for said penalties and costs of suit. From that judgment, they have appealed to this court.

Appellee has moved to dismiss the appeal for want of jurisdiction. At the trial, Edmonia Farrelly claimed that the place where the obstructions were placed was her freehold, and the opposing claim was that the public had acquired a perpetual easement over the premises at that place. The errors assigned relate to that question, and the appeal involves a freehold. Chaplin v. Commissioners, 126 Ill. 264, 18 N. E. 765; Town of Brushy Mound v. McClintock, 146 Ill. 643, 35 N. E. 159; Village of Crete v. Hewes, 168 II. 330, 48 N. E. 36. It was shown at the trial that on July 6, 1895, a petition was presented to the commissioners of highways of the town of Kane, asking them to lay out a new road, beginning at the southeast corner of the N. E. 14 of said section 6, and running thence due west threequarters of a mile; thence southwest, northwest, and west about one-fourth of a mile, around a certain hill connecting with the county road, passing over lands of Edmonia Farrelly, Michael Harrity, and others. The line of the road as prayed for in the petition was along the south line of Mrs. Farrelly's land and the north line of the land of Michael Harrity, the adjoining proprietor on the south. The commissioners met, and granted the prayer of the petition, and employed T. G. Capps, county surveyor, to make a survey of the road. Michael Harrity released his damages for $60 paid to him, and the damages of Mrs. Farrelly were assessed at $55 before a justice of the peace. The commissioners made an order laying out the road described the same way as in the petition, as follows: "Beginning at a stone at the southeast corner of the northeast quarter of said section 6, in town 9 north, range 11 west of the third principal meridian, in said county and state, which corner is the quarter section corner between sections 5 and 6, in said township"; and running thence west, "passing along the line between the northeast and southeast quarters, and between the southeast quarter of northwest quarter and the northeast quarter of the southwest quarter of said section 6." To this order were annexed the survey and plat reported by the surveyor. The report of the survey recited that the surveyor had been employed to make a survey of a road, giving the same description as in the petition, and stated "that the following is a correct survey thereof as made by me under your directions, to wit, commencing at a point at the southeast corner of the northeast quarter of said section 6, in town 9 north, range 11 west of the third principal meridian, in said county and state, which corner is the quarter section corner." Mrs. Farrelly appealed to three supervisors, and on the hearing before them it was agreed that the commissioners should pay her $100 and all costs made by them on

the appeal, that she should pay all costs made by her on the appeal, and that the order of the commissioners should be affirmed; and she agreed that on payment of $100 the commissioners might open the proposed road as surveyed by T. G. Capps, surveyor in said proceedings, after 40 days from the settlement, which was September 23, 1895.

On the trial of this case, the defendants were denied the right to cross-examine the county surveyor, Capps, on the question whether the starting point of the road as laid out was not 59 feet south of the place where it was opened, and that as opened it left a wedge-shaped piece of Mrs. Farrelly's land south of the road, and took no portion of the land of Michael Harrity. The defendants also produced J. C. White, who had been county surveyor of Greene county for 25 years, and attempted to prove by him that the corner in question, described in all the proceedings, was 59 feet south of the center of the road as attempted to be opened, and that there was a stone placed at the corner; and they also attempted to prove by other witnesses where the quarter corner was, but were not permitted to make any proof of that character. The court also instructed the jury, in substance, that the real line as described in the proceedings had nothing to do with the case, and that if the surveyor, Capps, surveyed the road, and indicated the line by setting stakes where it was opened by the commissioners, they should find for the town. The objection made and sustained to the evidence was that it was immaterial whether the road was on the line described in the petition, surveyor's report, and order laying it out, or not. The surveyor, Capps, testified that he stuck the stakes of his survey commencing at a stone in the hedge fence in the south part of Mrs. Farrelly's corn field, along the line where the commissioners attempted to open the road through her corn field. The argument in favor of the ruling of the court is that, by the written agreement made at the settlement before the supervisors, the commissioners were given the privilege "to open up proposed road as surveyed by T. G. Capps, surveyor in said proceedings," and that the survey referred to must be held to mean the stakes set by Capps. To this proposition we cannot assent. The law provided for a petition in writing, giving the point of commencement and the course of the road, and also for a report of the survey, giving the courses and distances, and specifying the land over which the road was to pass, and a final order containing or having annexed thereto a definite description of the line of the road, together with a plat thereof. These had all been made and were before the parties on the appeal to the supervisors, where it was agreed that the final order of the commissioners should be affirmed. It is plain that all the parties understood at that time that the road was on the line. The commissioners had

