author: Wilkiit, J.

text:
    The Chicago & Alton Railroad Co. v. Henry Lammert, by, etc.
    1. Evidence — Impeaching witness. — A witness can be impeached by-showing that he had made statements out of court contradictory to his evidence, but only provided the foundation is laid by interrogating him first as to whether he made the outside statements, fixing time and place, thus giving him an opportunity to explain.
    2. Same. — A. party, to avoid acontinuance, having admitted that a witness would swear to the facts stated in an affidavit for continuance, can not, on the trial, introduce evidence of admissions made outside of court by the witness whose testimony was referred to in the affidavit for continuance, for the purpose of impeaching him.
    3. Contract — Consideration—Compromise of pending suit. — The compromise of a suit pending is a good consideration for a contract, and if fairly entered into, a suit may be maintained for its breach as in any other case.
    4. Attorney and client — Infant.—An attorney of a court of record of an infant binds his client as in any other case, by a settlement or compromise of a pending suit.
    Appeal from the Circuit Court of Madison county; the Hon. Anos Watts, Judge, presiding.
    Opinion filed July 12, 1886.
    At the March term, 1883, of the Madison County Circuit Court, appellee brought suit against appellant, to recover damages for a personal injury alleged to have been caused through the negligence of its servants. That case was twice appealed to this court, on the last of which a judgment in favor of appellee was reversed on the ground that the evidence failed to sustain the verdict. After this reversal, appellee took the deposition of one Lee Sursa. This deposition fully sustained the allegations of the declaration, supplying largely-the proof, for want of which the judgment previously rendered had been reversed.
    After the. taking of this deposition the case was compromised by appellant agreeing to pay Henry Lammert $1,400 and his mother $100. Out of this money appellee was to pay certain costs of the suit. A judgment was to be entered by agreement for the $1,400, which was to be satisfied. In pursuance of this agreement releases were signed by the attorneys of record for Henry Lammert, and .also by the next friend, and left in the hands of one of the attorneys to be delivered to appellant, when the judgment agreed upon was entered and the settlement completed. Before the next term of the court appellant claiming that the witness, Lee Sursa, had admitted and made affidavit that his deposition was false, and that he had been induced to make it by one of the attorneys for apellpee who knew that it was false, gave notice to the attorneys for appellee that it would not carry out the compromise. The original suit still pending at the succeeding term, appellee refused to proceed with its trial, but tendered the releases? and demanded judgment in pursuance of the terms of the compromise, appellant still objecting, and refusing to consent to the judgment agreed upon or to otherwise abide by the terms of the compromise.
    Appellee dismissed the suit for the purpose of bringing this action. The declaration was filed to the October term, 1885, and counts on the contract above mentioned. Two pleas were filed — the general issue, and a special plea setting up fraud in obtaining the agreement, by procuring the false testimony of the witness Sursa, knowing it to be false, etc.
    The case coming on for trial appellant entered its - motion for a continuance on account of the absence of the said Lee Surtía. This motion was supported by the affidavit of one Tracy, in which he sets out anj affidavit purporting to have been made by the absent witness, in which he in substance swears that he .knew nothing of the manner in which Henry Lammert received his injury, and that his deposition taken to prove such facts was wholly false; that he was induced to give the false deposition by William P. Bradshaw, one of appellee’s attorneys, and that said attorney knew that he had no knowledge of the facts therein stated, and that the deposition was false. Tracy’s affidavit then concludes by stating that the defendant expects to prove by said Sursa that the statements made in his affidavit are true. Appellee thereupon admitted that the witness, if present, would swear to the facts stated in the affidavit ior continuance. The motion was overruled and the trial proceeded. T. W. Kinder and B. F. Murrill, witnesses for appellee, were allowed by the trial court, over the objection of appellant, to testify to conversations with the said Lee Sursa, in which they testified that he said that his deposition was true, and that the affidavit afterward made by him was false, and that he made the affidavit through spite toward Bradshaw, the attorney.
    The trial resulted in a verdict for appellee for $1,400, and a motion for new trial being overruled and judgment entered for the amount of the verdict and costs, appellant appeals.
    Messrs. Wise & Davis, for appellant;
    that a witness can not be discredited by proof of contradictory statements without having been previously examined in reference thereto, cited Queen’s Case, 2 B. & B. 298; Franklin Bk. v. P. D. & M. Steam Nav. Co., 11 G. & J. 28; Craft v. Commonwealth, 81 Ky. 250; Stacey v. Graham, 14 N. Y. 498.
    As to authority to compromise an infant’s claim: Edsall v. Vandemark, 39 Barb. (N. Y.) 589; C., R. I. & P. Ry. Co. v. Kennedy, 70 Ill. 350; Sperry v. Fanning, 80 Ill. 371.
    Messrs. Krone & Hadley and Messrs. Metcalfe & Bradshaw, for appellee.
   Wilkiit, J.

Ho reason is perceived why the second plea of appellant, if true, does not present a good defense to this action. This defense does not consist in the fact that the deposition of Snrsa was false alone, but rather in the fact that appellee, by his attorney, procured the false testimony knowing that it was false. If the facts alleged in the plea are true, and appellee had, by means of the evidence of 'Sursa, obtained a judgment, no court would have hesitated to set it aside as obtained through fraud. If the fraud was discovered before the fruits had been realized, certainly no court would lend its aid to the party practicing it.

The vital question in this case is, in our opinion, whether or not that plea is true. This beingso, the testimony of Lee Sursa, in whatever form obtained, was essential to appellant’s defense. To overcome that testimony by contradicting it, or impeaching the witness, became equally important to appellee. The evidence of the witnesses Kinder and Murrill was therefore material, and if improperly admitted over the objection of appellant, must work a reversal of the judgment below.

"Wie have been unable to discover any ground upon which the ruling of the trial court in admitting their evidence can be sustained. The novel position is assumed by counsel for appellee that Snrsa is to be treated as their witness and therefore it was competent to show what he had said. There could be but one legal ground for admitting the evidence as to what this witness had said, and that would be for the purpose of impeaching him. To say that his unsworn declarations could be competent evidence for either party would be to contravene one of the plainest and most tirmly established rules of evidence. By the affidavit for continuance, and the admission of appellee that if present the witness would swear to the facts therein set forth, Lee Sursa became the witness of appellant. His testimony thus obtained became available to appellant the same as though he had been present testifying in open court, or his deposition had been taken. His evidence was subject to contradiction and impeachment under the same rules of evidence and practice as though obtained in the usual manner.

He might he impeached by showing- that he had made statements out of court contradictory to his evidence set forth in the affidavit, provided the proper foundation was laid, but not otherwise. The rule is inflexible and without exception, that in order to impeach a witness in this mode he must first be interrogated as to whether or not he made the outside statement, fixing time and place, thus giving him an opportunity to explain. In this case no such foundation was laid, and hence the evidence of the witnesses called to impeach, was improperly admitted. If appellee was at the disadvantage of not being able to lay the foundation for impeachment because of the absence of the witness, he voluntarily placed himself in that position by admitting that he would swear to the facts stated in the affidavit, and can not be allowed to extricate himself by disregarding fixed rules of practice and evidence. E egarding this error as substantial, and affecting the entire merits of the case, the judgment of the court below must be reversed and the cause remanded.

As the case may again be tried it is proper to briefly notice other points made and urged as grounds of reversal.

There is no substantial variance, as we understand the allegations and proofs, but if there was, the question cannot be raised for the first time in this court. There is not even an assignment of error raising that question.

This is not a case in which there is an attempt to set up an accord in defense of a suit on the original cause of action. It is a suit upon the alleged contract to compromise a pending suit. If it is intended to be urged that such a suit can not be maintained until the contract is executed by both parties, the position is absurd. The authorities cited can not be construed to support such a position. The compromise of a suit pending is a good consideration for a contract, and if fairly entered into a suit may be maintained for its breach as in any other case.

There is nothing in the record to show that the infant, or any one on his behalf, repudiates the contract of compromise. The court permitted him to dismiss his suit for the express purpose of bringing this suit. Ho reason is shown nor authority /cited in support of the- position that the attorneys of record of an infant can not bind their client, as in any other case, by a settlement or compromise of a pending suit. In Littotson v. Hargrave, 3 Maddox, 349, it is said, “An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit to the same extent as a person of full age.” Levy v. Levy, Id". 245. The evidence also shows that there was an offer to have a guardian appointed for the infant if appellant so desired, in order to carry out the compromise, but it was not then thought necessary, nor even.to procure the consent of the infant. Mow^ however, it is urged that the contract was not- binding upon the infant and may therefore be repudiated by appellant. To so hold, would defeat the compromise of every suit in which there might be an infant party plaintiff or defendant unless the infant was personally a party thereto. The infancy of the plaintiff was fully known to appellant’s agent who negotiated the settlement, at the time the preliminary agreement was-entered into and at the time the releases were signed, and no objection was then made to the validity of the settlement or1 its binding force upon the parties.

To permit the appellant to now repudiate the agreement upon the naked ground that it chose to negotiate with the attorneys and next friend, instead of the plaintiff in person, in the absence of all objection to the settlement by the infant plaintiff, would be a mockery.

The evidence sufficiently shows that the payment of costs by appellee was to be out of the money paid him by appellant, and it was not therefore necessary to prove such payment, nor even an offer to do so, in order to maintain this suit.

