, his attorney had negotiations with Brown for the settlement of his liability on the guaranty for which the services of counsel were worth $50, and which sum appellant had paid. As to those services the appellate court held, if they were a proper charge against appellee, they should have been included in the former suit. We concur in the view of the appellate court, if any liability existed for those services, as they had been rendered before appellee was sued on the guaranty, they should have been embraced in that action. The judgment of the appellate court will be affirmed. (131 Ill. 104) SCHLESINGER et al. v. KEIFER.1 (Supreme Court of Illinois. Nov. 26, 1889.) JUDGMENT FOR COSTS-APPEAL-REVIEW. 1. Where in an action against two defendants only one is served and defends, the fact that, upon a finding in favor of the defendant, judgment for costs is rendered in favor of "the defendants" is harmless error. and no questions of law are raised upon the ad 2. Where an action at law is tried by the court, mission or exclusion of evidence, and no propositions of law are submitted to the court, the record presents no questions for the consideration of the supreme court. Error to appellate court, first district. Kraus, Mayer & Stein and Isaac H. Mayer, for plaintiffs in error. G. W. Stanford, for defendant in error. Here Brown's engagement as guarantor was his individual contract, under which he became bound to pay in case the maker of the note failed to do so. When the maker of the note failed to pay at maturity of the instrument, the guarantor then, and not before, became liable, on his contract of guaranty, to an action. The liability of the maker of the note and the guarantor were separate and distinct. To enforce the liability of the maker an action should be brought on the note against him, while to enforce the liability of the guarantor an action could only be brought on the contract of guaranty; and it seems plain that an agreement to pay costs and attorney's fees which might be incurred in one action does not include costs bar. BAILEY, J. This was an action of as sumpsit, brought by Leopold Schlesinger and David Mayer against James B. Keifer and Nora B. Keifer, to recover for certain goods, wares, and merchandise sold and delivered by the plaintiffs to defendant Nora B. Keifer. 1 Reported by Louis Boisot, Jr., of the Chicago Some complaint is made of certain rulings of the trial court in the admission and exclusion of evidence. We have given the points thus raised our careful consideration, but find in them nothing which merits special discussion. All we need say is, that in our opinion the decisions of the court in that respect were substantially correct, and that they are not open to the objections which counsel seek to raise. Only James B. Keifer was served with sum- | but one was served with process, or appeared. mons, the other defendant not being found. In form the judgment entered is in favor of The declaration consisted of the common in- the "defendants," but if it is for that reason debitatus assumpsit counts, and also a spe- to be construed to be, in legal effect, a judgcial count, alleging, in substance, that dur- ment in favor of a party not before the court, ing the months of September, October, and which may well be doubted, the error is manNovember, 1886, the defendants were hus-ifestly one which can work no prejudice to band and wife, and were residing in the city the plaintiffs. The defendant not served has of Chicago, and that the plaintiffs, on vari-incurred no costs or expenses, and a judgment ous days during those months, at the special for the costs and charges by the defendants instance and request of defendant Nora B. about said suit expended can, in the nature Keifer, sold and delivered to her goods, wares, of things, be only a judgment for the costs and merchandise, consisting of dry goods expended by the defendant who appeared and amounting in value, at the prices then and made defense. The costs which the plaintiffs there agreed upon between the plaintiffs and will be compelled to pay are in no degree insaid Nora B. Keifer, to $348.95; that the creased by the error in the entry of the judggoods, wares, and merchandise so sold and ment, and said error, therefore, so far as the delivered by the plaintiffs to said Nora B. plaintiffs are concerned, is wholly immateKeifer were proper expenses of the family of rial. said defendants, and were by the said Nora B. Keifer purchased for, and used and employed in providing, proper wearing apparel for the family of said defendants,-by means whereof, and by force of the statute in such case made and provided, the defendants became liable to pay the plaintiffs said sum of $348.95, and, being so liable in consideration thereof, the defendants then and there undertook and promised the plaintiffs to pay them said sum of money when thereunto afterwards requested. Defendant James B. Keifer pleaded non assumpsit, and also a plea, verified by affidavit, denying his joint liability with the other defendant in respect to the several causes of action in the declaration mentioned; and