City of Elgin v. Eaton.

66

ticipate in the principal crime for which he was indicted, but was found guilty of a misdemeanor subsequently committed, with which he had not been charged. This is not according to the analogies of the law. Proof of the principal felony does not prove nor tend to prove a party is guilty as an accessory after the fact." It would be a most illogical conclusion. As at common law, sa under our statute, they are "offenses of several natures.” The judgment will be reversed, and the cause remanded. Judgment reversed.

CITY OF ELGIN V. EATON.

(83 Ill. 535.)

Eminent domain — Injury from change of grade of streets— Damages.

Under a constitutional provision that " private property shall not be taken or damaged for public use without just compensation," a municipal corpora tion is liable in damages to owners of private property injured by its change of the grade of its streets.*

The right of the owner to damages is determined by the laws in force at the time of the entry upon the public improvement, and cannot be affected by subsequent legislation.

If the benefit to the property in question by the change of grade is as great as the damage, there can be no recovery; and it is error to exclude testimony to show that fact.

A

CTION to recover damages for injuries occasioned by the grading of streets in Elgin, along and in front of the plaintiff's premises. The opinion states the facts.

Eugene Clifford, for appellant.

Botsford, Barry & Wilcox, for appellant.

WALKER, J. The city of Elgin, by ordinance, required Jackson and Bridge streets to be brought to grade, and in prosecuting the work it was brought below the base of appellee's house, and when the grade of the street was completed, the level of the street would be about six feet lower than the ground on which his house stood.

*See City of Shawneetown v. Mason, ante, 321.

City of Elgin v. Eaton.

And it appears that to remove the house back farther from the streets, and to grade his yard so as to come to the level of the streets, would cost from $700 to $1,000, but it also appears that the property would then be enhanced to a greater value than its present worth and the cost of making the change. It also appears that it would cost $300 or $400 to wall up the bank occasioned by the cut to bring the street down to the grade fixed by the profile of the work. The evidence tends strongly to prove that the house and lots upon which it is erected are worth as much or more than before the change in the grade was made.

Plaintiff sued the city to recover damages, and on a trial in the court below he recovered a verdict for $1,000, and the court, after overruling a motion for a new trial, rendered a judgment on the verdict, and defendant, to reverse the same, prosecutes this appeal, and assigns various errors.

It is first urged, that a municipal corporation is not liable for damages growing out of grading their streets. This was, no doubt, true, before the adoption of our present Constitution. Article 2, section 13, declares, that "private property shall not be taken or damaged for public use without just compensation." Now, this was private property, and the improvement was being made for public use, and if the property was damaged thereby, appellee is entitled to just compensation for such damage. If injury was sustained, it was for public use. See City of Pekin v. Brereton, 67 Ill. 477, and City of Shawneetown v. Mason, 82 id. 337. These cases fully establish the rule, that if a person is damaged in making such improvement, he may recover.

In this case the city entered upon the improvement of the street after the adoption of our present Constitution, and before the passage of our eminent domain law. The rights of the parties were then fixed, and cannot be altered by subsequent legislation, and the right to recover damages was given by the Constitution; and inasmuch as the city failed to have them assessed as they might have been under the eminent domain law, then in force, the action will lie for their recovery. See The People v. McRoberts, 62 Ill. 38. Failing to provide compensation for the damages, the city became liable to an action. Clayburgh v. City of Chicago, 25 Ill. 535. The failure. to have the damages ascertained, if there were any, and provide the means to pay the same, was an omission of duty which rendered the body liable to an action.

City of Elgin v. Eaton.

The question then presents itself, what was the measure of damages? In the case of Shawneetown v. Mason, supra, it was said : "The true question is, whether the property was injured by the improvement. If not, then there is no damage, and can be no recovery. If there is, then the recovery must be measured by the extent of the loss. If the property is worth as much after the improvement as before, then there is no damage done the property. If the benefits received from making the improvement are equal to or greater than the loss, then the property is not damaged for public use. We apprehend there can be no damage to property without a pecuniary loss. If there is no depreciation in value, there is no damage, and if no injury, then there should be no recovery. See Chicago and Pacific Railroad Co. v. Francis, 70 Ill. 238, where this doctrine is announced. The court should have admitted the evidence offered, to prove the value of the property before and after the improvement was made.