Reversed and remanded.


source: Caselaw Access Project

author: Wilkin, J.

license: Public Domain

text:
    Illinois & St. Louis Railroad and Coal Co. v. People, etc.
    1. Statutory remedy — Pleading.—The treble damages allowed bisection 85, chapter 114 of the statute, is in the nature of a penalty and can only be recovered when specially declared for in the manner prescribed by the statute.
    2. Same — Statute of Limitations. — Where the first declaration alleged a cause of action against appellant as a common carrier, for a refusal to furnish cars to transport freight, and the amended declaration declared under sections 84 and 85, chapter 114 of the statute, for treble damages, held, that the two years Statute of Limitations is a good plea to the amended, declaration; otherwise treble damages could be recovered on a declaration filed at any time within five years by bringing the action in the first instance for single damages and then amending.
    8. Same — Statute construed. — This statute, imposing a liability for treble damages, is highly penal and must be strictly construed. The language “as shall within a reasonable time previous thereto he ready or he offered for transportation,” can not be extended so as to include coal in the earth, to be dug and raised from the mine after cars are furnished.
    4. Custom or usage. — Custom or usage in the shipment of certain classes of freight may fix the liability of a carrier for a refusal to transport that kind of freight in conformity to the custom, but custom and usage can not be held to extend the terms of a penal statute.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. G. & G. A. Koerner, for appellant.
    Mr. R. A. Halbert and Mr. E. L. Thomas, for appellees.
   Wilkin, J.

This was originally an “action of assumpsit. The declaration was filed May 4, 1882.

It claimed single damages and made no reference to the statute. It was brought in the names of John Beaird and Charles Schroeder.

On the seventh of March, 1883, the amended declaration upon which the trial was had was filed. This declaration is in debt. It counts expressly upon the statute for treble damages, and is in the name of the People, etc., for the use of John Beaird and Charles Schroeder. To the amended declaration the appellant filed a plea setting up the two years Statute of Limitations. To it a general demurrer was sustained by the court below, and this is one of the errors assigned on the record.

Counsel on both sides, in their arguments, speak of other amended declarations, but we find but the two above mentioned in the record, and of course can only consider them in deciding the case.

The first declaration alleges a cause of action against appellant, as a common carrier, for a refusal to furnish cars to transport coal from appellee’s mine, and claims damages as at common law. The declaration to which the plea was filed also charges appellant as a common carrier with a refusal to furnish cars, but declares'under Sec. 84 and 85, chapter 114, of our statute, for treble damages.

The treble damages allowed by Sec. 85 is in the nature of a penalty, and can only be recovered when specially declared for in the manner prescribed by the statute. Pace et al. v. Vaughan, 1 Gil. 32.

There could, therefore, have been no recovery of treble damages under the first declaration, whereas there may be under this. The one is for simple damages, the other for a penalty Pace et al. v. Vaughan, supra; Weidenger v. Spruance, 101 Ill. 287; Gridley v. Barnes et al., 103 Ill. 214.

While it is true that the cause of action in each case grows out of the same state of facts, yet there is a complete change of remedies.

As against the first action the Statute of Limitation was five years; against the last, being the more harsh and severe remedy, two years would bar the recovery. To hold that the two years limitation shall not be pleaded to the amendment in this case would enable the appellee to recover damages in the nature of a penalty on a declaration filed more than two years after the cause of action occurred, thereby rendering nugatory the express provisions of the statute. If the position contended for by appellee is correct this penalty of treble damages may be recovered on a declaration filed, at any time within five years, by bringing the action in the first instance for single damages and then amending. This, as was said by Chief Justice Lawrence in I. C. R. R. Co. v. Cobb, Christy & Co., 64th Ill. R. 140, would substantially break down the protection intended to be given by the statute.

The right of appellant to file this plea to the amended declaration is sustained, both because a new cause of action is introduced by the amendment, and because there is a complete change of remedies, the plea being proper to the amended declaration or last remedy but not to the former.

The demurrer to the third plea should have been overruled. In view of the stipulation of March 20, 1884, appellant was in no way prejudiced by the judgment of the court in sustaining the demurrer to the 4th and 5tli special pleas. The instructions are not properly before this court for review. No objection was made to any of them in the motion for new trial; nor do we feel called upon to enter into a critical examination of the evidence admitted over objection, or excluded. We see no substantial objection to the rulings of the court in that regard.

The suit was properly brought in the name of the people, for the use, etc. Treble damages could only be recovered by so suing under the express terms of the statute.

Appellant is in no condition to complain, at this time, that it is not also sued in this action for the forfeiture mentioned in the statute.

The remaining question involved in this record and the one which goes to the entire merits of the case, is whether or not appellees, by their declaration and proofs, bring themselves within the provisions of sections 84 and 85 of chapter 114 B. S., so as to enable them to recover treble damages.

The first of the above named sections requires every railroad corporation in this State to furnish, start and run cars for the transportation of such passengers and property as shall within a reasonable time previous thereto be ready or be offered for transportation at the several stations on its road, etc.”

The theory of appellees’ case is that the customary mode of transporting coal hy appellant and other companies being for the carrier to furnish cars on switches at the mines on request of the shipper, there to remain until the coal is mined, hoisted and dumped into the cars, the appellant having been from time to time notified by them that they required a certain number of cars daily, and it having failed to furnish them, that it became liable under section 85, supra, for the penalty therein provided.

That it is the duty of common carriers to receive and transport freight according to the custom and usage of the country is true, and for a failure or refusal to do so, they are no doubt, as a general rule, liable to respond in compensatory damages, but such is not the remedy pursued by the appellees in this case. The statute imposing a liability for treble damages is highly penal, and by well understood rules must be strictly construed. The language, “ as shall within a reasonable time previous thereto be ready or be offered for transportation ” can not be extended so as to include coal in the earth, to be dug and raised from the mine after cars are furnished. There is neither allegation or proof that the appellees had coal ready or that they offered coal for shipment. By this statute railroad companies are made liable for treble damages for a failure, or refusal, to furnish cars, receive and carry freight ready for shipment. The attempt here is to make them liable for a like penalty for a failure to furnish cars to be retained by the shipper until the freight is prepared for transportation, thereby making the carrier, under penalty, take the risk of delay or even failure to furnish the freight. The custom or usage in the shipment of certain classes of freight may fix the liability of a carrier for a refusal to transport that kind pf freight in conformity to the custom, but custom and usage can not be held to extend the terms of a penal statute.

The judgment of the court below is reversed.

Reversed.


text:
    Union Railway and Transit Co. v. Louisa J. Shacklett, Adm’x, etc.
    passenger's earner will not prevent Ins recovering from the other whose negligent act contributed to the injury. They may be sued as any other wrongdoer, jointly or severally.
    2. Letters of administration — Error.—Where, under the issues, no proof of letters of administration was necessary, an error committed by the court in admitting such letters would be immaterial.
    3. Negltgenge. — Where deceased was accompanying his stock to its destination and by the direction of the train employes rode on the tender of the engine, an exceedingly dangerous position, especially in the stockyards, where there were numerous tracks used by various roads without any rules or regulations governing the movement of trains, and by a collision of trains in the st ckyards was killed, held, that under the evidence the judgment in favor of deceased’s administrator was proper.
    Error to the City Court of East St. Louis ; the Hon. ¥m. P. Latte tz, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. G. & G. A. Koerner, for plaintiff in error.
    Mr. M. Millard, for defendant in error.
   Wilkin, J.

Elijah Shaeldett, with-his brother Absalom-, in September, 1879, shipped four ear loads of stock from Dresden, Mo., to the Hational stockyards over the Missouri Pacific P. P., the two brothers accompanying the train having stock passes. At the Hnion depot in St. Louis the defendant’s engine took the stock cars for the purpose of transferring them across the river to the stockyards. While at St. Louis, they got on the top of the cars to ride but were ordered by the man who coupled the engine to their train to go to the engine, which they did and were there ordered by a man in the cab who, the brother says he supposed was the engineer, to ride on the tender. The top of the tender was flal, and sloping or wedge shaped. After crossing the river, as the engine with its cars was passing through the stockyards, it met a train of the Wabash, St. Louis and Pacific backing out on the same track, and on a sharp curve the two collided, the rear car of the Wahash running upon the tender on which Elijah Shacklett was riding and killing him almost instantly. The deceased had never been across the river to the stockyards, and had no knowledge of the situation of the railroad tracks, or the manner of running trains on them there.

The defendant had been engaged in transferring stock in this manner since the building of the bridge in the fall of 1874-, and its custom was to carry the persons accompanying stock, either in a caboose or on the engine tender, as deceased was riding when killed.

The engineer who had charge of the engine on this occasion, in his testimony, speaking of the place of the accident says, “It’s á bad, very bad place, and we have always looked out.” On cross-examination he says, “ There was no rule as to using tracks — the tracks belonged to the stockyards company; they were used by all the companies who had business there.” He also says the best p’ace to ride was on the engine.

Another witness testified, “The practice was, if the bridge company’s caboose was not handy they packed the men on the tender and let them come over.

Defendant in error sued the Wabash, St. Louis & Pacific Pailway Company for the same injury, and recovered judgment in the City Court of East St. Louis, and the case having been appealed, first to this and' afterward to the Supreme Court, it was reversed and remanded. On a second trial she again recovered judgment, which remains in full force unsatisfied. That judgment was set up by the plaintiff in error in bar of tins action. The court below sustained a general demurrer to the plea, and while that decision is assigned as one of the errors on the record it is not urged here, and may be disposed of by simply saying that the demurrer was properly sustained.

