Com'rs of Highways v. Gibson.

real and personal property for the making and repairing of roads only, which tax by section 21 'may be paid in labor upon the higlways; while by section 119 they are authorized to levy a tax to be paid in money to provide for a much wider range of expenditures, including the building and repairing of bridges. It would therefore seem, that although for the purposes of making and repairing roads laid out upon town lines, it is the duty of the commissioners to allot certain portions thereof to each town, yet they are under no obligations to do so in regard to bridges in which two towns are interested, but these are left to be provided for in some other inanner.

Having provided for the laying out of roads, and the making and repairing thereofon town lines, the statute proceeds to the subject of bridges in which two towns shall be interested. Section six provides that bridges over streams, which divide towns or counties, and bridges over streams on roads on county or town lines, shall be built and repaired at the equal expense of such towns or counties; to which section is added the proviso now under discussion, to the effect that for the building and maintaining of bridges over streams near county or town lines, in which both are equally interested, the expense thereof shall be borne eqnally by both counties or towns. Two elements enter into this proviso: first, the bridge must be near the line; secondly, both towns must be equally interested therein. The question then arises, what is the nature of that interest which will render both towns liable to maintain a bridge ?

Is it simply the benefit which the inhabitants of each town may derive from the nse of the bridge when built, or is it a legal proprietorship existing in the two towns, growing out of the concurrent acts of the two boards of commissioners of highways? Section 107 provides that for the purpose of building or keeping in repair the bridges mentioned in section 106, it shall be lawful for the commissioners of adjoining towns to enter into joint contracts, while section 108 provides that if the commissioners of highways of either of such towns, after reasonable notice in writing from the commissioners of highways of

Com'rs of Highways v. Gibson.

any other of such towns shall neglect or refuse to build or repair any such bridge when any contract or agreement has been made in regard to the same, it shall be lawful for the 'coinmissioners so giving notice to build and repair the same and to recover one-half the cost thereof from the delinquent board. The sections already quoted contain all the law that has been brought to our notice which in any manner authorizes the commissioners of highways to expend the taxes levied for road and bridge purposes outside the limits of their respective towns. They provide specific modes of procedure by which adjoining towns may became equally interested in a highway or bridge. Section 96 having provided that by the joint action of the two boards a highway may be laid out on a town line, section 106 provides that the bridges on such highway

shall be built and repaired at the joint expense of the two towns.

Where such joint action cannot be had, there would seem to be nothing to prevent either town from laying the road wholly upon its own side of the line; but in such case it would hardly be contended that both towns were equally liable for the expense of building or repairing bridges along its course. So, in case of a stream formning a boundary between tivo towns, the commissioners may unite in the building of a bridge over the same; but where there is no contract or agreement to that effect, there seems to be no compulsory process provided by statute to enforce the duty. Rutland v. Dayton, 60 Ill. 58. A ford or a ferry may well answer the purposes of a sparsely

a settled town, while on the opposite side of the stream might be located a populous city, whose necessities would demand a bridge. In such case it would be unreasonable to require the former to contribute equally with the latter to the building of a costly structure.

The statute has, for wise reasons, limited the power of highway commissioners to the making, building and keeping in repair the roads and bridges within their respective towns, except in certain specified cases, and we are to give such an interpretation to the proviso in question as will carry out rather than defeat the intent of the whole statute in that regard. By con

Com’rs of Highways v. Gibson.

fining the proviso to that common interest which two towns may acquire in a road or bridge by way of ownership, or the right to exercise jointly the power of control or dominion over the same, we give effect to every part of the act without defeating it in any respect whatever. Section 104 provides that a road shall not be considered any the less a town line road, although owing to the topography of the ground along the line, or at any stream of water, the proper authorities, in establishing or locating such road, inay have located a portion of the same to one side of the line. Now, if on that portion of the road which is located wholly on one side of the line a bridge should be required, a very strict construction of section 106, without the proviso, might throw the entire expense of building and maintaining such bridge upon the town in which it had its actual situs. To meet such an einergency and to exclude a too strict construction of the entire section, the proviso serves a wise purpose, and such in our opinion, is its only object and effect.

