Opinion of the Court.

amended, or rejected by the other, and, on the final passage of all bills, the vote shall be by yeas and nays upon each bill separately, and shall be entered upon the journal; and no bill shall become a law without the concurrence of a majority of the members elected to each house." Art. 4, § 12.

"No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." Art. 4, § 13.

The whole number of senators elected to and composing the senate being 50, at least 26 of its members must concur in the final passage of a bill.

This is indispensable to its becoming a law. The vote must be taken by yeas and nays, and entered upon the journal. It must appear on the face of the journal that the bill passed by a constitutional majority; and it is competent to show from the journals of either branch of the legislature, that a particular act was not passed in the mode prescribed by the constitution, and thus defeat its operation altogether. Spangler v. Jacoby, 14 Ill. 298.

It only appears in this case that a majority of the members elected to the senate concurred in the passage of the bill as amended by the senate. And it appears that there was not a concurrence of a constitutional majority of the senate in the passage of the bill in its present form, consisting of only one section, and therefore it never became a law.

It is said by the relator, that by the refusal of the house to concur in the senate amendment it never became a part of the bill, and was as if it had never existed; that no further vote of the senate was necessary in regard to it; that they had simply failed to make this amendment a part of the bill; that the bill itself they had already passed.

But it is not true that the senate had passed the bill simply, without the amendment.

It had passed the bill only as amended.

It does not follow that the bill, stripped of the amendment,

Opinion of the Court.

did receive, or would have received, the assent of the constitutional majority of the senate.

The bill which passed the house and the bill as amended were something different.

It is further urged that, had section 2 of the act regularly passed both houses, it would never have been the law, and would have been void, because it was a subject not expressed in the title of the act, and so the fact of its being passed or left out in the senate can not affect the validity of section 1.

Even assuming the position to be correct that the amendment, section 2, would have been void, for the reason urged, it does not affect this question of assent on the part of the

senate.

The question is, to what did a constitutional majority of the senate give their assent?

And it was to the increase of the jurisdiction of justices of the peace as provided in section 1, coupled with a corresponding increase of their official bonds, as provided in section 2.

A constitutional majority of the senate never assented to the proposed increase of the jurisdiction of justices without the provision for the increase of their official bonds. And the validity or invalidity of such provision in no wise changes the fact as to what the senate did or did not give their assent.

Our decision is predicated solely upon the state of facts as set forth in the return in this case, without an inspection of the journal of the senate; and we pass upon the validity of the act in question no further than as affects the present application in view of the admitted facts in the case.

The application for a peremptory mandamus must be denied.

Mandamus refused.

Syllabus. Opinion of the Court.

MICHAEL STENGER

v.

SELAH SWARTWOUT.

1. NEW TRIAL-finding as to facts. When there is no evidence at all as to any essential element of a cause of action or defense, or the verdict is manifestly against the weight of evidence, this court will interfere and set the verdict aside and grant a new trial.

APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONY, Judge, presiding.

Mr. CHARLES J. METZNER, for the appellant.

Messrs. PARKS & ANNIS, for the appellee.

Per CURIAM: This case arose in justice's court, and was brought to recover a balance alleged to be due upon a special contract and for extra work.

The principal controversy was in reference to the amount of payments made by appellant.

This issue involved questions of fact only. The evidence was conflicting.

Where as to any essential element of a cause of action or defense there is no evidence at all, or the verdict is manifestly against the weight of evidence, this court will interfere and set it aside.

There is no essential element of appellee's case wholly unsupported by the evidence, nor was the verdict so manifestly against the weight of evidence, in respect to the alleged payments made by appellant, as to bring the case within the established rules of this court regarding new trials.

The judgment of the court below must, therefore, be affirmed. Judgment affirmed.

17-62D ILL.

Syllabus.

ELDRIDGE WHITE et al.

V.

EDWARD M. FISHER et al.

1. MORTGAGE priority of payment of series of notes-lost by re-issue. Where the mortgagor paid to the payees of a series of promissory notes given by the firm of which he was a member, those which had matured, with money which his brother had assisted him to raise by the loan of certain other notes under an agreement with the brother, unknown to the payees, that the brother was to have the notes when taken up assigned to him as a security for the notes he had parted with, and the payees, at the request of the mortgagor, indorsed in blank the notes so paid them without any knowledge that they were to be re-issued by the mortgagor, and they were transferred to the brother as agreed: Held, on bill by the payees to foreclose the mortgage as to the remaining notes of the series, falling due in one and two years after those which had been taken up and re-issued, that the latter were not entitled to priority, but were postponed.

2. SAME-notes re-issued after payment. Where one of the makers of a series of notes maturing in one, two, and three years, secured by his mortgage, paid the first of the series after due, taking a blank indorsement of them, and then transferred them to a brother, who furnished the means with which they were paid, the payees not knowing that their indorsement was procured for such purpose: Held, that the brother, as the holder of such notes, was entitled to the benefit of the mortgage security as against the mortgagor, but as to the holders of the remaining notes his rights were postponed.

3. PAYMENT indorsing note on payment. Where the makers of a series of notes procured from a third party the means with which to pay the notes then due, under an agreement that the same, when paid, should be transferred to such third party, and the payees on payment, at the request of the makers, indorsed such notes in blank and surrendered them to the makers, by whom they were delivered to the third party, the payees not knowing that they were to be re-issued: Held, that so far as the payees were concerned, this was not a transfer of the notes, but simply a payment.

4. In such a case the transaction could not be treated as a purchase by the makers for the third party, except on satisfactory proof that the fullest explanation was made to the holders of the notes, and that they understood it to be a sale to some third party.

APPEAL from the Circuit Court of Bureau County.

The opinion states the facts of the case.

Opinion of the Court.

Messrs. FARWELL & WARREN, for the appellants.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

In this case the appellants held certain notes, executed by the firm of Fisher, Brother & Co., maturing in one, two, and three years from date, each appellant holding different notes, but all secured by one mortgage, which was given by Edward M. Fisher, the senior member of the firm. When the notes, due at the end of the first year matured, they were taken up by Edward M. Fisher, and at his request the payees, when they surrendered the notes, placed their names on the back. Shortly prior to this time, J. M. Fisher had assisted the firm of Fisher, Bros. & Co., of which he was not a member, in procuring a loan, by allowing them the use of certain notes belonging to him, under an agreement that a part of the money thus raised, was to be used in saving the credit of the firm by taking up these notes; but the notes, when taken up, were to be assigned to J. M. Fisher, to be held by him as a security, in place of those which he had allowed the firm to pledge. Soon after the notes were taken up the firm failed in business. After the notes maturing at the end of two and three years had become due, the appellants filed their bill to foreclose the mortgage, making J. M. Fisher a party, to whom, with one Tetner, the firm of Fisher, Bro. & Co. had made an assignment of all their property. J. M. Fisher answered, claiming to own in his own right the notes maturing at the end of the first year, and alleging that they had not been paid by Edward M. Fisher, but merely bought for respondent's benefit, and that they were still held by him, and entitled to a priority of payment out of the proceeds of the mortgage. The circuit court so held, and this is the question presented by this record.

We have no brief from appellee, but after a careful examination of the evidence, we are of opinion that the appellants, when they indorsed these notes, did so without any idea that