text:
    William Spillman et al. v. The People, etc.
    1. Becognizanoe. — In a proceeding by scire facias upon" a recognizance which bound the principal to be and appear at * * * until final settlement or order of the court, to answer for the offense charged, and to abide such final sentence or order, and to do and receive what should be by the court then and there enjoined upon him, and not to depart without leave, and the record showed a conviction and commitment of the principal, and upon his motion a subsequent suspension of the sentence by the court for six months. Held, that when the principal submitted himself to the judgment of the court, the recognizance became functus officio and no further binding on the surety.
    2. Becognizanoe — Functus officio — Bight of principal to ar. rest. — Where the recognizance has become functus officio, the surety has no longer the right to arrest the principal, and it is unnecessary to surrender hun before the court can set aside a judgment of forfeiture.
    3. Judgment by default, motion to set aside. — Where a motion is made to set aside a judgment by default, the affidavits made in support of the motion are the only ones the court can look into.
    4. Application to set aside default. — The court is of opinion that the application of the surety to have the judgment set aside, showed not only a good defense to the action, but due diligence on the part of the surety.
    Error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. W. L. Brown, for plaintiff in error;
    that it was error to permit defendants in error to read counter affidavits on the motion to set aside the default, cited Thelin v. Thelin, 8 Bradwell, 421; Mended v. Kimball, 85 Ill. 582.
    As to amending the scire facias: Kennedy v. People, 15 Ill. 418; Conner v. People, 20 Ill. 381; Bacon v. People, 14 Ill. 312.
    The judgment is contrary to law: Wilson v. People, 10 Bradwell, 357.
    Mr. Robert B. Porter, for defendants in error;
    that a scire facias may be amended, cited Peacock v. People, 83 Ill. 331; R. S. Ch. 7, §§ 2, 6, 9; Compton v. People, 86 Ill. 176; Marshall v. Maury, 1 Scam. 231.
    The surety was held on this bond and judgment to produce his principal on expiration of stay of execution, and was not released by producing him to plead: People v. Ogden, 10 Bradwell, 226; Chilton v. People, 66 Ill. 501; Wolfe v. McClure, 79 Ill. 564; Schill v. Reisdorf, 88 Ill. 411; Richardson v. People, 85 Ill. 495; McLain v. People, 85 Ill. 205; Coons v. People, 76 Ill. 383; People v. Shannon, 10 Bradwell, 364; Brandt on Suretyship, §§ 432, 433, 444; Wintersoil v. Com., 1 Duval (Ky.), 177; Com. v. Douglas, 11 Bush, (Ky.) 607.
   McCulloch, J.

This was a proceeding in the circuit court by scire facias upon recognizance against William Spillman as principal, and Joseph Schicane as surety. The recognizance was taken before a justice of the peace and bound said Spillman in the sum of one hundred dollars to be and appear at the circuit court on the first day of the next term thereof, being the 29th day of January, A. D. 1883, and from day to day, and from term to term, and from day to day of each term until final settlement or order of the court, to answer for the offense charged, and to abide such final sentence or order, and to do and receive what should be by the court then and there enjoined upon him, and not to depart without leave. This recognizance was filed in the circuit court on the 23d day of- January, 1883; the same having been taken on the 19th day of the same month.

At the next term of the court an indictment was found against Spillman to which he pleaded guilty and was sentenced to pay a fine of fifty dollars and costs, and was ordered committed to the custody of the sheriff until the fine and costs should be paid. The court, however, on Spillman’s motion, suspended the order of commitment for six months, and he was permitted to depart from the court without further security, and the cause went off the docket.

At the September term, 1883, a motion was made on behalf of the people, to re-docket the same, which motion the court, after requiring Schicane to be notified thereof, allowed. Thereupon Spillman was called and a judgment of forfeiture of the recognizance entered with scire facias to Schicane.

The writ issued on the 18th day of October, 1883, returnable to the November term of the same year, and service was duly had upon Schicane. No appearance having been entered on his behalf the judgment was made final on the 13th day of November.

On the 17th day of November, 1883, said Schicane entered his motion to set aside the final judgment so rendered, and for leave to plead to the merits, which motion the court overruled at a subsequent term. Two days thereafter, the people, by their attorney, moved the court for leave to amend the sci. fa. by changing the recital of the judgment off forfeiture from the September term, 1882, to the September term, 1883; which motion the court allowed, and Schicane excepted thereto.

It is now claimed that it was error to allow this amendment, and that, without it, the judgment itself was erroneous and ought to be reversed. The soi. fa. recited a forfeiture prior to the filing of the recognizance in the circuit court. The amendment was not made nor asked for before final judgment, nor at the same term at which it was rendered; nor was it made until after the motion to set aside the final judgment had been overruled. It does not, therefore, come under the provision of section 23 of the Practice Act, but, if allowable at all, it would seem to be governed by the Statute of Amendments and Jeofails. Appellant, however, did not ask leave to plead to the amended sci. fa., but had interposed a motion for leave to plead to the merits of original writ. Had this motion been allowed we can perceive no reason why it would not then have been in order for the court to have given leave to amend the writ by the record of forfeiture. As the case must be reversed on other grounds, the record, if desired, can be amended so as to conform to the facts before another trial.

That the application to set aside the judgment presented a meritorious defense is beyond question. Spillman appeared in court, pleaded guilty to the indictment, was fined and committed to the custody of the sheriff. This was all his surety had obligated himself to see done. His liability upon the recognizance was thereby discharged. He never obligated himself to see that, if Spillman broke jail and ran away, he would return him, or if he failed to pay his fine he would pay it for him, or if the court, permitted him to be at large after judgment he would see that he returned in due time. Nothing of this kind is within the purview of the recognizance. When Spillman had submitted himself to the judgment of the court the recognizance became functus officio and no further binding upon the security. Wilson v. The People, 10 Bradwell, 357.

This case is very different from that of The People, etc., v. Ogden, 10 Bradwell, 226, and Chilton v. The People, 66 Ill. 501. There the law required, as a part of the judgment of the court, that the defendant should give a bond according to certain prescribed conditions, and upon his failure or refusal to do so he should be committed. Had the defendant refused to-give the bond and then submitted himself to the order'of commitment, it would probably have been held that the surety was discharged. But the defendant, having fled the court without leave, and without submitting himself to what the court had required of him, the surety was not discharged.

The question next to be determined is whether or not Sold cane exercised proper diligence in regard to his defense. We can only look into the affidavits read in support of the motion. Thelin v. Thelin, 8 Bradwell, 421; Mendell v. Kimball, 85 Ill. 582. From these we learn that he lived thirty miles from the county seat; that he is a foreigner and can neither read nor write; that when notified of the re-doclceting of his case he went and employed an attorney, by whom he was told he had a good defense, hut that the proper time to make his defense would be after the sci. fa. had issued; that on the return day of the sci. fa. he went to the county seat, but failed to see his attorney; that he then had a conversation with the State’s attorney, who promised him that he would not do anything with the case for two weeks, upon which he returned home. The record shows that the judgment was made final before the expiration of that time. His attorney makes affidavit that he examined the clerk’s docket and did not find the case there, and could find no papers in the case, and did not know of its being docketed until after the default had been taken. The deputy clerk testified that it was the practice of the court to put cases for trial upon the clerk’s docket, but that this case had not been put on for the November term.

The records of the court upon the conviction of Spillman, his sentence of commitment and the subsequent suspension of that part of the sentence, were made part of the affidavits read upon the motion to set aside the judgment.

We are of opinion the application showed, not only a good defense to the action, but due diligence on the part of Schicane. It is said, however, that he failed to produce the body of his principal, which was necessary before the default could be set aside. This was unnecessary and impossible in the law. As long as the surety remains bound for the appearance of his principal, just so long, but no longer, lias he a right to arrest him and to surrender him to the court. But as soon as the recognizance has spent its force and become functus officio, then, as between him and his surety, the principal is a free man and no longer liable to arrest. If the record of conviction, commitment and subsequent suspension of the sentence is true as set forth in the motion, then the recognizance was no longer in force, and the surety had no power over the principal to bring him into court. For these reasons we are of opinion the court erred in refusing to open up the judgment for the purpose of letting Scliicaue in to defend upon the merits of the ease.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    Chicago & Alton Railroad Co. v. Amelia T. Robinson.
    1. Evidence — Stenographer’s notes. — Where the testimony of a stenographer, who reported the proceedings at a former trial of the same cause, was offered for the purpose of impeaching an important witness for the plaintiff, by showing that ou the former trial said witness had given evidence wholly inconsistenr, with his present version of the same transaction, and the defendant offered to prove by such reporter that all the evidence on the former trial was correctly taken down in shorthand at the time the evidence was given, and in connection therewith to further examine the reporter and read his notes to the jury. Held, that such evidence was competent.
    2. Where stenographer has no recollection op pacts contained in writing. — Where proceedings in courts are taken down by an expert stenographer, who testifies that they were fully and correctly written at the time, he may testify to the contents of' the writing though he has no independent recollection of the facts therein contained. In such cases, however, the writing itself must be produced in court to enable the opposite party to cross-examine in reference to it.
    Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Opinion filed January 16, 1885.

      Mr. C. Beckwith, Mr. N. W. Green and Mr. M. D. Beecher, for appellant;
    as to admission of evidence, cited Brown v. Luehrs, 79 Ill. 581; Farmers & M. Bk. v. Boroaef, 1 Rawle, 152; Smith v. Lane, 12 S. & R. 84; Clark v. Vorce, 15 Wend. 193; Merrill v. I. & C. R. R. Co., 16 Wend. 586; Haven v. Wendell, 11 N. H. 112.
    Messrs. Prettyman & Sons, for appellee.
   Higbee, P. J.

