text:
    People of Illinois ex rel. Commissioners of Highways v. Board of Supervisors.

      Toivn Bridges — County Aid — Emergency Clause of Section 19, Act of June 23, 1883 — Construction of — Evidence•—Mutilated Public Records— Presumption that Public Officers Have Bone Their Duty.

    1. Upon a petition for a writ of mandamus to require.a county to contribute half of the cost of a town bridge under the emergency clause of Section 19, Act of June 23, 1883, it is held: That an emergency which arose before and continued until after it went into effect is within the act; that this construction does not give the act a retroactive operation, and that the town is not required to show • that it has provided half the funds necessary to build the bridge, it being the duty of the Count)' Board, when such fact is not shown, to make its appropriation conditional.
    2. In the absence of other suspicious circumstances, it is not a sufficient ground for the exclusion of a public record, when offered in evidence, that some of its leaves are missing.
    [Opinion filed August 26, 1887.]
    In error to the Circuit Court of Hancock County; the Hon. J. H. Williams, Judge, presiding.
    Messrs. Benson & Peterson, Manier & Miller and Hooker & Edmunds, for plaintiff in error.

      Messrs. Frank Halbower, States Attorney, W. E. Mason and O’Harra & Scofield, for defendant in error.
   Conger, J.

This was a proceeding by mandamus to require the County of Hancock to contribute one-lialf of the cost of a bridge over Crooked Creek, in the town of St. Mary’s, in said county. Trial was had at the June term, 1885, of the Hancock Circuit Court, and judgment rendered for appellees for costs.

Humero us errors are assigned upon the record, hut we shall only notice those necessary to a determination of the rights of the parties.

On July 10,1883, at the July meeting of the Board of Supervisors, the Highway Commissioners of St. Mary’s presented a petition to the Board, representing that during the high water in February, 1883, the bridge across Crooked Creek in said town, on the public highway, etc., was washed away and wholly destroyed; that such highway had been used and worked for more than twenty years, and was the most important one in the township; that Crooked Creek was a large and important stream, being about 110 feet wide where this highway crossed it; that there was no other wagon bridge across said stream for a-distance of about nine miles above and six miles below; that such bridge had been largely used by the inhabitants of said town, and other portions of Hancock County, in carrying their produce to market.

The petition represents that the immediate construction of a bridge being necessary, and that a delay in building it would be detrimental to the public interests, they had proper plans .made, advertised forbids, and that upon due and proper notice, and upon competition, the lowest bid received to construct the same was $4,590, which was a fair and reasonable price, and that on the 22d day of June, 1883, they had let the contract at that price (not including the approaches, which were estimated to cost $700), by which contract the bridge was to be completed by the 15th of September, 1883.

The petition then gives in detail the assessed value of the property of the township as returned by the assessor, the amounts necessary to be expended for other highway purposes, etc., the inability of the town, the necessity for county aid, as required by Sec. 19 of the Eoad and Bridge Act of 1883, except that it states that the assessment had not at that time been equalized by the State Board, and that they had not as yet made the requisite levies, but that it would be their duty to do so at their meeting in the fall immediately preceding the meeting of the Board of Supervisors in September.

To this petition was attached the sworn statement of the Commissioners that they had made a careful estimate of the probable cost of such bridge and approaches thereto, “and that in their judgment the sum of §4,590, at which the contract was let for the erection of the bridge, is a fair and reasonable cost for its construction, and that in their judgment and upon careful estimate the approaches thereto will.cost about the sum of §700; that the construction of said bridge and approaches is necessary and demanded by the public interest, and that said bridge and approaches will not be made more expensive than is needed for the purpose desired.”.

The petition also stated that the town, by borrowing money, had made provision for the payment of one-half the amount necessary to construct said bridge and approaches.

The County Board postponed final action upon this petition until its meeting in September, 1883, when, upon the 12th of that month, the Commissioners filed a supplemental petition, referring to and making the original petition a part of the one then filed, and representing, in addition, that on the 4th of September, 1883, being the time fixed by law, they met and made a levy of 60 cents for road and bridge purposes, and a further levy of 20 cents, as required by Section 15 of the Eoad and Bridge Act, etc., and that the major part of the 60 cents would be needed for ordinary repairs, etc.; whereupon the County Board took final action and refused the aid asked.

We think these two petitions, when considered together, make a good and sufficient petition under the emergency clause of Sec. 16 of the Eoad and Bridge Act, and were sufficient if true to require the County Board to grant the relief asked.

, There had been other petitions filed before the present, law took effect, which we do not notice, for the reason that in the view we take of the case they are immaterial.

It is contended hy appellees that the emergency arose under the law of 1879, by the sudden destruction of the bridge, in February, 1883, and can not be regarded as coming within the emergency-clause of the Act of 1883, unless some new and changed condition of affairs occurred after July 1, 1883.

We can not assent to this construction. The language of the provision is, “ that in the case of some emergency arising from the sudden destruction or serious damage to a bridge or its approaches when delay in repairing or rebuilding would be detrimental to the public interest, such petition, etc., “ may he presented, etc.”

Webster defines the word emergency as “any event or occasional combination of circumstances which calls for immediate action or remedy; pressing necessity; exigency.” If when the law of 1883 took effect there was a pressing necessity for immediate action, and delay would have been detrimental to the public interest, the same emergency which arose at the time the bridge was destroyed would still exist. The emergency wrould be a continuing one, calling for prompt action upon the part of the authorities from the time of the destruction of the bridge until it should be rebuilt.

The Supreme Oourt, in the case of the Board of Supervisors of Logan County v. The People, etc., 116 Ill. 446, uses the following language:

“ It is said that as the old bridge was swept away while the law of 1879 was in force, and before the law of 1883 went into effect, the latter law can not be made-to apply to an emergency which arose before its passage. The Act of 1883 went into force on July 1, 1883, and repealed the Act of 1879, “in regard to roads and bridges, etc.,” which had been theretofore in force since July 1, 1879. If the objection made is a sound one, then in case a bridge had been suddenly destroyed one day before July 1,1883, the Highway Commissioners could not proceed to build a new one in its place and apply to the County Board “ during the progress of the work, or after its completion,” for money enough to pay for half its cost, even though a delay in commencing the construction of the bridge until the next meeting of the Board would be seriously detrimental to the public interests. Such a result would not have been intended by the Legislature. It makes no difference that the old bridge was destroyed before the new law went into effect.
The water in the creek continued so high that work could not be begun on the new bridge until after July 1,1883. The same emergency, therefore, which arose before that date, continued to operate as a spur to prompt action after that date. The material lact was that delay in rebuilding would be detrimental to the public interest.
When such detriment to public interest was threatened, it was the duty of the Commissioners to let the” contract at once; it was not material whether the emergency, which made it so injurious to indulge in delay, occurred before or after the passage of the new law.
It is true that a retrospective effect will not be given to a statute unless it clearly appears that such was the intention of the Legislature. But this act of 1883 is not made to have a retroactive operation because a proceeding under it has grown out of an emergency that occurred before its passage. Ho accrued rights are affected. Ho existing liabilities are increased or dim "ni died. The County Board was liable to pay half the cost of the bridge under the old law, and it is liable to the same extent and no more under the new law. The change made by the second provision of the 19th section was merely in the time of application for an appropriation.
Upon a given state of facts, such application could be made by the terms of that provision during or after the building of the bridge, whereas theretofore it could only be made before the work on the bridge was begun.”

Upon the trial below the court excluded the record of the Town Clerk of St. Mary’s for the reason that two leaves of the record book had heeu cut from the hook. Ho evidence was offered tending to show whether the absent leaves had contained any part of the records of the town, or whether they were entirely blank when taken from the book.

The different town clerks were called, and all stated they knew nothing as to how or when it occurred.

We think there was nothing in this fact alone authorizing the court to exclude the book from the consideration of the jury. The bcok was a public record, required by law to be kept by public officers and for the benefit of any one interested in the business transacted by the town, and 'it is to be presumed until the contrary appears that they have done their duty, and the right of the public to the use of such records can not be destroyed by the mere fact, unaccompanied by any other suspicious circumstance, that a portion of the original leaves of the book are gone.

The whole controversy, however, over the introduction of this book in evidence, including the voluminous arguments submitted upon the question, is in our opinion unnecessary, as it is not essential, under Sec. T9 of the Act of 1883, for the town to show that it has provided one half the funds necessary to build the bridge; but when the necessary facts as provided in Sec. 19 appear, the County Board shall make its appropriation on condition that the town asking aid shall furnish the other half of the required amount.

The town may aver and show the provision of the funds on its part, and in such case the appropriation by the county should be unconditional; but if such fact is not shown the duty of the County Board to make the appropriation is equally imperative, but is conditional, and can be made available by the town only when it complies with its duty to provide the other half of the means.