The objection made to the first instruction given on behalf of defendant in error is answered by the decision in the case of defendant in error against the W., St. L. & P. R. R. Company, 105 Illinois Reports, 364, in whieli it is expressly held that the negligence of the passenger’s carrier will not prevent his recovering from another whose negligent act contributed to the injury; that they may be sued as any other wrong-doers, jointly or severally. The degrees of negligence of the two railroads” has nothing whatever to do with "the case. If, as a matter of fact, the negligence of the plaintiff in error was but slight, as compared with that of the Wabash, the right of defendant in error to recover would not be affected thereby, if it also appeared that her intestate was at the time exercising due care, and was injured by the negligence of plaintiff in error, and on this theory the jury was properly instructed at the instance of both parties. It is insisted that the court erred in admitting the copy of letters of administration for the reason that they were not properly certified under the act of Congress.

While this error was committed by the court below, it can avail nothing for the reason that under the issues no proof of letters of administration was necessary. Ballanee v. Frisby et al., 2 Scam. 63; Collins v. Ayers, 13 Illinois R. 358; Chicago Legal News Co. v. Thomas R. Browns et al., 103 Illinois R. 317.

On the merits of this case we hold that the judgment of the court below was authorized by the evidence. The deceased clearly had the right to accompany his stock to its destination, whether it was absolutely necessary that he should do so or not. This right plaintiff in error recognized, not only in his case, but by their custom in transferring stock generally. He was upon the tender of the engine, not of his own choice or merely by permission, but by the directions of the employes of plaintiff in error who had charge of the train. He was therefore lawfully there, and entitled to the same protection, care and diligence from plaintiff in error as though he had been a passenger in the usual manner.

The peril of his position did not arise from his being on the tender alone. That position was not necessarily dangerous, but liable to become extremely sa in passing over the track through the stockyards, where there were numerous tracks used by various railroad companies, without any rules or regulations governing the movement of trains. These facts were all known to plaintiff in error but not to the deceased. It is said that the stockyards company and the Missouri Pacific Avere blamable for this accident, the one for laying its tracks as they were and the other for not providing a caboose in which to transport the deceased to his destination. Whether this is true or not, the plaintiff in error can not escape the liability of its negligent act, Avhich caused or contributed to the killing.

This case is clearly distinguishable from all those in Avhich a person wrongfully places himself upon a train or voluntarily puts himself in a place unusual for carrying passengers, or of his own choosing takes a place or position of known danger by permission of train men. He was acting in obedience to orders. Had he left the engine after passing through the tunnel and retaken his place on the cars, as counsel say he should have done, and there received an injury, plaintiff in error might Avell have said that he was there wrongfully and contrary to the orders of its employes in charge of the train, and that therefore it was not liable. As it Avas, he was ordered to take his place on the tender, and in that position carried to a place of extreme peril on a track which plaintiff in error knew was liable to be obstructed by other trains, resulting in his death; and we hold that it is liable, and that the allegations of the declaration are sufficient to support the judgment, and it is therefore affirmed.

Affirmed.


author: Pillsbury, P. J.

text:
    John Groff v. Nicholas Ankenbrandt.
    1. Nuisance — Notice.—A grantee of land with an embankment on it which obstructs the flow of water, can not be made liable for permitting it to remain in the condition he found it, although it works injury to another, without a notice to remove or abate it.

      2. Pleading. — An action on the case for maintaining and continuing an embankment obstructing the flow of water. Held, that under the rules of pleading the court must assume from the plea that the defendant is not responsible for the erection of the embankment, and no notice to remove or abate it being averred, the demurrer to the plea was properly sustained.
    Appeal from the Circuit Court of Cook county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed June 12, 1886.
    Action on the case by appellant against the appellee for maintaining and continuing an embankment on the east line of the east southwest J, section 13, which obstructed the flow of the surface water westward from the south £ of southeast J, same section, causing it to run along the east of the embankment and squander itself on the north J, southeast J, belonging to the plaintiff, thereby rendering some twenty acres of his land wet and unfit for cultivation. The court sustained a demurrer to the count, and the plaintiff appealed.
    Messrs. Bell & Green, for appellant.
    Messrs. Foster & Campbell, for appellee;
    cited I. C. R. R. Co. v. Allen, 39 Ill. 206; T. W. & W. R. R. Co. v. Hunter 50 Ill. 325.
   Pillsbury, P. J.

Construing the count most strongly against the plaintiff, as we are to do under the rules of pleading, we must assume that the defendant is not responsible for the erection of the embankment that caused the injury to the plaintiff. He is charged simply with maintaining and continuing it. The mere construction of the embankment upon the land of the defendant was no invasion of the property rights of the plaintiff, and he could have no right of action until the injurious results to his premises determined its character of a private nuisance. In such case the rule appears to be that a grantee of land with such a nuisance upon it can not be made liable for permitting it to remain in the condition he found it, although it works injury to another, without a notice to remove or abate it. This case is somewhat like that of Berwick v. Camden, Cro. Eliz. 620, where the declaration charged that the defendant kept and maintained a bank by which a brook was caused to flow around the plaintiff’s land. The court said: “ There is not here any offense committed by the defendant for he allegeth that he kept and maintained a bank; which is that he kept it as he found it, and it is not any offense done by him, for he did not do anything; and if it were a nuisance before his time, it is not any offense in him to keep it.”

Cases of this kind are to be distinguished from those where the nuisance consists in the use of the erection, and every act of using it is a fresh nuisance, as the operating of manufactories that emit noisome smokes or smells, the using of a pipe that wrongfully takes the water from another, and the like, where every act of user is a new nuisance. There no notice to abate or remove the nuisance, or knowledge of its injurious consequences, is necessary to be alleged or proven in order to sustain the action for continuing it. It was resolved in Penruddock’s Case, 5 Co. 100 b, that an action lies against one who erects a nuisance, without any request to abate it, but not against the feoffee, unless he does not reform the nuisance after request made.

Winsmore v. Greenbank, Willes, 583, is an authority that Peuruddock’s Case was a correct statement of the law, and Hornblower, C. J., in Pearson v. Glean, 2 Green (N. J.), says the law as there settled has never been seriously questioned since. That this is the generally accepted rule in this country, we may refer to Brown v. Cayuga R. R. Co., 12 N. Y. 486; Ray v. Sellers, 1 Duv. (Ky.) 254; Pillsbury v. Moore, 44 Me. 164; West v. Louisville R. R. Co., 8 Bush, 404; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Slight v. Gutzlaff, 35 Wis. 675; Johnson v. Lewis, 13 Conn. 304; Nichols v. Boston, 98 Mass. 39; and Woodman v. Tufts, 9 N. H. 884. Prom these authorities it is clear that the defendant does not render himself liable to an action for simply perm tting the embankment to remain in the condition he found it when he became possessed of the land upon which it was constructed, as it does not appear he was ever notified to remove it and thereby prevent a further continuance of the nuisance to the plaintiff, or had knowledge of its injurious consequences to the plaintiff.' There is no averment that he has ever done any affirmative act toward its maintenance that would of itself constitute a fresh nuisance, or that increased or aggravated the injurious effects of the one already existing when he acquired the land. In the absence of any such showing, notice to abate was necessary to charge him in an action for damages. Had the parties proceeded with the trial upon such count, and a verdict found for the plaintiff, the defect might have been considered as cured by the verdict, as was held in Tomlin v. Fuller, 1 Mod. 27; but the count was demurred to, and containing no averment of -notice or request to abate the nuisance, we are of the opinion no error was committed.by the court in sustaining the demurrer, and it follows that the judgment should be" affirmed.

Judgment affirmed.


text:
    Forest City Insurance Co. v. George R. Leach et al.
    1. Insurance — Change in title. — A change of title in violation of the express terms of a policy of insurance would render it void.
    2. Ratification. — A party can not repudiate the acts of another done in his interest and on his behalf and at the same time retain the fruits of the act.
    Appeal from the Circuit Court of Edwards county; the-Hon. C. C. Boggs, Judge, presiding.
    Opinion filed July 10, 1886.
    On the 19th day of April appellant issued its policy of insurance Ho. 13,545, to Leach Bros., on a dwelling house and furniture therein for $1,000. The loss was made payable to Lewis E. Leach, George E. Leach, Augustus Leach, and Horace Leach, “as their claim should appear.” There was a written application -made for this policy, signed Leach Bros. The property was insured for five years, running from April 14,1880. The loss occurred April 15, 1882. By the terms of the policy the application is made a part of the contract. It also provides that if the property insured be sold, transferred, or any change of title should take place, the policy should be void.
    It is averred in the declaration that there was no transfer of title after making the policy, and that the title and possession remained at all times up to the date of the loss in the plaintiffs. Numerous pleas were filed, the second and third averring settlement and release, the fifth averring a transfer of title by two of plaintiffs to Augustus Leach, another plaintiff, without the consent of the appellant. The general issue was also filed. The application referred to in the policy contained these questions and answers:
    Q. Are you the absolute owner of the property proposed to be insured? A. Yes.
    Q. Is the title to the land on which said buildings are situated in your name ? A. Yes.
    The following stipulation appears in the bill of exceptions: “It is admitted in evidence that Lewis Leach and Horace Leach, two of the parties herein, did on the 14th of August, 1881, after the issuing of said policy and before the destruction of the property by fire, by deed convey all their title and interest in the said land, upon which the property insured was situated, to Augustus D. Leach.” The following receipts were offered and received in evidence on behalf of appellant without objection: §20.00. Bone Gap, III., May 2, 1882.
    Received of the Forest City Insurance Company, of Rockford, Illinois, twenty dollars in full for all demands for loss or damage by fire and lightning to the property insured under policy No. 13,545 and destroyed by fire on the 13th of April, 1882. Leach Bbos., by Augustus D. Leach.
    Be it known that I, Augustus D. Leach, et ah, of the town of Bone Gap and county of Edwards, in the State of Illinois, for and in consideration of the sum of one hundred and eighty dollars to me paid (the receipt of which is here confessed) by the Forest City Insurance Company, of Rockford, Illinois, upon a full settlement and adjustment this day made between me and said company of all and every claim and demand, action and cause of action, which I have or might or could make against said company by reason of or growing out of a certain contract of insurance with said company, known as policy Ro. 13,-*45, bearing date April 14, 1880, and said company is hereby relieved and discharged from said contract, and of all and every liability under the same to me, and the said contract is canceled and at an end. (Signed) Leach Bros., by Augustus Leach.
    Replication to the second and third pleas deny the authority of Augustus Leach to make these receipts or releases, and each of the appellees swear on the trial that he had no such authority. Augustus, however, testifies that he signed the receipts and got the money on them, and he says: “It was by consent of all of ns that we should use the §180 and the §20 in building the new house. It was a week or so after I received the §180 that I told the boys, and it was then that we used the money. We used all the money in the house by consent of all of us.”
    George Leach also swears: “ It was by agreement of all of us that we applied the §180 in building the new house.” Both swear that the money was not used until after Augustus had offered to return it, and appellant had refused to rece've it back and return the receipt. This latter testimony relates only to the §180.
    Mr. J. M. Campbell and Mr. R. P. Hanna, for appellant.
    Mr. H. Tompkins, for appellee.
   Wilkin, J.

