Additional opinion of the Court.

amount found due thereupon, the execution of the promissory note and confessing of judgment thereupon, and, among other things, refers it to the master in chancery to ascertain and report to the court the amount due and unpaid upon the said judgment, computing interest thereon at the rate of six per cent per annum, due annually, commencing at the date of the judgment, March 2, 1860, and, upon this basis, the master's report was made.

Cutler Laflin testified: "I know of a reckoning between Bates and Hall, in Peoria, in 1860; I ascertained what sum was due from them to said Bates; I went because Mr. Bates was sick; I carried with me sundry bills and notes of Hall and Hurlburt which were discounted at the Westfield Bank. Mr. Bates had also a mortgage made to Alden, as trustee, by Hall and Hurlburt, to secure the said Bates for his indorsing the paper of Hall and Hurlburt. Mr. Hurlburt took no part in the reckoning. The interest was cast at 10 per cent. The amount found due was $9350.59, including interest to the maturity of the note.”

Taking this to be true, and it is clear the account should be taken of the amount due upon the note, and not of the amount due upon the judgment. Taking the account due upon the judgment, would give six months' interest, at six per cent per annum, upon the amount thereof, more than Hall and Hurlburt were required to pay.

But, waiving Laflin's evidence, it is the note, and not the judgment, that represents the debt secured by the deed of

trust.

In the original opinion, we held the reduction of the note to judgment did not in anywise affect the trust deed, and we still adhere to that opinion. It stands as security still for the debt which it was intended to secure. That debt here, by the common understanding of all the parties, is evidenced by a note payable in six months without interest. By reducing that note, which is not yet due, and which does not bear

95 516 38a 243

Brief for the Appellants.

interest until it is due, to a judgment, does not change the equitable rights of the parties, as respects the debt.

For this error, in directing the master to compute interest upon the judgment from its date, instead of upon the note from its maturity, the decree below is reversed, and the cause remanded with direction to conform the decree below to this opinion. In all other respects the decree below is affirmed. Decree reversed in part, and in part affirmed.

MARY COONEY et al.

บ.

THE TOWN OF HARTLAND.

Filed at Ottawa June 16, 1880.

TOWNS-not liable for torts of commissioners of highways. A town is not liable to an action for the unlawful conduct of its commissioners of highways in diverting from its natural course a stream of water in the construction or improvement of a public highway, whereby the water is caused to flow upon the land of another. If the commissioners, in doing a lawful act, seize private property without lawful right, or injure the same unlawfully, the tort is that of the man or men who do the unlawful act, and is not that of such a corporation.

APPEAL from the Appellate Court for the Second District; the Hon. NATHANIEL J. PILLSBURY, presiding Justice, and Hon. JOSEPH SIBLEY and Hon. EDWIN S. LELAND, Justices, -heard in that court on appeal from the Circuit Court of McHenry county, the Hon. HIRAM H. CODY, Judge, presiding.

Mr. T. D. MURPHY, and Mr. M. L. JOSLYN, for the appellants:

Under the provisions of the township organization law it is made the duty of the town to build, construct and maintain all roads in said town necessary for the convenience of

Brief for the Appellee.

the public, the commissioners of highways being its agents

therefor.

Without discussing the rulings of courts of other States, it is sufficient for our purpose that this court has held that the town is liable in a case involving the question of liability of towns for such infraction of the rights of the citizen by the road officers of the town, as in this case. Nevins v. Peoria, 41 Ill. 502; Perkins v. Brearton, id. 477; Aurora v. Reed, 57 id. 30; Aurora v. Gilbert, 56 id. 132; Alton v. Hope, 68 id. 167; Jacksonville v. Lambert, 62 id. 59; Town of Harlem v. Emmert, 41 id. 319; Tearney et al. v. Smith, 86 id. 391.

To show that the doctrine of the case of Nevins v. Peoria is applicable to the towns of this State the same as to municipal corporations proper, we refer the court to the case of Tearney et al. v. Smith, above cited, which is a case like the present.

The cases that the appellee's counsel have referred to are not in point or applicable to the case at bar. They relate in every instance to cases of omission on the part of the town and county officers to perform their duty, and not a case of them is like this, where the charge is for performing a duty so negligently and unskillfully that damage was occasioned thereby to the plaintiff.

A township is a corporation capable of being sued, and it is liable for the negligent acts of its officers, by means of which private rights are invaded. Mayor of Lynn v. Turner, Cowp. 86; Dean v. New Milford, 5 Watts & Serg. 545.