There are many other errors assigned and urged upon our attention, but we deem it unnecessary to notice them.

For the errors indicated, the judgment of the Circuit Court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed a/nd remanded.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    William Kennedy, Administrator, et al. v. William Wikoff et al.

      Garnishment — Chap. 62 R. S. — See.37 of Attachment Act, not Applicable to — Creditor Recovering under Garnishee Process not Required to Share Proceeds pro rata with Other Creditors.

    1. Under Sec. 37 of the Attachment Act other creditors bringing ordinary actions against the same debtor and succeeding in the recovery of judgments at the same term as the attachment creditor, are entitled to share pro rata in the proceeds of the attached property. But if the attachment for any reason fails to hold the property, it will not avail either the attaching creditor or others who rely on the provisions of said section.
    2. Sec. 37 of said act does not apply to garnishee proceedings under Chap. 62 B,. S., and a creditor who recovers upon garnishee process under said chapter is not required to share the proceeds with other creditors.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Statement of the case by Congee, J. This is a controversy between two sets of the creditors of John R. Snyder, who was a banker, doing business in Chenoa, McLean County, Ill. On the 30th day of September, 1883, Snyder made a deed of trust of all his property, both real and personal, to John J. P. Odell. On the 4th of October, 1883, William Wikoff and Alfred R. Kidwell commenced suit in attachment against Snyder. A few days afterward William Linden, Luther 0. Hayes and Christian Clouden each commenced a suit in attachment against Snyder. At the following November term each of the above named appellees recovered a judgment against John R. Snyder for his claim, but not on the attachment. At the same term of court the other of appellees recovered a judgment against Snyder by confession. At the same term of court each of the appellants recovered a judgment by confession against Snyder. Afterward during the same term (Snyder having pleaded to the attachment) a trial was had on the attachment in the Kidwell case and judgment rendered for the plaintiff; from which judgment Snyder prayed an appeal to this court. During the same term of court appellees filed in said case an intervening petition in which they claimed that, by reason of having obtained a judgment in the same term of court in which the judgment in attachment was rendered, they were entitled to share in the proceeds of all property attached and garnished. The court took that matter under advisement, and Snyder prosecuted his appeal from the judgment in attachment, and on hearing, this court, on error confessed, reversed the judgment.
    An execution was issued on each of the several judgments in favor of appellees and returned “ no property found.”
    On the return of such executions each of the appellees swore out a writ of garnishment, which writs were served on John J. P. Odell, and the Union ^National Bank, and various other parties, making twenty-one suits in garnishment. All these suits in garnishment were afterward, by agreement and consent of all parties, consolidated into this one case, and was entitled J. B. Snyder for the use, etc., vs. John W. Bryant, et al. Various answers were made by the garnishees to the interrogatories filed, some admitted and some denied indebtedness, and afterward the court, on motion of the plaintiffs, appointed receivers to take charge of the property.
    On the 13th day of November, 1884, each, of the plaintiffs in the said attachment suits released all property attached and dismissed as to all garnishees.
    On September 17, 1885, the attachments in each and all of the attachment suits were dismissed.
    The same persons were summoned as garnishees in the garnishee suits who had been garnished in the attachment suits, and for the purpose of reaching the same property.
    By means of the garnishee proceedings quite a large amount of property was reached and made available for the purpose of being applied toward satisfying the judgments of appellees, but the amount obtained was not sufficient to satisfy them. In order to obtain what was reached it was necessary for appellants to secure to the Union National Bank, of Chicago, one of the garnishees, something over §10,000, it holding it as collateral for a debt exceeding §10,000.
    After the recovery of the judgments before mentioned in favor of appellants, John B. Snyder removed to Oregon, and appellants each commenced an action of debt on his judgment that he had previously recovered by confession. Summons in each ease was sent Mr. Snyder in Oregon, and he there acknowledged services on the summons, and that was the only service had on Snyder.
    Afterward, and at the same term of court in which the attachments were dismissed, each of the appellants took judgment against Snyder. November 28, 1885, the court made an order of distribution of the proceeds of the property garnished, ordering it distributed among appellees till each of such judgments was satisfied except four judgments, including that of ¿dwell.
    On the hearing of that motion for an order of distribution, appellants contended that the order should be made distributed fro rata among appellants and appellees. The court refused to make such an order but ordered it distributed among appellees, and from that order this appeal is prosecuted.
    Messrs. W. E. Hughes and J. S. Ewing, for appellants.
    The entire matter of fro rata distribution of attached property is one strictly of statutory regulation, and when the Legislature has clearly declared its intention the courts have no power to depart from the plain language of the statute for the purpose of establishing, as they may suppose, a more equitable rule. Bucker v. Fuller, 11 Ill. 223; Jones v. Jones, 16 Ill. 117.
    ' The judgment of the Circuit Court in its order of distribution was erroneous, and will have to be reversed for the reason that appellants are clearly within the classes of creditors for whom the law of Illinois preserves all the attached property, whether levied on or in the hands of a garnishee at the time the first attachment is sued out and served. Reeve v. Smith, 113 Ill. 47; ¡National Bank of America v. Indiana Banking Company, 114 Ill. 483.
    The Legislature intended to do two things: 1st, to sequester not a part, but all the property of the debtor in an attachment suit which may be levied on or in the hands of garnishees from the moment the writ is served until final judgment passes one way or the other in one of the attachment suits; 2d, to shut out from any participation therein, every creditor who takes a judgment by confession or weakly dismisses his attachment suit.
    Messrs. Herrick, Lucas & Spencer, for appellees.
    These suits were commenced under the Garnishment Act and not under the Attachment Acts and there is no provision in the Garnishment Act similar to that in Sec. 37 of the . Attachment Act. It is well settled by all the authorities that the first suit in garnishment in which service is had on the garnishee, is prior in right to the subsequent garnishees. Wilder v. Weatherhead, 32 Vt. 765; Erskine v. Stoley, 12 Leigh, 406; Moore v. Holt, 10 Grat. 284; Talbot v. Harding, 10 Mo. 350 ; Johnson v. Griffin, 2 Cranch, 199 ; Arledge v. White, 1 Head, 241; Bergman v. Sells, 39 Ark. 97; Waples on Attachment and Garnishment, 488 ; Drake on Attachment, Sec. 455-456.
    Appellants are not garnisheeing creditors of Snyder, but base their claims simply and solely on the fact that at the same term that the attachments were dismissed they each recovered a judgment in debt against Snyder.
    “ In garnishment cases as in case of a levy, attachments take precedence in the order of their service. ” Drake on Attachment, Sec. 455. This rule does not apply to attachments in this State because our statute has expressly otherwise provided. But we insist it is the rule in the absence of some statutory provision to the contrary, and there is none applicable to the Garnishment Act.
   Conger, J.

The controversy in this case grows out of the proper construction to be given section 37 of the Attachment Act, which is as follows: “All judgments in attachments against the same defendant returnable at the same term, and all judgments in suits by summons, capias, or attachment against such defendant, recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata according to the amount of the several judgments, in the proceeds of the property attached, either in the hands of a garnishee or otherwise. Provided, when the property is attached while the defendant is removing the same, or after the same has been removed from the county, and the same is overtaken and returned, or while the same is secreted by the defendant or put out of his hands for the purpose of defrauding his creditors, the court may allow the creditor or creditors through whose diligence the same shall have been secured, a priority over other attachments or judgment creditors.”

As we understand, the construction of this section insisted upon by appellants, is, that when one sues out an attachment, and a final decision of the case is reached by a judgment being recovered by, or against, such attaching creditor, that all other persons who recover judgments against such attachment debtor, in accordance with the provisions of Sec. 37, are entitled to share pro rata in the proceeds of the attached property. We can not assent to this view. We think the section is intended to apply when the attachment is made successful by the attaching creditor recovering a judgment agai st his debtor, and not when,' as in this case, the attachment fails, and judgment goes against the attaching creditor for the costs of suit.

When an attachment issues it lays hold of and appropriates the debtor’s property, keeping it in the custody of the law until such time as it may be needed to satisfy the creditors’ demand.

By Sec. 37, other creditors bringing ordinary actions against the same debtor and succeeding in recovering judgments at the same term as the attachment creditor, may make the one attachment a foundation for claiming a share of the proceeds of the attached property. But if the attachment from any reason loses its vitality and is unable longer to hold the property, its usefulness is gone and it will no longer avail either to the attaching creditor or to others relying upon the provisions of Sec. 37.

Others of the appellees beside Kidwell having obtained judgments against Snyder, by confession, issued executions upon such judgments, which were afterward duly returned, “no property found.” On the return of these executions the plaintiffs sued out under the provisions of chapter 62, entitled “ Garnishment,” writs of garnishment, and had such writs served upon various persons having effects of said Snyder in their hands, and appellants also insist, as we understand their position, that they are entitled to share in the property and effects thus reached by garnishment by virtue of said See. 37 of the Attachment Act.

