text:
    Grange Mill Co. v. Western Assurance Co. et al.
    Insurance—Evidence.—Where an insurance company denied its liability on certain policies on account of fraud, etc., but compromised with the insured by paying half the amount, and a third party claiming the right to be subrogated to the insurance money filed a bill against the company, and the company in their answer denied their liability to the insured. Held, that such party must give evidence tending to show the company’s liability. Mere proof of the compromise is not sufficient.
    Error to the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed September 24, 1885.
    In October, 1880, the Grange Mill. Company, of Cobden, Illinois, the plaintiff in error, sold its mill property to John T. Emison, one of the defendants in error, for §6,800. He paid §2,000 down on the contract, and was to have one year in which to pay the balance, §4,800, with eight per cent, interest, lie was to receive a bond for a deed, and was required by the agreement which was in writing,. to insure the property for the benefit of the mill company. He was put into immediate possession of the mill property, but some questions having arisen between the parties, Emison declined to execute the note for the §4,800, or to accept the bond for a deed when it was tendered to him. He continued in possession of the mill property, and instead of insuring the mill for the benefit of the mill company he insured it for §5,000 in the name of John T. Emison & Co., he having, after the purchase, associated with himself in business one Lee Musselman, another defendant in error, the style of the firm being John T. Emison & Co.
    In June, 1881, the mill was destroyed by fire, and Emison and Musselman turning out to be totally insolvent, the mill company, the plaintiff in error, on the Ith day of November, 1881, filed its bill against them and the four insurance companies, which had taken the insurance, setting up substan-' tially, the facts as above stated and laying claim to the moneys, on the ground that at -the time of the purchase of the property it was a part of the agreement that Emison should insure the same for its benefit, and urging that in equity the insurance moneys belonged to it.
    Before the bill was filed Emison & Co. had brought four suits on their policies, the insurance companies having declined to pay because, as they alleged, Emison & Co. had made some misrepresentations as to the property.
    In March, 1882, Emison & Co. obtained judgments in their four suits amounting to $5,000. The insurance companies appealed to this court, and at the August term, 1882, their judgments were all by agreement reversed, said companies having paid Emison & Go. $2,500 in full settlement of all claims Emison & Go. had against them.
    The mill company filed a supplemental bill setting up) these facts. The case was heard March 18, 1885, and on the 6th of June the circuit court dismissed the bill and rendered a decree against plaintiff in error for costs, and from this decree and the order dismissing the bill, the mill company prosecutes this writ of error.
    The chief grounds of defense urged by the insurance companies were that their contracts of insurance were with Emison & Co. and not with the Grange Mill Go.; that they were not liable on the policies even to Emison & Co., and that they had no notice or knowledge of the rights or interests of the mill company.
    Mr. John M. Lansden, for plaintiff in error.
    Mr. W. S. Day and Messrs. Crawford & Bussey, for defendants in error.
   Pillsbury, P. J.

On the trial of this cause in the court below no evidence was introduced by the plaintiff in error going to show that the insurance companies were originally liable upon the policies issued to Emison & Co., but it seemed to rely upon the fact that the companies had compromised the suits commenced by them, and had paid Emison & Co., upon such compromise, the sum of $2,500, with notice that the plaintiff in error had an equitable right to the money under dts contract with Emison to insure for its benefit.

We are not prepared to say that such ¡woof alone would authorize a decree for the plaintiff in error. Sufficient appears in this record to show that the defendants in error were in good faith litigating the suits brought by Emison & Co., upon the ground that they had made false and fraudulent representations in their applications for the insurance, concerning their interest in the property insured material to the risk, and although defeated in the trial court, had appealed the causes to this court for the purpose of obtaining a reversal of the several judgments rendered against them respectively. What the result of the appeals would have been had this court passed upon the merits involved, it is of course impossible to determine, as this record does not present for our consideration the record of those cases, but it seems that the parties to those suits preferred to compromise rather than to further litigate. The compromise was made, the judgments reversed and the controversy ended.

Emison & Co. can scarcely be said to have an abiding faith in the justice of their claim, for they accepted one half of the recovery below, and the same may be said of defendants in error concerning their defense, for they paid one half of the amount claimed and recovered.

The insurance companies had the undoubted legal right to settle and compromise an unfounded claim against them if they saw proper so to do; but it can hardly be claimed that they are thereby concluded from relying upon their defense in a litigation commenced by other parties.

The right of plaintiff in error to recover in equity upon the principle of subrogation, depends, of course, upon the validity of the policies and the right of Emison & Oo. to recover npon them at law; for if Emison & Oo. could not maintain a suit npon the policies because of their fraud in procuring the insurance, there is no ground upon which the plaintiff in error can stand either at law or in equity, and in such case must look to Emison npon its contract with him to insure for its benefit.

The defendants in error in their answer denied the liability to Emison & Oo., and no proof was offered by plaintiff in error npon that point aside from proof of the compromise as above stated. We think it should have given some evidence tending to show a liability of defendants in error upon the contract of insurance, to the benefits of which it desired to be subrogated, and as it did not no error was committed in dismissing its bill.

Decree affirmed.


source: Caselaw Access Project

author: Pillsbury, P. J.

license: Public Domain

text:
      F. M. Ward et al. v. Harrison Machine Works.
    Amendment—Costs.—The amendment to the sheriff’s return obviates the error assigned, but as there was error in the record, until the amendment was made, all the costs in this court up to and including the date of filing the amended record will be taxed to defendants in error.
    Error to the County Court of Williamson county; the Hon. J. 1VI. Washburn, Judge, presiding.
    Opinion filed September 24, 1885.
    Mr. J. B. Calvert and Messrs. Hartwell Bros,, for plaintiffs in error.
    Messrs. Barr & Lemma, for defendant in error.

      L. E. M. Newlin v. Springfield Engine and Thrashing Co., affirmed for same reason as above ease.

   Pillsbury, P. J.

Suit brought upon a promissory note, and default entered upon following return of service:

State of Illinois, 1 Williamson County,’ j ss"

I have duly served the within, by reading the same to the within named, F. M. Ward, A. Luke Palls and George Palls, as I am therein commanded.

James H. DmsrcAir, Sheriff,

By W. W. Tippy, Deputy.

The defendants below sued out a writ of error to reverse the judgment entered upon such default, and upon the record being certified to this court, assigned for error the action of the court in defaulting the defendants and rendering judgment against them upon the return of the sheriff as above. The point made is, that it does not appear from the return when the service was made upon the defendants, there being no date of service in the return.

This cause was continued at the last term of this court to give the plaintiff an opportunity to apply to the court below for leave to the sheriff to amend his return in the particular complained of, and, as appears by a supplemental record filed herein, such leave was granted by the court below after notice to defendants, the return amended and certified to this court, from which amended return it appears that each of the defendants was served more than ten days before the first day of the term at which the default was entered and judgment rendered. This obviates the error assigned, and the judgment will be affirmed. As there was error in the record until the amendment was made all the costs in this court up to and including the date of filing the amended record will be taxed to defendants in error.

Judgment affirmed.


author: Per Curiam.

text:
       M. M. Thompson et al. v. J. F. Duff.
    Bill of exceptions.—As the paper purporting to be the bill of exceptions is neither signed nor sealed by the judge who tried the cause, it is no part of the record and can not be considered by the court.
    Appeal from the Circuit Court of Jackson county; the Hon. O. A. Habiceb, Judge, presiding.
    Opinion filed September 24, 1885.
    Messrs. Allen, Moobe & Schwabtz for appellants.
    Messrs. Babb & Lemma, for appellee.

       Chas. Gager v. James H. Edwards, affirmed for the same reason as above ease.

   Per Curiam.

The only questions presented by argument of counsel for our consideration are, that the verdict is against the evidence, and the- court erred in giving instructions for appellee and refusing proper instructions asked by appellant.

These questions can not be considered by us, mdess ]-resented by a bill of exceptions containing the evidence and instructions.

There is a paper in the record purporting to be a bill of exceptions, but is neither signed nor sealed by the judge who tried the cause, as the statute requires, in order to make it a part of the record. In such case, such a paper, though copied into the record by the clerk below, constitutes no part of the record and can not be considered by this court. James v. Sprague, 2 Scam. 5; Miller v. Jenkins, 44 Ill. 448; Reeves v. Reeves, 54 Ill. 332.

We can not therefore inquire whether the court erred as suggested in argument.

Judgment affirmed.


text:
    D. D. Bolding et al. v. Frank Powers, Ex., etc.
    Objection made too late.—An action on a promissory note made payable to Mrs. Jane Hoffman, which was introduced in evidence under an averment in the declaration that the defendants made and delivered the same to Mrs. Jane W. Chaffee (appellee’s testatrix), by name of Mrs. Jane Hoffman, and no other evidence was offered. Held, that it is too late to object in this court that proof was not offered that the person named as payee and appellee’s testatrix were one and the same person.
    Appeal from the Circuit Court of Richland county; the Hon. Phinney D. Preston, Judge, presiding.
    Opinion filed September 24, 1885.
    Messrs. Allen & Fritchey, for appellants.
    Mr. D. A. Preston and Mr. J. M. Hord, for appehee.
   Pillsbury, P. J.

