Postlewait Company. A mere change in the form of the indebtedness does not satisfy a mortgage given to secure it unless it is so intended to operate by the parties. As between the parties the lien can only be destroyed by the payment or discharge of the debt or by the release of the mortgage. Flower v. Elwood, 66 Ill. 438; Fairbank v. Merchants' Nat. Bank, 132 Ill. 120, 22 N. E. 524; Salem Nat. Bank v. White, 159 Ill. 136, 42 N. E. 312. There is nothing here tending to show that the parties intended to release the lien as to the $500, but, on the contrary, it clearly appears that the new note was given as an evidence of the continuation of the debt.

[3] Plaintiff in error argues at great length that under the terms of the $5,400 note the Postlewait Company was bound each month, as against plaintiff in error, to apply $250 of the amount it owed Wheeler for livery hire upon the $5,400 note, and, if there should be any excess above that sum due on livery hire, to apply the same upon the $500 note until it should become extinguished. The special provision in the $5,400 note was made for the benefit of Wheeler. He had the right to insist upon the Postlewait Company performing its part of that agreement, but he also had the undoubted right to vary the terms of that agreement, if he should see fit, by further agreement with the Postlewait Company, so that, instead of applying any part of the livery hire due from the Postlewait Company from month to month upon his note, it might all be paid to him in cash and the payments on the note postponed until the date of its maturity. This livery hire due from the Postlewait Company was part of the earnings of the business conducted by Wheeler, and was not, as plaintiff in error contends, proceeds of the mortgaged property. Keelin did not, by the simple act of taking a second mortgage to secure an indebtedness due him, acquire any vested rights in the contract between the Postlewait Company and Wheeler. The only right he acquired in reference to the first mortgage when he secured his second mortgage on the same property was the right to pay the debt secured by it and thus release it. That Keelin was not damaged by this arrangement is evidenced by the fact that all the money paid by the Postlewait Company to Wheeler for livery hire was used by him to defray the running expenses of the business, and he was thus enabled to remain in business longer than he could otherwise have done.

[4] Evidently upon the theory that default was made by the failure to apply the amounts provided to be paid monthly by the terms of the note and that the whole amount then became due, plaintiff in error contends that the Postlewait Company did not take possession of the mortgaged property within a reasonable time. This note did not be

incumbent upon the mortgagee to declare a forfeiture upon the default in one of the several payments unless it should see fit to do so, as it had the option to wait until the entire debt secured by the mor.gage became due. Cleaves v. Herbert, 61 Ill. 126; Wilson v. Rountree, 72 Ill. 570.

[5] Plaintiff in error further contends that the Postlewait Company is estopped, as against him, from now denying the payment of $250 per month from February until August, 1904, on this note. He testified before the master that at the time he took his second mortgage he inquired of the Postlewait Company whether Wheeler was keeping up the payments on his notes and was informed that he was; that thereafter, at least once each month up until the time the Postlewait Company took possession of the property, he made similar inquiries, and was informed on each occasion that the payments provided for were being made promptly. It is denied on the part of the Postlewait Company that any such statements were made after February, 1904, although it is admitted that prior to that time Keelin had been informed that Wheeler was making his payments promptly, which was the fact. Whether or not these statements were, in fact, made to Keelin after February, 1904, is immaterial, as under the situation disclosed that would not operate as an estoppel against the Postlewait Company. It does not appear that the indebtedness of Wheeler to Keelin was increased after the giving of the second mortgage, in July, 1903, and it therefore follows that Keelin did not extend any credit to Wheeler on account of such representations and was not caused to change his attitude or his course of conduct in any respect on such account.

It is alleged that in its monthly settlements with Wheeler the Postlewait Company improperly withheld 35 per cent. of the gross earnings of the hearses and the ambulance and 10 per cent. of the amount of the receipts from the business furnished by it. It is shown by a clear preponderance of the evidence that Wheeler agreed with the Postlewait Company to pay these sums, and they were properly deducted in the monthly settlements made between the Postlewait Company and Wheeler.

[6] There is some controversy about whether the sum of $180 on rent was properly deducted from the amount due Wheeler by the Postlewait Company in its monthly settlements, and whether the Postlewait Company should be entitled to an allowance of $83.33 for rent unpaid for the fraction of the month of August, 1904, and $31.25 for telephone bills covering the same period. So far as the rights of Keelin are concerned, it is immaterial whether or not these sums were properly deducted by the Postlewait Company. Should we hold that they were not properly

(258 Ill. 615.)

v. HARGER.