We think this See. 37 has no application whatever where garnishee process is taken out under Chap. 62. . When proceeding under that chapter, each creditor gets what he can and is not required to share with other creditors, unless they have succeeded in garnishing the same person or property.

By Sec. 6 of the Attachment Act, provision is made not only for attaching the debtor’s property but also for summoning other persons as garnishees, and it is property and effects thus seized or garnished by the attachment writ that is required by Sec. 37 to be, under certain circumstances, divided out among the creditors.

We think the court held properly in excluding appellants from participation in the property and effects reached by the garnishee process issued under and by virtue of chapter 62, and the j udgment will therefore be affirmed.

Affirmed.


text:
    William R. Seago and Elizabeth Foils v. The People, use of Luella J. Reddish.

      Guardian’s Report, though Approved, Impeachable for Fraud — Action against Guardian and Surety to Recover Balance■ — Order of Probate Court, not Conclusive — Witnesses—Surety—Competency of — Sec. 2, Ch. 51, R. S., and First Exception — Construction of.

    1. The order of a Probate Court, finding the amount due from a guardian, though generally conclusive against the guardian and sureties, may be impeached for fraud.
    2. Sec. 2, Ch. 51, R. S., and the first exception thereto, when construed together, do not exclude the evidence of the adverse party to a suit, brought by an ‘ ‘ heir ’ ’ to enforce a right not claimed by inheritance, as to facts occurring during the minority of the plaintiff.
    3. In an action against a guardian and surety to recover a balance shown to be due by a report of the guardian, which had been duly approved by the Probate Court, it is held: That a former sworn report of the guardian, which shows a much less balance to be due, the ward being therein charged for board, is admissible in support of a plea charging fraud, and that the surety is a competent witness for all purposes, the suit not being brought by the plaintiff as an heir.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Jersey County; the Hon. G. W. Herdman, Judge, presiding.
    On the 23d of October, 1875, Elizabeth Reddish (now Foyles) was appointed by the Probate Court of Jersey County guardian of her five minor children, including Luella J. Reddish. She was required to give bond with two sureties in the penal sum of §1,700. The bond was given, purporting to be executed by ¡Nathan Campbell and W. R. Seago, the appellant.
    On the 23d of August, 1878, she made a report showing that she had on hand as guardian of said wards the sum of §492.30. Again, on the 12th of January, 1884, she made, swore to and filed her report showing the fund exhausted in the support of her children, except the sum of $17. This report was filed, but no action was taken upon it. Again, on June 17, 1884, she made report, disclaiming any credits for the support of the wards, and charging herself with interest on the fund from August 20, 1878, to June 17, 1884, making a total due her wards of $664.10. This report was approved by the County Court, and immediately thereafter, on July 21, 1884, suit was commenced on her bond by Luella J. Reddish to recover her share of the said $664.10.
    The guardian at the time of this last report was utterly insolvent. Defendant Seago filed several pleas, on which issue was joined.
    1st. He denies the execution of the hond.
    2d. That the report showing a balance due the wards was fraudulent and that there was nothing due them from their guardian.
    3d. That the whole of the fund belonging to the wards had been expended by their guardian in their necessary support.
    In the progress of the trial below, defendant, Elizabeth Foyles, was called to testify that Seago had promised to execute the bond as her surety, and among other witnesses, Benj. Durnham and wife were also called to testify concerning alleged admissions of Seago that he had executed the bond. Mr. Seago was then called and testified, denying such promise and.admissions, and was asked whether he executed the bond. The court holding he was incompetent by reason of his interest, refused to allow him to testify upon that question.
    In support of the plea of fraud as to the report of the guardian, appellant Seago offered in evidence the sworn report of the guardian, dated January 12, 1884, showing only-a balance of $17 in hand, the proof showing that Luella J. Reddish was present when it was made. The court holding that the sureties were concluded by the report of the guardian, refused to admit the report. Evidence was also offered by appellant Seago tending to show that the whole of the sum of $492.30 was necessarily exhausted in the supjjort of these five children, which the court refused to admit. The trial resulted in a verdict and judgment against appellant for $143.93, to reverse which this appeal is prosecuted.
    Messrs. Brown & Kirby, for appellants.
    . The court below erred in refusing to permit the appellants to introduce pertinent evidence tending to show that the money of the ward had been necessarily expended in support of the ward, and that there was no fund in the hands of the guardian belonging to the ward at the time the suit was instituted.
    When attacked for fraud, it may be shown that the guardian’s report. is not true, and especially so when the question was expressly raised by the pleading, and there was evidence tending to show that the beneficial plaintiff was a party to the alleged fraud. The approval of the report made it only ■prima facie evidence of its correctness, which was subject to be rebutted in a proper case by competent evidence. Bond v. Lockwood, 33 Ill. .212.
    Upon proof of fraud in its. procurement, the allowance of the account of the guardian would be of no avail to the parties claiming the benefit of it. Lynch v. Rotan, 39 Ill. 14 ; Bruce v. Doolittle, 81 Ill. 103; Roth v. Roth, 104 Ill. 35.
    All cases holding that a report of a guardian is conclusive on his sureties, are* subject to the exceptions, “ unless, indeed, they could impeach it for fraud or collusion.” Ream v. Lynch, 7 Ill. App. 161; Freeman on Judgments, Sec. 2501 ; Mfg. Co. v. Worster, 45 N. H. 110.
    The limitation to the rule of conclusiveness of a judgment is that it may be shown that it was obtained by fraud or gross abuse of the process of the court or a flagrant departure from the ordinary course of judicial procedure. Roth v. Roth, 104 Ill. 35.
    The court erred in refusing to'allow the witness, W. B. Seago, to testify as to whether he signed the bond in suit.
    To justify the exclusion, it must appear that the matter occurred during the life of the ancestor. Mahoney v. Mahoney, 65 Ill. 406.

      Messrs. Hamilton & Slaten, for appellee.
    Where fraud is relied upon as a defense it must be specifically pleaded by the defendants, and the plea must set out particularly the facts constituting the fraud. Slack v. McLagan,
    15 Ill. 242 ; Jones v. Albee, 70 Ill. 34; Beatty v. Nickerson, 73 Ill. 605 ; Hopkins v. Woodward, 75 Ill. 62; Cole v. Joliet Opera House Co., 79 Ill. 96.
    The intendments and presumptions are all in favor of the regularity, correctness and validity of all the proceedings of the County Court in the matter of the appointment and supervision of guardians until the contrary is shown, and it is not necessary that all the facts and circumstances which justify its action shall affirmatively appear upon the face of the proceedings. Propst v. Meadows, 13 Ill. 157; Mitchell v. Mayo, 16 Ill. 83; People v. Gray, 72 Ill. 343 ; Housh v. People, 66 Ill. 178.
    The evidence here sought to be introduced to impeach the correctness of the report of June 17, 1884, and to show that the guardian had expended the funds of her wards in their necessary support, should have been introduced in the County Court at the time of the presentation of the guardian’s report there, and if the surety was not satisfied with the action of that court his only remedy was by appeal to the Circuit Court under the statute. Ralston v. Wood, 15 Ill. 159; Housh v. People, 66 Ill. 178.
   Conger, J.

We think the court erred in excluding from the jury the report made by Mrs. Foyles on the 12th of January, 1884. It tended to show that originally the mother intended to charge her daughter Huella for board at the rate of fifty cents per week, and if such was her intention and she actually furnished her daughter with such board, at reasonable prices, it would have been pro tanto a payment to her daughter of which the sureties upon her bond could avail themselves, notwithstanding the mother might afterward desire to be charged with it solely for the purpose of enabling her daughter to recover from the sureties.

There being a plea charging fraud in the settlement, claimed to be conclusive as to the guardian and sureties, all evidence tending to show such fraud was competent.

The order of the Probate Court finding the amount due from the guardian, while generally conclusive upon such guardian and the sureties, like everything else may be impeached for fraud. Amimon v. People, 11 Ill. 6; Ralston v. Wood, 15 Ill. 159. Under the same plea we think the evidence offered as to the financial condition of the family should have been admitted.

We think Seago, the surety, was a competent witness for all purposes and that he is not excluded either by the second section of chapter 51 or the first exception to said section. Appellee Keddish was in no sense suing as an heir. She was seeking to recover from her guardian and Seago the surety upon the guardian’s bond, which was a contract entered into after her money and property had descended from her father and become vested in her as her own property. Whether the funds that passed into her guardian’s hands came from her father by descent or was the gift of some living friend or relative, or the wages of her own labor, could not make the slightest change in her rights. Her claims upon the guardian and sureties and their obligations to her would be precisely the same in either case; so that in no sense can it be said she was suing as an heir.