This action was instituted by the appellee against the appellants upon a promissory note, which appears upon its face to be made payable to Mrs. Jane Hoffman, and was introduced in evidence upon the trial below, under an averment in the declaration that the defendants made and delivered the note to Mrs. Jane W. Chaffee, (appellee’s testatrix,) by name of Mrs. Jane Hoffman. Ho other or further evidence was offered or introduced by either party and after judgment for the appellee, the appellants made a motion for a new trial which was overruled, and they appeal, and now insist that the court committed a fatal error in finding for the plaintiff below and in rendering judgment against these appealing defendants. The averments in the declaration were sufficient to permit proof that the Mrs. Jane Hoffman, named as payee in the note, and Mrs. Jane W. Chaffee, appellee’s testatrix, were one and the same person (Rives v. Marrs, 25 Ill. 315); and had the specific objection been made when the note was offered in evidence, that it was not made payable to appellee’s testatrix as should have been done (Benev. Soc. v. Fictson, 97 Ill. 474) the appellee would have been required to prove that fact or the note would have been excluded; or the defendants might have shown in defense that the note was not delivered to the testatrix, and that she was not the legal owner of it (Ingraham v. Luther, 65 Ill. 446) and thus defeated the action. But here the note was read in evidence without objection and we are not disposed to hold that a defendant may lie by and permit evidence to go to a jury which upon objection might have been rendered entirely competent and then raise the objection for the first time in this court. To allow this to be done would be a premium upon neglect and a travesty upon justice. Let the judgment be affirmed.

Judgment affirmed.


text:
    Hezekiah McLaughlin v. The People, etc.
    1. Practice—Demurrer waived.—Where a party flies a demurrer which is overruled, and he pleads without standing by his demurrer, the demurrer is waived, and the overruling thereof can not be urged as error on appeal.
    2. Justice’s transcript.—In suit in the county court on a recognizance, on which default has been made in justice court, a real estate transcript is not required from the justice.
    Appeal from the County Court of Jefferson county; the Hon. William B. Anderson, J udge, presiding.
    Opinion filed September 24, 1885.
    Hr. George B. Leonard, for appellant.
    Hr. William II. Green, for appellees.
   Pillsbury, P. J.

John W. HcLaughlin was arrested and taken before a justice of the peace upon a charge of bastardy, and the hearing being continued he entered into a recognizance with appellant as security for his appearance on the day to which the cause was continued. He failed to appear, and that fact was noted upon the docket by the justice, and the recognizance, together with a transcript of the docket, was certified by the justice to the county court. This action of debt was commenced in the county court against both- cognizors, but service had upon the appellant only, and upon a trial, judgment went for the appellees, and he appeals to this court. It is urged that the court erred in overruling the demurrer to the declaration, but as the defendant pleaded to the declaration instead of abiding by his demurrer, the point is waived in this court. The court properly sustained the demurrer to the plea of defendant, that before default he had delivered the principal to the sheriff, as his undertaking was to have him before the justice. The next contention is that the court erred in allowing the transcript, of the justice’s docket to be read in evidence, for the reason that it was not a full transcript, containing a copy of affidavit, process, etc.; that it was not under seal and does not show a forfeiture of the recognizance as well as the default of defendant. As to the first reason, this proceeding is not for the purpose of obtaining a lien upon real estate, as seems to be supposed, and a transcript, as required in such case, is not necessary in cases of this character. Ho seal was necessary, (21 Ill. 29,) and the statute now only requires the justice to record the default of the defendant, (People v. Green, 58 Ill. 256,) which was done in this case. The court should not have allowed the justice to orally state what he did in defaulting the defendant, but this error could work no possible injury as the record of the justice was in evidence and did not require any additional testimony to prove the fact. The point made that the judgment is for damages, instead of debt and damages, is purely technical, not in the least affecting the question of the liability of the defendant nor the amount he should pay, and should have been made in the court below, so that court could have had an opportunity of correcting it, else it will not be considered here. Bowden v. Bowden, 75 Ill. 111. Some other equally unimportant questions are raised which are not necessary to notice any further than to state that they are not sufficient to reverse the judgment. Binding no substantial error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Christian Lutt v. John B. Grimont.
    1. Chancery practice—Appointing receiver.—In a creditor’s bill filed on judgment and execution returned “nulla hona,” the appointment of a receiver rests in the discretion of the court, and its determination of this question is conclusive in all collateral proceedings if enough appears on the face of the record to give the court power to act at all in the premises.
    2. Receiver—Defendant must pay money to, when ordered.— Where a court orders a defendant in a suit, to pay over money to the receiver therein, it is the plain duty of the defendant to yield a ready obedience to the order until such time as he can have it reviewed by an appellate tribunal upon appeal or writ of error.
    3. Chancery practice—Rehearing.—A court of equity may grant a rehearing upon good cause shown.
    Error to the City Court of East St. Louis; the Hon. William P. Laubtz, Judge, presiding.
    Opinion filed September 24, 1885.

    August 16,1883, John B. Grrimont filed bis bill in the court below, setting forth that one ¡Nicholas Spannagel had been indebted to him for fifteen years prior to filing his bill, and that on the 10th of August, the complainant had obtained a judgment upon such indebtedness against said ¡Nicholas; that execution, had issued thereon and been returned nulla bona, the judgment still remaining in full force. That the said ¡Nicholas, in 1871, formed a copartnership with plaintiff in error under the firm name of C. Lutt & Co., hut for the purpose of hindering and delaying complainant in the collection of suc-li indebtedness the said Lutt and Spannagle agreed that said firm should consist ostensibly of said Lutt and Johanna Spannagel, wife of said Nicholas, while he should remain the real owner of the property and effects of said firm. That during the existence of said firm to June 1, 1883, the said Nicholas had conducted the business of said firm and had accumulated a large amount of property which was held by said firm as apparent owners, but which really belonged to said Nicholas.
    That on June 1, 1883, for the purpose of still preventing complainant from collecting said debt, the said Johanna made a quitclaim deed of certain real estate held by said firm to John Spannagel, her son, and also executed a hill of sale to him of a half interest in the property and business of said firm, and that said John executed a declaration of trust that he held all the property thus acquired for the joint benefit of himself and his brothers and sisters.
    The bill further charges that Lutt and said John entered into a copartnership for carrying on the business of said firm, and Were conducting the same at time of exhibiting the bill.
    Avers that all the conveyances and sales so made by Johanna were without consideration, and were a mere fraudulent scheme to keep said property from the creditors of said Nicholas, and that all the parties well knew that such was the only object in view.
    Makes all said parties defendants to bill except said Johanna, who died in July, 1883, and prays for an injunction restraining them from incumbering or transferring any of said property held by said firm of C. Lutt & Co., and for the appointment of a receiver to take charge of and conduct such firm business until the interest of said Nicholas therein could be ascertained by the court and made subject to the payment of comqfiainant’s debt, etc., and for general relief.
    Defendants, except said Nicholas, answered denying the material averments in the bill, and he answered admitting all its allegations to be true.
    After the coming in of the answers, on motion of the complainant, the court, it then being in term time, appointed one Henry Croisant receiver, to take charge of the property and effects of the firm of C. Lutt & Co., who gave bond and entered upon the discharge of his duties. September 8th, at the same term of court a hearing was had upon original and cross-bills, answers thereto and proofs, and both bills were ordered dismissed for want of equity, and that the receiver turn over all the property in his possession to the defendants in the original bill. On the fourth Saturday of the same term the complainant entered his motion for a rehearing in said cause and for an order continuing the receiver until the further order of the court, which order was made and the motion for a rehearing continued until the next term. On October 20, 1883, in vacation, all the parties appeared before the judge, and by their consent the judge ordered that the receiver be discharged as far as the rights and property of Lutt was concerned, and that Lutt be admitted into possession of the property as a partner with the receiver in conducting the business, and that the receiver employ John Spannagel at a fair salary; that Lutt be consulted about the making of expenditures, and in case of any disagreement between Lutt and the receiver, the matter should be submitted to the judge for settlement and that all parties proceed to ascertain the rights and interests of said Lutt in the personal property of said firm with a view to the dissolution of said firm and a division of the property. At the January term of said court, as appears from the supplemental record filed herein, the motion for a rehearing was allowed, but as the clerk failed to record the order he was directed on September 9, 1885, to enter such order of the date of January 9, 1884.
    At the March term, 1884, the complainant filed his petition asking for an order upon Lutt to pay over to the receiver 81,000, -which he had collected from an insurance company for the loss of an ice house which burned while in the receiver’s possession, and an order was made upon him to report the amount received, and to pay the same to the receiver within three days after notice of the order. Lutt appeared in court at same term and moved to vacate the last mentioned order, and the court, after a full hearing of the matter overruled the motion, from which ruling Lutt prayed an appeal, but never perfected it. Ho attempt to enforce this order seems to have been made until the 29tli of January, 1885, when an attachment was issued against him for contempt of court, returnable at the next term, at which time he could show cause why he should not be lined for such alleged contempt.
    On May 7, 1885, the case was referred to the master to take testimony, and by agreement the master was required to ascertain the rights of all parties in interest. On May 8th, Lutt appeared in answer to the rule to show cause, and tiled his answer thereto, which was adjudged by the court to be insufficient; but as Lutt had paid out for the firm all of the amount received over $612, the court announced .that Lutt would have to conrply with the order of April 14, 1884, and pay over the $812 to the receiver, and proposed to receive suggestions from counsel as to the time within which such sum should be paid, but Lutt, in open court, stated that he would not pay over the money to the receiver under any order then made or that had been made prior thereto. The court thereupon adjudged him guilty of contempt of court, and ordered him committed to the county jail until he pay said money to the receiver or he be otherwise discharged according to law. To reverse the order of commitment, Lutt sued out this writ of error.
    Mr. J. M. Freels and Mr. B. H. Camby, for plaintiff in error.
    Mr. M. Millard, for defendant in error.
   Pillsbury, P. J.