Appellee brought this suit to recover damages alleged to have been sustained by her in consequence of injuries caused by one of appellant’s locomotives colliding with a buggy, in which she was attempting to cross the railroad track on a public highway.

The declaration charges the railroad with gross negligence, in permitting weeds, brush and other obstructions to stand and grow upon its right of way, near the highway crossing, so as to obstruct the view of persons traveling on and along the highway, and thereby prevent their seeing a train approaching on the railroad, and also in failing, by its servants, to ring a bell or sound a whistle on the approach of the locomotive to the crossing.

A trial of the cause before a jury resulted in a verdict and judgment against appellant, from which it appeals to this court and asks a reversal, on the ground, among others, that the trial court rejected proper and material evidence offered in behalf of appellant.

The evidence rejected was the testimony of one C. L. Watson, a stenographic reporter, offered for the purpose of impeaching Josiali Bobinson, the husband of appellee, who had, as a witness in her behalf, given material evidence on the trial, by showing that on a former trial of the same cause the said witness, Bobinson, had given evidence wholly inconsistent with his present version of the same transaction.

The contradictions attempted to be established were in reference to matters material to the issues being tried; the proper foundation had been laid for receiving the impeaching evidence by having called the attention of the witness, Bobinson, to the time, place and circumstances of making the supposed contradictory statements, and giving him an opportunity to admit or deny making the same, or to explain anything he may have said in reference thereto. The evidence offered was competent, and the court erred in rejecting it. But it is contended by appellee that the only evidence offered to prove the alleged contradictions was the shorthand report of the stenographer, and that the same was not - competent evidence to establish the fact. This position is not sustained by the record. It shows that after Watson had testified that he was a stenographic reporter, and as such had taken down all the evidence in shorthand on the former Mai, including that of Robinson, and then had the same in court, appellant offered to prove Ity said witness that the same was correctly taken down at the time the evidence was given, and in connection therewith to farther examine the witness and read his notes to the jury; which offer was refused by the court, and thereupon appellant, by its attorney, asked the witness, Watson, numerous questions calling for his recollection of what Robinson did in fact state on the former trial in reference to the supposed contradictions in controversy; but the court sustained objections "interposed by appellee to these questions, and refused to let the witness answer the same. This evidence was legitimate and material. It did not even require a reference to the writing but called for the. memory of the witness independent of it, as to facts proper to be proved by oral evidence.

Again the court should have permitted Watson to have stated whether or not Robinson’s evidence as to the point in dispute was fully and correctly taken down by him at the time it was given; and if it appeared that it had been, he should have been permitted to refer to it for the purpose of refreshing his memory; and if the facts were thereby recalled to his mind so as to enable him to speak from memory, his right to testify to them is supported by an unbroken line of authority.

There is some difference of opinion among law writers whether the witness can be allowed to testify to the matters contained in the writing, when he is unable to recall the same to his memory after having examined the writing for the purpose of refreshing it; yet he recognizes the writing as liis own, made at the time of the occurrences stated in it, and he remembers that as they transpired they were correctly entered for the purpose of preserving them, and for these reasons his mind is so thoroughly convinced, that he is willing to swear positively to the facts stated in the writing. The weight of authority, however, seems to be in favor of admitting such evidence.

Experience has demonstrated the fact that an expert stenographer can take the evidence of a witness in shorthand, with very great, if not perfect accuracy, and this is now the mode almost universally adopted to preserve all oral proceedings in courts; and when such proceedings are taken by an expert stenographer, who testifies that they were fully and correctly woitten at the time, we think he may testify to the contents of the writing though he has no independent recollection of the facts therein contained. In all such cases, however, the writing itself must be produced in court to enable the opposite party to cross-examine in reference to it, and it may be read to the jury, not as independent evidence, but to be considered by them in connection with the oral evidence of the witness. Greenleaf on Evidence, Sec. 437; Phillips on Evidence, note 528 to p. 290; Sandwich v. Same, Comb. 445; Rogers v. Burton, Peck, 108-109-118; Smith v. Lane, 12 Serg. & Rawle; Bank v. Boraef, 1 Rawle, 152; State v. Raule, 2 Nott & McCord; Clark v. Vance, 15 Wend. 193; Hosen v. Wendell, 11 N. H. 112; Brown v. Luehrs, 79 Ill. 575.

In view of the particular facts in this case, the evidence rejected was very material to the rights of appellant. Robinson, the witness whom appellant attempted to impeach, was the husband of appellee, and was driving the buggy in which she was riding at the time of the collision, and her case rests principally upon his evidence. The rejection of this evidence deprived appellant of a clear legal right material to the defense, and the judgment must be reversed.

Other questions are presented but as most of them may be obviated on another trial we will not consider them here.

Judgment reversed and cause remanded.

Reversed and remanded.


text:
    Massachusetts Mutual Life Insurance Co. v. Maggie E. Hayes, Adm’x, etc.
    Trover — Action by administratrix. — A policy of insurance payable to the party insured, his executors, administrators or assigns, was, upon such party’s death, delivered to the guardian of the beneficiaries. The company resisted payment on the ground of a defense to any suit commenced on such policy. The guardian commenced suit, but finally compromised for fifty cents on the dollar, and upon payment, surrendered the policy to the company and dismiss id the suit. It was claimed afterward by the guardian and the mother of the beneficiaries that the settlement was void on account of the company’s fraudulent representations, and the mother, as administratrix of the estate, now brings an action of trover against the company for the unlawful conversion of the policy. Held, that this action can not be maintained by the administratrix. At the time of the alleged conversion the property was rightfully in possession of the guardian, and the administratrix had neither the possession nor the right to the possession.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. James A. Connolly and Messrs. Dunn & Connolly, for appellant;
    as to the form of action, cited 1 Chitty on Pleading, 148; Eisendrath v. Knauer, 64 Ill. 396; Owens v. Weedman, 82 Ill. 409; 2 Greenleaf on Ev., § 637; Mass. Mut. Life Ins. Co. v. Robinson, 98 Ill. 324; U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305.
    Messrs. Craig & Craig, for appellee;
    that the suit is properly prosecuted in the name of the administratrix, cited Mass. Mut. Life Ins. Co. v. Robinson, 98 Ill. 330; Wells v. Miller, 45 Ill. 386; Babcock v. Booth, 38 Am. Dec. 579.
    The general issue is a waiver to all exceptions to the person of the plaintiff: Chicago Legal News Co. v. Browne, 103 Ill. 320.
   Higbee, P. J.

This case, after several amendments, was finally tried as an action of trover brought by appellee as administratrix of the estate of Job M. Hayes, deceased, for the use of Ellis W. Rayes and Daniel D. Hayes, against appellant, for the unlawful conversion of a policy of insurance executed by it, whereby the life of Job M. Hayes was insured in the sum of $12,000, payable to him, his executors, administrators or assigns, within sixty days after notice of death,- for the express benefit of Ellis W. Hayes and Daniel D. Hayes. The trial resulted in a verdict and judgment in favor of the plaintiff below from which the defendant appeals to this court. Numerous errors are assigned, but in the view we take of the questions presented, it is only necessary for us to decide whether the damages sued for, admitting them to have accrued to some one, can be recovered in the name of the present plaintiff to the suit. A proper understanding of the principal facts of the case is necessary to enable us to reach a correct conclusion of the question presented.

In February, 1874, Job M. Hayes, a young man twenty-two years of age, obtained from appellant a policy of insurance on his life for $12,000, payable to himself, his executors, administrators or assigns, for the express benefit of Ellis W. Ilayes and Daniel D. Hayes, nephews of said Job M. Hayes. The beneficiaries named were both minors, the children of Daniel D. Hayes, a deceased brother of the said Job M. Hayes, and resided with their mother, the said Maggie E. Hayes, where the assured also made his home at the time of his death, which occurred on the 18th day of August, 1876. At the time of his death the policy was in his possession, and was soon after delivered by the mother of the beneficiaries to James F. Hughes, an attorney at law, to be collected for their benefit. Mr. Hughes at once informed the company, by letter, of the death of Job M. Ilayes, and in behalf of the beneficiaries inclosed the semi-annual premium then due, which was accepted by the company. Eleven days after the death of the assured, Mr. Hughes was appointed guardian for said infants and gave bond and qualified as such.. He held the policy for the benefit of his wards, and, as their guardian, opened negotiations with the company for the purpose of collecting the amount due upon the policy. The company resisted payment and claimed to have a sufficient defense to any suit that might be brought against it on the policy, but expressed a willingness to pay something by way of compromise to avoid litigation. Mr. Hughes, not being willing to accept the amount offered, commenced a suit on the 16th day of March, 1877, on the policy, in the names of his wards, by himself as their guardian, and the summons was served on the agent of the company on the 20th day of April of the same year. Soon after the service, Mr. Pendergast, the agent of the company, who was preparing to defend the suit, and Mr. Hughes, agreed upon the terms of a compromise by which the company paid to Hughes, as guardian of the beneficiaries, the sum of $8,015, being one half the amount due on the face of the policy, in full satisfaction of the policy; and the same was then surrendered up to the company by the guardian, and the suit dismissed by him.

Some time after the settlement, just when does not appear, it was claimed by the guardian and the mother of the children that the same was void, because of certain false and fraudulent representations made by Pendergast during the negotiations for compromise, as to the ability of the compan y to prove certain facts material to its defense in the trial of the cause then pending; and about four years after the settlement this suit was commenced.

Appellee was not appointed administratrix until April, 1882, two years after the suit was commenced. She never had or claimed to have had the possession of the policy after it went into the hands of the guardian, but, on the contrary, Mr. Hughes, the guardian, had it from the time he was appointed until he compromised the claim and surrendered it up to the company as satisfied.