taken a release from Harrity, the adjoining | owner, for the land taken from him, and had paid him for it. The order of the commissioners laying out the highway determined its location, and they had no authority to open it except upon the line where it was established by the petition, the survey, and the order. Deere v. Cole, 118 Ill. 165, 8 N. E. 303. The agreement of Mrs. Farrelly giving the privilege to open the road as surveyed by T. G. Capps, surveyor in said proceedings, must be held to refer to these proceedings, rather than to a line of stakes of which, so far as appears, she had no knowledge, and which the court would not even permit her to testify that she did not know had been set in her field. She was only estopped by her agreement to dispute the existence of the road on the line where it had been established. Defendants should have been permitted to show that the commissioners attempted to open the road on a different line, over land where they had not acquired any easement or right.

It is argued that under the present statute, requiring the petition to state the point at or near which a road is to commence, the commissioners could locate the road commencing at any point near by, and consequently could locate and open it 59 feet from the starting point named in the petition. If they had such power, it would be a sufficient answer that they did not make any change in the starting point, but laid out the road according to the petition, commencing at the same point. The petition did not ask for a road commencing at or near the corner, but called for a road commencing at the corner, and the statute gave the commissioners no power to change it. The only authority given to make changes is between the termini of the road described in the petition. Shinkle v. Magill, 58 Ill. 422; Deer v. Commissioners, 109 111. 379. The judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded.

BARNARD v. COMMISSIONERS OF HIGHWAYS OF NOKOMIS.

(Supreme Court of Illinois. April 21, 1898.) INJUNCTION-EVIDENCE-SUFFICIENCY-HIGHWAYS -CULVERTS.

1. Highway commissioners will not be restrained from removing a culvert, unless it is clearly established that injury will result therefrom.

2. Water had been seen to flow in ditches in both directions from a highway adjoining plaintiff's land. Witnesses stated that after storms water flowed across the highway, while others stated that it did not flow either way. Held insufficient to show that the removal of a culvert in the highway should be restrained.

Appeal from appellate court, Third district. Action by Robert P. Barnard against the commissioners of highways of Nokomis for an injunction. Decree for defendants, and plaintiff appealed to the appellate court,

which affirmed the decree (71 Ill. App. 187) and plaintiff appeals. Modified.

James M. Truitt, for appellant. Wm. M. Todd and Lane & Cooper, for appellees.

CARTWRIGHT, J. Appellees were about to remove a small culvert in the public highway under their charge, on the north line of appellant's land, and to fill up the space with dirt, whereupon he filed the bill in this case for an injunction against the proposed action, alleging that the natural course of drainage from the north part of his premises was northward across the highway, and that the highway had been ditched and graded up so that the culvert was necessary to convey the surface water which collected on his premises, through the roadbed, in such natural course of drainage. The bill was answered with a denial that the surface waters naturally flowed to the north across the highway, or that by removing the culvert and filling up the space any water would be obstructed in its natural course and thrown back upon appellant's land. This question was contested on a hearing before the master, who reported, adversely to appellant, that it did not appear with sufficient certainty and clearness that the proposed work would result in the alleged injury to appellant, and that he had not established such a case by the proofs as would justify the interference of a court of equity. The court overruled exceptions to this report, and entered a decree dismissing the bill, which has been affirmed by the appellate court.

In order to entitle the complainant to the preventive relief asked for by his bill, he must clearly establish the facts upon which his right depends, and if the effect of the proposed work is left by the evidence in doubt, so that its consequences must be considered uncertain and conjectural, an injunction should not be granted. It must appear that the injuries will be reasonably certain to occur before the court should interfere with or obstruct highway commissioners in improving the public roads according to their judg ment. Thornton v. Roll, 118 III. 350, 8 N. E. 145; Hotz v. Hoyt, 135 Ill. 388, 25 N. E. 753. The evidence in this case leaves the question at issue between the parties in the greatest doubt and uncertainty. It appears that the land is very low and level, and that there is but little, if any, drainage at the highway in any direction. For many years complainant had a ditch running south from the culvert, and the adjoining proprietor on the north also had a ditch running north, and there was evidence that water ran in both these ditches from the road. The ditches had been filled up, and after that there was but little, if any, current in either direction. The slightest obstruction with dirt, which could be kicked away with the foot, was sufficient to stop the current, if there was any. Several witnesses testified that after a heavy storm, when the