The errors assigned upon the record, question the jurisdiction of the court below in three particulars :

1st. In making the order appointing a receiver.

2d. In making the order of April 14, 1884, requiring Lutt to pay over the money to the receiver.

3d. In making the order of May 8, 1885, adjudging Lutt in contempt and committing him to jail.

It is urged in support of the first point that the bill is insufficient upon its face to authorize the appointment of a receiver, and especially should this not be done where, as in this case, the answer denies the equities of the bill.

Our statutes, § 49, Chancery Code of 1874, provide that “Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money or thing in action due to him or held in trust for him, and to prevent the transfer of any such property, money, or thing in action or the payment or delivery thereof to the defendant, except when such trust has in good faith been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things inaction, belonging to the defendant or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not.”

Here is direct authority for the court to prevent a transfer of any property held in trust for the debtor, and empowers the court to employ any method consistent with the practice of courts of equity to accomplish such object. If, in the opinion of the court, a seizure of the property is necessary to the end that it should be forthcoming to answer the debt of complainant, this can be done by the appointment of a receiver, and indeed it is said “ that in cases of creditor’s bills where the return of the execution unsatisfied pre-supposes that the property of the defendant, if any he has, will be misapplied, and entitles the complainant to an injunction in the first instance, it seems to be almost a matter of course to appoint a receiver to collect and preserve the property pending the litigation.” Bloodgood v. Clark, 4 Paige, 574.

So where a debtor makes a .fraudulent assignment of his' property for the purpose of hindering and delaying his creditors, receivers are frequently appointed in behalf of judgment creditors, and especially will the relief be granted in such case where the defendant continues in possession of the property and exercises acts of ownership over it. Cannah v. Sedgwick, 1 Barb. 210.

It was held in Gage v. Smith, 79 Ill. 219, that in cases of creditor’s bills, the court had power to apepoint a receiver, and that our statutes should be construed as liberally as that of the State of New York, from which it was adopted.

It is thus seen that in cases like the present ample power is conferred upon the court of chancery to appoint a receiver when in the judgment of that tribunal the case before it is a proper one for the exercise of such jurisdiction.

And whether the circumstances are such as to require the court, in the exercise of a wise judicial discretion, to act in the premises, must in the first instance be determined by itself, and its determination of this question is conclusive in all collateral proceeding’s if enough apjpears up>on the face of the record to give the court px>wer to act at all in the pn-emises.

The facts alleged in the bill in the chancery cause are in our opinion sufficient to give the court jurisdiction to act upon the pu-ayer of the bill asking for the apjpointment of a receiver, but whether, up>on the motion to appoint one over the ansxver of the defendants, the proof was such as to justify the court in granting the motion, we have no means of knowing, and it is not material we should, for although the court may have committed error in that regard we can not correct it in this proceeding.

The court having acquired jurisdiction to'act in the matter, its action can not be reviewed up>on this writ of error.

It is claimed in support of the second assignment of errors, that the cause was finally disposed of by the order dismissing the bill entered Sep>t. 8,1883, upoon a hearing upon the merits, and no further proceedings could be had in the cause, and that the order of April 14, 1884, was made without notice to Lutt, and was therefore void. Had the court adjourned for the August term without making any further order in the cause, the decree would undoubtedly have been final and the result contended for would have followed, but at the same term of court the complainant entered his motion for a rehearing of the cause, and the motion was continued to the next term, and an order entered continuing the receiver in the discharge of his duties until the further order of the court.

What effect did these orders have upon the jurisdiction of the court over the cause ?

What the petition contained upon which the motion for a rehearing was based does not appear in the record, but we must presume it was sufficient to call upon the court to further consider it, and to make the order continuing its hearing to the next term, and to retain its control over the property then in the hands of its receiver. The practice of courts of equity to grant reliearings of causes before them upon a proper case being presented, has prevailed from the earliest times. Indeed, it was considered the proper practice in Eng1 and to set a canse down for a rehearing whenever two counsel should sign the petition and certify that the cause ought to be reheard, (Ambler’s Rep. 91,) and that it was a matter of course to rehear the cause upon such petition; and it was not considered improper practice to order a second or even a third rehearing, if sufficient cause be shown as in the case of Porter and Hubert, 3 Chan. Rep. 78, where the decree was made by a judge sitting in place of the lord keeper who, upon petition, reheard the cause himself, and there was afterward a second rehearing before the chancellor assisted by the judges. So in the case of Parker v. Dee, 2 Chan. Cas. 210, a decree was entered at the rolls and defendant appealed to the lord keeper, who entered a decree and another hearing was allowed upon plaintiff’s petition and the cause was heard by the chancellor, assisted by a judge; and a decree being entered different from both of the other decrees, the complainant prayed for and obtained another rehearing. So it was hekl in Land v. Wickam, 1 Paige, 256, that where a decree of one chancellor is reversed by his successor in office, a rehearing will be granted by a third chancellor upon cause shown.

It is said in Daniels v. Mitchell, 1 Story, 198, that rehearings in equity after a decree are not matter of right, but rest in the sound discretion of the court. Ho reason is perceived why a judge of a circuit court in this State sitting as chancellor in determining issues between parties litigant upon the equity side of the court, should not possess as much power to correct errors of law or fact committed by him in the decision made in the cause, as were possessed by the courts of equity in England and in those States, as in New York, where the courts of chancery were organized as independent tribunals having equitable jurisdiction only, and entirely separated from courts of law. Indeed it must be conceded that in those courts presided over by men specially trained in the principles of equity jurisdiction, and who had made the application of those principles to the ordinary affairs of life the special business of their lives, the liability to mistakes or error was far less than it can be with us, where the chancellor can not give that time and attention to the study of the science of equitable law, essential to any reasonab’e degree of perfection in it, as here he is required alike to enforce the common law remedies, and the criminal code of the State, and is expected to be as well versed in those branches of the law as in the other.

When trying causes upon the common law side of the court, and error is committed to the prejudice of a party to the cause, such party has the right to demand that such error shall be corrected by the granting of a new trial, and it seems to me that it would be a reproach to the administration of justice upon the equity side of the court to deny to a chancellor the same power under the rules and practices governing such courts as are possessed by the common law courts, in correcting errors that may occur upon the trial or in the final decision of the cause.

It was held in Hibbard v. Mueller, 86 Ill. 256, 'followed by Hearson v. Grandine, 87 Ill. 115, that where a judgment was entered at one term of court and during the same term a motion was made to set it aside, and the cause continued without action upon the motion, the court retained jurisdiction of the cause and could set aside the judgment at a subsequent term. These cases overrule the case of National Insurance Company v. Chamber of Commerce, 69 Ill. 22, referred to as holding a contrary view. If we are right in holding that the court below had power to grant a rehearing of the cause, then the entry of the motion for a rehearing of the cause at the same term of court, the entertaining of the motion by the court and the continuance of the cause, would, applying the principles of the above cited cases to the facts of this case, have the effect of retaining the cause in court and give the court as full and complete jurisdiction to pass upon the question at the next term as it had during the preceding one.

It is said, however, that Lutt had no notice of the entry of this motion; whether this be so does not appear from this record, but it is conclusively shown by the vacation order of Oct. 20th, entered by his consent, that at that time he knew of the motion and of the order retaining the receiver, and consented to act jointly with the receiver in the conduct of the business, and this order was made before any action had been or could be taken by the court upon the motion for a rehearing. lie then knew that the court still claimed jurisdiction of the subject-matter and of the parties, at least so far as to protect the receiver in the performance of his duties under the order retaining him, and it is but fair to presume he ascertained upon what ground this claimed jurisdiction was based.

At the next term, as shown by the supplemental record, the court awarded a rehearing of the cause, and we must presume, in absence of averment in the record to the contrary, that Lutt was present and knew the order had been made, or if not, he knew the motion was pending and it was his duty to be advised of what action the court would take in the premises, and if he failed to do so, no one is to blame but himself. It is further urged that the order of April 14, 1884, requiring Lutt to pay over the insurance money, was void as being made without notice. Regarding the alleged want of notice, it is to be remembered that on the 18th day of the same month, after notice of the order, he appeared before the court and moved for a vacation of that order and after a full hearing by himself and counsel Ms application was refused, from wMcli he appealed, hut neglected to file bond and perfect it. This action of the court was equivalent to a confirmation of the order after full hearing, for it is not to be presumed that if the order was improperly or unadvisedly entered, the court would for a moment hesitate to set it aside. It became then the plain duty of the plaintiff in error to obey the order of the court in the premises, or question the action of the court in some legitimate manner; but neglecting to obtain a modification or reversal of the order, the same remained in full force against him and became a valid foundation for the subsequent proceedings, culminating in the order for his commitment.