But it is insisted that the first exception to Sec. 2, Chair. 51, prevents Seago from testifying to facts occurring before appellee attained her majority.

This exception must be construed in connection with the second section and it will be observed that it is not every guardian that can avail himself of the provisions of section two, for it is only where a guardian or trustee “of any su: h heir ” sues or defends that the adverse party, or person directly interested, is prevented from testifying. To make this section available, the ward, whom the guardian represents, must be an heir, one seeking to enforce or recover some right claimed by inheritance from some deceased person. It follows, therefore, that the first exception means when the guardian of a ward who is an “heir of any deceased person,” sues or is sued, as a party or interested person, may not testify to facts occurring before such ward attains majority.

Because of the refusal by the Circuit Court to permit this testimony to go to the jury, the judgment of the Circuit Court will be reversed and the cause remanded.

Meversed cmd remanded.


author: Wall, J.

text:
    C. C. Howdyshell and James B. Speer v. Mary H. Gary.

      Landlord and Tenant — Distress—Construction of Statute — Proceedings against Original Tena.nt — Property of Assignee can not he Taken — Action of Trespass — Excessive Damages — Recoupment—Instructions.
    1. In a proceeding against the original tenant the landlord can not dis-train the goods of said tenant’s assignee, although they formerly belonged to the tenant and are found on the demised premises.
    2. In an action of trespass to recover damages for wrongfully taking and selling the plaintiff’s goods under a distress warrant against his assignor, it is held: That under the evidence the verdict for $1,500 damages is excessive; that it was error to instruct the jury that the selling price of the goods at the sale under the distress warrant could not be . considered as evidence of the value of the property, and that the abandonment of the lease did not entitle the landlord to recover by way of recoupment the rent to accrue, the extent of his right to recover being limited to the damages sustained.
    [Opinion filed August 30, 1886.]
    Appeal from the Circuit Court of Ford County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Tipton & Moffett, for appellants.
    Our statute has modified the common law so as to exempt property of a stranger and enlarged so as to allow seizure in distress of any of the property of the tenant in the county. But all modifications of common law are to be strictly construed, and under the construction placed upon such modification, the property that comes within the definition of “ property of a stranger” must be that which is brought and pi aced on the premises by a stranger, and not that which is derived from the tenant and allowed to remain on the premises. If property is purchased of a tenant before the purchaser can deprive the landlord of his right of distress, as to the property so purchased, he must remove it from the premises before the landlord seizes it in distress. O’Hara v. Jones, 46 Ill. 288 ; Hadden v. Knickerbocker, 70 Ill. 677 ; Eames v. Mayo, 6 Ill. App. 334; Hastings v. Belknap, 1 Den. 190; Herron v. Gill, 112 Ill. 247.
    While there is no lien on such property of the tenant for the rent, still there is the right to seize it as long as it remains on the premises.
    As assignee, appellee stood simply in the place of J. S. Gary, Jr., her assignor — liable for all covenants in the lease, for all obligations in the lease contained — and the property therein was subject to same burdens in respect thereto by the appellant, .Speer, as landlord, as it was if the bill of sale had never been -made, as long as property remained on the premises. Coles v. Marquan, 2 Hill, 447; Babcock v. Scoville, 56 Ill. 461; Webster v. Nichols, 104 Ill. 160 ; LeGier v. Green, 61 Tex. 128; O’Hara v. Jones, 46 Ill. 288: Patty v. Boyle, 56 Miss. 491.
    There was no sufficient delivery of the property in question by J. S. Gary, Jr., to Mary H. Gary, appellee, to pass title to her as against appellant. Richardson v. Hardin, 88 Ill. 124 ; Lewis v. Swift, 54 Ill. 436; LeFever v. Mires, 81 Ill. 456 ; Burnell v. Robertson, 5 Gilm. 282.
    The evidence discloses no legal possession taken under the chattel mortgage. Gaines v. Becker, 7 Ill. App. 315.
    Appellee, under the bill of sale which she claims, takes an assignment of the leasehold interest of assignor in the premises demised to him. As such assignee, she became liable for all rent that became due under said lease after she became such assignee. Babcock v. Scoville, 56 Ill. 461; Webster v. . Nichols, 104 Ill. 160.
    Messrs. Cook & Moffett, for appellee.
    The statute limits the right of distress to the goods of the tenant. Gray v. Bawson, 11 Ill. 527; Uhl v. Dighton, 25 Ill. 154.
    In none of the cases cited by appellants does it appear that property, Other than crops, in the hands of a Iona fide purchaser was held subject to the landlord’s lien, and this without regard to the question of removal. '
    It is not necessary that “ property that comes within the definition of ‘property of a stranger’must be that which is brought and placed on the premises by a stranger.” Gilbert v. Moody, 17 Wend. 354.
    The sale was complete and title proved. Ives v. Hulce, 14 Ill. App. 389; May v. Tallman, 20 Ill. 443; Hart v. Wing, 44 Ill. 141.
    At common law landlord can only distrain for rent due. Taylor’s Landlord and Tenant, Sec. 573.
    Trespass will lie for an illegal distress. Taylor’s Landlord and Tenant, Sec. 768.
    Any unlawful interference with the property .of another is sufficient to maintain this action. Allen v. Crary, 10 Wend. 349; Connah v. Hale, 23 Wend. 462.
    What the property sold for at sale is not competent to prove value. Whitaker v. Wheeler, 44 Ill. 440.
   Wall, J.

This was an action of trespass. It appears that . J. S. Gary leased certain lots in the town of Gibson, upon which he erected works for the manufacture of flax. The lease was in writing and was to run five years from July 10, 1882. Gary failed and transferred the property to his mother, the appellee, living in Ohio, who sent another son to take charge of the property and, as it seems, determined to abandon the business and began to remove the machinery. At 'this point Speer, the lessor, claiming there was due him for rent §100, placed a distress warrant in the hands of Howdyshell, a Constable. The warrant directed a levy upon the property of J. S. Gary, the lessee, and was levied upon certain of the machinery, etc., and such proceedings were had that at a sale subsequently held Speer bought the property in satisfaction of his claim. This suit was brought by appellee against the appellants, Speer and Howdyshell, and recovery predicated upon the proposition that under the distress warrant against J. S. Gary it was unlawful to levy upon the property of appellee, though it might be upon the premises and might have been placed there and formerly owned by the lessee. This question was presented by the pleadings, and the court, by its rulings, sustained the view of the plaintiff and held that such a levy was unlawful. In this we concur writh the court. Our statute, Sec. 16, Ch. 80, provides that the landlord may seize, for rent, any personal property of the tenant that may be found in the county, but in no case shall the property of any other person, though the same may be found upon the premises, be liable to seizure for rent due from such tenant. This provision is a modification of the common law right in such cases and must control. The language is general and is not subject to construction — in no case shall the property of any other person be seized. The right to levy must be determined by the ownership of the property sought to be reached at the time of the levy, or perhaps of the delivery of the warrant to the officer. There is no lien except as to crops grown upon the premises. Herron v. Gill, 112 Ill. 247. It is not material that the property formerly belonged to the tenant or that it is still on the leased premises. If it has by a legal sale and delivery passed to another, it is not the subject of a levy under a distress warrant against the goods of the tenant. It is true that the statute provides, Sec. 32, that when the lease has been assigned the landlord shall have the same right to enforce his lien against the assignee that he has against the tenant, but in such case he should proceed against the assignee. It is not competent to proceed against the original tenant and take the goods of the assignee.

This disposes of the main question in the case, but assuming appellee was entitled to recover it is urged the verdict is grossly excessive. We are strongly impressed with the belief that the damages allowed, §1,500, are much too high. The defendants were evidently not guilty of such acts as to make them liable for punitive damages, and as we read the evidence the actual damages by any fair computation, making reasonable allowance for differences of opinion of the witnesses, should have been much less than the sum fixed by the jury.

The court, by its first instruction, told the jury that what the property sold for on the day of sale under the order of sale in evidence is not to be considered by you as evidence of the value of property.”

It was error to give this instruction. It is no doubt true that such a sale is not conclusive evidence of the value, but it may under some circumstances be quite satisfactory. Roberts v. Dunn, 71 Ill. 46. When due notice is given and the attendance is considerable and the bidding active the result would test very fairly the cash value of the article sold. It was not for the court to say that under the circumstances of this sale the price realized was no evidence of the value.

It is urged that as the lease was abandoned the lessor might have recovered the whole amount of rent to accrue under the lease, and reference is had to section 33. We think this section applies only to a distress upon crops and does not cover this case, and that the court ruled properly in refusing instructions asked upon this point.

The court did instruct that the amount of rent due might be recouped, and we think, if asked to do so, it might go further and instruct that if the lease was abandoned the whole damage thereby occasioned to the lessor is a proper subject of recoupment in this action. As the lessor does not lose the use of the premises during the whole term he is not necessarily damaged the full amount that he would have received for rent. What his damage would be by reason of the breach of contract in such a case need not be discussed here.