TJpon these facts, had appellee, as administratrix of the assured, such a right to the policy as to entitle her to recover in this suit? If this was a suit upon the contract of insurance, there could be no doubt of her right to sue, for, although the beneficiaries are entitled to the money when collected, the company agreed to pay to “Job M. Hayes, his executors^ administrators or assigns.” But the suit is not brought on the contract or for the violation of any of its terms. It is an action in tort brought for a wrongful conversion of the contract itself.

It is said in 1 Chitty’s Pleadings, 107, “To support this action the plaintiff must, at the time of the conversion, have had a complete property, either general or special, in the chattel, and also the actual possession thereof, or the right to the immediate possession of it.” In the second volume, page 618, the author says: “It is essential in trover that the plaintiff should have the possessory title, that is, the right to the immediate possession of the goods.” In Cooley on Torts, after stating the general rule that, “ to sustain trover, the plaintiff must show a legal title; he must have property general or special, or actual possession, or the right to immediate possession at the time of the conversion,” he further says on page 445, “ When, therefore, it is said that the plaintiff in trover must have had, at the time of the conversion the right to the property, and also a right of possession, nothing more can be" intended than this, that the right of which he complains he has been deprived must have been either a right actually in possession, or a right immediately to take possession; it is not enough that it be merely a right in action or a right to take possession at some future day;” and quotes as sustaining the same, Wilson v. Wilson, 37 Md. 1; Dudley v. Abner, 52 Ala. 572.

In Owens et al. v. Weedman, 82 Ill. 417, the Supreme Court of this State, in an opinion by Mr. Justice Dickey, says: “To maintain trover, the plaintiff must show a tortious conversion of personal property by defendant, and that, at the time of the conversion, the plaintiff had a right of property in the chattel converted, and also had the possession thereof, or a right to the immediate possession.”

At the time of the alleged conversion of the policy of insurance in controversy and for a long time prior thereto, it was rightfully in the actual possession of Mr. Hughes, the guardian of Ellis W. and Daniel D. Hayes, to whom it belonged, and as against them appellee neither had the possession nor the right of possession. She could neither maintain replevin nor trover against the guardian, nor can she repudiate his settlement and. maintain an action against those who received the policy from him. If she had a naked legal title to the policy, it was in trust for the owners who had its possession, with which she had no right to meddle. The law cast no duty upon her to protect the policy against trespassers or wrongdoers while in the possession of the guardian. He alone was responsible for its safe keeping, and if it was wrongfully taken from his possession, the law affords him ample remedy for the injury. Watson et al. v. McLean, E. D. E. (96 E. C. L.) 75.

The only right the administratrix had, was to require indemnity for costs in case her name was used by the beneficiaries in a suit upon the contracts. She can not sue in tort for any injury or conversion of the policy while in the rightful possession of its owners.

Other questions, which seem to us to possess great merit, going to the right of recovery even if the suit were properly brought, have been argued by counsel, hut we prefer not to decide them in the absence from the record of the real parties in interest.

The iudgment is reversed and the cause remanded.

CLf O

Be versed and remanded,

NOTE UPON THE BACK OF THE OPINION, BY THE COURT,

This is the last opinion Judge Higbee ever wrote. The case was assigned to him the day before Thanksgiving, (Nov. 26) 1884. He was never in court after that day. This opinion was found among his papers after his death, and is adopted as the opinion of the court.


author: McCulloch, J.

text:
    Chicago and Alton Railroad Co. v. Ralph M. Hoyt.
    1. Fellow-servant — Question of fact. — While the definition of fellew-servants may be a question of law, whether the particular case falls within the definition is always a question of fact to be determined from the evidence.
    2. Ground of liability of master. — It is the relationship into which the parties are brought by the nature of their several employments which constitutes the ground of liability or non-liability of the master for the negligent acts of his servants toward each other, in contradistinction from an actual, present and personal consociation of the individuals themselves in the performance of their several duties at the time of the injury.
    3. Instructions. — As the instructions given for appellee made the appellant's liability depend upon whether or not appellee and the train men were known to each other, and not usually working together, and not actually co-operating in the same business or work at the time of the injury» they are erroneous.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed January 23, 1885.
    Messrs. Williams, Burr & Capen, for appellant;
    as to fellow servants, cited C. & A. R. R. Co. v. O’Bryan, 15 Bradwell, 134; Honnor v. I. C. R. R. Co., 15 Ill. 550; I. C. R. R. Co. v. Cox, 21 Id. 20; C., C. & I. C. Ry. Co. v. Troesch, 68 Id. 545; T., W. & W. Ry. Co. v. Durkin, 76 Id. 395; C. & N. W. Ry. Co. v. Swett, 45 Id. 197; C. & A. R. R. Co. v. Keefe, 47 Id. 108; C. & N. W. Ry. Co. v. Taylor, 69 Id. 461; St. L. & S. E. Ry. Co. v. Britz 72 Id. 256; C. & N. W. Ry. Co. v. Moranda, 93 Id. 392; C. & E. I. R. R. Co. v. Geary, (Sup. Ct. Ills.) Chi. Legal News, June 14, 1884, p. 318; Thompson on Neg., pp. 1026-1030; Wood on Master and Servant, §§425, 427 and 435; C. & N. W. Ry. Co. v. Scheuring, 4 Bradwell, 533; Morgan v. Ry. Co., 1 L. R., Q. B., 149; Farwell v. B. & W. R. R. Co., 4 Metc. 49; Priestly v. Fowler, 3 M. & W. 1; Coon v. S. & U. R. R. Co., 5 N. Y. 492; Slater v. Jewett, 85 N. Y. 61; Wonder v. B. & O. R. R. Co., 32 Md. 411; Boldt v. N. Y. C. R. R. Co., 18 N. Y. 432; Gilshannon v. I. B. R. Co., 10 Cush. 228; Wright v. N. Y. C. R. R. Co., 25 N. Y. 562; Hutchinson v. Railway Co., 5 Exch. 343; Wilson v. Merry, L. R., 1 H. h., I App. Cas. 326.
    Mr. M. W. Packard and Messrs. Stevenson & Ewing, for appellee;
    cited C. & N. W. Ry. Co. v. Swett, 45 Ill. 197; I. C. R. R. Co. v. Welch, 52 Ill. 182; C. & N. W. Ry. Co. v. Jackson, 55 Ill. 492: C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Ryan v. C. & N. W. Ry. Co., 60 Ill. 171; T., W. & W. R. R. Co. v. Fredericks, 71 Ill. 294; P. Ft. W. & C. Ry. Co. v. Powers, 74 Ill. 341; T. W. & W. Ry. Co. v. Moore, 77 Ill. 217; J. & St. Louis R. R. Co. v. Mergenstern, 106 Ill. 216; Wabash Ry. Co. v. Elliott, 98 Ill. 481; Penn. Co. v. Conlan, 101 Ill. 93; C. & A. R. R. Co. v. Bonifield, 104 Ill. 223.
    Where the" court can see that justice has been done, the case will not be reversed on the ground of an erroneous judgment: Race v. Oldridge, 90 Ill. 250; N. E. F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; Stickle v. Otto, 86 Ill. 161; C. & W. Ia. R. R. Co. v. Dooling, 95 Ill. 202; Martin v. People, 13 Ill. 341; Lawrence v. Hagerman, 56 Ill. 68.
   McCulloch, J.

Appellee, who is by trade a carpenter, was in the employment of appellant in its shops and railroad yards at Bloomington. It appears from the evidence, that one of his duties was to inspect the tops and sides of all the cars composing the freight trains coming into the yard from the north, and some of those from the south, as soon as they came in. At the time he received the injury complained of, a freight train had just come in from the north and had come to a standstill or nearly so. Hoyt at the time was on top of a car on an adjoining track, and just as the moving train had stopped or nearly so, he stepped across onto the car next to the engine of the incoming train. He then passed over that car and the next one, and, just as he was stepping from that to the third one, a violent jerk took place in the train, by which it was separated by the breaking of the draw bar, at the point where appellee was stepping from one car to the other. He was thereby precipitated to the ground and badly injured in his person. For his damages sustained in consequence thereof, he brought suit and recovered the judgment from which this appeal is taken.

On the part of appellee it was claimed that at the time he stepped upon the first car of the incoming train it had come to a full stop, and that he was acting in strict obedience to the rules laid down for him, to the effect that he should not go upon the train while in motion. On the part of appellant it is contended that the train was still in motion and therefore appellee was guilty of such negligence, contributing to the injury he received, as to prevent a recovery.

Appellee contended that after the train had come to a full stop, and the braketnen were in the act of letting off the brakes, and he had entered upon the duties of his employment, exercising at the same time all proper care, the engine suddenly started forward with such violence as to cause the separation of the train, thereby causing him to fall.

Appellant contends that the track was on a down grade and as the train came in, the cars had come close together so that those in the rear were pushing against those in front, and the train was moving bv its own momentum without the application of any steam; that, upon the signal being given to stop, the braltemen on the rear end of the train began setting the brakes, thus retarding the,motion of the cars and causing a strain upon each coupling, as the slack, as it is termed, was taken up. The train in question was a very long and heavy one, and it is contended that the jerk before mentioned was caused by this taking up of the slack.

There is plausibility in each of these claims, and the record contains evidence in support of both. Upon all the foregoing questions there was a very decided conflict of evidence. But, conceding all that appellee claims to be true, it is not very clear to us wherein the negligence of the engineer consisted in starting his engine as he did. This point, however, does not seem to be much dwelt upon in the arguments of counsel, and we pass to the real point in the case.

It is contended on the part of appellant that no recovery can be had in this case because appellee was a fellow servant with those by whom his injury was occasioned.