on the issues formed by said pleas the cause was submitted to the court for trial, a jury being waived, and at such trial the court found the issues for the defendants, and, after denying the plaintiffs' motion for a new trial, gave judgment in 1avor of the defendants for costs. That judgment was affirmed by the appellate court on appeal; and, the judges of that court having certified that the case involves questions of iaw of such importance, on account of principal and collateral interests, that it should be passed upon by this court, the record is now brought here by writ of error. Notwithstanding the certificate of the judges of the appellate court that the case involves questions of law of such importance that it should be passed upon by this court, we are able to find, beyond the points already adverted to, no question of law whatever which is so presented by the record as to be open for consideration here. The case was submitted to the trial court upon the evidence, without the presentation of any propositions to be held as the law in the decision of the case. So far as the record furnishes us with any evidence, then, the only questions submitted to and passed upon by that court were mere questions of fact, and upon all questions of that character the judgment of the appellate court is conclusive. The suit is brought to enforce a liability imposed by section 15 of the statute in relation to "Husband and Wife," but there is The evidence on the part of the plaintiffs nothing before us from which we can say that tended to show that during the period men- the trial court misconceived or put an imtioned in the declaration the defendants were proper construction upon the provisions of husband and wife, and that during that pe- said statute, or failed in any respect to apply riod the plaintiffs sold and delivered to Nora those provisions to the evidence heard at the B. Keifer goods, consisting chiefly of various trial. If the conclusion reached was erronearticles of female wearing apparel, or of materials therefor, amounting in all to $348.95, and that some of said goods afterwards constituted portions of the wearing apparel of said Nora B. Keifer. The defendant's evidence tended to show that at the time said goods were purchased, and for a considerable time prior thereto, the defendants were living separate and apart from each other, and therefore did not constitute a family to which family supplies could be furnished, and that shortly thereafter they were divorced. A point is made that the judgment for costs is in favor of both of the defendants, while ous, and as to that there is no occasion for us to express an opinion, the error, so far as the record shows, may have arisen from a misconception of the evidence, and a mistaken conclusion as to the facts, thus presenting questions over which we have no revisory power. We have frequently held that, where a jury is waived, and the trial is had before the court, and no questions of law are raised upon the admission or exclusion of evidence, and no propositions are submitted to the court, to be held as the law, in the decision of the case, the record will present no ques (130 III. 323) QUICK V. VILLAGE OF RIVER FOREST.1 (Supreme Court of Illinois. Nov. 26, 1889.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS -ASSESSMENTS. And tions of law for the consideration of this | missioners who were appointed by the village court. Hardy v. Rapp, 112 Ill. 359, and under this section of the statute made out cases there cited. As we find no error in the and signed a report in writing as required by record, the judgment of the appellate court the statute, which was filed and approved by will be affirmed. the board of trustees of the village. the question presented by the offered evidence is whether the commissioners can be called as witnesses to impeach their own report, after it has been accepted and approved by the board of trustees. The law required the commissioners to meet and act together in estimating the costs of the improvement, and the costs of making and levying the assessment. Their duties required investigation, deliberation, and a final determination of the subject referred to them by the board of trustees, and we are aware of no authority which would sanction the calling of such persons to stultify themselves. It may be true that 3. Appearing in court and filing objections to the statute does not, in terms, require such the confirmation of a special assessment is a waiv-commissioners to be sworn, but their acts are er of any defects in the notice of final hearing. 