The relations of commissioners of highways to adjoining proprietors with reference to drainage are ordinarily the same as between adjacent landowners. Young v. Commissioners, 134 Ill. 569, 25 N. E. 689. If the defendants, by removing the culvert, cause surface water to flow back and stand upon complainant's premises, to his injury, they will be liable to an action for damages. Tearney v. Smith, 86 Ill. 391; Nagle v. Wakey, 161 III. 387, 43 N. E. 1079. If they invade his individual right and injure his property by turning water upon it, they cannot shield themselves from the consequences by interposing their official character, and the question of nuisance may be determined at law. As a general rule, equity will not interfere in advance, unless a strong case of irreparable injury is made out, and, if it is not reasonably certain that the injury will result, will wait until the question is determined by the actual effect produced or the question of nuisance has been settled by an action at law. There are cases where a person threatened with an injury of the kind alleged here will not be required to wait, if he can demonstrate that the injury is reasonably certain to follow; but, if that question is left in doubt and uncertainty, the court should not interfere.

It is urged that the court should have dismissed the bill without prejudice to the right of the complainant to bring an action in the future, if it should prove necessary for the protection or enforcement of his rights. It does not appear that the attention of the circuit court was called to that subject. If that had been done, the request would probably have been granted. The order of dismissal will be modified so as to be without prejudice. With that modification the judgment of the appellate court affirming the decree of the circuit court is affirmed. Judgment affirmed.

FIRST NAT. BANK OF SPRINGFIELD v. GATTON.

(Supreme Court of Illinois. April 21, 1898.) MONEY HAD AND RECEIVED-INSTRUCTIONSAPPLICATION OF FUNDS.

1. Money belonging to the wife, by mistake, was placed in a bank to the husband's credit, and applied by the bank on the husband's indebtedness. The wife notified the bank of the mistake, and demanded payment, which was refused. Held, an action in assumpsit for money had and received would lie.

2. A statement of a correct abstract proposition of law could not mislead the jury in a charge properly applying it to the facts in the case.

3. A charge was requested that, if money of the wife was sent to the bank with instructions to apply it to the husband's credit, which it

This was an action of assumpsit, brought to the January term, 1897, of the circuit court of Sangamon county, by Georgetta E. Gatton, the appellee, against the First National Bank of Springfield, Ill., the appellant, to recover the sum of $862.28, proceeds of the sale of a car load of cattle shipped by J. N. Gatton, as the agent of his wife, to the Stockmen's Live-Stock Company of Chicago, and which money the Stockmen's Live-Stock Company sent by mistake to appellant, without any authority of Mrs. Gatton, to be placed to the credit of J. N. Gatton, her husband. Appellant applied part of the money on an old indebtedness held by it against J. N. Gatton, and the balance was applied on an indebtedness due appellant from J. N. Gatton and one Knox. As soon as it was found that the money of appellee had been sent to appellant, the First National Bank, appellee made a demand for the money, but payment was refused, and appellee brought this action. The case was tried before a jury, and a verdict was returned in favor of appellee, against appellant, for the amount claimed, with 6 per cent. interest from the date of the demand. Judgment was entered upon the verdict, and the case was appealed to the appellate court for the Third district, where the judgment was affirmed. A petition was filed by appellant, praying for a certificate of importance, which was granted, and the case was appealed to this court, and appellant asks for a reversal of the judgment of the appellate court.

Palmer, Shutt, Hamill & Lester, for appellant. Connolly, Mather & Snigg, for appellee.

CRAIG, J. (after stating the facts). It is insisted on the part of appellant that assumpsit for money had and received will not lie in this case under the facts shown in the record, because there was no privity between Georgetta E. Gatton, the appellee, and the First National Bank of Springfield, Ill., the appellant. The action of assumpsit was said by Lord Mansfield, in the case of Moses v. Macferlan, 2 Burrows, 1012, to be an equitable action, in which the plaintiff could recover from the defendant so much money as he could show the defendant, ex æquo et bono, ought not to retain. This doctrine was recognized by this court in Taylor v. Taylor, 20 Ill. 650, as follows (page 653): "It is the well-recognized doctrine that the action for money had and received may be maintained