Mr. WILLIAM BARGE, and Mr. B. N. SMITH, for the appellee:

A town under the township organization law, being incorporated without its consent, is not liable for the acts of its officers while in the discharge of a public duty. Symonds v. Clay County, 71 Ill. 355; The Town of Waltham v. Kemper, 55 id. 346; Bussell, Admr. et al. v. The Town of Steuben, 57 id. 35; White et al. v. County of Bond, 58 id. 297; Hedges v. The County of Madison, 1 Gilm. 567; Commissioners of Hamil

Opinion of the Court.

ton Co. v. Mighels, 7 Ohio St. 110; Sherbourne v. Yuba County, 21 Cal. 113; Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Eastman v. Town of Meredith, 36 N. H. 284; 1 Dillon on Mun. Corp. sec 10 a; 2 Dillon on Mun. Corp. secs. 761, 762, 764, 785; Cooley's Const. Lim. 246, 247; Towle v. Common Council of Alexandria, 3 Pet. 398; Russell et al. v. The Men Dwelling in the County of Devon, 2 Term R. 671; Hill v. Boston, 122 Mass. 344; City of Richmond v. Long's Administrators, 17 Grattan, 375; Askew v. Hale County, 54 Ala. 639; Wheatley v. Mercer County, 9 Bush (Ky.) 704; Crowell v. Sonoma County, 25 Cal. 313; Wehn v. Commissioners of Sage County, 5 Neb. 494; Freeholders of Sussex v. Straeder, 3 Harrison (N. J.) 108; Cooley v. Freeholders of Sussex, 3 Dutch. (N. J.) 415; Riddle v. Locks, etc. 7 Mass. 169; Mown v. Leicester, 9 id. 250; Chidsey v. Town of Canton, 17 Conn. 475; Reardon v. St. Louis County, 36 Mo. 555; Wand v. Hartford County, 12 Conn. 404; Fisher v. Boston, 104 Mass. 87; Oliver v. Worcester, 102 id. 499; Finch v. Board of Education, 30 Ohio St. 37; Town of Waltham v. Kemper, 55 Ill. 348.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is an action by appellants against the town, seeking damages for injury to the lands of appellants, alleged to have been caused by the unlawful conduct of the highway commissioners of the town in diverting (in the construction or improvement of a public highway) from its natural course. a stream of water, whereby it was caused to flow upon the lands of appellants.

It is insisted by appellants that a distinction should be. taken in such cases between acts of omission and acts of commission; that in the case of Town of Waltham v. Kemper, 55 Ill. 348, this court passed only upon a case of a neglect to perform an affirmative act, and while holding that such corporations are not liable for a failure to repair a bridge, the court did not hold that towns are not responsible for affirmative acts of tort done in its behalf by its officers.

Syllabus.

The suggestion is plausible rather than substantial. The town may construct a road lawfully by its commissioners of highways, but if the commissioners seize private property without lawful right, or injure the same unlawfully, the tort is that of the man or men who do the unlawful act, whether they be public officers or not, and can not be regarded properly as the act of such a corporation.

The judgment in this case must be affirmed.

Judgment affirmed.

SEELY PERRY

v.

JENNIE CARMICHAEL et al.

Filed at Ottawa June 16, 1880.

1. PARTIES PLAINTIFF-to recover for death occasioned by negligence-under the statute of Indiana. A married woman, who was a resident of this State, while traveling in the State of Indiana, was killed upon a railroad, the accident causing the death being occasioned, as was alleged, by the negligence of the railroad company. A person was appointed, in this State, administrator of the deceased, such administrator not being the husband. It was held, that under the statute of Indiana in force in 1859, the right of action to sue for and recover the damages against the company for the death was vested in the administrator, and he could be held accountable as such for money received, or which ought to have been received by him in such a suit.

2. ADMINISTRATOR-liability for proper custody of funds. Where a right of action is by law vested in an administrator, and in that capacity he brings suit for the recovery of money, but pending the suit a settlement is made in respect thereto, it is his duty to see to it that the proceeds of such settlement are placed in the hands of the persons who are lawfully entitled to them.

3. So, where an administrator of a married woman, whose death had been occasioned by the negligence of a railroad company, had brought suit against the company to recover damages on account of such negligence, permitted the surviving husband of the deceased to receive the proceeds of a settlement of the subject matter of the suit, without lawful right on the part of the husband so to do, in a suit by the children and heirs at law of the deceased, to whom the fund belonged, against the administrator to recover the money