It is insisted that the court erred in permitting appellee to introduce the profile of the improvement, and prove the extent of the damage that would be sustained when the work should be completed. In the case of The Jacksonville and Savannah Railroad Co. v. Kidder, 21 Ill. 131, it was held to be error, in a case of the assessment of damages sustained by the construction of a railroad, to reject the plans and estimates of the company as evidence in the That case seems to be identical in principle with this, and is of controlling authority.

case.

From what has been said, it will be seen that a portion of appellee's instructions were wrong, and highly calculated to mislead the jury, and we think must have had that effect. It is admitted that it was error to award execution against the city.

For the errors indicated, the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

Voss v. German American Bank of Chicago.

Voss v. GERMAN AMERICAN BANK OF CHICAGO.

(83 Ill. 599.)

Surety-Discharge-Bank-Omission to apply deposit of principal.

Where the principal in a note payable to a bank has funds on deposit in the bank after the maturity of the note, and before suit, exceeding the sum due thereon, the surety is not discharged by the omission of the bank to apply the same to its payment.*

A

CTION on a promissory note. The opinion states the facts.

E. & A. Van Buren, for appellant.

SHELDON, C. J. This was a suit, brought August 18, 1874, upon a promissory note, of which the following is a copy:

CHICAGO, October 4, 1873.

"Fifteen days after date we promise to pay to the order of the Germania Bank of Chicago three hundred dollars, at their office, with interest at the rate of ten per cent per annum after due, until paid. Value received.

(Signed.)

"Indorsed :

"ALBERT MICHELSON, "A. Voss.

"Received on account, $72.

November 21, 1873.

"Received on the within note, $25. July 28, 1874."

Upon trial in the court below, without a jury, the plaintiff recovered a judgment for $246.10.

The note appears to have been made for Michelson's benefit, and Voss to have been only a surety, as between himself and Michelson, and as Michelson is shown to have had funds on deposit in the bank, from time to time, after the maturity of the note, and before the bringing of the suit, to an amount exceeding that of the note, it is insisted that the bank was bound to apply such funds to the payment of the note, and that not having done so, Voss was discharged. And the cases of McDowell v. Bank of Wilmington and Brandywine, 1 Harrington, 369, and Law v. East India Co., 4

* See National Bunk v. Smith, 23 Am. Rep. 48, and note.

Harris v. Pullman.

Vesey, 824, are cited as authorities that, under such circumstances, a surety will be discharged. Without remark upon or consideration of these authorities, we do not regard them as having application to the case in hand. We do not recognize, in such a case as is here presented, the existence of any such obligation as the one which is asserted by appellant's counsel.

It is further set up, that there was an extension of the time of the payment of the note granted by the bank to Michelson, whereby Voss was discharged. It is sufficient to say, that we find no sufficient evidence of any binding agreement for such extension.

The judgment is affirmed.

HARRIS V. Pullman.

(84 III. 20.)

Judgment affirmed.

Conflict of laws

· Equity jurisdiction - Decree where process not personally served.

When the subject-matter of a suit in this State is land situated in another State, and a suit in relation thereto is pending between the same parties in such other State, and the court of that other State is in a situation to do justice to all parties, and the court in this State has not jurisdiction of all the necessary parties, it will refuse to entertain jurisdiction, but leave the parties to the decision of the court in the other State.

A decree against non-residents, upon constructive notice by publication, can only affect property within the jurisdiction of the court.

A court in this State may restrain a person over whom it has jurisdiction from commencing suits in a foreign State; but after a suit has been commenced by such person in such foreign State, the courts of this State will not interfere with the prosecution of it.

THIS

HIS was a bill in chancery, by John S. Harris and Charles H. Wheeler, residents of Wisconsin, against George M. Pullman, David A. Gage and Franklin Parmelee, residents of Illinois, and James E. Lyon, Charles H. Moore and Henry D. Towne, nonresidents of Illinois, praying that the defendants be declared to be trustees in possession of certain mines, mining property, etc., in Colorado, for the complainants; for an accounting concerning the same; and for an injunction against interference therewith,