As he did not obey the order, the court, upon being advised of such neglect, in January, 1885, issued its writ of attachment, making it returnable at the next term, and calling upon him to show cause for such disobedience. He appeared and again attacked the various orders made in the cause for error committed, and for want of jurisdiction, questions which had already been made and decided against him, and upon being told by the court that he must comply with the order, after allowing him a credit for the amount he had paid for the firm, he informed the court that he would not obey that order or any that might be made in the premises. This was a contempt in the presence of the court, and he was not entitled to any further indulgence of the court in the way of rules to show cause, for he stood in open defiance of the court after he had attempted to show cause upon two different occasions, and had failed to satisfy the court that the causes alleged against the order were sufficient to vacate it. He pleaded no inability to comply with the order, in fact from Ms testimony it would seem he had the $612 in the bank at the time, and his refusal to comply with the order to pay it over to the receiver can but be treated as willful, fully justifying the court in imprisoning him until he should obey.

As to the propriety of the action of the court in entering the several orders complained of, we express no opinion, as that question can not arise upon this record. If the court had jurisdiction to make the orders, the duty of the plaintiff in error was clear, to yield a ready obedience to them until such time as he could have them reviewed hy an appellate tribunal upon appeal or writ of error, which would bring their propriety before the court, and where, if erroneous, a proper corrective would be applied. As we have endeavored to show, the court had jurisdiction of the subject-matter and of the parties, and its orders should stand until reversed or set aside in a direct proceeding. The order of the court will be affirmed.

Order affirmed.


author: Wilkin, J.

text:
    James C. Allen et al. v. John Mason et al.
    1. Waiver of objections.—When specific objections are made to testimony, none of which are tenable, other objections must be regarded as waived.
    2. Indorsement of note to firm.—The indorsement of a note by an individual to a firm of which he is a member, vests the legal title in the firm. The indorsement in such case is not of a moiety of the note nor is it an indorsement in which the indorser and indorsee are in any legal sense the same person.
    Error to the Circuit Court of Jasper county; the Hon. W. C. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Allen, Hanna & Halley, for plaintiffs in error ;
    that anote can not he indorsed, part of the sum remaining due to the indorser upon it, cited Miller v. Bledsoe, 1 Scammon, 530; 4 Byles on Bills, 238.
    Mr. George W. Fitbian, for defendants in error.
   Wilkin, J.

John Mason filed his declaration in assumpsit on a promissory note against plaintiffs in error and others, ¿o the December term, 1884, of the Jasjier Circuit Court.

On the 8th day of the term, on motion of his attorney, he was allowed to amend his declaration by making Frank Huss, William M. Jones, John A. Brown and John Mason, partners, doing business under the firm name and style of The People’s Bank, now parties plaintiff.

The note sued on is dated April 17,1883, due ninety days after date, payable to John Mason, for one thousand dollars, and signed by plaintiffs in error and others. Indorsed: Pay to the People’s Bank. The John Mason who is payee in the note is the same John Mason who is named in the amendment to the declaration as one of the firm of The People’s Bank.

On the trial defendant in error offered the note and indorsement in evidence, and plaintiffs in error objected for the reason that the payee could not legally indorse the note to himself and others. The court overruled the objection.

Judgment was rendered for the amount due on the note-Plaintiffs in error bring the case to this court on writ of error, and urge its reversal, 1st, because the court below overruled their objection to the introduction of the note, and indorsements in evidence, and 2d, because the court allowed the amendment to the declaration.

On the question of the admissibility of the note and indorsements, it is insisted that defendants in error were bound to prove that the note was indorsed before the suit was brought. It is conceded that when a note is indorsed in blank the presumption is that it was indorsed before maturity; but it is insisted that the fact that John Mason brought suit on the note in his own name overcomes that presumption. If there is any force in this position the plaintiffs in error are not in a position to avail themselves of it in this court. They did not urge this specific objection in the court below, but placed their objection on another and different ground.

“ Where various objections may be made to evidence, some of which may be removed by other proof, the party making the objection ought to point out specifically those he insists on, and thereby put the adverse party on his guard and afford him an opportunity to obviate them.” Sargeant v. Kellogg et al. 5th Gilman, 281; Swift v. Whitney, 20 Ill. R. 145.

“ When specific objections are made to testimony, none of which are tenable, other objections must be regarded as waived.” Wickenkamp v. Wickenkamp, 77 Ill. 95.

Many other authorities might be cited in support of both of the above rules of practice.

The specific objection made below is renewed here, and it is maintained by plaintiffs in error that the indorsement by John Mason to a firm of which he is a member does not vest the-legal title in the firm. No authority is cited in support of this position. That a moiety of a negotiable instrument can not be assigned is unquestionably true, but the assignment by John Mason to the firm is not of a moiety but of the whole note. The individual interest of John Mason passed out of him by the assignment as effectually as it would by an assignment to a firm to which he was an entire stranger. In other words, the firm and John Mason are distinct parties, notwithstanding he is a member of-the firm.

The indorsement is not, as we understand it, of a moiety of the note, nor is it an indorsement in which the indorser and indorsee are in any legal sense the same person; and we think the court below properly overruled the objection. The amendment was allowable under the provisions of Sec. 24 of the Practice Act. Nor is there anything in the record to show that objection was made to the order allowing the amendment in the court below. It can not be urged in this court for the first time.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    St. Louis & Cairo R. R. Co. v. Mary Hardway.
    1. Loss ov baggage—Liability oe carbier.—When a common carrier undertakes to transport baggage and has carried it to its destination, if it is not called for, the carrier must store it in a safe and secure warehouse.
    2. Same.—Where a passenger’s trunk was carried to its destination, and not being called for was placed over night by the carrier in the ladies’ waiting room, which was broken into and the contents of the trunk stolen. Held, that the passenger properly recovered against the carrier the value of the articles stolen. It was error, however, to allow $10 for a silk quilt. Such article was not baggage.
    Appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Garland & Pollard, foi appellant;
    that appellant was only a gratuitous bailee, cited Hutchinson on Carriers, §§ 708, 709; Holdridge v. N. & R. I. R. R. Co., 56 Barb. 191; Jones v. Transportation Co., 50 Barb. 193; Minor v. C. & N. W. Ry. Co., 19 Wis. 40.
    Mr. W. Winkelman, for appellee ;
    that the carrier was liable for the loss, cited C. & A. R. R. Co. v. Scott, 42 Ill. 132; C., R. I. & P. Ry. Co. v. Fairclough, 52 Ill. 106; Bartholomew v. St. L., J. & C. R. R. Co., 53 Ill. 227; C. & R. I. R. R. Co. v. Warren, 16 Ill. 505.
   Wilkin, J.

Appellee was a passenger on defendant’s road from East St. Louis to Columbia. She arrived at the latter place about six o’clock p. m., and her trunk, containing the articles sued for, was put off on the platform. She gave her trunk check to a hackman, but told him it might be taken up in the morning, if it would be safe there. Shortly after, the station agent put the trunk in the ladies’ waiting-room, and dosed the windows, fastening the shutters on the inside, and locked the door, after which he left the station for the night. Next morning it was found that the room had been forcilffy entered, and the trunk broken open, and the articles sued for stolen.

On the trial below, plaintiff had judgment for the value of the articles stolen, and the defendant appealed.

The first point made by appellant is, that the allegations of the declaration are not sufficient to charge the company as a warehouseman. The averment in the declaration is that the defendant, not regarding its duty as such common carrier, failed and refused to deliver to the plaintiff the trunk, * '* * but caused the same to he left unprotected and in an unsafe place, in consequence whereof said trunk, while in possession of defendant, was broken into, etc. This is unquestionably a good averment against the appellant as a common carrier, and it is in that capacity, as we understand, that the plaintiff seeks to charge it, and not merely as a warehouseman. In Bartholomew v. St. L., J. & C. R. R. Co., 53 Ill. R. 232, it is expressly decided that when a common carrier undertakes to transport baggage, and has carried it to its destination, if it is not called for, the carrier must store it in a safe and seewre warehouse, and then the new relation of a warehouseman attaches. And in that opinion it is said: “ But the burthen of proof is upon the common carrier to show that the property was stored in a safe and secure warehouse, and until this appears, the company can not be exonerated from the liability of a common carrier.” In that case it is also decided that the same liability attaches to the common carrier, in the transportation and delivery of baggage as ordinary freight, and it has been repeatedly decided by our Supreme Court (some of the cases being cited in the above case), that in the shipment of ordinary freight, the duty of the carrier as such does not cease until the goods are delivered or placed safely and securely in a warehouse. The warehouse must he a safe and secure place in which the goods are stored. If, therefore, the place in which the trunk was stored was not a suitable warehouse, or an insecure place in which to leave the baggage, the liability of a common carrier continued, unless appellee, by her conduct after the arrival, did some act which, would relieve appellant of that liability. Ho question, therefore, properly arises on the sufficiency of the pleading to charge appellant as a warehouseman. If liable at all, it is liable as a common carrier, and not as a warehouseman.