It is now well settled that while the definition of fellow servants may be a question of law, yet it is always a question of fact, to be determined from the evidence, whether the particular case falls within the definition. I. & St. L. R. R. Co. v Morgenstern, 106 Ill. 216; C. & N. W. Ry. Co. v. Moranda, 108 Ill. 576; C. & A. R. R. Co. v. O’Bryan, Adm’x, 15 Bradwell, 134.

This being so, it would seem to follow, especially in a case where the right of recovery is in doubt, that the rule should be given to the jury with substantial accuracy. The views the court below entertained upon the law of the ease, and upon which it was tried, are substantially embodied in the third, fourth and fifth instructions given to the jury on the part of appellee, which are as follows:

III. The court further instructs the jury for the plaintiff that although they may believe from the evidence that Hoyt was guilty of some degree of negligence in getting upon the freight train described in the declaration, yet if they further believe from the evidence that the servants of defendant in charge of said train, and operating the same, were guilty of gross negligence in handling the same, and thereby injured the plaintiff, as set forth in the declaration, and if the jury further believe from the evidence that the negligence of the plaintiff was slight as compared to the negligence of the defendant, and if the jury further believe from the evidence that the plaintiff was not employed in the same line of duty with the servants of the defendant, so in charge of said train, that they were strangers to plaintiff and not usually working together, and that they were not engaged in the performance of the same duty or co-operating in the same work when the injury complained of occurred, then the jury will find the defendant guilty, and assess the plaintiff’s damages at the sum they believe from the evidence he has sustained, not to exceed ten thousand dollars.

IV. The court further instructs the jury for the plaintiff that if they believe from the evidence that the plaintiff was employed as a carpenter in the yard of defendant at Bloomington, and did not know and was not usually associated in his duties with the servants of defendant in charge of the train upon which the plaintiff was injured (if the jury believe from the evidence he was so injured), and if the jury further believe from the evidence that at the time of the happening of the injury complained of in the declaration (if the jury believe from the evidence the same did so happen), the plaintiff and the servants of defendant in charge of and running said train were not employed in and about the performance of the same duty, then the plaintiff and the servants of defendant in charge of and running said freight train were not fellow servants in the view of the law.

Y. You are further instructed that even though two servants may be employed by the same master, yet if they are not by their usual duties brought into habitual association with each other, and are not at the particular time in question co-operating with each other in any particular business or work, they are not fellow servants in the same line of employment.

The seventh instruction given for appellee, after reciting the other elements of the case necessary to a recovery, concludes as follows: “ and if the jury further believes from the evidence that the plaintiff and the said servants of defendant in charge of said train were unknown to each other, and were not employed in the same line of duty, were not usually working together, and were not at the time of the happening of the injury complained of, engaged in doing the same duty or work, then they will find the defendant guilty.”

From an examination of these instructions it will appear that, to the mind of the court below, admitting that the train men and appellee were all in the employment of' appellant, if appellee was not employed in the same line of duty with them, if they were strangers to him, if they were not usually working together, if they were not engaged in the performance of the same duty, or co-operating in the same work when the injury occurred, then they were not fellow servants.

In the fourth instruction the phrase, “ was not usually associated in his duties with the servants of defendant,” is substituted for the phrase, “ were not usually working together,” as found in the third and seventh. In the fifth instruction the language is, “ yet, if they are not, by their usual duties, brought into habitual association with each other.”

That these expressions were all intended to mean the same thing is evident from the further fact that counsel for appellee, in their reply to the criticisms of counsel for appellant upon the fourth instruction, make use of the following language: “Now tlieTnstrnction tells the jury plainly that in order to find that the.plaintiff, Hoyt, was not a fellow servant with the train men, in view of the law, they must believe from the evidence that he did not know, and was not usually associated in his duties with them, and they must further believe that they were not employed in and about the performance of the same duty at the time of the happening of the injury. If this does not cover the whole ground, we confess ourselves unable to do so with the whole array of cases before us, collected and examined in the Moranda case, 93 Ill. 321.”

The jury were therefore told in divers ways, as in the seventh instruction, that if appellee and the train men were unknown to each other, if they were not employed in the same line of duty, if they were not usually working together, or usually associated together in their duties, and were not at the time of the injury, engaged in doing the same work, they were not to be regarded as fellow servants. This, it is contended, is the rule of the Moranda case. 93 Ill. 321; 108 Ill. 576.

The majority of this court do not think the restrictions thrown around the case by these instructions are at all warranted by the case just cited.

We can hot see what figure it cuts in the case whether or not appellee and the train men were unknown to each other, for if their relations in other respects were such as to constitute them fellow servants, the fact of their acquaintance or non-acquaintance with each other is of no consequence. The hundreds of men employed in appellant’s shops may be fellow servants, and yet they may, to a large extent, be unacquainted with, or unknown to each other. We may therefore la)7 this element of the instructions aside without further consideration.

The next element of the instructions is that if they were not employed in the same line of duty, the relation between the train men and appellants was not that of fellow servants. This is true as an abstract proposition, yet it needs to be so guarded as to convey to the minds of the jurors the idea that the same.line of duty means the accomplishment of a certain purpose of the master in which such servants are engaged, although their respective duties may be different.

It will be observed, however, that the instructions in question say, in effect, that if the train men and appellee were not, by their usual duties, brought into habitual association with each other at the time of the injury, and if they were not then co-operating with each other in any particular business or work, then they were not fellow servants. Such is the import of the fifth instruction, and we think the same inference is fairly deducible from the others.

The plain deduction to be drawn from these instructions is, that at the time of the accident there must have existed between appellee and the train men of this particular train, an habitual association with each other in the performance of their usual duties, or else at the time of the injury they must have been co-operating with each other in some particular business, work or duty. We do not think either proposition is maintained by adjudged cases.

This court had occasion to examine with a great deal of care the doctrine of the Moranda case, in C. & A. R. R. Co. v. O’Bryan, 15 Brad well, 134. We there found an instruction in almost the identical language with the fifth above quoted. In commenting upon the same, our late lamented presiding judge used this language: “ The terms brought into habitual association ’ and ‘co-operating’ with each other in any particular business or work, are so general and vague that they would convey to the mind of the juror, unlearned in the law, a very indefinite idea of the law of fellow servants, and as applied to the facts of the case before the jury, could hardly have failed to mislead them.”

“To co-operate in a particular work would most likely be understood as requiring the parties to be engaged in doing exactly the same work, at the same time and place, and under the same foreman. In all such work there must necessarily be division of labor among servants; one does one thing and another a different thing. In performing different parts of the work, it is not uncommon for the servants to work under different overseers or foremen, but all are alike the servants of a common master.”

“ And when engaged in the same line of employment, if there is a natural and necessary connection between the different parts thereof, such as necessarily brings the servants into frequent contact with each other in the prosecution of their work, they are co-servants. We do not understand this view of the law to be in conflict with the doctrine of the Moranda ease. On the contrary, it is fully supported by the Murphy case there quoted and approved as unquestionable law.”

The instruction in the Murphy case which was held to be the law was as follows: “If the jury believe from the evidence, that both the deceased and the engine driver, at the time the deceased was injured, were in the employment of the railroad company, and that their ordinary duties in such service bore such relations to each other that the careless or negligent act of the engine driver endangered the safety of the deceased, then such danger was incident to the employment of the deceased and the plaintiff can not recover in this case.”

The refusal to give this instruction was really the turning point in that case.

The doctrine of the Moranda case is reiterated in same case, 98 Ill. 576, and still more recently in C. & E. I. R. R. Co. v. Geary, 110 Ill. 383, and yet we hear nothing of any departure from the rule laid down in the Murphy case. The Geary case, just cited, was one wherein a night watchman at a street crossing was injured by a switch engine, and it was held that in view of the particular circumstances of the ease the party injured and the driver of the engine were fellow servants.

Taking all the cases into consideration we are convinced that it is the nature of the employments in which the several parties are engaged, and not the fact that they were at the very time of the injury in habitual association of a personal nature in. the performance of their respective duties, which is to govern.

There are two elements mentioned in the Moranda case which need to be kept distinctly in view. The first is, if the servants of the common master are, at the time of the alleged act of negligence, directly co-operating with each other in the particular business in hand (an expression much wider in its scope than that they were co-operating in the same worlc or duty), they are fellow servants for whose acts of negligence to each other the master is not liable. The second is, if their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution, then they in like manner are fellow servants for whose acts of negligence to each other the master is not liable.

The difficulty in this case arises from a difference in opinion as to the import of the language used in the second proposition. The foundation of the doctrine now under discussion lies in the rule, that the servant in entering into the employment of his master assumes the risk of all the dangers incident thereto, including that of the negligence of his fellow servants. How it is very easy to see, that if a new brakeman, fireman or engineer, is employed on a particular train, or as a member of a particular crew, he at once becomes the fellow servant of all associated with him in the operation of the train 'or in the crew in which he is engaged.

But if a third person, such as a ear inspector, whose daily duties brought him into contact with these same train men in the performance of his duties, should be injured by the negligence of some or all of them, it would lead to a strange absurdity to say that the master should be liable for the negligent acts of those longest in his employ, because the car inspector had become habitually associated with them by long acquaintance and consociation in the performance of his duties, and yet would not be liable for the negligent acts of the new comer on the same train, because time and opportunity had been wanting to the car inspector to form such an acquaintance or consociation. The bare statement of a proposition like this carries with it its own refutation.

In our view of the Moranda case, therefore, it is the relationship into which the parties are brought by the nature of their several employments which constitutes the ground of liability or non-liability of the master for the negligent acts of his servants toward each other, in contradistinction from an actual, present and personal consociation of the individuals themselves in the performance of their several duties at the time of the injury. Thus, the night watchman had nothing whatever to do with the operation of the engines and trains, but his employment was such as to bring him into very close relationship with all the men in that employment. At the moment of entering the employment of the common master he became fellow servant with them, and the master never became liable to him for their negligent acts. In such a case, although there may be co-operation in the business in hand, there is neither co-operation in the performance of a particular work or duty, nor any habitual association in the performance of usual duties, nor yet any personal consociation or acquaintance between these different employes; and yet the nature of their several employments is such as to. ultimately bring about these several conditions.