(Supreme Court of Illinois. June 18, 1913.) 1. BILLS AND NOTES (§§ 153 275*)-NEGOTIABLE INSTRUMENTS-WHAT CONSTITUTES"NEGOTIABLE INSTRUMENT."

Where defendant wrote to the general agent of a life insurance company that he had received his policy and would pay the balance of the first premium at given dates, the writing is not a "negotiable instrument," for a negotiable instrument must contain an unconditional promise to pay or acknowledgment of indebtedness, with the amount, and the person to whom it is to be paid must be certain; hence, under Hurd's Rev. St. 1911, c. 98, §§ 3, 4, 5, providing that all promissory notes and instruments in writing, wherein one person agrees to pay another any sum of money, shall be taken to be due and payable as therein expressed, and assignable by indorsement the same as bills of exchange, so as to vest the property in the assignee and enable him to sue in his own name, the addressee cannot assign the instrument by indorsement, so as to enable the assignee to sue in his own name.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 389, 738-741; Dec. Dig. §§ 153, 275.*

For other definitions, see Words and Phrases, vol. 5, pp. 4767-4770; vol. 8, p. 7731.] 2. BILLS AND NOTES (§ 144*)-NEGOTIABLE INSTRUMENT-DETERMINATION OF NEGOTIA

BILITY.

Whether a written instrument is negotiable must be determined from the writing itself, and cannot depend on extrinsic fact.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 360, 364, 367, 370; Dec. Dig. § 144.*]

Appeal from Branch B Appellate Court, First District, on Appeal from Municipal Court of Chicago; Isadore H. Himes, Judge. Action by the Equitable Trust Company of New York against C. B. Harger. From a judgment of the Appellate Court affirming a judgment of the municipal court in favor of defendant, plaintiff appeals. Affirmed. Percival Steele, of Chicago (Harvey L. Cavender and William E. Kaiser, both of Chicago, of counsel), for appellant. Frederíck Mains, of Chicago, for appellee.

DUNN, J. This appeal brings before us the record of the Appellate Court, which affirmed a judgment of the municipal court of Chicago in favor of the defendant in an action based upon the following instrument:

"Chicago, Ill., Dec. 15, 1902. "Mr. Archibald C. Haynes, Gen. Agent Equitable Life Assurance Society, No. 25

"Very truly yours, C. B. Harger." The instrument was indorsed as follows: "Archibald C. Haynes, Gen'l Agt., by Ralph C. Haynes, Att'y."

The cause was tried by the court without a. jury, and the plaintiff requested the court to hold as a proposition of law, that the instrument was negotiable and assignable by indorsement, so as to enable the assignee to maintain a suit upon it in his own name. This proposition was refused.

Sections 3, 4, and 5 of chapter 98 of Hurd's Rev. St. 1911 declare that all instruments of writing, whereby any person promises or agrees to pay any sum of money, or acknowledges any sum of money to be due, to any other person, shall be taken to be due and payable as therein expressed, and shall be assignable by indorsement thereon in the same manner as bills of exchange, so as absolutely to vest the property in the assignee and enable him to institute and maintain the same kind of action on such instruments as might have been maintained by the payee.

[1, 2] Whether a written instrument is negotiable must be determined from the writing itself. Its negotiability cannot depend upon extrinsic facts. A negotiable instrument must contain an unconditional acknowledgment of indebtedness or promise to pay, and the amount and the person to whom it is to be paid must be certain. If it is necessary to resort to extrinsic evidence to fix the amount, the instrument is not negotiable. Smith v. Myers, 207 Ill. 126, 69 N. E. 858. So, also, if it does not appear from the face of the paper to whom it is payable. Mayo v. Chenoweth, Breese, 200; Walters v. Short, 5 Gilman, 252.

The instrument in question acknowledges the receipt of the policies, and promises to pay the premium. The appellant insists that the promise is to pay Haynes individually,

and it introduced evidence in chief to show that Haynes had paid the premium. But the instrument itself contains no evidence, either that Haynes had paid the premium, or had agreed or was expected to. If he had not paid or agreed to pay the premium, then appellee's promise could refer only to a payment to the insurance company. In fact it was only to the insurance company that he could owe a premium, for if the premium

tricts which could perform no function whatever. We apprehend that the Legislature did not contemplate the formation or organization of drainage districts in territory where no improvement whatever could be made because of the lack of benefits to be derived from the work.