The jury were fully justifiable by the evidence in finding that the trunk of appellee was not stored in a safe and secure warehouse. The room in which it was left was in no sense a warehouse, store-room or baggage-room, and was not a proper place in which to leave baggage unguarded. Bartholomew v. St. L., J. & C. R. R. Co., supra; Chicago & Alton R. R. Co. v. Scott, 42 Ill. R. 132; Porter v. Chicago & Rock Island R. R. Co., 20 Ill. R. 407.

The goods must not only be placed in a secure warehouse, but it must be under the charge of competent and careful servants, ready to be delivered.

But it is insisted with apparent earnestness that the liability of appellant was only that of a gratuitous bailee, and that it could only be held to the exercise of slight care in storing and safely keeping the trunk, citing C., R. & P. R. R. Co. v. Boyce, 73 Ill. 510. It is impossible to perceive why this decision should be thought to support the position assumed. It is there expressly decided that if a passenger does not call for his baggage within a reasonable time of its arrival at the place of destination, “ the company may store it in a secure warehouse, and from thence its liability as a carrier ceases, and that of a warehouseman is assumed.” A warehouseman is certainly bound to exercise ordinary diligence in taking care of goods in his possession as such.

In discussing the question as to whether the “lay-over ticket” furnished any excuse for the delay in calling for the baggage, the court says, “ had the passenger been at Chicago and for his personal convenience had his baggage placed in the company’s warehouse, this fact would relieve the carrier from all responsibility except for gross carelessness as a gratuitous bailee,” and this it is said by counsel for appellant “is precisely the case shown by the evidence in this case.” We are unable to find any evidence in the record even tending to show such a state of case. Appellee gave no direction for the storage of her trunk, and that which was done with it by appellant was wholly without her direction, or even knowledge. It is fallacious to argue that appellee’s statement to the haekman that the trunk might remain until morning if it would be safe amounted to an acceptance of it, or to any direction to appellant which would relieve it from liability as a common carrier.

The most that can be said is, that she failed to call for her baggage in a reasonable time, thereby discharging appellant from the stricter liability of a common carrier, provided it safely stored it in a warehouse; but even then in no way waiving her right to insist that ordinary care should be exercised in keeping it until called for. The fifth instruction was properly refused. The jury had nothing to do with the conduct of other railroad companies in providing safe or unsafe places for unclaimed baggage.

On the question of care the jury was properly instructed in other instructions given at the request of the appellant.

The silk quilt wars not baggage, and the §10 allowed for it was not a proper item of damages in this action. The §36.60 for making up dresses was also improperly allowed. The prices fixed upon the dresses are for made up garments, and to allow this §36.60 ' is to allow double price for making them.

The judgment is therefore too large by §46.60. We perceive no other error in the record, and if appellee will enter a remittitur for the amount of §46.60, on the remanding of the case, she should be allowed to take judgment for the balance §296.50. ’

The judgment of the court below is reversed and remanded.

Judgment reversed.


author: Green, J.

text:
    Illinois Central R. R. Co. v. William H. Simpson.
    Delivery.—Delivery of goods to the authorized agent of the consignee at the place of destination, is in law a delivery to the consignee and discharges the railroad company from its liability as a carrier
    Error to the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Green & Gilbert, for plaintiff in error.
   Green, J.

This suit was commenced before a justice of the peace by Simpson, the defendant in error, to recover the value of three barrels of sweet potatoes alleged to have been taken as freight by plaintiff in error for transportation on its train to J. H. Wilson & Co., consignee of Simpson, at Bloomington, Illinois, and never delivered. The justice gave judgment for costs against Simpson, who took an appeal therefrom to the Circuit Court of Union county, where a trial by jury was had, resulting in a verdict and judgment for Simpson, to reverse which, this writ of error was sued out. By the evidence in the record it appears that the potatoes in controversy were received by plaintiff in error from Simpson, were transported on its' train to Bloomington, Illinois, and were there delivered to Johnson & Co., of that place, proprietors of a dray line there, and that they received and receipted for the same; it further appears from the evidence that at the time said potatoes were so received and receipted for, said J. H. Wilson carried on business alone under the name of J. H. Wilson & Co., and that at the same time said Johnson & Co. were duly authorized by said J. H. Wilson to receive, receipt for and haul freight so consigned to J. H. Wilson & Co.

This delivery of the potatoes to the authorized agents of the consignee at the place of destination was in law a delivery to the consignee; discharged plaintiff in error from liability as a carrier, and was a full performance of its contract as such with Simpson. The court below by its instruction given to the jury, announced the law to be as herein stated, but the jury disregarded the instruction and rendered a verdict against the law and unwarranted by the evidence.

The court below erred in rendering judgment on the verdict, and the same is reversed.

Judgment reversed.


text:
    John S. Tinsley v. Henry F. Rowe.
    Trespass vi et abmis—Damases.—In an action of trespass ri et armis for cutting and stabbing under a general averment of damages, the plaintiff can give in evidence any matters tending to establish the nature, character and extent of the injury received, that are the direct and natural consequence of the defendant’s act.
    Appeal from the Circuit Court of Jasper county ; the Hon. "William 0. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Trespass vi et armis for cutting and stabbing plaintiff with a knife, which was justified by defendant on the ground of self-defense. The cause was tried by a jury and a verdict returned of §100 for the plaintiff," upon which the court entered judgment and the defendant appeals.
    Messrs. Honey, Halley & Callahan, for appellant;
    as to damages, cited Sedgwick on the Measure of Damages, 677.
    Mr. Geobge W. FithiAn, for appellee ;
    that the declaration is broad enough to recover all damages proved, cited Indianapolis v. Gaston, 58 Ind. 224; I. C. R. R. v. Read, 37 Ill. 484; Whalen v. S. L. C. Ry. Co., 60 Mo. 323; Collins v. City, 32 Ia. 324; Holbrook v. U. & S. Ry. Co., 2 Kern. 236; Steamer N. W. v. King, 16 How. 472; Russ v. Steamboat War Eagle, 14 Ia. 363; Sedgwick on Meas. Dam., 618 ; C., R. I. & P. Ry. Co. v. Otto, 52 Ill. 416; Little v. Tingle, 26 Ind. 168.
   Pillsbury, P. J.

From appellant’s abstract it appears that no objection was made to the introduction of any evidence on the trial below offered by either party. Briefly stated, the material facts would seem to be that the appellant and two or three friends were sitting upon a fence talking about some political meeting and discussing the merits of certain candidates for office when Bowe approached them in an intoxicated condition. As he came up, appellant made the remark that one of the candidates, naming him, was a drunkard, whereupon Bowe asked him who said so, and the reply being a good many said so, Bowe said it was a lie, and if Tinsley said so he was a liar. Bowe then took hold of appellant’s coat and commenced to pull him around, when the appellant cut him in the shoulder with a knife; and upon Bowe then striking him, he stabbed Bowe in the side, cutting him in so serious a manner that his intestines protruded from the wound. There was evidence tending to show that the inj ury then received by the appellee was of a permanent character, and would in the future affect his health and his ability to labor as formerly. Special objection is made to an instruction given by the court to the jury based upon this evidence, authorizing them, if they found defendant guilty, to allow the plaintiff below damages for any such permanent injury as they should find to be the necessary result of the injury complained of by appellee.

It is urged in support of the objection thatpermanent injury arising from a wound inflicted is in the nature of special damages, and can not be recovered unless specially alleged in the declaration. That the general allegation that the plaintiff, in consequence of the wounding, became sick, lame and disordered from the time of the injury to date of commencement of the suit, and during all that time was rendered incapable of following and transacting his affairs and business, etc., is not enough to authorize a recovery for such damages.

These allegations of damages sustained, it is true, are somewhat general, but in our opinion are sufficient to admit evidence of all those consequences to the plaintiff which are the natural, legal and proximate results of the tortious act of the defendant. Greenleaf says in his work on Evidence, Vol. 2 § 89, that “A plaintiff under the usual allegation of assault and battery may give evidence of any dam tgcs naturally and necessarily resulting from the act complained of.” So it is said that as a general proposition the plaintiff is at liberty to prove, and the jury are bound to take into consideration, those direct and immediate consequences of the act complained of, which are so closely connected with it that they would not of themselves furnish a distinct cause of action. Sedgwick on Damages, 104.

In Fetter v. Beal, 1 Lord Raymond, 339, the plaintiff declared for a battery, averring that he had previously brought an action for it against the defendant and recovered £11 and no more; and that afterward part of his skull, by reason of said battery, came out of his head, and for this subsequent damage the suit was brought. The defendant pleaded the former recovery in bar, and judgment was given upon that plea for the defendant, and upon the cause coming before Holt, C. J., Ibid. 692, he said: “If this matter had been given in evidence as that which in probability might have been the consequences of the battery, the plaintiff would have recovered damages for it. The injury which is the foundation of the action is the battery, and the greatness or consequences of that is only in aggravation of damages.” Slater v. Rink and wife, 18 Ill. 527, was an action for assault and battery, the declaration averring resulting damages in a general way as in this case, and the defendant asked for an instruction that the plaintiffs were not entitled to recover damages except for the injury and pain on the day of the injury, which was refused, and upon error assigned the court said: “ The instatetion was not the law and was properly refused. Had the instruction been that the plaintiff could only recover for the injury committed on that day, it would have been proper, but it was proper that the jury should ascertain the extent and consequences of that injury, and her subsequent sufferings from the injury were a direct consequence of it, and for which she had a right to recover in an action for the injury itself. Suppose the defendant had cut her hand off. In an action averring that she had done so, it would be strange if the jury might not take into their consideration the loss of the member for the balance of her life and estimate the damages accordingly.”