If, therefore, two or more persons enter into the employment of a common master in the doing of some work or in the prosecution of some enterprise of his, and if their respective duties under such employment are such as to require their direct co-operation with each other in the particular business in hand, or if they are such as to bring them frequently into such close relationship as to expose them to danger from the negligent acts of each other, and to enable them to exercise an influence upon each other promotive of proper caution, they must run the risk of each other’s negligence, from the time of their several employments, although such negligence may have occurred on their first meeting.

These principles were violated in the instructions given foi appellee, in making appellant’s liability to depend upon whether or not appellee and the train men were known to each other, and not usually working together, and not actually cooperating in the same business or work at the time of the injury. Under such a rule the employer’s liability is made to depend upon the fortuitous circumstances growing out of the actual personal relations existing between his employes at the very time of the injury, rather than upon the relationship growing out of the nature of their several employments.

It is true each particular case must depend upon its own facts, hut there must be some general rule of liability to which the facts in each case must conform. As was said in the Morgen stern case, 106 Ill. 216, whether they were fellow servants depended upon a variety of facts which had to be proved before the jury. “The inquiry would arise whethei they were in the service of a common master; were they engaged in the same line of employment; were the existing relations between them of such a character, and their duties such as to bring them often together, co-operating in a particular work. These, and perhaps other facts of a kindred character, were matters to be proved before the jury, and from the facts thus proved it was for the jury then to say whether the two servants, in the discharge of their duties, were fellows.” We are therefore of the opinion that the rule given to the jury for their guidance in determining whether or not appellant and the train men were fellow servants of a common employer, was erroneous in the particulars already alluded to. For these reasons the judgment of the circuit court will he reversed and the cause remanded.

Reversed and remanded.

Davis, P. J. I do not concur in the foregoing opinion. I think the court below properly instructed the jury, and that the judgment should be affirmed.


author: Welch, J.

text:
    Cedar Rapids Insurance Co. v. Julia C. Shimp.
    1. Proof of loss — Waiver.—Where the contract of insurance required the appellee to make proof of loss by a sworn statement, the fact that the adjuster of the company made an examination for the 'company did not discharge or relieve appellee from making the statement required in the policy.
    2. Collection of overdue premium — Waiver.—The collection of an overdue premium, after a loss, is not a waiver of a defense of forfeiture of the insurance by the assured, by a breach of the conditions in other respects.

      3. Continuing "warranty. — Where the terms employed in a policy were, “ That if it (the property) be used for any other purpose than is mentioned in said application, without the consent in writing of the company, then (his policy to be void.” Held, that the object and meaning of this provision must have been clearly understood by the parties as a continuing warranty as to the use of the property.
    4. Change of occupancy. — The conversion of a dwelling house into a house of prostitution is such a change in the character of the occupation of the property as to render the policy void.
    5. Agency — Instruction.—An instruction that “if the jury believe from the evidence that H. was the agent of said company for taking the application for said insurance, aud that he wrote it out., then the company would be chargeable with notice of any matter affecting such application of which H. had notice.” Held erroneous. Even if the agent had notice he had no power to pass upon the risk, or make a contract of insurance, or vary the terms of the application voluntarily made by appellee.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed January 23, 1885.
    Mr. Wm. A. Day and Mr. C. J. Deacon, for appellant;
    that the increase in the risk need not he proved where the parties agree in advance that a change without the consent of the company shall “render the policy void,” cited Wood on Fire Insurance, § 119; Worcester v. Ins. Co., 9 Gray, 27; Kelley v. Ins. Co., 97 Mass. 284; Howell v. Equitable Society, 16 Maryland, 377; McGowan v. Ins. Co. (Vt. Case, 1881), Ins. L. J. Vol. 11, p. 209; Indiana Ins. Co. v. Brehm, (Ind. Case, 1883), Ins. L. J. Vol. 12, p. 607; Fire Association of Phila. v. Williamson, 26 Pa. St. 176; David v. Ins. Co., 13 la. 74; Hygum v. Ins. Co., 11 Ia. 21.
    As to warranty: Franklin Ins. Co. v. Martin, 8 Ins. L. J. 134.
    Where the agent’s authority is limited to taking the application and forwarding it to the company for acceptance or rejection,- notice to the agent will not bind the company; the application must govern: Ayer v. Ins. Co., 17 Ia. 176; Anson v. Ins. Co., 28 Ia. 84; Dickinson v. Ins. Co., 41 Ia. 286; Reynolds v. Ins. Co., 36 Mich. 131; Morse v. Ins. Co., 5 Ins. L. J. 409.
    As to waiver of proof of loss: Wood on Ins. 411; Inman v. Ins. Co., 20 Wis. 217; Blossom v. Ins. Co., 64 N. Y. 162; Scammon v. Germania Ins. Co., 101 Ill. 624; Edgerly v. Ins. Co., 43 Ia. 590; Underwood v. Ins. Co., 57 N. Y. 500; Ripley v. Ins. Co., 30 N. Y. 138; Bruck v. Ins. Co., 78 N. Y. 593; Jewett v. Ins. Co., 29 Ia. 565.
    Notice of loss is not a compliance with the other condition requiring sworn proofs: Scammon v. Germania Ins. Co., 101 Ill. 624; Edgerby v. Ins. Co., 48 Iowa, 646; Edwards v. Ins. Co., 75 Penn. 378; Beatty v. Ins. Co., 66 Penn. 9; Blossom v. Ins. Co., 64 N. Y. 162.
    Mr. E. L. Sweet and Mr. J. S. Wolfe, for appellee;
    as to what constitutes a waiver of proof of loss, cited Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466; Wait’s Actions and Defenses, 80; West Rockingham Ins. Co. v. Sheets, 26 Grattan (Va.), 854; Owen v. Farmers Ins. Co., 57Barb. 518; 1 Greene, S. C. Reports (N. J.), 110.
   Welch, J.

This was a suit in assumpsit brought by appellee against the appellant to recover for a loss under a policy against fire. By said policy appellant insured the appellee for the term of three years from June 14, 1882, against loss by fire, to the amount of $1,500, distributed, on dwelling, $900; on furniture, $200; on clothing, $250; on piano, $150. In February, 1883, the property insured was totally destroyed by fire. The trial in the court below resulted in a verdict in favor of appellee for the sum of $1,275, for which sum and costs judgment was rendered against appellant, from which judgment this appeal is taken. Various errors are assigned. The principal errors assigned are as to the giving and refusing to give certain instructions. The question as to the instructions given and those refused, as to which of them announced the correct law in this case, are to be determined by the contract of insurance sued on, and the effect to be given to certain letters of the agent of appellant, and his acts in regard to the loss, together with the receipt by appellant of a portion of the premium, on said policy after the loss. By said policy, the appellee was required forthwith to give notice of loss, and within thirty days deliver to appellant, at Rockford, Ill., “ a sworn statement containing a full and particular account of such loss or damage, stating the cause of the same, the cash value of the property destroyed or damaged, and the interest of the assured therein. It is conceded that the giving of the notice and the making of the sworn statement as required by the policy, is a condition precedent to aright of recovery. The declaration in this case concedes that no proof of loss was made as required by the policy, but avers that the appellant waived and dispensed with the giving of said full and particular account of said loss. The learned counsel for appellee in their brief say “ that the waiver may be shown expressly or by evidence of intent not to pay in any event, or by defenses inconsistent with an intention to pay if proofs had been furnished.” And it is claimed that a waiver has been established in this case by the last two named. When and at what time must this intent not to pay in any event be made known to the insured? It is conceded that if the insurer, on the reception of the notice of loss, denies all liability and gives the insured notice thereof, or if, after proof of loss, payment is refused on the ground that it is not liable, this would in law be a waiver. In the first case suggested, after notice of loss and denial of all liability by the insurer and notice thereof to the insured, the law would not require of the insurer the performance of the useless duty of making out the proofs, and in the second case suggested, the refusal to pay, based on the ground of want of liability and not upon the ground of defective proofs, and notice thereof to the insured, the insurer would be estopped from insisting on proof of loss being defective. It would seem clear that this intent not to pay, or denial of all liability, must be given, to the insured within the time in which she was required to furnish the proof. There were certain letters of the agent of appellant to appellee in evidence, one of date Feb’y 27,1883, in which is acknowledged notice of loss: In answer will say, I will be able to reach your place in a few days to look the matter up. Trusting this will be satisfactory;” and on March 12, 1883: “ I have been unavoidably delayed but will reach your place the latter part of this week.” On the 15th of March, 1883, the agent'visited Champaign in relation to the loss of appellee “ made an investigation of the circumstances of the fire, inquired of the neighbors of the character of the persons occupying the house — put in one day at it. I made no adjustment, it didn’t look to me like an honest loss, and went home waiting proofs which would develop the origin of fire and the character of house. 1 left Champaign next morning, made inquiry for Mrs. Shimp and was informed she was out of town; was not at Champaign until the 2ith or 25th of May, after suit brought.”

The learned judge who tried this case gave to the jury for appellee instructions 3 and 7.

3. “The court instructs the jury that if they believe from the evidence that the adjuster of said company on being informed of the loss of said property, wrote to the plaintiff that he would come to adjust such loss, this would be a waiver of further notice of loss unless it was insisted on.” We are unable to account for the giving of this instruction except that in the hurry of the trial the judge did not have time to examine it critically. It is not further notice of loss that is insisted on. Notice of the loss was acknowledged. It is the proof of loss required by the policy prior to the right of recovery. The instruction is also objectionable in this, that there is no evidence ou which to base that portion of the instruction that the adjuster of the company “ wrote to the plaintiff that he would come to adjust such loss.”