This case must be reversed because of the change of title in violation of the terms of the policy, and because the evidence shows a settlement and payment in full of any claim appellees may have had under the policy sued on against appellant. It seems to be conceded that if the express terms of the policy shall control, the change of title admitted to have been made would render it void, and such is unquestionably the settled law of this State by repeated decisions of the Supreme Court. Dix et al., for use, etc., v. Mercantile Ins. Co., 22 Ill. 277; Home Mutual Fire Ins. Co., of Chicago, v. George Hauskin., 60 Ill. 521; the Equitable Ins. Co. v. Paul H. Cooper, Id. 509.

It is insisted, however, that the clause in the policy prohibiting a transfer of title is rendered nugatory by a parol agreement made with the agent of appellant at the time the application was made, to the effect that the property might be conveyed by appellees among themselves. The authorities cited do not sustain the position assumed. Here the contract between the parties is expressed in the policy. It was delivered to the assured or their father for them long before the change of title was made, and they are chargeable of notice of its contents. If they were not satisfied with it because it failed to conform to the contract they had made with the agent, it was their duty to repudiate it and so inform the company. However, the most ready answer to the argument in support of the position is that there is no evidence of any such agreement on the part of the agent. There was some talk about the title at the time the application was made, but nothing from which it can be said that there was an agreement that the property might be conveyed, much less such proof as would under any circumstances be allowed to overcome the express terms of the written contract. The change of title without the consent of appellant rendered the policy void, and no recovery could legally be had thereon.

If it be admitted that there was no authority, either express or implied, in Augustus Leach to bind the other parties insured by the settlements, or even if it be conceded that ■ he was overreached, so that the settlements were not in the first instance binding upon himself, yet the subsequent conduct of the parties in the appropriation and use of the money received by him amounts in law to a ratification of the settlements.

Ho principle of law is better settled or more in consonance with reason and justice than that a party can not repudiate the acts of another done in his interest and on his behalf, and at the same time retain the fruits of that act, or that a contract can not be rescinded and the consideration or any part of it retained.

As to the §20 paid on the 2d of May, 1882, there is no pretense of an offer to return, nor that it was not used by all the plaintiffs with a full knowledge of all the facts and circumstances under which it was received.

It is admitted that the $180 was also used by all of the parties, after being advised by Augustus as to what he had done. The only excuse made for thus retaining the money and refusing to abide by the contract is that Augustus had offered to return the check and that appellant had refused to receive it and return the receipt. It nowhere appears that the other brothers offered to return the money, or that they gave appellant any notice whatever that they repudiated the act of Augustus in making the settlements or that he had no authority to act for them.

Heither is there any evidence to show that Augustus Lcacli at any time informed the company of the ground upon which he claimed the right to rescind the -contract of settlement. Indeed it is difficult to discover from the evidence upon what ground he could have placed it, but certainly it does not appear that appellant was at any time informed that the authority of Augustus was denied, and an offer to return the money received on that ground. Having received and appropriated the benefits of the contract, they must be held to a compliance with its terms, by which they release all right of action on the policy.

Holding as we do that the judgment of the circuit court must be reversed for the reason stated, and that there is no cause of action remaining, the case should not be remanded. It is unnecessary to notice other alleged errors or to further review the record.

Reversed.


author: Pillsbuey, P. J.

text:
    F. Ryhiner et al. v. Adolph Ruegger.
    1. Attachment — Fraudulent assignment. — A creditor sued out an attachment against a firm upon the ground that they were about to fraudulently assign, convey or otherwise dispose of their property, or a part thereof, so as to hinder and delay their creditors, and that they had within the two years last past done so. The attachment was issued and levied upon the firm’s property. Upon the trial of the attachment suit it appeared that four days after the attachment was sued out the firm made an assignment for the benefit of creditors containing provisions reserving benefits to the individual members of the firm and authorizing the assignees to sell upon credit. These provisions were afterward, by consent of the assignees, the creditor above mentioned being one of them, eliminated from the assignment.. Held, that the making of such assignment was a sufficient basis to support the'attachment suit.
    2. Same — Estoppel.—-The attaching creditor was named in the assignment as one of the assignees, and his acceptance of the trust and consent to the alteration of the deed of assignment by which the two objectionable features above mentioned were eliminated, operated to dissolve his attachment and leave him to take his chances with the other creditors.
    Error to the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed July 10, 1886.
    The 2)1 aintiff in error, being indebted to defendants in error, sued out an attachment upon the ground that they were about to fraudulently assign, convey, or otherwise dispose of their property, or a part thereof, so as to hinder and delay their creditors, and further that they had within the two years last past done so.
    The attachment was issued and levied upon property of the firm. The defendants appeared and filed their plea traversing the affidavit, upon which issue was joined and submitted-to the court for trial. It appeared upon the trial that about four days after the attachment was sued out these defendants made an assignment for the benefit of creditors containing provisions reserving benefits to the individual members of the firm, and authorizing the assignees to sell upon credit. These provisions were afterward, by consent of the assignees, the appellee being one of them, eliminated from the assignment, in so far as any preference was therein given to any member of the firm in the payment of his claim, and also as to the sell ■ ing upon credit. The attachment was sustained by the circuit court, a judgment entered for the plaintiff, and the defendants appealed.
    Messrs. Krome & Hadley and Mr. W. C. Kueffner, for plaintiffs in error;
    as to what kind of fraud is contemplated by the 8th clause of the Attachment Act, cited Shove v. Farwell, 9 Bradwell, 256; Spencer v. Deagle, 34 Mo. 455; Warner v. Everett, 7 B. Monroe, 262; Laflin v. Cent. Pub. H., 52 Ill. 432; Schwabacker v. Rush, 81 Ill. 310; Ewing v. Runk'e, 20 Ill. 461.
    By filing his claim, appellee assented to the assignment and is estopped : Jones v. Tilton, 1 North Eastern Reporter, 741; Burrill on Assignments, § 503; Adlum v. Yard, 1 Rawle, 163; Burrow v. Alter, 7 Mo. 424; Lanahan v. Latrobe, 7 Md. 268; Scott v. Ede, 3 Minn. 377; Gutswiller v. Lackman, 23 Mo. 168.
    The deed of assignment is not fraudulent in law so as to hinder or delay creditors: Schwabacker v. Rush, 81 Ill. 311; Wait on Fraudulent Conveyances, § 13, p. 23; Williams v. Davis, 69 Pa. 28; Rice v. Perry, 61 Me. 150; Blum v. Abel, 27 Pa. 390; Bump on Fraudulent Conveyances, 66.
    A mere intention to make an assignment for the benefit of creditors is no ground for attachment: Sweet v. Reed, 13 R. I. 119; Campbell v. Warner, 22 Kan. 608; Wilson v. Britton, 6 Abb. Pr. 47; Fitzpatrick v. Flanagan, 106 U. S. 650; Harris v. Capell, 28 Kan. 117.
    Mr. John G. Irwin, for defendant in error;
    that the evi-1 dence estab'ishes actual intentional fraud, cited Howell v. Edgar, 3 Scam. 418; Finlay v. Dickerson, 29 Ill. 9; Keith v. Fink, 47 Ill. 272; McCrosky v. Leach, 63 Ill. 63; Emmerson v. Bemis, 69 Ill. 537; Power v. Allston, 93 Ill. 587; Phelps v. Curts, 80 Ill. 113; Moore v. Wood, 100 Ill. 455; Bump on Fraudulent Conveyances, 364; Burrill on Assignments, 338.
    The debt not being extinguished by accepting the benefits of the assignment all appropriate remedies for its enforcement belong to it as incidents: Vansant v. Allmen, 23 Ill. 30; Erickson v. Rafferty, 179 Ill. 209; Edgington v. Hefner, 81 Ill. 341; Palmer v. Harris, 100 Ill. 277; Greathouse v. Smith, 3 Scam. 541; Young v. Cooper, 59 Ill. 121.
    The assignment was fraudulent: Bowen v. Parkhurst, 24 Ill. 257; Pierce v. Brewster, 32 Ill. 268; Whipple v. Post, 33 Ill. 334; Nat. Bk. v. Bank of Com., 94 Ill. 280; Sumner v. Hicks, 2 Black (U. S.) 532; Keith v. Fink, 47 Ill. 272; Hardin v. Osborne, 60 Ill. 93; Burrill on Assignments, §§ 198-200.
   Pillsbuey, P. J.