[2] We are of the opinion that said section 52 governs in the organization of special drainage districts under said section 76. The organization of a drainage district under said section 76 differs from the organization of the other districts provided for by the Farm Drainage Act only in that one landowner may petition for the organization of the district if the jurisdictional facts necessary for the formation of the district can be shown, and the other owners who have constructed and joined their ditches as therein specified are to be held as having consented to be united in a drainage district. This consent, however, is only that they may be united in a district which can be organized and maintained under the Constitution. If no system of drainage can be adopted in the district which would cost less than the benefits to be derived therefrom, then a drainage district in that territory could not be legally organized and maintained. The finding by the court that the cost of the proposed work as recommended by the commissioners would exceed the benefits to be derived therefrom was a proper and necessary one, and, having so found, the petition was properly dismissed.

[3] Complaint is made that the court in its written order directed the clerk to allow, as a part of the costs, the bill of the court reporter. Section 25 of the Costs Act authorizes and requires the clerk of the court to tax and subscribe all bills of cost arising in any cause or proceeding, and section 26 provides that if any person shall feel aggrieved by the taxation of any bill of costs by the clerk, he may apply to the court in which the action or proceeding was had to retax the same according to law. Rev. Stat. 1874, p. 300. Appeals in drainage cases can only be taken to this court from final orders or judgments. The order here appealed from is that dismissing the petition at the cost of the petitioners. A direction to the clerk to tax certain items as costs in the proceeding is not a final order or judgment from which an appeal can be taken. Under said section 25 of the Costs Act the duty of taxing the costs devolves, in the first instance, upon the clerk, and with this the court originally has nothing to do. Miller v. Adams, 4 Scam. 195. The precise question here raised was determined in the case just cited, and in passing upon it we there said: "The error here sought to be corrected is said to exist, not in the judgment of the court or the taxation of costs by the clerk, but in the instruction of the court, on which the clerk is supposed to have acted. The proposition submitted is

a mere abstract one. If this court differed with the circuit court in reference to the instruction given by it to its clerk, we possess no power to review or reverse that instruction. The clerk might alike disregard the opinion of the circuit court, and the dissenting opinion of this court, as being wholly extrajudicial. extrajudicial. Any judgment of this court ordering the taxation of the travel fees claimed by the witness (Moreland) as costs against the defendant would operate, if at all, not upon any judgment of the circuit court, but upon the taxation of costs by the clerk, and would be simply a retaxation of costs, which this court has no power to make." Appellants should have availed themselves of their right, under the statute, to have the costs retaxed.

The judgment of the county court is af firmed.

Judgment affirmed.

(259 Ill. 30.)

KAUL et al. v. LYMAN. (Supreme Court of Illinois.

June 18, 1913.) 1. WILLS (§ 303*)—TESTIMONY OF ATTESTING WITNESS-REFUSAL TO PROBATE.

of a will testified that he had no recollection of Where one of the two attesting witnesses signing his name to the instrument, and so could not say that he saw testator sign, or that he knew it to be his will, the probate court properly refused to admit it to probate on the ground that it was not proved by the two attesting witnesses as required by law.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 711-723; Dec. Dig. § 303.*] 2. WILLS (§ 378*)-PROBATE OF WILLS-REVIEW-ATTESTATION—EVIDENCE ON REVIEW. The circuit court, upon hearing an appeal from an order of the probate court denying probate of a will because its due execution was not proved by the attesting witnesses, both of fined to the testimony of the subscribing witwhom were living and testified, was not connesses that it was executed in accordance with the statute, but could hear and consider any legitimate evidence that might be resorted to to establish the will in chancery.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 844-847; Dec. Dig. § 378.*] 3. WILLS (§ 378*)-PROVING WILL ON APPEAL-EVIDENCE-SUFFICIENCY.

Evidence in the circuit court on appeal probate of a will held sufficient to establish the from an order of the probate court refusing due execution of the will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 844-847; Dec. Dig. § 378.*] 4. WILLS (§ 108*)-EXECUTION-STATUTORY REQUIREMENTS.

accordance with the requirements of the statA will, to be valid, must be executed in ute.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 249-258; Dec. Dig. § 108.*]

Appeal from Circuit Court, Cook County; H. S. Pomeroy, Judge.

Proceeding by Leo Kaul and another to probate the will of Robert Lyman. The probate court refused to admit to probate, and, on appeal to the circuit court, an order was entered directing it to be probated. Robert