For the error in giving the instruction referred to and because the damages are excessive, the judgment will be reversed and the cause remanded.

Reversed cmd remmded.


author: Per Curiam.

text:
    John Workman v. F. M. Neal.

      Injury to Personal Property — Jurisdiction of Justice.

    A Justice of the Peace has jurisdiction of an action to recover damages for an injury to personal property.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Mr. N. M. Broadwell, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Per Curiam.

This was a suit before a Justice of the Peace to recover damages for injury to personal property, and was dismissed by the Circuit Court upon appeal, on the ground that the justice had no j urisdiction of the snbj ect-matter. We think this was error, for reasons stated in the opinion filed in Skinner et ah v. Morgan, decided at this term. See also C. & A. R. R. Co. v. Calkins, 17 Ill. App. 56.

Reversed and remanded.


author: Pleasants, P. J.

text:
    Robert Hall v. Black Brothers and Elijah Carver.

      Bill to Enforce Claim against Estate — Chattel Mortgage — Fraud.
    Upon a bill filed by two creditors of David Wright, deceased — one by simple contract and the other by a Justice’s judgment on which no execution issued during the life of the decedent — neither of whom has proved his claim in the County Court against the estate, to reach the proceeds of the sale under an alleged fraudulent chattel mortgage, of most of decedent’s estate, the defendants being the mortgagee and the administrator, it is held: That the bill is in effect a creditor's bill, and that the decree can not be sustained, as it ignores the County Court and the rights of other creditors and of the family of the deceased.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Leeper & Gridley, for appellant.
    Messrs. ¡Ketcham & Gridley, for appellees.
   Pleasants, P. J.

The bill herein, filed by appellees, avers that on January 27, 1883, David Wright executed to appellant Hall a pretended note for $1,100 and to secure it a chattel mortgage of nine horses, two cows, and the undivided third of 5,000 bushels of corn; that said note and mortgage were a fraud and a sham, made without consideration and to hinder and delay creditors; that Wright had no other property subject to execution; that he then owed Black Brothers, on note and account, $253.58, and Elijah Carver $85.50, which was afterward reduced to judgment before a Justice of the Peace; that he died in March 1883, and Harry C. Thompson was appointed administrator, but no property has come to his hands as such, nor does he know of any wherewith to pay Wright’s debts; that Hall took possession of what was described in said mortgage, -sold it thereunder for $950 and claims the proceeds as his own.

It .makes Hall and the administrator defendants and prays that the court cause the amount of Wright’s indebtedness to complainants respectively, and the amount realized by Hall from the sale of the mortgaged property to be ascertained, and that Hall be ordered to pay complainants out of such proceeds, in full, if there be enough, and if not, pro raía.

In short, this is a bill filed by two creditors of decedent’s estate — one by simple contract and the other by a Justice’s judgment on which no execution issued during the life of decedent — neither of whom has proved his claim in the County Court, against the administrator and a third party who is alleged to hold by fraud about all of the estate, to compel the latter to pay their claims out of what he holds, even if it takes all to do it, without regard to the rights of the widow and children or other creditors.

Process was served on the defendants personally. The administrator was defaulted, but Hall answered that the note and mortgage were executed to secure existing indebtedness and advances to be made in good faith and not to defraud creditors, and that the proceeds of the mortgage sales— amounting to only $676 — were fairly applied upon Wright’s debt to him. To which there was a replication.

It appears that Wright left a widow and five children, and that his whole estate, aside from the property described in the mortgage, would not exceed in value $300. He was a tenant of Hall, and there was evidence tending to show that he owed him nearly $400 on other accounts and had agreed to pay him $600 cash rent for the year commencing March 1, 1883; that he owed Thompson $200 or more and a little to other parties; that Thompson drew these papers and promised Hall to protect his claim. Hall says he sold the live stock for $417 and the corn for $261.12; that he had agreed to share the proceeds of the corn with Thompson _pro rata, and that he paid him $142.

On final hearing upon the pleadings and proofs a decree was made which does not find the allegation of fraud to be sustained, nor show what amount was found to have been realized on the mortgaged property, or what was allowed to Hall; but it does find due to Black Bros. $330.98 and to Carver $85, and that there was in Hall’s hands subject to the rights of complainants, after allowing him all just credits, the sum of $201.60, which it orders him to pay within forty days to the Clerk of the Court, to be divided and applied pro rata, as follows: On claim of Black Bros. $160.39, and on that of Carver $41.21. From this decree Hall appealed.

Since appellant did not see fit to demur to the bill, perhaps the court might have been sustained in applying any balance in his hands belonging to the estate upon complainants’ claims pro rata, if there had been no widow or other creditor, though that is just what the County Court would have done in such case, and no reason is shown for taking the administration out of its hands. But upon the facts appearing in evidence as above stated, we think the decree here made was clearly erroneous. Complainants had no lien upon any property of the estate, nor were they for any reason entitled to preference over any other creditor, much less over the widow’s award. Their claims were of the 7th class. Whatever of personal estate was left by decedent, in whosesoever hands, belonged to the administrator, in trust to dispose of it as prescribed by the statute. - It was his right and duty to recover or collect it,'and then to apply it under the direction of the County Court upon personal expenses, widow’s award, costs and debts, so far as it would reach, in proper order and proportion.

Enough appears from the findings of the decree and from the evidence to show there was really nothing here for creditors; and if there were, complainants would be entitled only with others, according to their class and in proportion to their amounts.

The decree giving them the whole, to the exclusion of the widow and other creditors, will therefore be reversed without prejudice to any proceedings to be taken by them in the County Court.

Deoree reversed.


text:
    John Bowers v. S. O. Davis.

      Action on Contract for Constructing Tile Ditch — Performance—Evidence —Commencement of Suit — Time of — Instructions,
    In an action to recover for work done under a special contract for constructing a tile ditch, it is held: That the evidence tends to show a failure of performance of the contract., and that the court below erred in refusing an instruction as to the time of commencing the suit, the evidence tending to show that it was prematurely brought.
    [Opinion filed November 20, 1886.]
    Appeal from the County Court of Moultrie County; the Hon. Jonathan Meeker, Judge, presiding.
    Mr. William Shoot, for appellant.
    No counsel appeared for appellee.
   Per Curiam.

Appellee brought this suit before a Justice of the Peace to recover for work done under a special contract for constructing tile ditch and appealed to the County Court where there was a verdict and judgment for plaintiff for 846.32 and costs. A new trial was denied.

The evidence strongly tends to show a failure by plaintiff to make the ditch as agreed in respect to depth and fall, and that defendant refused to accept it as it was. The court instructed the jury that plaintiff must show performance according to the original agreement, unless it was afterward changed by mutual consent — of which there was no evidence. A strong preponderance of the evidence also showed that defendant was to pay for the work in cash on the first day of August, or then give his note for it payable in one year with interest, and that this suit was commenced on the 28th day of July preceding. Yet the court refused an instruction that in such case plaintiff could not recover in this action.

For these errors the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Susan E. Bice v. Owen H. Hall.

      Wills — Freehold—Appeal—Practice.
    1. Where a will devises real estate as it would not descend - under the statute, a freehold is involved.
    2. This court, for want of jurisdiction, dismisses an appeal in a case involving such a will, with leave to withdraw the record.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Per Curiam.

The County Court admitted to probate the proposed will of Benjamin L. Hall, but the Circuit Court on appeal reversed the order, and this appeal was taken.

The proposed will devises real estate in fee as it would not descend under the statute. A freehold is therefore involved. Andrews v. Andrews, 9 Ill. App. 408; S. C. 110 Ill. 223; Newbury v. Blatchford, 106 Ill. 584.,

An appeal in such a case does not lie to this court. Appellant may have leave to withdraw the record if she so desired.

Appeal dismissed.


text:
    George Hayden, Administrator, v. Martha Henderson.

      Claim, against Estate for Services in Family of Deceased — Gratuitous Services — Presumption—Burden of Proof- — Instructions—Evidence—Question for Jury.