The first question presented is whether the court was justified in finding that the execution of the assignment offered in evidence supported the averments of the affidavit that the defendants were about to fraudulently assign or otherwise dispose of their property so as to hinder and delay their creditors. It is substantially admitted that the assignment as originally made was fraudulent upon its face, as it contained provisions preferring members of the firm in payment of their claims against the assignors, and conferred upon the assignees the power to sell upon credit; but it is argued that as the evidence tends to show that the assignors had no intention in fact to commit a wrong upon their creditors, and that as our statute relating to assignments for the benefit of creditors makes all such provisions void, the assignment is therefore valid in law and must stand as against attaching or other creditors.

What effect should be given to the assignment as against creditors levying their attachments after the county court acquired jurisdiction over it, and the property conveyed by it, we shall not stop to inquire, as the question is not made by this record, the writ herein having been, issued and levied prior to the execution of the assignment. The jurisdiction of the circuit court then attached prior to any act of the defendants, and they coidd not thereafter, without the consent of the appellee, deprive him of any rights he may have by and under his levy to have such court inquire into, determine and enforce any such rights. Neither are we called upon in this proceeding to determine whether the assignment should be set aside as to creditors generally, the simple inquiry being upon this branch of the case whether the appellants at the time of suing out the writ were amenable to the provisions of the act relating to attachments. The fraudulent convey anee, assignment, or other disposition of property referred to in the Attachment Act and which is sufficient ground for a creditor to seize his debtor’s property upon mesne process and hold it to answer any final judgment in the cause, evidently refers to those prohibited by the fourth section of our Statute of Frauds and Perjuries, as being made with the intent to hinder and delay creditors. The uniform construction of this section of the last mentioned statute has been that before such sale or conveyance can be set aside at the suit of a creditor, it must appear that both parties to it were actuated by like intent to defraud, delay, or hinder the creditors of the vendor.

The Attachment Act, however, does not require the plaintiff to establish the fraudulent intent of the vendee. It deals with the debtor alone. If his fraudulent intent appears the attachment is sustained. This intent must appear in some way as a fact in the case. In other words, the hinderance or delay of creditors must be shown t) form the whole or a part of the debtor’s intent in doing the act complained of. The intention of the debitor is the material inquiry in the case. Fraud is said to be a question of fact in some cases and in others a question of law. This distinction rests upon the means employed to establish the fact rather than in the character of the intent charged to be fraudulent or the consequences flowing from it. Where the transaction is fair upon its face, and the evidence of its fraudulent inception consists of the facts and circumstances surrounding it, the law will not infer fraud, hut the case must be sent to a jury to determine the intent which actuated the party in entering into it, and the intent to hinder or delay creditors being found, the law declares the transaction fraudulent and void as to them.

As, however, every man is presumed to understand the legal import of any instrument executed by him, and to intend the necessary consequences of his own acts, when he makes a conveyance or assignment which upon its face shows that the necessary consequence of carrying into effect its provisions, will be the hinderance and delay of creditors in the collection of their just demands, the law stamps it as fraudulent and imputes to the maker the design to effect the results provided for, and no evidence of a contrary intention can change this presumption.

Here actual fraudulent intent is as clearly manifest and conclusively established as though found by the verdict of a jury.

In the case at bar the assignment confessedly contained provisions which, if executed, would necessarily have the effect to hinder and delay creditors, and the presumption conclusively arises that the defendants, when they executed it, intended it to have that effect, and from the other evidence in the case the court below was justified in finding that when the writ herein was issued they had in contemplation the execution of it. That the-making of such an assignment is a sufficient basis to support an attachment see Keith v. Fink, 47 Ill. 272. We would not be understood as saying that every transaction between parties which the law condemns as a fraud upon creditors would be sufficient to support an attachment. Cases might be supposed where the parties are actuated by the purest motives, yet through mere inadvertence or by mistake some of the formalities of the law have not been complied with and creditors can therefore a-void the transaction, but in such cases there would be lacking the element of a fraudulent inlent in entering into it necessary to maintain an attachment. We can not assent to the view advanced by counsel that our statute relating to assignments for the benefit of creditors so far purges the assignment in question of its fraudulent character as to make the intent of the defendants therein clearly manifested to hinder and delay their creditors, of no avail to the plaintiff below upon the issue being tried.

The thirteenth section of the statute relied upon only goes to the extent of making every provision in an assignment void that provides for the payment of one debt or liability in preference - to another, and making all debts and liabilities within the provisions of the assignment payable pro rata out of the assets.

This provision of the statute preventing preferences and equalizing the payment of all debts and liabilities within the provisions of the assignment, was not intended to legalize the reservation of benefits to the assignor, or the payment of any debts to the individual members of an assigning firm before other creditors are paid in full.

The appellee was named in the assignment as one of the assignees and accepted the trust and entered upon the discharge of his duties. Soon afterward it was thought advisable to eliminate from the assignment the illegal provisions therein contained and an effort so to do was made, the assignors executing a supplemental instrument attempting to withdraw them from the original assignment and requiring its provisions to be executed under the -statute and requesting the assignees to execute the trust thereunder.

The assignees, the plaintiff with them, signed a written consent that such change should be made and agreed to execute the trust thus modified by said supplementary instrument.

It will be borne in mind that a deed which is fraudulent under the statute is not absolutely void but only voidable at the suit of those injured, and is therefore capable of being affirmed by those affected by it. And such deed is binding upon those who assent to it.

A creditor who is appointed an assignee and accepts the trust most clearly assents to its provisions and undertakes to carry them out in good faith so far as they can be executed under the law.

His duties are to take possession of the property assigned, convert it into money and to distribute the proceeds among the creditors entitled. So long as this trust remains unexecuted he has no right to appropriate the property assigned to any other purpose than for the benefit of creditors. He can not accept a position where the utmost good faith is required of him to carry into effect an assignment for the benefit of creditors generally, and then be permitted to set up the fraudulent character of the deed under which he is acting in order that his own claim against the assignor shall be paid in full to the injury of his cestuis que trust.

The law will not allow him to take such' inconsistent positions. He can not be permitted to uphold the assignment with one hand and to tear it down with the other. The other property attached was conveyed to him as one of the assignees by the deed of assignment, and he assented to so receive it, and undertook to distribute its proceeds among the creditors of the assignor; not only this, but afterward, in writing, consented that the provisions which he now claims rendered the deed fraudulent, should be eliminated, and again agreeing to execute the trust as thus modified. Such conduct most clearly estops him from relying upon the fraudulent character of the assignment to support his attachment.

If fraudulent as to other creditors who have not assented to its provisions, it is certainly valid as to him. In our opinion his acceptance of the trust and consent to the alteration of the deed of assignment operated to dissolve his attachment and leave him to take his chances with the other creditors. For this reason we conclude that the court below should not have sustained the attachment proceedings, and the judgment will therefore be reversed and the cause remanded.

Judgment reversed.


author: Wall, P. J.

text:
    Third District — November Term, 1885.
    De Roode Rogers et al. v. Suttle & Scroggin.
    Partnership — Declarations.—Appellants sued appellees as partners for certain goods furnished by the former to the latter as alleged. The question at issue was as to the alleged partnership, which was denied under oath by appellees after evidence had been introduced tending to establish such partnership. Appellants offered to prove the declarations of appellees, but the court would admit only such as were made when both were present. Held, that this was error. The admission of a party to the record is always received in evidence against him, and the mere fact that there is another sued jointly with him and that the admission may in terms affect both parties is no reason for rejecting the evidence as against him.
    Appeal from the Circuit Court of Logan county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed January 6, 1886.
    Messrs. Wallace & Cadwalladeb, for appellants;
    that when the plaintiff has made a prima facie case of partnership he has the right to introduce anything said or done by either partner in reference to the partnership business, cited Rosco on Ev., 1 Am. from 2d Lon. Ed., 31; Nicholas v. Dowding 1 Stark. 81; Hahn v. St. Clair Ins. Co., 50 Ill. 456; Smith v. Hill, 12 Am. R. 189; Story on Partnership, 106, 44, 64, 65; Smith v. Hulett, 65 Ill. 495.
    Messrs. Beach & Hodnett, for appellees ;
    that where the existence of a partnership is the question to be tried the admissions of one of the alleged partners are not admissible to establish the partnership, cited Hahn v. St. Clair S. Ins. Co., 50 Ill. 456; Gardner v. N. W. Mfg. Co., 52 Ill. 367.
   Wall, P. J.

The appellants, who are manufacturers of cigars in Cincinnati, sued the appellees as partners conducting a restaurant at Lincoln, Ill., for the amount of certain bills of goods furnished by the former to the latter as alleged.

It was not disputed that the goods were furnished, but the question is whether the appellees are liable therefor. The alleged partnership was denied under oath and the burden of proving it devolved upon appellants.