These authorities sufficiently show that under the general averment of damages contained in this declaration the plaintiff can give in evidence any matters tending to establish the nature, character and extent of the injury received, that are the direct and natural consequence of the defendant’s act; that such consequences are in the nature of general damages implied by the law, and form the correct measure of damages in the action.

It is only where the damages claimed are such as the law will not imply that they are the natural and necessary results of the injury, that it becomes necessary to specially aver the character of them and the manner in which they arose, so the defendant will be advised what he is to meet upon the trial. But he must come prepared to meet proof, without special averment, of all those consequences directly attributable to and flowing from his own wrongful act, as he is presumed to have anticipated such results when he committed the injury. Such is the nature of the injury here. Can it be said with any show of reason that the suffering and pain endured and the permanent injury to the appellee was not the natural and even probable consequence of the use of the knife upon him by the defendant ? And can it be said that such consequences would not be implied by the law from such stabbing and wounding with a deadly weapon ? It may be that such results do not always follow from such acts, but when they do they are no less considered by the law as the direct and natural results of the injury; and when such results do follow they are to be compensated for in damages in an action for the injury itself—indeed are considered by the law as being inflicted with the stroke that produced them. These results thus following in the natural order of events from the act causing the injury become part and parcel of the injury itself, though not fully ascertained until long after the act causing them was committed. We therefore are of the opinion that under the allegations contained in this declaration and the proof introduced without objection, no error was committed by the court in giving the instruction. Burchard v. Booth, 4 Wis. 67; Klein v. Jewett, 26 N. J. Eq. 480; McLaughlin v. City of Corry, 77 Pa. St. 109.

Some objections are made to other instructions given for plaintiff below, but an examination of them shows that they are substantially correct upon plaintiff’s theory of the case, while those given for defendant are as full and favorable as he had any right to demand or receive, and the charge of the court appears as a whole to fairly present the case to the jury—nothing, as we perceive, being contained therein that could possibly prejudice the appellant.

With the verdict upon the evidence we are fully satisfied. The proof shows a reckless use of a deadly weapon under circumstances where its use was wholly unnecessary, the appellant being in no danger of any serious bodily harm from appellee in his then condition, and the manner of his assault upon appellant as disclosed by the evidence.

The use of the knife and revolver upon the slightest provocation has become altogether too common to be looked upon with complacency by those whose duty it is to administer the laws and who believe that it is better to redress private •wrongs in the courts of law than to endanger life and limb unnecessarily. We think substantial justice has been done in this cause and that the damages are not excessive under the circumstances, and no material error appearing in the instructions, the judgment will be affirmed.

Judgment affirmed.


text:
       John Mason et al. v. The People, etc.
    1. Direction of attorney—Negligence.—While the direction of an attorney to a client that he need not do a thing is no excuse for not doing it, yet when it appears that both the attorneys in the case and the defendant were misled by an agreement as to venue, and the question is whether or not the defendant has been guilty of laches or negligence, a different rule prevails.
    2. Power to set aside forfeiture—Discretion.—The discretion of a court in passing upon a motion to set aside a forfeiture of recognizance is a sound legal discretion, the abuse of which may be reviewed in this court.
    3. Forfeiture of recognizance.—The court is of opinion that the ends of justice demand that the forfeiture of the recognizance in this case should have been set aside, and that it was error in the court below to refuse to do so.
    Error to the County Court of Jasper county; the Hon. J. W. Gibsor, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. J. M. Horet, for plaintiffs in error.
    Messrs. Gibsor & Johrsor and Mr. B. F. Harrah, for defendants in error.

       The case of John Mason et al. v. The People involves the same principle as this, and is reversed and remanded for the same reason.

   Wilkin, J.

H. H. Harris as principal, with the other plaintiffs in error as his sureties, entered into a recognizance in the sum of §500 for his appearance at the August term, 1881, of the Jasper County Court to answer to a criminal charge. The case was continued from term to term until at the February term, 1883, a forfeiture of the recognizance was taken and a sci.fa. ordered. At the August term, 1883, there was a motion by plaintiffs in error to set aside the forfeiture, and this motion w^s continued to the February term, 1884, when it was overruled. On plea to the sci. fa. and issue joined, a trial was had and judgment for plaintiff for §500 and costs. In the view we take of the case it is only necessary in this 023inion to consider whether or not the court below erred in overruling the motion to set aside the forfeiture. On the hearing of that motion it was shown by affidavits that on the 24th day of May, 1882, the defendant Harris filed his affidavit in said county court for a change of venue. The next day this agreement was filed:

“It is hereby agreed that the venue in these-causes shall be removed to the Circuit Court of Lawrence county, Illinois, at its August term, A. D. 1882.

Geo. W. Eithiait, State’s Att’y.

Bittehaet & Wilsoe, Att’ys for Deft.”

In the affidavit of defendant Harris, filed in su23port of the motion, he swears that he relied on this agreement; that after it was made he was informed by his attorneys that.the venue was changed, and that he need not attend the Jas23er County Court, further; that he was in Lawrence county attending the circuit court when he learned the forfeiture had been asked for ; that he immediately telegra]3hed one of his sureties that he would be in ¡Newton as soon as he could get there; that he immediately started and did arrive there on the Wednesday after the court had convened on Monday, but found it adjourned; that he saw the judge, who informed him that he could set aside the default at next term. The affidavits of E. S. Wilson, John Mason,-T. W. Hutchinson and E. H. Bineliart, also filed in support of the motion, corroborate that of Harris. It is not denied that the agreement to change the venue was made, nor that this case was included in it. To take a forfeiture of a recognizance under such a state of facts would seem to be so unfair and unjust to a defendant and his sureties that one is forced to the conclusion that it was done under a misa23prehension, or in ignorance of the facts, and to refuse to set it aside on so full a 23resentation of the facts, especially when the defendant is present and may be held to answer to the charge, is, in our 023inion, an abuse of sound legal discretion.

We are not called upon to decide whether or not the affidavit for a change of venue, and the agreement legally changed the venue, but only whether or not they were calculated to lead a reasonably prudent and careful man to honestly believe that the venue was changed, and whether or not the defendant Harris did, in good faith, believe that his attendance upon the Jasper County Court was no longer required. Had the information given him by his attorneys been but the expression of a legal opinion, or directions given independent of any agreement, there would be some force in the suggestion that the direction of an attorney to a client that he need not do a thing, is no excuse for not doing it; but when it appears that both the attorneys and the defendant were misled by the agreement, and the question is whether or not the defendant has been guilty of laches, or negligence, a very different rule must obtain.

In Wray et al. v. The People, 70 Ill. 668, the Supreme Court say : “We think the defendant Wray showed sufficient cause to have the forfeiture of the recognizance set aside. The affidavits filed by him showed that his failure to appear in court in obedience to the requirements of the recognizance was not for the purpose or with the intent to evade the law.” And, again, this language is used: “ It may be said that the criminal court was vested with discretionary power to allow or refuse the motion of the defendant. While the act provides the court may in its discretion set aside the order of forfeiture, the obvious intent and meaning of the law is, the court must exercise a sound legal discretion; and when it appears that discretion has been abused or not properly exercised in the administration of justice, it may often be the duty of appellate courts to review and correct the decisions of the lower courts.”

We think this case stronger in all its features for plaintiffs in error than that was for Wra.y and his surety. We are convinced that the ends of justice demand that the forfeiture of the recognizance should have been set aside, and that it was error in the court below to refuse to do so, and for that error the case is reversed and remanded.

Judgment reversed.


text:
    John Cullen et al. v. Borders & Boyle.
    Estoppel.—Where A, who had given a note and mortgage to B, subsequently accompanied B to the bank, and indorsed on the back the amount still due on the note, and the bank bought the note, A is estopped from setting up that there was no consideration to the note.
    Error to the Circuit Court of Randolph county ; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    Hr. J. B. Simpson and Hr. Ralph E. Sprigg, for plaintiffs in error.
    Hr. R. J. Goddard and Hr. John Hiohen, for defendant in error.
   Pillsbury, P. J.

The defendants in error filed their bill in chancery to foreclose a mortgage given by plaintiffs in error to one William Hurphy, and by him assigned to the complainants.

The note and mortgage bore date March 21, A. D. 1874, and were given for §2,500. At the time the note was assigned to complainants there were some indorsements upon it of payments made. The bill averred that §607.92 was still due upon the mortgage and note, and prayed for a decree of foreclosure and the sale of the premises for the payment of the amount. The answer denied any indebtedness to Hurphy at the time the mortgage was given, or to his assignees, the complainants.