    1. The fact that a person residing with another has rendered gratuitous services raises no presumption that subsequent services of different character and rendered under different conditions are also gratuitous.
    2. Where evidence tends to show that a claimant against an estate lived with the deceased as a member of her family, the burden is upon the claimant to show otherwise.
    3. Instructions which contain all that is really applicable and important, although not every instruction is itself entirely accurate, are sufficient.
    4. In the case presented, the sole question being whether the claimant was a member of the family of the deceased, it is held: That said question was for the jury, and that certain evidence touching the circumstances of the claimant, the intention of the deceased to make some provision for her and the value of her services and provisions furnished, is not objectionable.
    [Opinion filed November 20, 1886.]
    In error to the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Mr. A. A. Leeper, for plaintiff in error.
    The claimant having rendered services gratuitously to the deceased for several years prior to the time for which she - claims pay, she can not charge for services afterward, in the absence of an express contract or notice to the deceased. Woolsey v. White, 7 Ill. App. 277.
    The relations existing between plaintiff and deceased were those existing between members of the family, and before a recovery in such case can be had, an express contract must be shown. Woolsey v. White, 7 Ill. App. 277; Neely v. Rich, 7 Ill. 116; Dunlap v. Allen, 90 Ill. 108.
    In theIllinois Linen Co. v. Hough, 91 Ill. 67, where two instructions were given, one for each of the parties — one stating an erroneous rule and the other a correct one — the court held that the giving of the correct instruction would not cure the error where the jury were left at liberty to follow either instruction, unenlightened as to which was the law. Quinn v. Donovan, 85 Ill. 194; Cumins v. Leighton, 9 Ill. App. 186.
    Each instruction should be correct in itself and applicable to the facts. Sweet v. Leach, 6 Ill. App. 212;
    Mr. E. G. Wilson, for defendant in error.
   Pleasants, P. J.

This was a claim filed in the County Court by defendant in error for services rendered and goods furnished to the deceased in her lifetime, from March 1,1881 to April 1, 1884. It was taken by appeal to the Circuit Court, where a verdict was returned in favor of the claimant for $400. A new trial was refused and judgment entered, to reverse which the administrator prosecutes this writ of error.

The deceased owned and was occupying by herself a house in Jacksonville, when, in 1877, the claimant, who was her widowed daughter-in-law, with two young children, came to live with her and so remained until her death in April, 1884. At whose instance or upon what understanding she came, does not positively appear. The evidence fails to show any express agreement between them in relation to wages, but it tends to prove that while she only assisted in the general house work until the spring of 1881, when the old lady’s health and strength failed almost entirely, she thereafter virtually did it all, besides supporting and nursing the deceased so long as she lived. She took in work, went out to work, made and sold laces, and with means so obtained supplied the tibie and other necessities of the household. The value of what she did and furnished for the deceased was variously placed by witnesses, from $2.50 to $5 per week.

The court instructed the jury, in effect, that from the knowledge and acceptance of these services and provisions, they might, if they saw fit, infer a request, and thereupon the law would imply a promise to pay for them what they were reasonably worth, unless a preponderance- of all the evidence showed they were gratuitous, as to which the burden of proof was upon the defendant.

Plaintiff in error concedes that these instructions would have been substantially correct if the services had begun in 1881, but assuming that those previously rendered were gratuitous for whatever reason, insists that the law would presume those following were gratuitous, also, and that the burden was upon the claimant to show they were not, by proof of an express promise to pay or of notice in advance that she intended to charge for them.

Upon that hypothesis the court did so instruct for the defendant and, as we think, erred therein. Such would be the rule provided the services before and after March, 1881, were of the same general character and rendered under substantially like conditions. But no evidence was offered as to the terms of service before 1881, and if it had appeared that they were gratuitous, the conditions were then materially changed. We hold, however, that so far as the evidence on the part of the claimant tended to show that she lived with the deceased as a member of her family, if it did so tend, the burden was upon her to explain, overcome or avoid it by a preponderance. ■

The jui’y were also instructed that if her relations to the deceased were those of a member of the family she could not recover without proof of an express contract.

Thus, all that was really applicable and important was given, and although not every instruction was of itself entirely accurate as to the burden of proof in the condition above indicated, which was practically unimportant, we can not doubt that they conveyed to the minds of the jui’y a clear and correct idea of the issues and of the law.

Aside from the instructions there were three rulings to which the defendant took exception: 1. Witnesses were allowed to estimate the value of the services rendered and of the provisions furnished separately, and it is said that the services also included the provisions. We think otherwise. 2. The testimony of one witness offered to show that when claimant came to live with deceased she was very poor and felt unable to keep a home of her own. This might well have been received, but her own repeated admissions to the same effect were • received and not denied, so that no harm could have been done by the exclusion complained of. 3. A witness was allowed to testify that deceased told her she intended to make some provision for the claimant by will.

If this was improper it would seem to us to have been ' favorable to the defendant, implying more strongly that she was not, than that she was, according to her own understanding, under any contract or legal obligation to her.

The sole question was whether the parties understood the relations of claimant to be those of a member of the family. It was to be determined upon circumstantial evidence alone, and we agree it was a hard one. The jury may not have reached the right conclusion, but it was for them to judge and we see no sufficient reason for interfering with it.

Judgment affirmed.


text:
    Elisha B. Steere v. William J. Brownell.

      Sale under Chattel Mortgage — Delivery—Levy by Subsequent Creditor 6f Mortgagor — Replevin.
    In an action of replevin, brought by the purchaser of the goods in question at a sale under a chattel mortgage, against a subsequent, creditor of the mortgagor who had levied on the goods, claiming the delivery was insufficient, it is held: That the question being a close one, this court will not interfere with the judgment of the court below.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.

      Mr. William Hughes, for appellant.
    All conveyances of goods and chattels where the possession is permitted to remain with the donor or vendor, are fraudulent per se and void as to purchasers and creditors, unless the retaining of possession be consistent with the deed. Thornton v. Davenport, 1 Scam. 296; Kitchell v. Bratton, 1 Scam. 300; Rhines v. Phelps, 3 Gilm. 455.
    Under a chattel mortgage the mortgagee must take possession of the property upon the default of payment of the debt. Suffering property to remain with a mortgagor after default of payment is a fraud per se, and is not subject to explanation. Reed v. Eames, 19 Ill. 594; Thompson v. Tech, 21 Ill. 73; Constant v. Matteson, 22 Ill. 546; Hanford v. Obrecht, 49 Ill. 146; Wylder v. Crane, 53 Ill. 490; Rozier v. Williams, 92 Ill. 187; Wilson v. Rountree, 72 Ill. 570; Dunlap v. Epler, 88 Ill. 82.
    Messrs. Pollock & Barr and Blades & Neville, for appellee.
    We contend'that the appellee did take possession promptly on default of payment by the mortgagor and undisputedly had posessions for a period of fifteen days.
    Our case is much stronger than that of Cunningham v. Hamilton, 25 Ill. 228. See, also, Funk v. Staats, 24 Ill." 632; Neece v. Haley, 23 Ill. 416; Reynolds v. Patterson, 4 Ill. App. 183.
   Per Curiam.

Replevin, brought by appellee for the brick, sheds and lumber in a brick yard owned by appellant, but which had been operated by C. S. Ripley. Pleas, non cepit, non detmet and property in the defendant. Trial by court, and finding and judgment for plaintiff for one cent damages and the costs.

In August, 1884, Ripley gave plaintiff a chattel mortgage upon the property in controversy and other of the same kind, together with a mare, colt, harness and all other personal property in the yard used in the business. In October, a Constable took the property under the mortgage, for plaintiff, left it in possession of a third party, who was employed in the yard, and fifteen days thereafter, on notice by posting, sold it to plaintiff, who bought at the z*equest of Ripley, for the mortgage debt and costs. The operation- of the yard ceased when the Constable took the property, but little if any other apparent change was made.- Upon the purchase by plaintiff he left or put Ripley in charge, as agent, who made sales from time to time and accounted therefor to plaintiff.

In July, 1885, the property in controversy still remaining in the yard and in such possession of Ripley as is above stated, the defendant took a judgment by confession against him, and under the execution thereon the Shez-iff levied upon and took it. It consisted of brick, burnt and unbumt, and in and out of .the kiln. Plaintiff had taken away and sold the mare, colt, buggy and some of the brick. Defendant was not a creditor of Ripley when the mortgage was given or when the sale was made to plaintiff, and before he took this judgment was informed of the sale to plaintiff. But he, nevertheless, directed the levy of his execution upon what remained in the yard, and claims that there was no sufficient delivery to plaintiff. It was a close question, but almost every case of this kind presents on its trial peculiar features modifying the effect of testimony as it appeal's on paper*, which we do not see, or can not rightly appreciate. Only a general rule, and a vez'y general one, can be laid down to guide the tz'iezv Each case stands by itself, upon its own circumstances. The tidal judge, who saw and heard the witnesses and had the benefit of all the suggestions of counsel upon the motion for a new trial, was better prepared than we can be to weigh the evidence.

Quite a number of legal propositions submitted by the defendant were refused, but all that were substantial were embz’aced in those held; we can not indicate any clear error for which the judgment should be reversed.

Judgment affirmed.


text:
    Indiana, Bloomington & Western Railway Company v. Daniel Nicewander and George H. Lutz.

      Action to Recover Damages Resulting from Fire Set by Locomotive— Secs. 63 and 104, Ch. 114, Starr & C. Ill. Stat. — Negligence—Question for Jury ^Evidence — Slight Error in Instruction.