There was evidence tending to prove that appellees had, prior to the transactions in question, purchased a second-hand outfit for a restaurant, consisting of furniture, table ware, and other necessary articles, and had started in business at Mt. Pulaski, placing one Butler in control and giving him the sole management of the concern. This was in the name of appellees, with their consent and under such circumstances as to estop them to deny that they were then partners. After a time, the result not being satisfactory, Butler was permitted to remove the “ outfit ” to Lincoln, a larger town, where the same business was conducted and where the goods sued for were furnished on the order of Butler. Upon the trial of the case the chief inquiry was as to the relations of the parties to the business at Lincoln, and whether Butler was acting on his own account or as the agent of the appellees.

Butler testified that the arrangement at Mt. Pulaski was continued at Lincoln, and that he was the agent of the appellees ; that the business was all done in their name and with their knowledge and consent; and if his testimony is to be credited they are liable. Scroggin testified to the contrary, and there was evidence tending to corroborate him, and also to show that the appellants had notice before the present account was made that appellees were in no wise connected with the business. The issue was sharply contested and was by the jury found in favor of appellees. Appellants assign error upon the action of the court in admitting and excluding evidence, and in reference to the giving of instructions.

Appellants offered to prove the declarations of appellees ¡ but the court would admit only such as were made when both were present. It is urged here, and the court so ruled, that it was not competent to show such declarations by one of the appellees in the absence of the other, and accordingly the court excluded a letter written by Suttle to Butler inclosing a license to retail cigars issued by the IT. S. Internal Revenue Collector in the name of Suttle & Scroggin. The license was also excluded. Several rulings of this character were made, the propriety of which must now be considered.

The issue of fact was whether appellees were liable as partners to the appellants. It is conceded that it is not necessary to show that as between themselves they were in law, partners^ but it is sufficient, if they have suffered themselves to be so held out to the world, and that appellants acting in good faith and with reasonable care in that respect were induced to part with their property upon that supposition. Story on Partnership, Sec. 64.

The appellants are bound affirmatively to prove this relation and consequent liability of appellees. How then may7 the necessary proof be made? It is a general rule that the declarations of a party to the record are as against such party7 admissible in evidence. 1 Gr. Ev. Sec. 171; and the rule applies to all cases where the party has any interest in the suit whether others are joint parties with him on the same side or not (lb. 172); yet where there are several parties on the sanie side the admissions of one are not admitted to affect the others who are joined with him, unless there is some joint interest or privity in design between them. Ib. 174. The same author says (Vol. 2, Sec. 484): “ A partnership may be proved against the parties by their respective declarations and admissions whether verbal or in letter or other writings,” and further on in the same section, after stating several illustrations of the rule, he adds, “ In other cases the act, declaration or admission of one person is no i admissible in evidence to establish the fact that others are his partners, “ though it is ordinarily sufficient to prove it as against himself.” See also "Wait on Actions and Defences, Vol. 5, p. 113, where it is said, “ Admissions of the parties sought to be charged as partners as well as their acts are competent evidence to show a holding out to the world or to the parties dealing with them that they are partners.”

Counsel for appellees refer us to Hahn v. St. Clair, etc., 50 Ill. 456, and Gardner v. N. W. Mfg. Co., 52 Ill. 367, as sustaining their position. In each of those cases it was sought to introduce the declaration of one defendant, not as against him, but for the sole and avowed purpose of binding his co-defendant upon the issue of partnership, and it was held that such declarations were not so competent. Ho case has been cited where such a declaration was held incompetent against the party making it. In Bishop v. Georgeson, 60 Ill. 484, the Supreme Court recognize such evidence as competent to charge the person who made the declaration.

The admission of a party to the record has always been received in evidence against him and the mere fact that there is another sued jointly .wdth him and that the admission may •in terms affect both parties is no reason for rejecting the evidence as against him. If, in the present case, the appellants had been told by Butler, when about to deal with him, that he was the agent of appellees, who were partners, and the appellants, seeking to verify the statement, had inquired of first Suttle and then Scroggin separately, not finding them together^ would it be doubtful that the answers given are competent?

The declaration of A that he was liable with B as a partner would not be sufficient of itself to show the joint liability of the two, but such a declaration coupled with a similar declaration by B, or other competent proof to that effect as to the latter, would certainly suffice.

We are of opinion the court erred in excluding the letter and the license, and other like evidence. Such testimony tended to prove the issue and was therefore competent as against the party to whom it referred. Of course joint liability must be made out, and no recovery could be had unless there was sufficient proof against each defendant to bind him as well as his co-defendant; and if, when the case closed, it was in such a condition as to render it appropriate to do so, the court should have advised the jury on this point by an instruction. The court modified several of the instructions asked and given for appellants so as to make it essential to a recovery that appellees were indeed partners. As it was only necessary to show that they so held themselves out or permitted it to be done, such modification was erroneous and must have misled the jury.

For the same reason the fourth instruction given for appellees while in a certain sense correct, as an abstract proposition, would, when considered in connection with the facts .in evidence, have a misleading effect and should have been refused.

The fifth given for appellees was clearly bad in the same respect. The judgment of the circuit court will he reversed and the cause remanded,

¡Reversed and remanded,.


author: Conger, J.

text:
    James C. Conkling v. City of Springfield.
    Action to recover illegal taxes — Demand.—Where apportion of a tax was illegal, and no demand having been made for such tax although a pre. vious demand was absolutely essential to enable the collector to legally seize property, appellant paid the tax, protesting, however, that a portion of the tax was illegal. Held that there was notin this case such an immediate and urgent necessity for the payment of the portion of taxes claimed to be illegal as to imply that it was made upon compulsion.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. A. Creighton, Judge, presiding.
    Opinion filed January 6, 1886.

      Mr. Clinton L. Conkling, for appellant;
    as to payment under compulsion, cited Jenks v. Lima Township, 17 Ind. 328; Atwell v. Zeluff, 26 Mich. 118; Erskine v. VanArsdale, 15 Wall. 76; Bk. of Commonwealth v. Mayor, 43 N. Y. 189; Harvey v. Town of Olney, 42 Ill. 339; Un. Nat. Bk. v. Mayor, 51 N. Y. 638; Preston v. City of Boston, 12 Pick. 14; Boston v. City of Boston, 4 Metc. 190; Borough of Allentown v. Saeger, 20. Penn. 421.
    Mr. Joseph M. Grout and Messrs. Greene, Burnett & Humphrey, for appellee ;
    that unless paid under compulsion or its legal equivalent a payment is voluntary, cited Stover v. Mitchell, 45 Ill. 213; Swanston v. Ijams, 63 Ill. 165; Chicago v. Fidelity Bk., 11 Bradwell, 165; R. R. Co. v. Comm’rs, 98 U. S. 541.
    A requirement by statute of demand or personal notification is imperative, and distress without it would be illegal: Cooley on Taxation, 304 ; Desty on Taxation, 692.
   Conger, J.

This was an action of assumpsit brought by appellant to recover back certain taxes claimed to be illegal, which were paid to the city under protest. These taxes were in part u on appellant’s personal property, and in part upon his real estate. To succeed in recovering, it devolved upon appellant to show: 1. That the taxes so paid were illegal and void. 2. That they were paid under compulsion or its legal equivalent, or in other words they must not have been paid voluntarily. 3. The city must have received the money. There does not seem to be much question upon the first and third proposition, but the principal controversy arises upon the second. Some of the taxes were paid to the township collector, and others to the county treasurer after the collection books had been returned to him. The manner of payment and character of protest made appears from the evidence of appellant’s'agent, Clinton L. Conkling, who attended to the payment of taxes for appellant. He says: “I went into the tax office and saw that the receipts were made out and paid over the money for plaintiff (appellant). There were objections made to some of these taxes by the general public. It was generally understood the books contained illegal taxes for those years. My attention was called to it in this way, and we were objecting to the payment of the full amount as levied. As payments were made, I verbally protested for plaintiff (appellant) against the amount of taxes, because, of a portion of the city taxes being illegal. I paid them for plaintiff (appellant) under protest.” It is not shown that any demand had been made by the collector as required by the statute or otherwise, or that any effort was being made by the collector at the time to enforce the collection. Appellant insists, however, that because the collector’s warrant directed^ in case of neglect or refusal to pay the taxes appearing upon his book, a levy by distress and sale of personal property, a previous demand should be presumed, and that there was such immediate and urgent necessity resting upon appellant that his payment, made under these circumstances, was under compulsion, or its legal equivalent. In the case of Union P. R. R. Co. v. Dodge Co. Com., 8 Otto, 541, which was a suit to recover back the taxes paid under protest upon the grounds of illegality, the warrants in the hands of the treasurer authorized him, if default should be made in the payment of the taxes charged upon the list, to seize and sell the personal property of any person making default. No demand was required by the law, and none was made. The company had personal property in the county subject to seizure, but no attempt had been made to seize it, and no other notice had been given than such as the law would imply, that payment would be enforced in that way. At the time the payment was made the company filed with the treasurer a notice in writing that it protested against the taxes paid for the reason that they were illegally and wrongfully assessed and levied, and wholly unauthorized by law1, and that suit would be instituted to recover the money back. Upon these facts Chief Justice Wait says, “ The real question in this case is whether there was such an immediate and urgent necessity for the payment of the taxes in controversy as to imply that it was made upon compulsion. ■ The treasurer had a warrant in his hands which would have authorized him to seize the goods of the company to enforce the collection. This warrant was in the nature of an execution running against the property of the parties charged with taxes upon the lists it accompanied, and no opportunity had been afforded the parties of obtaining a judicial decision of the question of their liability. As to this class of cases Chief Justice Shaw states the rule in Preston v. Boston, 12 Pick. 14, as follows: “ When, therefore, a party not liable to taxation is called upon peremptorily to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable, recover it back as money had and received.” This,” the chief justice continues, “ we think is the true rule, but it falls far short of what is required in this case. Ho attempt had been made by the treasurer to serve his warrant. He had not even personally demanded the taxes from the company, and certainly nothing had been done from which his intent could be inferred to use the legal process he held to enforce the collection, if the alleged illegality of the claim was made known to him. All that appears is, that the company was charged upon the tax lists with taxes upon its real and personal property in the county. After all the taxes had become delinquent under the law, hut before any active steps whatever had been taken to enforce their collection, the company presented itself at the treasurer’s office, and in the usual course of business paid in full everything that Avas charged against it, accompanying the payment, however, Avith a general protest against the legality of the charges and a notice that suit would be commenced to recover back the full amount that was paid. Ho specification of alleged illegality was made and no particular property designated-as wrongfully included in the assessment of the taxes. The protest was in the most general terms and evidently intended to coAr'er every defect that might thereafter be discovered either in the power to tax or the manner of executing the power. Hnder such circumstances we can not hold that the payment was compulsory in such a sense as to give a right to the present action.” By sections 155 and 156 of the ¡Revenue Act of 1872, a demand upon the taxpayer is made indispensable and a distress made or attempted without it, would be illegal.