7. “ If the evidence proves that the defendant, by its adjusting agent, Williams, made a general investigation of the loss in question for itselfj and does not show that it made any inquiry for proofs of loss named in the policy, then, and in that case, the defendant must be held to have waived such proof of loss, and on that point the jury will find for the plaintiff in that event of proof.”

This instruction announces the proposition that if the adjuster of appellant came and made an investigation of the loss for itself and did not ask for further proofs, that that was a waiver. The contract of insurance required appellee to make the sworn statement required by the policy, and how the fact that the adjuster of appellant made an examination for it can discharge or relieve appellee from making the statement required to be made by her, we are unable to perceive. Nothing was said by the agent to her. She knew of his being there and going away. She knew she had made no proof of loss, and the greatest influence which his conduct could have probably had was to delay her in making proof until he came, which was correctly stated in the refused instructions of appellant, numbered 4 and 12, which should have been given, and appellee’s instructions 3 and 7, which were given, should have been refused. We refer to the following authorities as sustaining our views: Blossom v. Ins. Co., 64 N. Y. 162; Bunts v. Ins. Co., 73 N. Y. 593.

The cases referred to by appellee’s counsel in their brief, 75 Ill. page 14. Upon an examination of that case we find that formal proofs were made of the loss and presented to the company’s agent, who declined to receive them, not because they were defective or informal, but because the company was not liable for the loss. That was held to estop the company from making any formal objections to the proof, when sued on the policy for the loss. Also the case in 83 Ill. page 453. Timely notice was given in that case and proof of loss made; when the proofs were furnished, the company made no objections. That is not this case; here no proof of loss was made.

A note was given by appellee to appellant, dated June 14, 1882, payable to appellant on the first day of June, 1883, payable at the First National Bank, Champaign, for the sum of $1,180. The note was for the balance of the premium on said policy, ten dollars having been paid at the time the policy was issued. This note and the proof of the pajrment of the ten dollars was admitted in evidence, against the objections of appellant. And on this evidence the court gave for appellee instructions numbered five and thirteen.

5. “The court instructs the jury that if they find from the evidence the company received a part of the premium for insurance on said policy after the loss, that act was a waiver of any supposed breaches of the conditions of said insurance existing before that time and known to the company or its agents, and not objected to by it or them.”

13. “The court instructs the jury that if they find from the evidence in this case that anything was said or done by the plaintiff, or otherwise occurred, which would have worked a forfeiture of said policy, and that the defendant, the company, after having information of such acts or occurrences, received any part of the premium for such insurance, the receipt of said part of the premium was a waiver of any such supposed forfeiture.”

In our view of this case, in paying the note the appellee did no more than she was legally liable to do, loss or no loss. The note and cash payment was the consideration of the policy. The note was just as much part of the consideration for the policy as the cash payment. The consideration was an entirety. The instant the policy was issued and delivered to appellee she became liable to pay the whole amount of the consideration therefor. Cases may be cited where the collection of an overdue premium after a loss, has been held to be a waiver of the payment of premium when due. We have been unable to find any case where such collection has been held a waiver of a defense of forfeiture of the insurance by the assured by a breach of the conditions in other respects. In our view these instructions number five and seven should have been refused. And the objections to the admission of the note and the evidence of the cash payment should have been sustained. After its admission in evidence its effect should have been qualified and limited, as asked in appellant’s instructions numbered one, two, six and seven, which were refused; they should have been given. We refer to case of Tyne v. Fletcher, 1st Cowper, 666.

The contract of insurance in this case contains this further provision: “This insurance is based upon the representations in the application, of even number herewith, and made a part hereof, and it is hereby agreed that if any false statements are made in said application this policy shall be void, or if the risk be increased in any other manner, except by the erection and use of out-buildings, without the consent of the company indorsed thereon, or if the premises bo used for any other purpose than is mentioned in said application without consent of company in writing, this policy to be void.” The application of appellee referred to in the policy, and made part of it:

Question 7. “ By whom are the above mentioned buildings occupied, and for what purpose?

A. Applicant, as private dwelling.”

“ I warrant the foregoing application to contain a full description and statement of the occupation of the property hereby proposed to be insured. I warrant the answers to the foregoing questions to be true.”

There was evidence tending to show that this dwelling was, at the time of the fire and for some time before, used as a house of prostitution. Yet the court was asked and gave for appellee, against objections of appellant, instructions number 1, 2, 8, 9, 10, 14. '

1. “The court instructs the jury that keeping a bawdy house in a house insured as a dwelling house is not a forfeiture of such insurance, unless the proofs show that the risk was thereby increased; but if the agent who took the application for the risk knew that the house was then reported to be a bawdy house, and took snch application with such knowledge, then it would not work a forfeiture of snch policy.”

2. “ The court instructs the jury that the provisions in the policy concerning increase of risk would only suspend it while the increased risk continued, and if they find from the evidence in this case that at any time after the making of the insurance there were circumstances which increased the risk, but that they did not exist at the time the property was burned, then they would not excuse the company from any liability that might otherwise exist.”

8. “The court instructs the jury that representations concerning the property insured must be true or the policy will be void, but representations concerning outside collateral matters will not have that effect unless such matters are shown to have been contributive to the loss.”

9. “The court instructs the jury that representations as to the use for the house do not imply a continuance of sucli use, and using it for a different purpose will not avoid the insurance unless it is shown that such further use contributed to the loss, or in a substantial manner increased the risk.”

10. “ The court instructs the jury that representations as to the use of the property do not constitute a warrant' that the premises insured shall be used for that purpose only, but if it is so used for a further purpose, such use will not avoid the policy if they find from the evidence that the loss did not arise from such use.”

14. “ If the jury believe from the evidence that one of the grounds upon which the defendant bases its defense to this action is that the plaintiff has forfeited her right to recover in this suit on the policy in evidence by reason of her fraud or fraudulent act, or illegal or unlawful conduct toward the property insured, or because of any illegal or immoral use or purpose in which she employed the said insured property, then, and in that case, the defendant must be held to have waived and dispensed with the proof of loss provided for in said policy, and a failure to furnish such proof of loss is no defense to this action under such state of proofs if the proof shows such state of facts.”

We are unable to find any evidence in this record to sustain the first and second instructions; and the first is also objectionable in requiring that the risk be increased by the keeping of a bawdy house. Among the provisions of this policy, we find this provision, which after reciting other distinct grounds on which the policy will be void, uses this language: “ Or if the premises be used for any other purpose than is mentioned in said application without the consent of the company in writing, then this policy shall be void.” The application referred to states that it is used as the private dwelling of applicant. The contract of insurance names the use and provides that the policy shall be void if used for any other purpose. Whilst mere representations as to the use that is made of property applies to the present, and is not a warranty that such use shall continue, as well said, “ If an insurance company wishes to protect itself by a warranty as to the future, or continuing irse in the same manner as when insured, it may always do so by language the object and meaning of which will be understood by both parties.” The terms employed in this policy are, “ That if it be used for any other purpose than is mentioned' in said application, without the consent, in writing, of the company, then this policy to be void.” The object and meaning of this provision in this policy must have been clearly understood by the parties as a continuing warranty as to the use of said property; as a warrant as to the future continuance of the use in the same manner as it was being used at the time the policy was issued. The conversion of a dwelling house into a house of prostitution is such a change in the character of the occupation of the property as to render the policy void. Indiana Ins. Co. v. Brehm, 88 Ind. 578. These instructions, numbered 1,2, 3, 9,10,14, conflict with what we conceive the law, in this; they should have been refused, and the instructions numbered 3, 5, 13, 14, 15, asked by appellant and refused, should have been given.

The court also gave for appellee, over appellant’s objections, instruction number 12.

The court instructs the jury that if they believe from the evidence that Hill was the agent of said company for taking the application for said insurance, and that he wrote it out, then the company would be chargeable with notice of any matters affecting such application of which Hill had notice.” There is no evidence of knowledge to support the instruction, and considering Hill’s agency, this instruction is erroneous, even in the event of knowledge on his part. He had no power to pass upon the risk, or make a contract of insurance, or vary the terms of the application voluntarily made by appellee. The policy had come into her hands long before the loss, and she was thereby made acquainted with this provision against change of occupancy or use and the effect of a change upon her policy. She is clearly within the rule of Hartford Fire Ins. v. Webster, 69 Ill. 392. This instruction should have been refused and appellant’s instruction numbered eight, which was refused, should have been given.

Appellant’s exceptions to the giving of the 4th, 6th and 11th of appellee’s instructions were properly sustained. And there was no error in the refusal to give the 9th, 10th and 11th of appellant’s instructions. For the reasons herein stated this cause is reversed and remanded.


author: Per Curiam.

text:
    Wabash, St. Louis & Pacific Railway Co. v. Joseph F. Wallace.
    Fellow servants. — The court is of opinion that appellee and W. were fellow servants, and that the master is not liable.
    Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. George B. Burnett, for appellant.
    Mr. James M. Dill, Mr. W. H. Bennett and Mr. J. M. Freels, for appellee.
   Per Curiam.

We are of opinion that on the undisputed facts in this case Needham and Wallace were fellow servants, and that the master is not liable.

We make no special finding of facts because we do not find them otherwise than as found by the trial court, but think a different inference should be drawn from them.

We therefore reverse the judgment.