    1. Under Sec. 63, Ch. 114, Starr & C. Ill. Stat., it is the duty of a railroad corporation to keep its right of way clear from all dead grass, dry weeds and other dangerous combustible material, during the winter as well as during the summer.
    2. In an action for damages resulting from a fire set by defendant’s locomotive, in January, it is held that evidence that defendant cut and burned the grass and weeds upon its right of way in September or October previous, is not sufficient to show a full compliance with the law.
    3. Under the evidence presented, this court holds that it was for the jury to say whether the defendant was guilty of negligence under said section or Sec. 104 of said chapter, and declines to interfere with their verdict.
    4. A judgment will not be reversed for a slight error in an instruction which could have worked no injury to the appellant.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Gere & Beardsley, for appellant.
    Mi'. E. L. Sweet, for appellees.
   Conger, J.

On the evening of January 10, 1885, fire escaped from an engine of appellant, and caught either in some dry grass upon the right of way, or in the stubble of the adjoining field, and thence ran along the ground until it reached and burned up three stacks of hay, belonging to appellees, standing some forty rods to the north of appellant’s track.

Liability of the company is asserted upon two grounds, first, under Sec. 63, Chap. 114, Starr and Curtis Ill. Stat., which provides it shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable, etc. Henry J. Baber testified : “ There was some dry grass upon the right of way at that time — grass was timothy, and grew up to within ten feet of the track. The ground was dry. There had been snow on the ground in the early part of the winter and up to Christmas and after, when it melted away and ground dried up.”

Appellant offered evidence to show that the grass and weeds upon the right of way had been cut down and burned' up during the September or October previous, and insist that this fact shows the highest diligence and full compliance with the law.

We are unable to see the force of the suggestion. The duty of the • company is to Teeejp its right of way clear from all dead grass, etc., and if the duty is properly performed, during the summer, that is no reason why it may be suspended during the winter. Liability is also asserted under the provisions of Sec. 104 of said chapter.

We are satisfied from the evidence that the fire was communicated by the passing engine, and it is declared by the section above referred to, that such fact shall be taken as full prima facie evidence to charge appellant with negligence. To rebut this presumption, evidence was offered by appellant tending to show that the engine was properly managed by a competent engineer at the time, and was supplied with the best apparatus for arresting sparks known to the profession of locomotive engineers.

Under this proof it was for the jury to say whether appellant was guilty of negligence under either of the sections. If the fire started in the right of way from catching in the dead grass, and thence spread to the hay stacks, we can not say the jury were not warranted in reaching the conclusion they did. On the other hand if the jury believed from the evidence that the sparks flew over into the fiéld, a distance of fifteen or twenty steps from the track, as testified to by Baker, and there started the fire — the jury might be warranted in regarding that fact as- evidence that the engine was not in proper condition.

We can see no good reason for disturbing the verdict'of the jury. _ ' -

_ . The objection to appellees’ first instruction is quite technical. The fault is so slight that we can not think it could-have worked any harm to appellant and will not therefore be noticed further.

The judgment of the Circuit Court will be affirmed.

. Affirmed.


text:
    City of Hoopston v. Robert Morris.

      Execution against City — Proceeding to Recover Penalty for Sale of Intoxicatiug Liquor — Repeal of Ordinance — Practice.
    In a proceeding to recover a penalty for the sale of intoxicating liquor in violation of an ordinance, this court declines to decide the effect of a repeal of the ordinance in question, as no brief has been filed by appellee, but reverses the. judgment of the court below because it awards execution against the city.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkinson, Judge, presiding.
    Messrs. H. M. Steely and James H. Dyer, for appellant.
    The court in its final judgment on the verdict awarded an execution against the city. This was error. Chicago v. Hasley, 25 Ill. 595; Kinmundy v. Mahan, 72 Ill. 462; Elgin v.. Eaton, 83 Ill. 535.

      No counsel appeared for appellee.
   Per Curiam.

This was a prosecution commenced in December, 1884, to recover a penalty for the alleged sale of intoxicating liquor in said city in violation of its ordinance. It was tried on appeal in the Circuit Court at the October term, 1885-Meanwhile, in July, 1885, the City Council revised the ordinances, including the one relating to the sale of liquor. The revised ordinance contained the prohibitory section of the old ordinance verbatim, and section 2 of another chapter is as follows : “Ho fine, forfeiture, penalty, right, action,suit, debt or other liability whatever, created, instituted, incurred or accrued by or under any ordinance prior to its repeal or modification, shall be released, discharged, amended or repealed, or in any wise affected by the passage of such repealing or modifying ordinance, but the same may be prosecuted, recovered or enjoyed, or other suit or proceeding commenced or completed thereon, as fully and in the same manner in all respects as if such ordinance or part thereof had remained in full force, _ unless it shall be otherwise expressly provided in the ordinance making such repeal or modification.”

It is conceded that revised ordinance repeated the one under which this prosecution was instituted and would therefore defeat this action unless it is saved by the section above quoted. The Circuit Court held that section to be prospective only and refused to admit it in evidence. There was a verdict and judgment for the defendant. We incline to concur in this construction of it, but as no brief has been filed for appellee, do not decide the question. The judgment, however, awarded execution against the city, which was error, and for this it will be reversed and the cause remanded.

jReversed and remanded.


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    Joseph Ator and William Stubblefield v. John Rix and William Rix.

      Replevin — Right of Possession at Commencement of Suit — Actual Possession — Lien—Statute.
    1. In replevin the issue is upon the right of possession at the commencement of the suit.
    2. Although, under the statute, the court will not deprive the -plaintiff of actual possession where he has, since the commencement of the suit, acquired a right to it, there is no rule by which he may have judgment for a return upon the strength of an after-acquired lien.
    [Opinion filed November 20, 1886.]
    In error to the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. Thomas F. Tipton, for plaintiffs in error.
    The lien of the landlord was paramount to the rights of the plaintiffs, and the final judgment should have been for the defendants, with an order for the return of the grain and bay. The lien of Stubblefield on the grain and hay did not depend on his distress warrant or the prosecution of the distress case. Hunter v. Whitfield, 89 Ill. 229; Mead v. Thompson, 78 Ill. 62; Wetsel v. Mayers, 91 Ill. 497; Pretty man v. Unland, 77 Ill. 206.
    Stubblefield had a lien on the grain and hay and is entitled to the possession to enforce his lien. Wetsell v. Mayers, 91 Ill. 499.
    Mr. W. Hughes, for appellees.
   Per Curiam.

This cause was submitted on an agreement as to the facts, from which it appears that Stubblefield, who was landlord of the defendants in error, by Ator as his bailiff,' levied a distress warrant upon the crops growing and grown on the demised premises, and the tenants, replevied, getting judgment for one cent damages and costs.

It is conceded that the distress proceeding was wrongful. The rent was not due nor was there any attempt by the tenants to remove the property contrary to the statute. It was in fact abandoned after this court reversed the judgment therein. Sec. 12, Ill. App. 313. But at the time of judgment in this case, the rent had accrued and remained unpaid, and on that ground it is claimed it should have been for the defendants, for a return of the property.

In replevin the issue is'upon the right of possession at the commencement of the suit. By the statute, however, which is understood to be declaratory of the common law, if the plaintiff fails, to prove he then had it, and yet shows that in the meantime he has acquired it, the court will not deprive him of ■ his actual possession though obtained under the writ, but only adjudge him to pay the costs and such damages as the defendants shall have sustained. But we know of no' rule by which, notwithstanding the wrongfulness of the original taking, the defendant may have judgment for a return upon the strength of an after-acquired lien. Here Stubblefield, even at the date of judgment, had not the right of property, but at most a lien which had not been pursued to possession. He must assert that in another proceeding. The statute specifies the cases, and we suppose all the cases in which the defendant may- have such a judgment, and this is not among them. Sec. 22: Replevin. Nor is it such as would justify the alternative judgment therein provided for. The property was never rightfully held by the defendants for the payment of any money. The judgment will be affirmed.

Judgment affirmed.


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    John P. Holmes v. Serena M. Holmes.

      Action by Sister against Brother on Note and for Wages — Question for Jury — Instructions.

      1. Where the question is one of fact and the evidence is conflicting, it is for the jury to determine which side has the preponderance of the evidence.
    2. In an action by a sister against her brother to recover wages claimed to be due her for services in his family, and also to recover on a note, it "is held that, as-the question of liability rested upon an alleged express contract, a certain instruction complained of contained no serious error.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Macon 'County; the Hon. C. B. Smith, Judge, presiding.
    Mr. I. A. Buckingham, for appellant.
    Messrs. Outten & Vail, for appellee.
   Per Curiam.