Hpon a hearing the court found for the complainants and rendered a decree for the said sum of §607.92, and the interest due thereon, and the defendants below sued out this writ of error to reverse the decree. Borders, one of the complainants, testified that Hurphy and Cullen calne to the bank of complainants, and Murphy desired to sell them the note and mortgage ; and he, noticing the note was past due, asked them to figure up the amount that was then due upon the note and agree upon the amount, and that they then went into another room, and soon returning stated to him that they had agreed the amount was §607.92, when he wrote upon the note the following: There is six hundred seven and 92-100 dollars due on this note, this February 7, 1882,” and that Cullen wrote his name under such indorsement as it now appears. The complainants then purchased the note, and that subsequently Cullen paid on it §60.80, which is now indorsed.

The defendant Cullen testifies that he did not owe Murphy anything at time the note and mortgage was given, but being security for his brother Daniel, he feared he might lose his property through his brother’s failure to pay, and he made the note and mortgage to protect himself from such creditors of his brother. He does not deny being present when the note was assigned to complainants, nor that he signed the indorsement of the amount due, but thinks the indorsement was not upon it at time he wrote his name. The whole testimony considered, we entirely agree with the circuit court in its conclusion that Borders’ testimony as to what occurred when they purchased the note is to be relied upon, and this being so, in the view we take of the case, it is unnecessary to determine whether the note and mortgage were given to Murphy without.consideration or not, as Cullen, by his conduct at the bank in agreeing upon the amount due, and thereby inducing the complainants to purchase the note, has estopped himself from relying upon the defense of no consideration for it. It is quite evident that if he then had told the truth to Borders about the matter, the complainants would not have invested their money or securities in the note and mortgage. He then having given them to understand that the note and mortgage were valid, when he ought to have informed them of the facts attending their execution, can not now be heard to say that he had not told the truth to them.

The case of Smith v. Newton, 38 Ill. 230, is in point and must control the decision of this. There Smith told Newton that tiie mortgage was a valid lien before ¡Newton bought it, which statement induced the purchase of it by ¡Newton, and it was held that the doctrine of estoppel in pais would apply to Smith, and he could not show in contradiction of his statements to ¡Newton that it was not a valid lien. Under the authority of that case, and others not necessary to cite, where the same rule has been applied, the court below was right in decreeing a foreclosure, and the decree will be affirmed.

Decree affirmed.


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    Amos Morrell v. Anna Belle Martin.
    1. Instructions—False imprisonment.—The instruction upon false imprisonment is erroneous in that it omits the necessary qualification “that unless the restraint or detention was by virtue of a valid process or warrant against her issued by proper lawful authority.”
    2. Instructions—Malicious prosecution.—An instruction that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution. Held, erroneous. To maintain such action there must he no probable cause and malice concurring.
    Error to the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. S. F. Gilmore, Mr. J. 0. White, and Messrs. Wood Bros., for plaintiff in error. ■
    Mr. ¡R. 0. Harrah and Mr. B. F. ¡Kagay, for defendant in error.
   Green, J.

In this case defendant in error brought her action in the conrt below, against plaintiff in error, and in her declaration of seven counts, sets up a cause of action in case, for malicious prosecution in the four first, and trespass vi et armis for false imprisonment in the remaining three counts. Defendant below interposed a plea of “not guilty ” to the whole declaration, with a special plea of justification to the 5th, 6th and 7th counts, setting up that Morrell went before "Williamson, a justice of the peace, and made oath that defendant in error, on January 8, 1885, at the house of Nancy Martin, did commit a misdemeanor, to wit: that defendant in error had been guilty of disorderly conduct; that said justice did thereupon issue his warrant for her arrest, which warrant was delivered to Byan, a constable, to execute, who without the presence, advice, or assistance of Morrell, did arrest her on the same day, by virtue of said warrant, and brought her before said justice ; that said Morrell had just and reasonable grounds for believing her to have committed said misdemeanor, and that the above are the several supposed trespasses, etc. Beplications traversing said pleas were filed by plaintiff below, issue joined and trial by a jury had, which rendered a verdict for plaintiff below for 8500; whereupon, Morrell moved for a new trial; which motion was overruled and judgment was rendered against him by the court below on the verdict, to reverse which judgment this writ of error vras sued out.

The disorderly conduct alleged, as insisted upon by defendant below on the trial, was that defendant in error had intruded herself into the house of Nancy Martin, and upon being requested by the latter to leave, had refused to do so, and had conducted herself there in a disorderly manner, using profane language, etc. Defendant in error on her part insisted that she visited said house (which was the residence of her husband’s mother, Nancy Martin), to see him, or ascertain from the family there where he was, and was not guilty of disorderly conduct and did not use profane language there. As usual in such cases there was a conflict of evidence, and some of the testimony tended to prove disorderly conduct on the part of the defendant in error, as alleged, while other of the testimony negatived such charge. Inasmuch as the case will be tried by another jury, we deem it unnecessary to express our opinion upon the merits of the case, or to allude to the evidence, except to say that the error assigned for admitting improper evidence on the part and behalf of plaintiff below (which it is claimed the court did) is not well assigned, but so far as the record discloses, no objection was made at the trial, on behalf of defendant below, to the admission of any evidence except such as was competent, and tended to show that defendant in error was informed her husband had gone to Nancy Martin’s, and acting on such information, had called there to inquire for him, and ascertain his whereabouts on the occasion when it is alleged she acted in a disorderly manner, thus explaining and giving a reason for such call, and negativing the charge that she intruded herself there without right. But the court below erred in giving several of the instructions given to the jury on behalf of the plaintiff below. The 4th of these instructions informs the jury that if Morrell, at any time, place or manner, restrained plaintiff of her liberty, or detained her in any manner from going where she wished, or prevented her from doing what she desired, or counseled, advised or procured such restraint or detention, that would be sufficient to sustain her charge of false imprisonment against Morrell. This instruction omits the very necessary qualification “unless such restraint or detention was by virtue of a valid process or warrant against her, issued by proper lawful authority.” The instruction 4J is erroneous and ought not to have been given, because it is not confined in its application to the counts in case in plaintiff’s declaration, and it would not be applicable to the counts in trespass vi et cmnis / and also because in the last clause of said instructions, the jury are informed if they believe certain facts they shall find for the plaintiff, without being required to so believe from the evidence. The 8th of these instructions is as follows: “ The jury are instructed that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution.”

This instruction does not state the law as we understand it. A person may entertain malice against another, and moved by that feeling, institute a prosecution for a crime against the obj ect of his hatred; and if the latter is guilty of such crime, or if the one instituting such prosecution has probable cause for believing him guilty thereof, an action for malicious prosecution will not lie. To maintain such action there must he no probable cause and malice concurring. The 9th and 10th of these instructions are not accurate, but as they will probably he amended before being given, if another trial should be had, we will not lengthen this opinion by discussing them, nor by the citation of authorities in support of the objections to the other instructions herein mentioned. It is sufficient to say that the giving of them was error and was calculated to mislead the jury, and for such error the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.'


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    City of East St. Louis v. Jesse M. Freels.
    1. Evidence—Copy of record.—A copy of a record required by law to be kept by a city, duly certified as required by the statute, is original evidence, and its introduction in evidence does not depend upon tne fact that the record itself is lost or destroyed.
    2. Licensed attorney—Fees.—Ho person without being dnly licensed as an attorney at law can recover for services performed as such in a court of record.
    Error to the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed November 27, 1885.
    The defendant in error commenced this action to recover for legal services performed by him for the city. It appears from the record that in May, 1877, the city was under a contract with the East St. Louis Gas Light and Coke Company, to furnish the city with gas at a stated price for the term of thirty years, a contract the city was very much dissatisfied with and was desirous of annulling. The city authorities employed the appellee as special counsel to take such steps as were necessary to that end and under his advice the city refused to pay any future gas bills under the contract. The gas company instituted suit to recover for gas furnished, and the litigation thus commenced continued for several years, finally resulting in a substantial victory for the city. The appellee rendered valuable and faithful service to the city in such litigation, arguing the ease in the circuit, appellate and supreme courts, and not being paid, he sought a just recompense by this suit.
    The defenses relied upon in the court below are: 1st, that at the time the plaintiff was employed and during the entire time of the litigation, the city was indebted to an amount exceeding the constitutional limit, and 2d, that the plaintiff was not a duly licensed attorney of this State. On the trial below the appellant, for the purpose of showing the amount of the indebtedness of the city, offered in evidence a certified copy of the bond register kept by the city, with the testimony of the former clerk, that he was the clerk when the copy was made, in July, 1877, and he compared it with the register and found it to be correct. It was also shown that many of the record books of the city^including the register of bonds of the city, had been taken away from the city officers by some persons, claiming to be city officers, but who were declared not to be by the courts, and that such records were retained by such persons until they finally disappeared. This offered evidence was rejected, and the city then offered to show by parol evidence the amount of the city’s indebtedness from time of the employment of appellee to date of commencement of the suit, and this was upon objection likewise ruled out. The city then offered proof to show the valuation of the property in the city for the years 1877 to 1884 inclusive, from which it would appear that the indebtedness of the city as shown by the copy of the register offered in evidence, would exceed five per cent, of such valuation.
    The court having excluded the evidence of indebtedness offered, found for the plaintiff in the sum of §3,225, and rendered judgment against the city for that sum, and it brings the case here.