1. Commissioners who have been appointed to estimate the cost of a proposed local improve ment, and who have made such report, are not competent witnesses, upon the hearing of objections to the confirmation of the special assessment therefor, to prove that they did not meet together to make such estimate as required by law. 2. Nor are the declarations of the commissioners competent evidence to impeach their report, they not being parties to the litigation. Miller, Leman & Chase, for appellant. George L. Thatcher, for appellee. none the less obligatory and binding. Their duty requires as much honesty and fidelity where they are not sworn as it would if they CRAIG, J. This is an appeal from a judg- would be establishing a dangerous rule to alwere acting under oath; and we think it ment of the county court of Cook county low such persons to come upon the witness confirming a special assessment of the village stand, and impeach their voluntary action, of River Forest, ordered to pay for a certain after such action has been approved and actdrain to be constructed on Chicago avenue. ed upon by the board of trustees. We are The appellant appeared in the county court, and filed certain objections to a confirmation not, however, without authority on the quesof the assessment, and on a trial before the tion. In Wright v. City of Chicago, 48 Ill. court, a jury having been waived, he called 285, it was expressly held that such evidence as a witness one of the commissioners who had been appointed by the village to estimate the cost of the improvement, and offered to prove that he had no meeting or conference at any time with the other commissioners, or either of them, in regard to the cost, or in regard to said estimate of cost, or the making of the same, and that no such meeting or conference was had, and that witness did not make up or form any estimate of such cost; to which evidence petitioner objected, on the ground that it was not competent to impeach the written return or report of said commissioners of the estimate of such cost by the evidence of one of the commissioners. Ob was not admissible. ment was that the commissioners appointed The next objection interposed to the assessto make the assessment did not estimate what proportion of the total cost would be of benefit to the public, and what proportion would jection sustained, and evidence excluded on and apportion the same. It appears from the be of benefit to the property to be benefited, that ground. The other commissioners were record that the estimated cost of the imalso called, and objector offered to prove the same facts by them; but, upon objection, the provement, as reported by the commissioners and approved by the board of trustees, was court held that the evidence was incompe- $6,000. Section 4 of the ordinance providing tent. Section 20 of article 9 of the act in re- for the improvement provided that one-half lation to cities, villages, and towns, (Rev. of the cost of the improvement should be St. 1874, p. 235,) under which this proceeding was instituted, provides that the city council paid for by special assessment to be levied or board of trustees shall appoint three of its upon property benefited thereby, and the remainder of such costs should be paid by genmembers, or any other three competent per-eral taxation. Owing to the fact, we presons, who shall make an estimate of the cost of the improvement contemplated by such ordinance, including labor, materials, and all other expenses attending the same, and the costs of making and levying the assessment, and shall report the same in writing to said council or board of trustees. The three com1Reported by Louis Boisot, Jr., of the Chicago bar. sume, that the ordinance provided that onehalf of the amount to be raised should be paid by special assessment, and one-half by general taxation, counsel for appellant arrive at the conclusion that the commissioners appointed to make the assessment did not estimate what proportion of the total cost would be of benefit to the public, and what proportion would be of benefit to the property to be 2. In such ejectment suit, evidence that the junior judgment had been paid, and that the judg ment debtor tendered money for the redemption of the land after the time for redemption had expired and the sheriff's deed had been delivered, was immaterial. Error to superior court, Cook county. The facts in this case are fully stated in the former opinion, reported in 4 N. E. Rep. 496. Harlan, for defendants in error. benefited, and apportion the same as required | ment debtor then had the junior judgment reby section 139. In this, however, it is ap- for the land. Held, that the title derived through versed on writ of error, and brought ejectment parent that counsel have misapprehended the the senior judgment was good, that judgment not true condition of the record. The ordinance having been reversed, and the irregular method of providing for the improvement, the commis-disposing of the suit between the two purchasers sioners' report, and assessment roll were put in not affecting the judgment debtor. evidence by the petitioner, and the certificate appended to the assessment roll, signed by the commissioners, among other things contains the following: "River Forest. The undersigned commissioners, appointed by the county court of Cook county to assess one-half the cost of *, do hereby certify that they have completed the foregoing assessment roll, showing ***; that, before proceeding to make said assessment, they were duly qualified before entering upon their duties, as appears by the oath hereto attached; that