.. The parties are brother and sister. She brought this suit for money alleged to be due her on a promissory note, and also for wages, and recovered a judgment for $1,039.85. ' '

Exception is taken to one instruction for the plaintiff, that it is misleading as to the circumstances to be shown, in order * to exempt the head of a family from liability for wages to one claimed to have sustained the relation of a member of it. That part of the instruction related to-a case resting upon an implied contract — we perceive no serious error in it — but this case rested upon an alleged express contract, positively testified to by several witnesses, and the instruction proceeds upon that hypothesis.

It was that, although under certain circumstances stated, the law would not hold the defendant liable for -wages without proof that he was to pay them, yet if there was an express and valid contract to pay them, he would be liable notwithstanding such circumstances. There can be no reasonable doubt that the jury found there was such a contract. Aside from this the ease presents only questions of fact, and it is not denied that there was much evidence to support the finding. A labored argument is made to show it did not amount to a preponderance. Of that the jury were the proper judges.

Judgment affirmed.


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    Samuel S. Chisholm et al. v. F. F. Randolph et al.

      Mechanic's Lien — Averment in Petition as to Lot'Improved— Completion —Time of — Extension of Time of Payment Beyond One Year — New Note —Effect of Extension on Lien.

    Upon a petition for a mechanic's lien, a demurrer having been sustained by the court below, it is held: That an averment that the improvements in question were to be made upon a certain lot, although the contract refers to no particular lot or tract, is a proper averment of fact, the truth of which the demurrer, admits; that the completion of said improvements dates from the malting of a working test; that whether a note at nine months was paid by the giving of a new one depends upon the intention of the parties; that the contract, as existing when the performance was begun, must determine for all parties whether a lien was created, and for subsequent creditors,
    • incumbrancers and purchasers when the limitations prescribed in Sec. ‘28 began to run; and that, subject to the operation of said section in this view of the contract, no indulgence between the parties to it in respect to the time of completing the work, or of paying for it, divested the lien when once attached.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Coles County; the Hon. C. B. Smith, Judge, presiding. ,
    Messrs, Wiley & Neal, for appellants.

      Mr. I. A. Buckingham, for appellees.
   Pleasants, P. J.

The question in this case is upon the sufficiency of the petition for a mechanic’s lien, which was dismissed on demurrer thereto sustained.

By agreement in writing of May 10, 1882, .appellants were to put into the flouring mill at Charleston, Illinois, owned by appellee Randolph, certain machinery and improvements, and have the same complete and in running order by the first day of August then next, with certain guarantees, general and special, as to its performance, “ if run according to their program, by a person agreeable to them.” Randolph was to pay therefor §18,500, as follows: In cash, during the performance of the work, all freights, weekly wages of workmen and other sums, up to §10,500, on the machinery and other articles furnished, as they should arrive, up to said first day of August; and “ at the expiration of the time set, and upon completion and satisfactory performance as above stated of said mill,” execute his promissory notes for the balance in four installments, at three, six, nine and twelve months respectively.

The work was done by the day so fixed, but the mill was not tested and accepted until the 15th of September, when the notes were executed. All were duly paid except the one at nine months for §2,105, which was assigned before maturity to the Nordyke & Marmon Company, an Indiana corporation. Upon this he desired an extension, which the assignee declined to grant unless appellants wrould guarantee its payment. They assented, and thereupon it was surrendered and a new one, dated June 15, 1883, for the same amount, at four months, with interest at eight per cent., was executed by him to said company and guaranteed by appellants. This remaining unpaid at maturity, suit was brought thereon in the name of the company against Randolph, to the November term, 1883, of the Circuit Court for Coles County, and judgment obtained for §2,179.29, and on the first day of that month the original petition herein was filed.

Such are the facts as set forth in the amended petition; which further avers that the note to the company was not given or accepted, or understood to be in satisfaction of the one surrendered, and that when the original petition was filed appellants held and controlled- said new note and now absolutely own and control said judgment, which they are ready to satisfy, transfer or otherwise dispose of as the court may direct, and that it is wholly unpaid. "• It also describes the lot of land on which the mill is erected and avers it was the lot intended in the contract.

The other appellees were made defendants as having or claiming, respectively, some interest in the premises which is alleged to be subject to appellants’ lien, and the prayer is in the usual form in like cases.

On behalf o'f appellee it is said, first, that the contract set out does:not refer to any particular tract of land or town lot. To which'the sufficient answer is that the petition avers it does refer to the tract therein described. The contract itself does not describe any tract or town lot, but speaks of the work and improvements "contracted for as to be made and done “ in the flouring mill in Charleston, Illinois, owned by said party of the second part,” which necessarily implies some tract or lot of land, and the application of this reference may be fixed by averment and proof. It is not an averment of a conclusion but of a fact, and its truth is admitted by the demurrer.

It is further contended that by the contract the first day of August, 1882, Avas the time stipulated for the completion of the work and furnishing the materials, and the time of payment being beyond one year thereafter, no lien was created. It. S. Oh. 82, Sec. 3.

We think the fair construction of the contract is, that by the first of August all the machinery was to be set up in running order, and all the improvements made ready to be tested, but whether completed according to the contract and the guarantees of the mill’s performance therein contained, was still to be determined by the working test, for which Randolph Avas to have a reasonable time. The averment is that all the work Avas done and the mill ready for this test by the first of August, but it Avas not known to be so done as to require no further work of appellants-until the 15th day of September. The facts stated conclusively imply that both parties understdod that to be the timé of completion as intended by the contract.

Next it is claimed that the note at nine months was paid by the giving of the new one to the Nordyke & Marmon Co., and thns the lien was extinguished. That would depend upon the intention of the parties. Bayard v. HcGraw, 1 Ill. App. 140-1; Bond v. Insurance Co.,. 106 Ill. 654. And the petition avers it was not so intended. That appellants held and controlled that note when the petition was filed, and now own and control the judgment, is sufficient as an averment — by what means they own it being matter of evidence.

But the new note did extend the time of payment of á part of the contract price one month beyond a year from September 15, 1882, and the principal question made is whether such extension defeated or divested the lien.

The original contract was clearly such as to create a lien, being strictly within the statute providing for it. By it the debtor was bound to pay -within a time not beyond a year from the completion of the work. If, after being so bound, the creditors saw fit to indulge him for a short time, carrying the payment beyond the year at his request, should they therefore lose their lien acquired by the contract ?

The statute is silent on that question. No authoritative construction bearing directly upon it has been cited. No satisfactory reason has been suggested for it. On principle we see none. It is true that the statute is to be strictly construed as against the party claiming the lien. He must bring his case within its terms. Here the petitioners have done it by showing such a contract as the law requires, and its performance on their part. It is held that their right to it must depend on the contract as originally made. If it did not comply with the terms of the statute, no subsequent change or amendment could help it. Cook v. Heald, 21 Ill. 425. But it has not been held, so far as we are advised, that the lien, having once attached by means of such an original contract, would be divested by an indulgence of the debtor as to payment beyond the time thus stipulated for it. He surely ought not to complain or attempt to take advantage of such indulgence granted at his own instance. Mor do we see any reason why subsequent creditors, incumbrancers or purchasers should complain, unless it is extended more than six months beyond the time specified in the original contract. They deal with the property at their peril. They are presumed to know the law, and must ascertain, as best they may, whether it is incumbered with such a lien. If it is, their claim is subject to it. Clark v. Moore, 64 Ill. 273. The creditor is not required to institute proceedings to enforce it within any definite time, except that prescribed by the general Statute of Limitations, as against the debtor, nor as against any other creditor or incumbrancer, except within that prescribed by section 28 of the Lien Act, which is six months after the last payment shall have become due and payable. Then, since he may actually indulge the debtor to this extent, what forbids his agreeing to do so, if nobody is thereby put in a worse condition? Here such proceedings were instituted within two months after the time fixed by the original contract for the last payment, and no party has been injured by the indulgence shown.

In Cook v. Vreeland, 21 Ill. 436, speaking of Sec. 2 of the former act, which corresponds with Sec. 3 of the one now in force, the court say: “ This section evidently refers to the making and entering into the contract, when it prohibits (limits) the extension of the time for completing the work to three years and the time of payment to one year after its completion. There can not be anything else referred to but the contract, and that, we think, is the time fixed when the contract is first entered into by the parties, and not to a mere permission to complete the work after the expiration of the time, or an extension of the time for payment beyond the period first agreed upon.”

We hold, then, that the contract, as existing1 when performance is begun, must determine for all parties whether a lien is created, and for subsequent creditors, incumbrancers and purchasers when the limitation prescribed in Sec. 28 will begin to run; and that subject to the operation of that section, in this view of the contract, no indulgence between the parties to it, in respect, to the time of completing the work, or of payment for it, will divest the lien once attached.

We think the demurrer to the petition as amended was improperly sustained; and the decree will be reversed and the cause remanded for further proceedings,in conformity with this opinion.

Reversed and remanded.