We do not mean to say that the above instance is the only one that may be reached by the proviso, but we must hold that it cannot extend the meaning of the section to which it is attached, so as to embrace cases other than those resting upon the concurrence of the several boards of commissioners of adjoining towns.

Such matters are required to be made a matter of public record, and afford a safe rule of conduct for succeeding boards for all time.

Should we adopt the views of counsel for appellees, the statute would become an uncertain guide. If we were to hold that the words “equally interested” meant simply the proportion of benefits enjoyed by the inhabitants of the towns making use of the bridge, it would always be a matter of dispute whether the conditions existed which would render the towns equally liable; and in this particular instance it might well be said that the towns of Morton and Deer Creek are as largely interested as either of the other two, for the proof is that they enjoy the benefits of travel over this bridge fully as much as do either of the towns of Washington or Fondulac. And if this liability depended in any measure upon the nearness of

Brinton v. Gerry.

the bridge to the town line, then it must always be a matter of uncertainty just how far beyond the limits of their town the commissioners miglit go in building and repairing bridges jointly with other towns, or within what limits they might confine themselves without rendering the town liable for their neglect. For the c reasons we must hold that the case now under consideration does not come within the provisions of the statute; that so far as shown by this record there is no liability resting upon the town of Washington to contribute towards the re-building of the bridge in question, and we therefore reverse the judgment of the circuit court.

Reversed. Davis, J., dissenting.

Brinton v. Gerry.

APPEAL from the Circuit Court of Adams county; the Hon. S. P. SHOPE, Judge, presiding. Opinion filed November 7, 1880.

Messrs. Marsh & McFadon, for appellant; that affidavits which are defective in any essential requirement should not be considered on a motion to quash an execution, cited 1 Barb. Ch. 604; Watson v. Reissig, 24 Ill. 284.

An affidavit should show a venue to the jurat: Van Dusen v. The People, 78 Ill. 645; 2 Hill's Com. Law, 270; Bouv. Law Dic. “ Affidavit."

The execution must issue against all the defendants, including the one discharged: Linn v. llamilton, 3+ X. J. Law, 308; Pennoyer v. Brace, 1 Ld. Raymd. 244; Tidd's Pr. 1120; Commonwealth v. Fisher, 2 J.J. Marsh, 137; Herman on Executions, $ 55; Ennis v. Dundas, 4 Ilow. U. S.TS; Lee v. Crossna, 6 Humph. 281; Wilson v. Nance, 11 Humph. 189.

Unless the property levied upon was the property of the principal debtor, the surety is not discharged by a release of the lery: Staton v. Cominonwealth, 2 Dana, 397; Pennock v. McCormick, 120 Mass. 275; Brandt on Surety, $ 378; Ilarper v. Ross, 10 Allen, 332; Herman on Executions, $ 175.

The transaction was not a mortgage: Carr v. Rising, 62 Ill. 14; Taintor v. Keys, 43 Ill. 332; Treat v. Strickland, 23 Me. 234; Low v. Henry, 9 Cal. 549; Magnussen v. Johnson, 73 Ill. 156; Slowey v. McMurray, 27 No. 113; Slutz v. Desenburg, 28 Ohio St. 382; Glover v. Payn, 19 Wend. 520; Goodman v. Grierson, 2 Bali & B. 274; Flagg v. Mann, 14 Pick. 478; Conway v. Alexander, 7 Cranch, 218.

An absolute deed will not be held to be a mortgage without clear and convincing proof that it was so intended: Sharp v. Sınittenman, 85 III. 15+; Remington v. Campbell, 60 Ill. 516; Lindaur v. Cummings, 57 Ill. 195; Mackey v. Stafford, 43 Wis. 653.

The agreement to reconvey did not make the transaction a sale: Fawcett v. Osborn, 32 III. 411; Benjamin on Sales, $ 1; Gardner v. Lune, 12 Allen, 45; Chamberlain v. Smith, 44 Pa. St. 132.