BAILEY, J. This was an action of ejectthey examined the locality where the said ment, brought by George W. Miller against improvement is proposed to be made, and the Abram M. Pence and others, in the superior lots, blocks, tracts, and parcels of land which court of Cook county, to recover certain lands will be specially benefited thereby, and did in said county, which the plaintiff claims to estimate what proportion of the total cost of own in fee. A trial was had, resulting in a said improvement will be of benefit to the judgment in favor of the defendants, which, public, and what proportion thereof will be being brought to this court by writ of error, of benefit to the property to be benefited, and was affirmed. Miller v. Pence, 115 Ill. 576, did apportion the same between the city of 4 N. E. Rep. 496. After said affirmance, and Chicago and such property, so that each shall within one year after the entry of said judgbear its relative equitable proportion." The ment in the court below, the plaintiff paid words "city of Chicago" are evidently used by all the costs recovered in the suit, and obmistake for "River Forest." From the fore-tained an order from that court, in pursugoing certificate of the commissioners, which ance of the statute, vacating said judgment is a part of the assessment roll, it is apparent and granting a new trial. A second trial that the commissioners followed the require- was thereupon had before the court and a ment of section 139, notwithstanding the fact jury, and at such trial the court, at the close that the ordinance contained a provision that of the evidence, instructed the jury to find a one-half of the amount should be raised by verdict for the defendants, which was accordgeneral taxation, and the other half by spe-ingly done; and the court, after denying the cial assessment. So far, then, as this objec-plaintiff's motion for a new trial, gave judgtion of appellant is concerned, it is without ment in favor of the defendants for costs. foundation. It is also insisted that the notice of the assessment and of the term of court at which a final hearing will be had was not given in the manner required by law. We shall not stop to determine whether the notice in all respects conforms to the statute or not. The appellant appeared in court in obedience to the notice, and filed objections to the confirmation of the report, and whether the notice was defective or not, under such circumstances, is a matter of no moment, as the appearance without objection must be held as a waiver of all defects contained in the notice. The judgment of the county court will be affirmed. (131 I11. 122) MILLER V. PENCE et al. (Supreme Court of Illinois. Nov. 26, 1889.) JUDGMENT-EFFECT-EJECTMENT. 1. A purchaser of land at execution sale brought suit against a purchaser of the same land under a senior judgment, and obtained a decree setting aside the latter sale as a cloud on his title. Afterwards he bought the other's certificate of purchase, and by consent the decree in his favor was reversed by the supreme court. The judg The last-mentioned judgment is now before us on writ of error to the superior court. The evidence of title, both on behalf of the plaintiff and the defendants, is identically the same that it was when the case was here before; and it will be unnecessary, therefore, for us to discuss the evidence again, since the conclusions reached in our former decision must control. Doubtless, if Pence's title had rested solely upon the sale under the Brahmstadt and Miller judgment, it would have been improper for the court to direct a verdict for the defendants, as there was some evidence tending to charge Pence with notice of the error in that judgment for which it was afterwards reversed by the appellate court. No successful attack, however, was made upon his title under the Aughinbaugh judgment, and no evidence was introduced tending to establish any ground for hoiding that title to be invalid. The court below therefore held, and properly, as we think, that the title derived from the sale under that judgment was conclusive upon the plaintiff; and upon that ground the jury were properly instructed to find for the defendants. Complaint is made of various rulings of 1Reported by Louis Boisot, Jr., of the Chicago half of the plaintiff. As most of the evithe court, excluding evidence offered on be bar. v22N.E.no.22-52 dence thus offered was manifestly immaterial, we do not deem it our duty to discuss it in detail. Among other things, the court excluded evidence offered by the plaintiff of a tender by him to the sheriff in May, 1885, of a certain sum of money to redeem said land from the sale under the Aughinbaugh judgment. As by the very terms of the offer it appeared that the tender was made several years after the plaintiff's right of redemption had expired, and long after the sheriff's deed had been executed in pursuance of said sale, the evidence offered was clearly immaterial. Error to criminal court, Cook county Donahoe & David, for plaintiff in error. George Hunt, Atty. Gen., for defendant in error. CRAIG, J. Eddie