whenever the defendant has obtained money of the plaintiff which, in equity and conscience, he has no right to retain. * When money has been thus received, the law implies a promise to pay, notwithstanding there was no privity between the parties,"citing Hall v. Marston, 17 Mass. 578, and 1 Chit. Pl. 387. In Belden v. Perkins, 78 Ill. 449, we said: "In an action of assumpsit for money had and received, the main inquiry is whether the defendant holds money which, ex æquo et bono, belongs to the plaintiff." Barnes v. Johnson, 84 Ill. 95; Wilson v. Turner, 164 Ill. 398, 45 N. E. 820; Laflin v. Howe, 112 Ill. 253; Lewis v. Harsh, 54 Ill. 383. The evidence shows, in the case at bar, that the money was paid appellant on a mistake of facts; that the money belonged to appellee, and not to J. N. Gatton, appellee's husband. This makes it inequitable that appellant should retain it, and apply it upon an old indebtedness of the husband to appellant. Appellant was notified of the mistake, but refused to pay the money to appellee on demand made by her. Under such circumstances, it is well settled by the foregoing authorities that the action of assumpsit for money had and received will lie. Allen v. Stenger, 74 Ill. 119; Newcomb v. Launtz, 89 Ill. 144.

We shall not enter upon a discussion of the questions of fact involved in this case, as those questions were settled adversely to appellant by the judgment of the appellate court, and, under the statute, that judgment is conclusive. Among the facts settled may be mentioned the following: That the money in question belonged to plaintiff; that it was sent to defendant by mistake; that payment was demanded and refused before action was brought.

Appellant, however, claims that the first instruction given on the part of appellee is an abstract proposition of law, and tended to mislead the jury. While it is true the first part of the instruction announces a proposition of law, in the latter part of the instruction the law is applied to the facts as claimed by appellee. This instruction is sustained as to the proposition of law announced in the case of Brownell v. Dixon, 37 Ill. 197, and we do not think it could have misled the jury.

The second and third instructions given for plaintiff have been criticised, but we see no substantial objection to them.

It is also claimed that the court erred in refusing one of the appellant's instructions. This instruction in substance directed the jury that if they found, from the evidence, that the commission merchant sent the draft to defendant with instructions to apply it to the credit of J. N. Gatton, and that Gatton was indebted to defendant, and defendant applied the draft as instructed, then defendant was not liable. It is manifest that this instruction was properly refused. If the commission merchant had no authority to transmit the draft to defendant, and it was sent

by mistake, the defendant acquired no right or title to the draft or the money. The mere fact that defendant received the draft, and applied it to the debt of J. N. Gatton, gave it no right to hold the money from the person to whom the jury and appellate court found it rightfully belonged. The judgment

of the appellate court will be affirmed. Judgment affirmed.

SEYMOUR et al. v. BOWLES et al. (Supreme Court of Illinois. April 21, 1898.) DEED-CONSTRUCTION-"HEIRS"-PARTITION.

1. The word "heirs" is used in the sense of "children," where the deed is to one and her "minor heirs."

2. Deed to B. and her "minor heirs," with a provision that, in case of the death of either of the heirs without issue, the property right shall revert back to the surviving heirs, gives B. a life estate, with remainder to her minor children, or to those living at the time of her death, and the issue, if any, of those then dead.

3. There can be no partition till death of the life tenant, where property is conveyed to one for life, with remainder to those of a certain class living at the death of the life tenant.

Appeal from circuit court, Montgomery county; Jacob Fouke, Judge.

Bill by Ida Seymour and others against Susan Bowles and others. Decree for defendants. Complainants appeal. Affirmed.

William Bowles and Susan, his wife, on January 4, 1878, conveyed certain real estate to William Beatty, their son-in-law. Ou the same day, Beatty and wife executed a deed as follows: "The grantors, William A. Beatty and Sarah A. Beatty, of the town of Raymond, in the county of Montgomery, and state of Illinois, for and in consideration of one dollar in hand paid, convey and warrant to Susan Bowles and her minor heirs, and in case of the death of either of the heirs without issue the property right to revert back to the surviving heirs, of the town of Raymond, county of Montgomery, and state of Illinois, the following described real estate." (Here follows a description of the property, the deed concluding in the usual form.) At the January term, 1896, of the circuit court of Montgomery county, Ida Seymour, William A. Bowles, and Irene Mason, alleging that they were three of the minor children of Susan Bowles at the date of the last-mentioned deed, filed their bill in chancery against Susie H. Parrott, the other of said minor children, and Susan Bowles, their mother, for the partition of said lands. They alleged that, at the time of the execution of the deed, William Bowles had three adult children, and the four above-mentioned minor children; that he had previously provided for the adults by making advancements to them, and intended by this deed to give the minors an equal share of his estate; that he employed one Carter to prepare the deed, who, in doing so, "named Susan Bowles and her minor heirs as grantees, when, as a mat