^Reversed.


text:
    John Mersinger v. John H. Yager.
    Assignment. — The county court is by statute, in cases of assignment, invested with complete and full jurisdiction over the trust fund and the assignee, until the property is disposed of and the proceeds distributed to those entitled to share therein and has power to determine the priority of the liens of the several creditors.
    Appeal from the Circuit Court of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Krome & Hadley, for appellant.
    Mr. J. H. Yager and Mr. A. Neustadt, for appellee.
   Per Curiam.

If it be assumed that the stock of goods in the hands of the voluntary assignee was subject to the mortgage of Mersinger, yet by the assignment and under the provisions of the statute all the property of the assignor vested in such assignee, even if so subject to a lien. The supposed mortgage was for §3,300, and the goods were inventoried at some nineteen or twenty thousand dollars, and were sold by the assignee for §13,600. It would hardly have been consistent with the duty imposed on him, the assignee should have abandoned property of so considerable a value in satisfaction of a debt comparatively so small, without any attempt to dispose of it for a sum larger than the supposed mortgage debt, and so as to realize something for the creditors.

It was held, in the case of Freydendall v. Baldwin, 103 Ill. 325, that the county court is by the statute invested with complete and full jurisdiction over the trust fund and the assignee, until the property is disposed of and the proceeds distributed to those entitled to share therein, and has power to determine the priority of the liens of the several creditors.

It would seem that appellant, if he is entitled to relief, should make application to the county court. The property and fund involved is in the hands of the law and under the jurisdiction and supervision of the county court.

The judgment is affirmed.

Affirmed.


author: Wall, J.

text:
    Terre Haute & Indianapolis Railroad Co. v. Andrew J. Bowles et al.
    Rati,road need not fence near depot. — Where stock was killed near the depot of an unincorporated village. Held, that the railroad company is not bound to fence the grounds about a station. Ch. 114, § 48 of the Re- • vised Statutes, is not to be construed to embrace depots and stations.
    Appeal from the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Ashcraft & Stillman and Mr. John G. Williams, for appellant;
    cited C., Mil. & St. P. R. R. Co. v. Dumser, 109 Ill. 402; C., B. & Q. R. R. Co. v. Hans, 111 Ill. 114.
    Mr. B. W. Henry and Mr. S. A. Prater, for appellees.
   Wall, J.

The plaintiff’s demand consists in part of the item for a cow killed by the train of defendant, and the right to recover depends upon whether, at the point where the animal came on the track, the defendant was bound to maintain a fence. The point in question was at a regular station called Hagerstown. There is at this place the usual depot building and platform on the north side of the main track. On the south are switches, stock pen, etc. Hagerstown is a village not incorporated, the most, if not all, of which is south of and near to the road. It is a point of considerable shipping for stock and grain, and for the receipt of freight, such as agricultural implements and machinery in car lots. The record contains a plat of the locality, and from this and the statements of the witnesses it is quite apparent that the unfenced ground about the depot building, switches, etc., is no greater in extent than is reasonably necessary for the accommodation and convenience of the public in going to and from passenger trains, and in teceiving and shipping freight in parcels or oar lots.

Was the company bound to fence the grounds about the station under the provisions of our statute, Sec. 48, Ch. 114? The plaintiff insists this question must be answered in the affirmative, and that the defendant is, therefore, liable for the value of the animal. In the case of C., B. & Q. R. R. Co. v. Hans, 111 Ill. 114, which has been published since the case at bar was tried, the Supreme Court placed a construction upon this statute. It was there said that the statute, by its terms, relates to the road or tracks of the railroad; that it ought not to be construed to embrace that which is not within its terms, and that depots and" stations are not so embraced; that at such a point the main feature is not the track, and that if the statute were held to embrace the station, passengers would be under the necessity of climbing the fence, since there was no provision requi ring gates or bars except at farm crossings.

It was further said that in other States, where the same question had arisen, it had been held that the company is not bound to fence up such part of its depot grounds as may be required to be open for the convenience of the public in the use of the road. The court further say that it is the duty of the railway company to establish depots and so operate the road as to meet the public wants and afford reasonable safety and dispatch in the transaction of business, and to this end there should be ready and convenient means of access to its stations and depots; that to require those places to be fenced would cause delay and inconvenience to the public, and detract from the public character of railways That the regulation for fencing of the track is established for the public protection, and a ease that incommodes the public is by implication excepted, and that it would be unreasonable to obstruct with gates, the passage of teams to and from the railroad warehouses in order that cattle might go at large in safety.

Applying the statute thus construed to the undisputed facts in the case before us, we are constrained to say that the defendant was not bound to maintain a fence at the point in question, and that the ruling of the circuit court in this respect was erroneous.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.


text:
    Advance Elevator and Warehouse Co. v. William Eddy et al.
    1. Evidence to sustain verdict. — Great presumptions will ordinarily be indulged in favor of the verdict of a jury, and where there is slight evidence in support of an allegation, if there is no conflicting testimony the verdict will be sustained; but where there is a total absence of testimony upon a material point, the judgment must be reversed.
    2. Admissions — Record.—Where, upon a trial, parties by counsel admit or concede, without proof, that any material averment is true for the purposes of the trial, it is unnecessary to make proof upon the point so conceded; but in such case the admission should appear in the record, and should properly be incorporated in the bill of exceptions.
    Appeal from the City Court of East St. Louis; the Hon. Wm. P. Launtz. Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Flannigen & Canby, for appellant.
    Mr. W. H. Bennett, for appellees.
   Wall, J.

This was an action of trespass on the case brought by the appellees, John Eddy and William Eddy, against the appellant, The Advance Elevator and Warehouse Company. The declaration averred that the plaintiffs were the owners in fee simple, and occupiers of lot No. 6, block No. 1, etc., in East St. Louis, upon which was a large frame building occupied by the plaintiffs, and that defendant was possessed of, and using a railroad track extending alongside of plaintiffs’ premises, upon which it was operating engines and cars for the transportation of grain, etc., and that by the negligence of the servants of defendant, an engine and car so in use were driven from the track and against the house of plaintiffs, producing great damage, etc.

The case was tried by jury resulting in a verdict and judgment in favor of plaintiffs for six hundred dollars.

The record is brought to this court by appeal and it is urged among other alleged grounds of error, that there is no evidence-tending to show that the injury complained of was caused in the manner alleged in the declaration by the defendant, its agents or servants, nor is there sufficient evidence that William Eddy had any interest as alleged in the property so alleged to have been injured. We have examined not only the abstracts furnished by both sides, but the record itself with great care, and we are forced to the conclusion that this point is well taken. Great presumptions will ordinarily be indulged in favor of the verdict of a jury, and where there is slight evidence in support of an allegation, if there is no conflicting testimony the verdict will be sustained; but where there is a total absence of testimony upon a material point the judgment must be reversed.

Counsel for appellee in his brief, says, there was an admission by the attorney of appellant in his statement to the jury sufficient to cover and include the missing proof, as to the point that the injury was caused by the defendant. When, upon a trial, parties by counsel admit or concede, without proof, that any material averment is true for the purposes of the trial, it is of course unnecessary to make proof upon the point so conceded; but in such case, the admission should appear in-the record, and should be properly incorporated in the bill of exceptions. In the present case, the bill of exceptions purports to contain all the evidence, and there is nothing to show any such admission as counsel refer to. We are powerless to add to the bill of exceptions by accepting this statement of counsel, although it may be true. ' If such be the case, it is the misfortune of appellee that the bill of exceptions does not contain all it should.

It is not, however, insisted that there was ahy concession with regard to the joint interest of ¥m. Eddy in the building which was injured.

The evidence not only fails to show that he had any such interest in it, but strongly tends to the opposite conclusion.

The judgment is therefore reversed and the cause remanded.

Be versed and remanded.


text:
    Emma L. Redden et al. v. George H. Potter, Trustee, et al.
    1. Fraudulent conveyance. — The court is of opin'on that the transaction with reference to R’s interest in the estate was contrived for the purpose of hindering and delaying the collection of the debts in question, and that while the title to the property was transferred from R, it was understood that she retained a secret interest in the property and its proceeds.
    2. When complainant may proceed by bill without issuing execution. — The complainant may proceed at once by bill to remove a fraudulent incumbrance out of his way without waiting to issue an execution where he has a judgment capable of being enforced, that may be made operative in prcesenti.

    3. Parties. — Where the fraudulent grantee conveys a portion of the real estate to third parties, before the filing of the bill, and such persons are not made parties to the bill, it is error to decree a sale of all the real estate in question.
    4. Chancery. — Where certain relief is not specifically prayed by the bill, and there is not such a case made by the bill as would justify such relief under the general prayer, it is error to decree it.
    5. Fraudulent conveyance by debtor — Exemption.—Where the debtor makes a fraudulent conveyance of his property for the purpose of placing it beyond the reach of his creditors, the right to exemption in such property is not extinguished.

      Appeal from the Circuit Court of Gallatin county; the Hon. T. S. Casey, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. A. D. Duff, for appellants.
    Mr. Carl Roedel, Mr. E. D. Youngblood and Mr. Wm. G. Bowman, for appellees,
    cited Weightman v. Hatch, 17 Ill. 281.
    As to right to exemption where fraudulent conveyance is made: Gutzler v. Saroni, 18 Ill. 511; Cassell v. Williams, 12 Ill. 387; Bump on Fraudulent Conveyances; Brockett v. Watkins, 21 Wend. 68; Cox v. Shropshire, 25 Tex. 113.
    The complainant may have such relief, under the prayer for general relief, as the statement of the case entitles him to ask: Sopham v. Columbine, Taml. 135; Meller v. Mirret, Taml. 487; Cook v. Martin, 2 Atk. 3; Johnson v. Johnson, 1 Munf. 549; Hobson v. McArthur, 16 Peters, 182; Smith v. T. D. Falls Co.,. 3 Green’s Ch. R., N. J. 510.
   Wall, J.