It was the duty of appellant to pay such taxes as were legal, and had he offered to do that, at the same time clearly designating by his protest such portion as he regarded illegal, how can it necessarily be inferred that the collector would have proceeded to the extremity of making a levy ? Is it not more reasonable to suppose under such circumstances, that he would have investigated the question, or had it done by the proper city officers, and if it appeared that the protest was well founded, would have refrained from making a levy ? What the collector might or might not have done under any supposed case, is purely speculative, and we only allude to it because we are asked by appellant to hold that under the circumstances-of the present case he wras within the spirit and reason of the rule in Preston v. City of Boston, supra, which is approved by the Supreme Court of this State, in Bradford v. The City of Chicago, 25 Ill. 411: When, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant, and he can save himself and property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable, recover it back as money had and received.”

We can not so hold, first, because in the Bradford case the entire tax was void, leaving upon the taxpayer no duty but to protest, while here, a portion of the tax being conceded legal, it was appellant’s duty to pay such portion, and point out specifically the part protested against; and second, because in that case no demand was required, but an immediate levy might well be apprehended, while in the present case a previous demand is absolutely essential to enable the collector to legally seize property. We are therefore of opinion there was not in this case such an immediate and urgent necessity for the payment of the portion of taxes claimed to be illegal, as to imply that it was made upon compulsión. If we are correct in the above views it is not necessary to notice the question of the liability of personal property for taxes upon rea?l estate.

It is urged, however, that the certificates issued by the comptroller by virtue of the authority of the ordinances of the city should be regarded as creating a liability against the city which could be enforced in the present suit; but we think otherwise.

If the payment by appellant was not made under compulsion or its legal equivalent it follows that it was voluntary, and the property in the money passed thereby to the city, and even if these certificates could he regarded as authorized promises on the part of the city to refund the money, they would be without consideration to support them, and consequently could not he enforced.

Finding no error in the record the judgment of the circuit court will be affirmed.

Affirmed.


author: Congee, J.

text:
    Haines & Whitney Co. v. Jacob S. McFerren.
    Banking. — A bank where a draft is made payable has no right to pay it, or apply the money deposited there by the acceptor of such draft, except by the special direction of such acceptor, either verbally, or by check or draft, or some other writing.
    Error to the Circuit Court of Vermilion county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed January 6, 1886.
    Messrs. Davis & Mann, for plaintiff in error;
    as to liability for breach of duty on part of hank in making a collection, cited Morse on Banks and Banking, 341; Tyson v. State Bk. of Ind., 6 Blackford, 225; Fabens v. Mercantile Bk., 23 Pick. 332.

      Hr. C. H. Swallow, for defendants in error;
    cited Wood v. Merchants’ Saving Loan and Trust Co., 41 Ill. 267.
   Congee, J.

This was an action of assumpsit. The declaration alleges that on the 29th day of April, 1884, plaintiffs in error drew a draft upon Wm. H. Bandy, as follows :

“ 8210. Chicago, April 29, 1S84.
“At sight pay to the order of Haines & Whitney Company, two hundred and ten dollars, at Second National Bank, with ' exchange.
“Value received and charge to account of Haines & Whitney Co.
“ S. H. Hiliken, Treas.
“To Wm. H. Bandy, Danville, Ill.”
Hpon which draft were the following acceptance and indorsements.
“ Accepted April 29th, ’84. Payable at Second National Bank. W. H. Bandy.
“For deposit in the First National Bank, Chicago, to the Credit of Haines & Whitney Co.
“ Per S. H. Hiliken, Treas.
“Pay to the order of State Bank, Danville, Ill., for collection account of First Nat. Bank, Chicago, April 29th, 1884.
“ H. E. Sxmonds, Cashier.”

That on the same day the last named bank transmitted the draft for collection to the State Bank of Danville (the defendant in error); that said Bandy had money on deposit to his credit in said Second National Bank of Danville, where the draft was made payable, “sufficient to pay the said draft with exchange thereon, which mi-ney was, during said time, subject to the payment of said draft upon the presentation of the same to the said Second National Bank.”

The declaration avers that it was the duty of defendant to have presented said draft “ to or at ” the Second National Bank and demanded of said bank payment, which they neglected to do, and that Bandy afterward withdrew his deposit from said Second National Bank, became insolvent and died, and that his estate was insolvent, by reason whdreof said draft was never paid and plaintiff lost the same. To this declaration a general demurrer was interposed and sustained by the court, and plaintiff electing to stand by the declaration, judgment for costs was entered against plaintiff in error.

We think the demurrer was well sustained. The draft was not drawn on the Second National Bank but on Bandy. Had it been presented to the bank it could not have paid the draft without some further authority from Bandy. " A bank when a draft is made payable would have no right to pay it or ap ply the money deposited there by the acceptor of such draf, except by the special direction of such acceptor either ve- - bally or by check or draft or some other writing. Wood & Co. v. Merchants’ Saving Co., 41 Ill. 267.

The declaration is fatally defective in alleging it to have been the duty of defendants in error to demand payment of the Second Hational Bank; such bank could have had nothing to do with the payment of the draft as above stated except by the direction of Bandy. Had the declaration alleged that Bandy had given such direction in any way known to the law, a different question would be presented. Finding no error in the record the judgment of the circuit court will be affirmed.

Affirmed.


text:
    The Town of Oran, etc., v. The People ex rel. etc.
    1. Statute of Limitation's — Municipal corporation. — The sovereign is not within the Statute of Limitations, and this exemption has been held to include public rights of, and property held in trust for public use by municipal corporations, but it does not include contracts or mere private rights, and as to these latter, the statute may be interposed against municipal corporations as well as against private persons.
    2. Same — Transfer of property by town — Apportionment of indebtedness. — A town, A, became indebted on a railroad subscription, and issued its bonds therefor. After this liability had been incurred, but before all the bonds were issued, a portion of the territory of the town was transferred to an adjacent town, B, pursuant to the statute. But the supervisors and assessors of the respective towns did not meet and apportion the indebtedness as provided by the statute. More than ten years after the issuance of j the last of said bonds, the supervisor of the town of A served notice upon , the supervisor and assessor of the town of B for a meeting to apportion the indebtedness, to which no attention was paid by the officials of B. The officials of A bring mandamus to compel the holding of such meeting. The defense of the Statute of Limitations of five years is made. Held, that the present controversy affects, not a public right, nor property held for a public use upon a trust, but a mere private right; and it was therefore error to overrule the defense of the Statute of Limitations; that the cause of action accrued before the bonds became due.
    Appeal from the Circuit Court of Logan county; the Hon. G. W. Hekdman, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. Oscar Allen, for appellants;
    as to pleading Statute of Limitations against municipal corporations, cited County of Pratt v. Goodell, 97 Ill. 84; City of Alton v. Ill. Trans. Co., 12 Ill. 38.
    Messrs. Burn & Hoblit, for appellee;
    that the Statute of Limitations can not he pleaded to defeat a trust fund or where it is in the nature of a trust, or to any public right of a municipal corporation, cited R. S. Ch., 139, §§ 32, 33, 35 ; 2 Dillon on Municipal Corporations, §§ 668, 673; Logan Co. v. City of Lincoln, 81 Ill. 157.
   Wall, P. J.

The town of Atlanta became indebted on a railroad subscription in the sum of fifty thousand dollars and issued its bonds therefor.

After this liability had been incurred, but before all the bonds were issued, a portion of the territory of the town was, by an order of the hoard of supervisors, pursuant to the statute in such case provided, transferred to the town of Oran. When such a transfer occurs it is the duty of the supervisors and assessors of the respective towns to meet and adjust the affairs of the towns by dividing the assets and apportioning the debts of the town so subdivided, according to the amount of taxable property therein as shown by the last assessment, and thereafter each town is to be charged -.with its share of such debts fixed by such apportionment. The law directs this meeting to be held as soon as may be after the first town meeting subsequent to the transfer, and it may be called by either supervisor- upon ten days notice.