ter of fact, it was the intention of William Bowles to have said lands conveyed to Susan Bowles and her minor children, the complainants, Ida Seymour, William Bowles, and Irene Mason, and also the defendant Susie H. Parrott, who were the minor children of the said William Bowles"; that William Bowles was uneducated, and Carter did not distinguish the difference, in legal effect, between the words "heirs" and "children," and used the word "heirs" as a synonym of "children"; "that by using the word 'heir' as a synonym for 'children,' as was done by said parties, the deed becomes intelligible, otherwise it is not so, and is without meaning;" that, by the deed, complainants and Susie H. Parroft and Susan Bowles became seised, as tenants in common, in equal shares; that Susan Bowles has received rents and profits from the lands to the amount of $5,000. The prayer is for partition and an accounting, and for the reformation of the deed to carry out the intention of William Bowles and William Beatty in its execution. The circuit court sustained a demurrer to the bill, and, the complainants electing to abide by the same without amendment, it was dismissed at their cost. To reverse that decree, this appeal is prosecuted.

James M. Truitt and Howett & Jett, for appellants. Lane & Cooper, for appellees.

WILKIN, J. (after stating the facts). The correctness of the decision of the court below depends entirely upon the question whether, upon a proper construction of the deed from Beatty and wife, the bill of appellants showed on its face that they were entitled to the relief prayed. In construing that deed, it should be given the same effect as though it had been executed by William Bowles; it appearing from the bill to have been made at his instance, and to accomplish his purpose. When the language used by the parties to a contract or deed is indefinite or obscure, oral testimony is admissible to show the surrounding circumstances of the parties, for the purpose of enabling the court to view the instrument and construe its language from the same standpoint which they occupied when executing it, but for that purpose only, and never to contradict, change, or vary the language used. The allegation in the bill that in drafting the deed the word "heirs" was mistakenly used for "children" presents no case for the correction of a mistake or reformation of the deed. The alleged mistake is one of law, and cannot be corrected. Fowler v. Black, 136 III. 363, 26 N. E. 596. Looking at the deed itself, with such allegations of the bill as show the surrounding circumstances of its execution, for the purpose of construing it, we will consider all its language, and give effect thereto, unless we find some part of it so repugnant or meaningless that we cannot do so. If the word "heirs," as used in the granting clause, be given its technical meaning, no

extended argument is necessary to show that it must be rejected, as without force or meaning, because it is a rule of the common law that no inheritance can vest, nor any person be the actual, complete heir of another, till the ancestor be previously dead. "Nemo est hæres viventis." Co. Litt. 22b; 2 Bl. Comm. 70, 107, 208. Susan Bowles, being alive when the deed was executed, could have no "minor heirs." But is the word "heirs" here used in its technical sense? In answering this question, we may properly consider the facts pleaded in the bill, which show the motive of William Bowles for causing the deed to be made, and the circumstances surrounding its execution. We are of the opinion, however, that the deed shows on its face that by "minor heirs" was meant "minor children." It is well understood that such a meaning may be given to the term "heirs," when it sufficiently appears that such was the intention of the party using it; and this rule applies to deeds as well as to wills. Griswold v. Hicks, 132 Ill. 494, 24 N. E. 63. In Heard v. Horton, 1 Denio, 165, which was a case involving the construction of a will, it was said: "Where the will recognizes the ancestor as living, and makes a devise to his heirs, eo nomine, this shows that the term was not used in the strict sense, but as meaning the heirs apparent of the ancestor named." In Heath v. Hewitt, 127 N. Y. 166, 27 N. E. 959, the conveyance being by deed from Benjamin Heath to "the heirs of Warren Heath," reserving to the grantor and his wife each a life estate, and after their death to the said Warren Heath for life, the court quoted the foregoing language from 1 Denio, and added: "Now, in this case, Warren Heath was living at the time of making the deed, which fact sufficiently appears in the deed, because the grantor reserved to him a life estate in the lands sought to be conveyed, and he had children living, among whom was the plaintiff in this action." And it was held that the word "heirs" was used as synonymous with "children." On principle, the case is like the one at bar, and we think is well supported by reason and authority. It cannot be supposed that the grantor in this deed intended to make a present conveyance to Susan Bowles and to her minor heirs at the same time. The fact that the deed shows on its face that Susan Bowles was then living, by conveying to her, refutes all idea of the use of the words "minor heirs" in a technical sense. The manifest intention of the grantor, from the language used, was to give Susan Bowles a life estate, with remainder to her then minor children who should survive her, or, if any of them should then be dead, leaving issue, to such issue. By the terms of our statute the conveyance to Susan Bowles, though containing no words of inheritance, would be sufficient to convey the fee to her, were it not for other language clearly showing, as we think, the intention to give her but