This was a bill in equity filed by appellees against appellants and other defendants in the Circuit Court of Gallatin county.

The bill charged that appellees were judgment creditors of Fannie J. Biblett; that for the fraudulent purpose of hindering and delaying the collection of the debts due to appellees, and before the rendition of their judgments, the said Fannie J. Biblett conveyed all her interest in the real estate of her deceased father to her sisters, Emma L. Bedden and Hattie S. Bo wan, who, with their respective husbands, were made, parties defendant; that there was no consideration for said conveyance and that the sole object of it was to defraud the appellees and delay them in the collection of their said debts. The bill further alleged that said Fannie J. Biblett purchased from defendants, Emma L. Bedden and Joseph W. Bedden, lots 1161 and 1162 in the city of Shawneetown, but for the purpose of defrauding the appellees, the deed was made to Frank Biblett, the minor child of said Fannie J. Biblett. The hill prayed that these lots and the lands first mentioned should be declared subject to the payment of the judgments aforesaid and that the conveyances referred to should be held null and void as against the appellees.

Answers were filed denying the allegations of fraud; averring that the conveyance from Mrs. Riblett was upon a valuable consideration and in good faith; that as to the city lots in Shawneetown, the purchase was made by Mrs. Riblett at the price of 84,000, of which sum there was a cash payment of $3,000, and that the balance remains unpaid; that the cash payment was made with the money of Mrs. Riblett, and that the deed was given to the minor son at the instance of the husband of Mrs. Riblett. The defendant EmmaL. Redden, alleged that there was no fraudulent intent upon her partin the transaction with reference to these city lots, and asked that her lien for the balance of purchase money be preserved in the decree, and filed her cross-bill asking for affirm-' ative relief in this respect.

Mrs. Riblett also interposed a claim of homestead, as to these lots, and asked that the same should be preserved, subject only to the rights of Mrs. Redden.

The cause was heard by the court, and a final decree was entered according to the prayer of the bill, annulling the conveyance of the interest of Mrs. Riblett in her father’s estate, and directing that the lands which are situate in the counties of Gallatin, White and Hamilton, be sold, upon executions to be issued to the respective sheriffs of these counties, and that the proceeds should be applied to the payment of the said judgments; that the city lots in Shawneetown should be solds and out of the proceeds should be paid first, to Mrs. Redden, $1,745.77, the amount due on her note for purchase money and for taxes paid by her upon the property; secondly, to Mrs. Riblett, $1,000 for her homestead exemption estate in said property, and that the residue should be applied on the said judgments, and that the costs, should be paid by Emma L. Redden and Hattie S. Rowan. From this decree an appeal has been prosecuted by J. W. and E. L. Redden and by L„ and H. S. Rowan. Errors and cross-errors have been assigned, and although elaborate arguments have been presented upon various points, we will confine our attention to such only as seem necessary to be considered at this time.

It is urged by appellants that the evidence fails to sustain the allegations of fraud and that for this reason the decree should be reversed. We have examined the record with care and we are not prepared to say that the finding of the circuit court was erroneous in this respect.

Conceding all that is to be said in favor of the appellants, and applying the rules of presumption and construction, as they are stated by counsel, we are inclined to believe that the transaction, with reference to the interest of Mrs. Biblett in her father’s estate, was contrived for the purpose of hindering and delaying the collection of the debts in question, and that while the title to the pro] erty was transferred from her, it was understood that she retained a secret interest in the property and its proceeds; that this was understood by all concerned, and that, as against the complainant in the bill, the whole transaction was null and void. Moore v. Wood, 100 Ill. 454; Bump on Fraudulent Conveyances, 470, 471.

Appellants also object that the judgments in question, having been rendered in Gallatin county, were not liens upon the lands in White and Hamilton, until the levy of executions in those counties; that, as shown by the record, levies were made in the counties in the order named, and that it was,erroneous to provide in the decree that executions might issue to all the counties simultaneously, and that it would result that sales might be made in all the counties at once, thus producing much confusion and injustice to the rights of the parties. We do not understand the decree to be subject to the objection urged. The effect of the decree is simply to remove the incumbrance out of the way of the executions, and to authorize such proceedings under the executions as would have been justified by law had the incumbrance never existed.

It appears from the record that the executions of Hamilton county were issued by the sheriff before the filing of the bill but were not levied until one day after the bill was filed. It is therefore insisted that the judgments were not liens upon the lands in Hamilton county when the bill was filed, and that it was error to subject those lands to the operation of the judgments under this decree» In support of this view we are referred by counsel to Newman v. Willitts, 52 Ill. 98, and Weis v. Tiernan, 91 Ill. 27.

It is true that in these cases the Supreme Court say, that the complainant must have a lien upon the land, otherwise the fraudulent conveyance has done him no harm, and there is nothing of which he can reasonably complain; but this expression must be considered with reference to the peculiar state of facts then before the court. In each of those cases the judgment was inoperative because no execution had been issued within a year from its date, and, as was said in the case of Hewman v. Willetts, supra, the presumption of law was that the judgment was paid, and that to enable the complainant to issue an execution the judgment would necessarily have to be revived by scire facias. In the same opinion the court refers approvingly to Weightman v. Hatch, 17 Ill. 281, and quote somewhat at length the doctrine as there laid down. In the latter case the court say, that where a creditor seeks to satisfy his debt out of some equitable estate of the defendant which is not liable to levy and sale under execution at law, he must exhaust his legal remedy bjr judgment and execution returned nulla bona before he can ask the aid of chancery to reach the equitable estate of the defendant; that such a proceeding may be strictly termed a creditor’s bill, but that there is another sort of creditor’s bill very nearly allied to it where the complainant need not go so far before coming into chancery, and that is where he seeks to remove a fraudulent incumbrance out of the way of his execution. There he may file his bill as soon as he obtains judgment.

In that case the decree upon which the complainant relied was rendered in Pike county, and he alleged in his bill that he had caused an execution thereon to be issued to Tazewell county, where the lands in question were situate, and levied on those lands, and he sought to have removed a fraudulent conveyance which had been made by the defendant. It was urged that he had not proved the issuance of the execution as alleged, but the court held this was an immaterial averment and need not be proved, and that the grantee’s title being tainted by fraud, he had no right to say that all other means should be exhausted before disturbing him in his title.

From all these cases we think the principle to be deduced is that- the complainant must have a judgment capable of being enforced, that may be made operative in prcesenti, and if so, he may proceed at once by bill to remove a fraudulent incumbrance out of his way without waiting to issue an execution.

Of what use would it be to issue the execution until the obstacle is removed? Nothing can be done until the question is determined whether the incumbrance is void or valid, and it would be to require a useless and unnecessary act to say that the execution must first issue and be levied before the bill can be entertained.

In the case before us, execution had been issued to the county in which the judgment was obtained within one year from its rendition. It was, therefore, in full force, and execution could be issued to another county at any time within the seven years, when it should bo necessary or useful to do so. We think there was no error in the decree in this respect.

The next point we shall notice is, that as appears from the evidence, a large quantity of the lands had been sold by Mrs. Bedden before the filing of the bill to various persons who were not made parties to the bill. The lands so sold embraced the most desirable tracts held by Mrs. Bedden, and the moneys received therefor had been appropriated by her to various uses and investments. It is insisted by counsel that it was error to decree a sale of the lands so disposed of before the filing of the bill, and in "this position he is sustained by the case of Weightman v. Hatch, supra.

In that case the fraudulent grantee had conveyed some of the lands to third parties, who were not made defendants, before the bill was filed, and it was held erroneous to decree a sale of the lands so conveyed.

It is apparent that such a decree would not be binding upon the persons holding the lands, since they are not parties to the bill and acquired their interest before the suit was brought, and that as to them the decree would be productive of -nothing but further litigation. This error we regard as substantial in its character, and for this cause the decree must be reversed.

The appellees assign cross-errors as follows:

1. It was error to decree a homestead to Fannie J. JRiblett in city lots 1161 and 1162.

2. It was error not to decree that the moneys secured by Mrs. .Redden and Mrs. Bo wan from the sale of lands, should be paid to complainant on their said judgments.

In support of the first cross-error so assigned it is urged that where there is a fraudulent attempt to place property beyond the reach of creditors, the right to exemption in such property is forfeited.

The homestead exemption provisions of our statute give the debtor an estate, to the extent in value of §1,000, in property owned or rightly possessed by lease or otherwise and occupied by him or her as a residence, and the same statute provides how this estate shall be extinguished. It is not declared that a fraudulent conveyance, such as here alleged, shall work such extinguishment. When a creditor successfully assails a conveyance as fraudulent, his effort restores the property to the debtor, so far as the creditor is concerned, as fully and completely as though the fraudulent conveyance had not been made. The interest which the creditor has in the property is derivative, proceeding from the debtor and depending upon his title.

Hence he can not acquire a right under the debtor’s title and at the same time impeach that title. He can not sell under the execution the debtor’s title and at the same time deny the debtor’s right of homestead on the ground that he has no title. Again, the fraud complained of does not consist in conveying the homestead, for the creditor could not have reached that with his execution had the debtor retained the property. Thompson on Homesteads and Exemptions, Sec. 408, et seq.; Bell v. Devore, 96 Ill. 217.

We are of the opinion that upon the facts as conceded in the record, Mrs. Riblett is entitled to an estate of homestead in the city lots, as against the appellees.

As to the second cross-error, it may he said that such relief was not specifically prayed by the bill; nor Was there such a case made by the bill as would justify such relief under the general prayer, and we think this assignment not well made.

For the error in ordering a sale of all the lands, when a large part had been sold by the fraudulent grantee before the filing of the bill, to persons who were not made parties to the suit, the decree is reversed and the cause remanded.

Reversed and remanded.

Casey, P. J., took no part in this case.