When the town officers are unable to agree in relation to such division or apportionment the dispute is to be submitted to the county board, whose decision is conclusive. R. S., Ch. 139, §§ 30 to 36.

More than ten years after the issuance of the last of said bonds the supervisor of Atlanta served notice upon the supervisor and assessor of Oran for such a meeting, to apportion said indebtedness, to which no attention was paid by the Oran officials, and thereupon the town of Atlanta instituted proceedings by mandamus in the circuit court to compel the holding of such meeting and the making of such apportionment. These proceedings resulted in a final order according to the prayer of the petition, from which an appeal was granted to this court. Various errors are assigned upon the record, but, in the view we have taken, only one need be considered, and that relates to the defense of the Statute of Limitations, five years, which was interposed by plea in the usual form.-

To this plea a demurrer was sustained, and it becomes necessary to determine the point thus presented. It is not disputed that mandamus is a civil action within the meaning of' the Statute of Limitations (Peoria County v. Gordon, 82 Ill. 435); nor can there be any serious question that more than five years had elapsed from the time the cause of action arose before the petition was filed. It is suggested by counsel that the cause of action did not accrue until the bonds were due. The point is settled otherwise. Hensley Township v. The People, etc., 84 Ill. 544. It is forcibly urged, however, that the matter here involved is in the nature of a trust, and is therefore not to be affected by this defense. To exempt a trust from the bar of the statute it must be, first, a direct trust; second, it must be of the kind belonging exclusively to a court of equity; and third, the question must arise between trustee and cestui que trmt. Angell on Limitations, See. 166; Hayward v. Gunn, 82 Ill. 385; School Directors v. School Directors, 16 Bradwell, 651.

We do not see how this can be termed a trust. It is rather a duty or liability imposed by statute. If a trust, it is not what is known as a direct or express trust, but is implied merely and arises by operation of law; nor can it be classed with those trusts which belong exclusively to a court of equity. A court of law will grant all needed relief, and it is in a court of law that the present case is pending.

It is clear, therefore, the bar of the statute can not be avoided on this ground. Another and more plausible reason assigned is that the statute can not be pleaded to defeat a public right of a municipal corporation.

The sovereign is not within the statute and this exemption has been held to include public rights of and property held in trust for public use by municipal corporations. The City of Alton v. Ill. T. Co., 12 Ill. 38; Logan County v. The City of Lincoln, 81 Ill. 157; but it does not include contracts or mere private rights: Ramsay v. Clinton Co., 92 Ill. 225; Piatt Co. v. Goodell, 97 Ill. 81; and as to these latter the statute may be interposed against municipal corporations as well as against private persons. The whole subject has been so fully discussed by the Supreme Court that it is only necessary to refer to the cases cited above, and no effort will be made to res'ate or repeat the reasons and considerations involved.

In our judgment the present controversy affects not a public right nor property held for a public use upon a trust, but manifestly and clearly a mere private right.

Whether the whole of this debt shall be borne by Atlanta or whether Oran shall bear a part of it by reason of having acquired a part of Atlanta’s territory, is a question in which the public have no interest. Ho public r'ght will suffer in any event. Private interests only are at stake. We are therefore of opinion it was error to overrule tlu defense of the Statute of Limitations. The judgment will be reversed and the cause remanded.

Eeversed and remanded.


text:
    William P. Boyd v. N. M. Broadwell et al.
    Construction or "will. — Where it was not the land or personalty of which the testator might die seized but the proceeds that were devised, and the conversion of the estate into money by the executors must necessarily take place after the death of the testator, and the language of the will was, “ In the event of the death of any one named above, then the portion or share of the deceased to be paid to his-or her offspring,” held, that the vesting of the legacies was intended to taire place at such time as the executors should be ready to pay over the proceeds, and one of the parties named having died before such time, it was the duty of the executors to pay his portion to his children and not to his administrator.
    Appeal from the Oireuit Court of Sangamon county ; the Hon. J. ,T. Phillips, Judge,-presiding.
    Opinion filed January 6, 1886.
    Elijah lies died on the fourth day of September, 1883, testate. He left the following will:

      “I, Elijah Bes, of the city of Springfield, county of Sangamon and State of Illinois, a citizen of the United States, born in the State of Kentucky, March 28, 1796, make this my last will and testament, revoking all others.
    First, in consideration of the love and affection I bear to my blood relations, I devise and bequeath to each one named below a part or portion of all the proceeds of all the real and personal estate of which I may die possessed (after paying all my debts which may be few or probably none) which portion or share is to be paid to each one named below, to wit: To the following named children of my sister, Polly Boyd, viz.: Cyrus, William, Elijah and Spencer, each one share, or if any die or have died, then to the widow of said deceased, and to her grandchildren, Helen ¡Reynolds and Mary Bigstaff, each a half share. To the following named children of my brother, William lies, viz.: Minerva, Thomas, Clarissa, Jane, Mary and William, each one share. To the following named children of my brother, Washington Iles, viz.: Elizabeth, Gor delia, Ann, Washington, Elijah, Virginia and Edward, each one share, and to the heirs of his daughter Malinda, one share. To the following named children of my sister Elizabeth, viz.: Parthena Singleton, Thomas and Reuben McDannald, Mary Melton and Elijah Strowbridge, each one share. To my half-brother, Thomas J. Iles, three shares. Secondly, I appoint Norman M. Broadwell and Obed Lewis executors of this my last will and testament, and do hereby authorize them and empower them, or the survivor of them, to sell and convey all the real estate and personal property of which I may die possessed, in manner and on such terms as they may deem best, and of the proceeds pay the portion or share to each one named, in a convenient and reasonable time.
    In the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring, or if such deceased person leave no offspring, then his or her share to cease, and be as though it was not devised, and the other shares proportionately increased.
    And now, inasmuch as I do not owe or expect to owe anything, I direct and request that no security or bond be required from my above named executors.
    In witness whereof I have hereunto set my hand this first day of June, 1877. Elijah Iles.
    Signed and acknowledged by Elijah Iles, the testator, as Ms last will, in our presence, and we have subscribed our names as witnesses in his presence and at his request.
    C. W. Mathehy,
    Erahk W. Tracy.”
    On the 17th day of September 1883, Spencer Boyd, one of the legatees, died in Batli county, Kentucky, leaving appellants, his children, but no widow, and on the 25th day of October, 1883, appellee Banta was appointed administrator of his estate by the County Court of said Bath county.
    To whom shall the executors of lies’ will pay the share bequeathed to Spencer Boyd, is the controversy in this ease, and to determine that question, the executors filed the bill of The circuit court decreed that the administrator of Boyd and not Ms heirs was the person to whom it should be paid.
    Messrs. Stuart, Edwards & Brown, for appellants;
    cited People v. Jennings, 44 Ill. 488.
    Messrs. Patton & Hamilton and Mr. Robert Matheny, for appellees.
   Congee, J.

The intention of the testator, as manifested by all the provisions of the will, must prevail. While it is the general rule “ that where the bequest is simply to A, and in case of his death, or if he die, to B, A, surviving the testator, takes absolutely,” yet very slight circumstances suffice to make these words refer to death at any period.

When it is considered that it was not the land or personalty of which the testator might die seized, but the proceeds, that Avas devised; that the conversion of the estate into money by the executors must necessarily take place after the death of the testator; that the language of the will is, In the event of the death of any one named above, then „the portion or share of the deceased to be paid to his or her offspring,” it seems reasonably clear that the vesting of the legacies Avas intended to take place at such time as the executors should be ready to pay over the proceeds. Jennings v. Jennings, 44 Ill. 488.

The bequest is not to Spencer Boyd, and in the event of his death then to his offspring, or to descend — pass to, go to, or any other of the many expressions commonly used to express inheritance or succession — but in the event of his death such portion is to le paid to his offspring. To be paid to them by Avhom? Evidently by the executors. This language, Ave think, admits of no other reasonable construction than to regard it as an express direction to the executors to pay to living persons who Avould receive such payment in their own right, and not as the repreleitatives of another. We hold, therefore, that Spencer Boyd’s interest was contingent upon his being alive to receive payment at the hands of the executors when the conversion should be completed, and he being dead when that period arrived, it was the .duty of the executors to pay his portion to his children. It is urged, however, by appellee, that the latter c’ause of the will does not apply to the portion of Spencer Boyd, but that the first clause alone- controls it, by which, in the event of his death, such portion is to be poaid to his widow. They are not in our opinion inconsistent, but -may be reconciled and effect given to both.

By the first clause, Spencer Boyd’s portion, in case he were dead at the date of the execution of the will, or should thereafter die, was to be piaid to his widow. By the second it is provided that “in the event of the death of any one named above, then the portion or share of the deceased to be paid to his or her offspring.” Who is meant by the expression “ any one named above”? We think it does no violence to the language of the will to say it includes the widow of Spencer Boyd as well as himself. - While she is not described by name, she is in fact as accurately identified by the description of his widow as though her name were given in full. This construction reconciles both clauses and gives emphasis to the prevailing idea in the testator’s mind, i. e., that his executors should themselves pay to Spencer Boyd, if living, if dead, to his widow; and in the event of the death of both, they should pay such portion to their offspring. We think the circuit court erred in holding that the administrator of Spencer Boyd was entitled to the money, and the decree of the circuit court will therefore be reversed, and the cause remanded with directions to the circuit court to enter a decree in favor of ap>pellants.

Reversed and remanded.