Sheehan and Henry Divine were indicted in the criminal court of Cook county for robbery. At the March term, 1889, of the court, they were placed upon trial on the indictment. Upon the close of the evidence introduced on behalf of the people, there being no evidence to establish the guilt of Divine, the court directed the jury to return a verdict of not guilty as to The only other evidence offered and ex- him, which was done, and Divine was discluded of which mention need be made was charged. The jury on the evidence found the evidence tending to show that the indebted-other defendant, Eddie Sheehan, guilty, and ness upon which the Brahmstadt and Miller fixed his term of imprisonment at three years judgment was recovered had been paid, and in the penitentiary. The court rendered also evidence tending to show that defendant judgment on the verdict, and this writ of erPence was one of the attorneys for the plain-ror has been sued out to reverse the judgtiff in the recovery of said judgment, and ment. therefore charged with notice of the error On the trial the principal prosecuting witfor which that judgment was afterwards re-ness, O. F. Bridges, testified that he resided versed. Without pausing to determine how in Chicago, and on the evening of January far either of the facts thus sought to be proven was material, it is sufficient to say that the plaintiff cannot be held to have been prejudiced by the exclusion of said evidence. It only went to the validity of the sale under the Brahmstadt and Miller judgment, and in no way impeached the validity of the title acquired under the Aughinbaugh judgment. As the latter title was alone sufficient to defeat the plaintiff's suit, it would have been of no avail to him to show the invalidity of the title under the Brahmstadt and Miller judgment. We find no error in the record, and the judgment of the superior court will therefore be affirmed. 14, 1889, as he and his wife were entering a street-car at the corner of Lake and State streets, in the city of Chicago, he was assailed by the plaintiff in error and others, who forcibly took from his pocket his pocket-book, containing $160 in money, and negotiable papers for $175, and a receipt, for $25, which he stated he would have to pay over again. Other evidence was introduced on the trial, but it will not be necessary to allude to it here, as it is not claimed that the evidence is insufficient to sustain the finding of the jury. The witness Bridges was examined in chief, cross-examined, re-examined by the state's attorney; and upon the recross-examination counsel for plaintiff in error asked the witness to state what the receipt was given for which he stated he would have to pay over. The witness declined to answer the question, and the court ruled that the witness was not required to answer the question; and 1. Upon trial for robbery, where the indict- this ruling is relied upon as error. The inment charges the defendant with the robbery of dictment does not charge the plaintiff in ermoney and a pocket-book, and the prosecuting wit-ror with the robbery of a receipt for the payness testifies that the pocket-book taken also contained a receipt, it is not error to refuse to compel the witness to state on recross-examination what the receipt was given for. (131 I11. 22) SHEEHAN v. PEOPLE.1 (Supreme Court of Illinois. Nov. 26, 1889.) ROBBERY-ALIBI-INSTRUCTIONS. ment of money. The indictment charged him with the robbery of money and a pocket2. Where an alibi is set up as a defense, it is book, and all the evidence in regard to the not prejudicial error to charge that when the peo- papers taken may be regarded as immaterial. ple make out such a case as would sustain a ver- It is true, as suggested by counsel, that much dict of guilty, and the defendant offers evidence, latitude is generally allowed in the cross-exthe burden is on him to make out that defense; and, as to an alibi, and all other like defenses, that amination of a prosecuting witness, in a case tend merely to cast a reasonable doubt on the case of this character; but the court could not be made by the people, when the proof is in, then the required to allow counsel, in recross-examiprimary question is (the whole evidence on both nation, to go into matter foreign to the issue sides being considered) whether defendant is guilty, beyond a reasonable doubt; the law being that involved. What the receipt which the witwhen the jury have considered all the evidence, ness had lost was given for, had no direct as well that touching the alibi as the criminating bearing on the guilt or innocence of plaintiff evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused, they should acquit; otherwise not. Following Ackerson v. People, 16 N. E. Rep. 847. 3. It is proper to refuse instructions the substance of which have been already given. in error, and we do not think the court erred in its ruling in excluding the proposed evidence. It is next claimed that the court erred in giving instruction No. 3 for the people. An instruction in all respects like the one in question was given in Ackerson v. People, 124 |