      Mr. George M. O. Melveny and Mr. M. Millard, for plaintiff in error;
    as to licensed attorney, cited Tedrick v. Hiner, 61 Ill. 189.
    Mr. G. A. Koerner and Mr. J. M. Freels, for defendant in error;
    as to secondary evidence, cited McGuire v. Bk. of Mobile, 42 Ala. 592; Christy v. Cavanah, 45 Mo. 377; Taylor v. Clark, 49 Cal. 671; Kearney v. Mayor, 92 N. Y. 619; Simpson v. Dale, 3 Wall. 460; Mariner v. Saunders, 5 Gilm. 117.
   Pillsbury, P. J.

If we could consistently with our views of the law affirm this judgment we would gladly do so, as the justice of appellee’s claim is so clearly established by the proofs. That he did faithful service for the city, resulting in saving the city one hundred thousand dollars, at least, is not denied, nor that such services were of the value found by the court below. The city, however, sees proper to set up in defense its want of power to create any further indebtedness by employing the appellee, as it was already indebted beyond the constitutional limit of five per cent. upon the valuation of the property within its limits. That such defense is valid, even when the indebtedness was incurred for the ordinary wan's and necessities of the city, was expressly adjudged in Prince v. City of Quincy, 105 Ill. 138, a decision which would seem to cover the point here made. To prove that at the time the city employed the appellee it was then indebted beyond the limit allowed, it offered in evidence a certified copy of its bond register as it existed in 1877. This register is required by the charter of the city to be kept, showing a full exhibit of all the material facts in relation to the debt of the city.

It therefore became a record of the city and competent evidence to establish the facts recorded therein. This is not denied by appellee, but his contention is, that the register itself is the only competent evidence, and no sufficient foundation was laid for the introduction of secondary evidence. It is provided by section 14 of chapter 51, R. S., that: “ The papers, entries; records and ordinances, or parts thereof, of any city, village; town or county, may be proved by a copy thereof, certified under the hand of the clerk or keeper thereof, and the corporate seal, if there be any; if not, under his hand and private seal.”

By section 18 of the same chapter it is provided that any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses.

The copy of the bond register offered in evidence appears to have been certified to by the then clerk of the city, under his hand and the corporate seal of the city, and he being sworn as a witness testified that he examined and compared it with the original register and found it correct. This evidence of the correctness of the offered copy brought it within both sections of the statute quoted above, and made it competent evidence of the contents of the record. We think a copy of a record required by law to be kept by a city, duly certified as required by the statute, is original evidence, and that its in-ti eduction in evidence does not depend upon the fact that the record itself is lost or destroyed. Schott v. The People, 89 Ill. 195.

A sufficient guarantee against a false certificate is provided for in section 19 of the same chapter, making all persons thus authorized to certify copies amenable to the statute relating to perjury,- if they shall knowingly make a false certificate. We can but hold that the court should have admitted the copy in evidence as lying at the foundation of the defense interposed. Again it appears that at the time he was employed the appellee was not licensed by two of the justices of the Supreme Court to practice in the courts of record in this State. He had been admitted to practice in the State of Iowa, and after removing to this State, by courtesy was permitted to practice in the courts of St. Clair county, or at least, no objection being made, he was treated by the courts as having the right to appear for his clients as an attorney. He was, however, duly licensed before the causé was submitted to the Supreme Court and a large portion of the services involved in the present inquiry was performed after he was so licensed.

Our statute, section 1, Ch. 13 R. S., prohibits any p-erson from practicing as an attorney or counselor at law or to commence, conduct or defend any action, suit or plaint, in which he is not a party concerned, in any court of record in this State, without having previously obtained a license for such purpose from some two of the justices of the Supreme Court. Such license when obtained authorizes such person to act as such attorney, and confers upon him the right to demand and receive fees for services he may render. From this statute it would seem that the policy of the law is, that no person without being duly licensed as an attorney at law can recover for services performed as such in a court of record. This was so held in Tedrick v. Hiner, 61 Ill. 189 ; and although that decision was made under the statute of 1815, it is equally applicable to the present statute when suit is brought to recover for services rendered, and no claim is made by the client to recover back foes already paid. It wrould therefore seem that for services rendered in a court of record before he was licensed the appellee can not recover in this suit.

These points made and relied upon by the city seem to be well founded in law, and we can not ignore them.

For the reasons stated the judgment of the court below will be reversed, and the cause remanded for a new trial.

Judgment reversed.


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    Jacob B. Rentchler v. Leonard Kunkelman.
    Statute of Limitations.—The Statute of Limitations does not commence to run upon a bank certificate of deposit, payable one year after date, until the time expressed for its payment, although the bank becomes insolvent some time previously thereto.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.

      Mr. Cilables W. Thomas, for appellant;
    cited Terry v. Tubman, 92 U. S. 156; Terry v. Anderson, 95 U. S. 628.
    Mr. William C. Küefenee, for appellee.
   Pillsbury, P. J.

This action was instituted by the appellee to enforce the liability of appellantas astockholder in the People’s Bank of Belleville under section nine of the charter. The provision invoked reads as follows : “ Whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsib’e for an amount equal to the amount of the stock held by them respectively.”

The bank on February 11, 1878, issued to appellee for money deposited a certificate of deposit for §700, due in one year from date upon return of the certificate properly indorsed, with seven per cent, interest for the time specified. The bank made an assignment for the benefit of creditors on April 22, 1878, and from that time ceased to do business. This action was commenced February 8, 1884.

To the declaration a plea of the Statute of Limitations of five years was interposed, upon which issue was joined, and the cause tried by the court upon a stipulation of facts, and a judgment entered for the plaintiff for §827.35, after allowing a credit of §225 collected from another stockholder, FTov. 12, 1884, and the defendant below appealed.

It is first urged that the judgment is excessive, as it includes seven per cent, interest from the date of the certificate to final judgment; when after due the certificate should only draw six per cent. We think the language of the certificate is not of such a character as will take it out of the rule of computing interest adopted in Phinney v. Baldwin, 16 Ill. 108, and Entyre v. McDaniel, 28 Ill. 201, where it is held that the conventional rate of interest named in the note runs until the debt is paid. Computing the interest on §700 for seven years, two months and nine days at seven per cent, and deducting the §225, as the interest at the time of this payment exceeded the amount paid) and the sum is §827.39, being four cents more than the judgment.

The principal contention of the appellant, however, is, that the court erred in not holding that the action was barred under the Statute of Limitations pleaded. It is insisted that the statute commenced to run on the 22d day of April, 1878, the date of assignment by the bank, and reckoning from that date, more tlianfive years elapsed before the appellee brought his suit. The statute relied upon commenced to run from the time the cause of action accrues. Whenever the plaintiff can maintain his action the statute commences to run against him and not before.

By the provision of the charter above referred to and upon which the liability of appellant is founded, no action can be brought against a stockholder until the corporation makes default in the payment of the debt or liability contracted by it. This ’default must, it is believed, be a failure to pay such indebtedness when it legally owes the duty of paying, or the obligation can be enforced against it by an action at law. No person can legally be charged with a default in the performance of a duty until the party entitled to its performance is in a position to demand .it. How can it be said that a debtor is in default in the payment of a debt until by the terms of the contract creating it the creditor is entitled to demand its fulfillment?

The appellee had no legal right to demand payment of the money until by the terms of the certificate it was due and payable. If he had presented it at any time before it was due he might well have been answered that the bank was not then owing him, and to call when it was payable. It did not necessarily follow that the corporation would not resume payment before the year that the contract was to run had expired, nor that it might not in the meantime make arrangements to discharge it. The ap]:>ellee could not maintain an action against the bank upon the certifícate until, by its terms, it had 2>romised to piay, and it is equally clear that before that time he could not pilace it in default or call iqion the stockholder to res2iond upon his statutory liability to p>ay the debts of the coloration. Less than five years intervened between the time the appellee could legally demand his money from the bank and the date of the commencement of this suit, and the action is therefore not barred, conceding that five years will have that effect, as in our opinion the Statute of Limitations commenced to run at the same time in favor of the bank and the appellant as a stockholder.

The case of Terry v. Tubman, 92 U. S. 156, referred to as sustaining the view that the statute commenced to run from the failure of the bank, we do not consider as having a controlling influence upon the decision of this question. In that case the statute made the stockholders liable for the redemption of the bank bills, such liability being enforceable upon failure of the bank, and the plaintiff, being the holder of some of the bills of the bank, brought liis action, and the court held that the statute commenced to run upon failure of the bank to do business as a bank, it being then notoriously insolvent.

In this case a “ default to pay a debt or liability contracted,” and of course accordii g t) the terms of the contract, is essential to charge a stockholder, a very marked distinction betxveen the statutes imposing the liability upon the holders of stock of the corporation. "We have held in Fleischer v. Rentchler, decided at the present term, that a certificate of deposit like the one here, is, by virtue of the provision of the charter, the contract of the stockholders upon which they are primarily bound as partners upon default in paying it through the corporation, and as an evidence of indebtedness in writing is binding upon them, and that the Statute of Limitations of fixre years did not apply; but an action could be maintained against a stockholder at any time it could against the corporation. If our conclusion xvas correct in that case the judgment in this case is proper; but even if we were in error there, we are clear that in this case the action was commenced within five years from the time the cause of action accrued for the reasons above stated.

Ro error appearing, the judgment of the court below will be affirmed.

Judgment affirmed.