text:
    Robinson & Company, Appellant, v. Andrew Marr, Defendant, and Clay-Robinson & Company, Garnishees, Appellees.
    Gen. No. 14,055.
    1. Appeals and errors—what questions not subject to review. Questions directly concerning only a party not joined in the appeal, will not be considered on review.
    2. Publication—when service by, confers jurisdiction. Service by publication undertaken two years after the return of the attachment writ, will confer jurisdiction if such service is otherwise regular.
    3. Attachments—when error to quash. An attachment in aid should not be quashed and the garnishees discharged on the ground that the publication undertaken did not confer jurisdiction where the defendant has appeared in person and submitted himself to the jurisdiction of the court.
    Attachment. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1908.
    Rehearing denied December 21, 1908.
    Alder, Latham & Young, for appellant.
    George V. McIntyre, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

On June 14, 1898, one C. C. Binkley began a suit in debt on an Illinois judgment against Andrew Marr, who resided in Iowa. The summons which was issued was returned not found, but on the same date, June 14, 1898, the plaintiff Binkley filed an affidavit and bond for an attachment in aid on account of the non-residence of the defendant Marr, and secured an attachment, writ, in which “John Clay, Jr., Charles O. Robinson and Wm. H. Forest, partners doing business as Clay, Robinson & Co.”, were named as garnishees. The writ was served immediately on Clay, Bobinson & Co., and interrogatories to them were filed in the suit on July 2, 1898.

An answer to these interrogatories by Clay, Robinson & Co. was filed July 25, 1898, and a replication to or traverse of that answer was filed by the plaintiff on March 29, 1900. On September 13, 1902, the issues of law and fact raised by this answer and traverse were submitted by stipulation between the plaintiff and garnishees, on an agreed statement of facts, to the Circuit Court sitting without a jury. These issues related to the steps taken by the garnishees to remit the proceeds of the sale of certain cattle to Andrew Marr on the day of the garnishment, June 14, 1898. The issues were found by the Circuit Court for the garnishees and the garnishees discharged. The plaintiff appealed to the Appellate Court and on March 1, 1904, the Branch Appellate Court of this District made a decision reversing the judgment of the Circuit Court and remanding the cause to that court. The facts alluded to concerning the remittance of the funds in question will be found in the opinion handed down by the court, which is reported in 112 Ill. App. 332.

The conclusion of the opinion is: “Therefore the finding and judgment of the Circuit Court should have been against and not in favor of the garnishees. The judgment will be reversed, but as the record contains no evidence upon which we can here enter a judgment against Marr, the cause must be remanded. ’ ’

The cause was redocketed in the Circuit Court April 9, 1904. The garnishees moved for leave to file an additional answer, which was granted them. On May 14, 1904, they filed such an answer, setting up an entirely different defense, namely, that the funds for which it was sought to hold them accountable never belonged to Andrew Marr, but to the First State Bank of Corwith, Iowa, and to Mary E. Marr, who received them; also that any claim that Binkley, the plaintiff, might have had had been waived and released by his actions in certain bankruptcy proceedings of Andrew Marr.

The plaintiffs on June 2, 1904, moved to strike the additional answer of the garnishees from the files, and this motion was denied. June 29, 1904, the plaintiff filed exceptions to that part of the additional answer of the garnishees which set up the foreclosure, release or estoppel of the plaintiff by his action in the bankruptcy proceedings against Marr.

July 13, 1905, the Circuit Court sustained these exceptions and struck out this portion of the additional answer of the garnishees. The other portion of the additional answer, alleging that the funds sought to be recovered by the plaintiffs from the garnishees belonged to Mary E. Marr and that she received them, is left standing undisposed of. But on May 6, 1907, an order appears in the transcript of record giving to “the defendant”, on motion of the “defendant’s attorney”, leave “to file pleas herein instanter”. Whether this was a mistaken entry or not, it was apparently in pursuance of it that the garnishees, by their attorney, filed on the same day a document which is in the transcript of record denominated as “plea”, and purports to show to the court “further reason why the action against them herein should be dismissed”. The “plea” alleges that there is no such record as the judgment sued on, and that the issue to be tried herein on the answer of the garnishees is, whether the property sold by the garnishees on June 14, 1898, belonged to Mary E. Marr or to the defendant, Andrew Marr, and that this issue had been adjudicated in favor of Mary E. Marr in the bankruptcy proceedings against Andrew Marr.

May 10, 1907, the plaintiff filed exceptions to this “additional answer of the garnishees, termed a plea”, as he denominated it, and moved to strike it from the files.

These exceptions and this motion have never been disposed of except as the discharge of the garnishees hereinafter described disposed of everything in the cause.

In July, 1904, on motion of the plaintiff, the papers in the cause had been amended by the addition of the words “for use of Robinson & Co., a corporation”, immediately after the name of the plaintiff, so that in all cases the plaintiff was named as “C. C. Binkley for the use of Robinson & Co., a corporation”. On June 25, 1907, the plaintiffs’ attorneys suggested the death of the nominal plaintiff, C. C. Binkley, which was entered of record, and the cause ordered to proceed in the name of Robinson & Company, a corporation, as nominal as well as beneficial plaintiff.

During the time that the cause had been pending in the Circuit Court after its remandment by the Appellate Court, various pleadings and orders had grown out of an order of the court entered in June, 1904, on Mary E. Marr and the First State Bank of Corwith to intervene and set up such rights as they might claim. Mary E. Marr was dead and her estate had been fully administered and Andrew Marr, the defendant in this suit, filed on September 19, 1904, what he termed “a special interplea” “for the special purpose of showing the rights which Mary E. Marr had to the fund in controversy.” It is entitled “C. C. Binkley v. Andrew Marr, Defendant, Clay, Robinson '& Co., Garnishee”, and begins, “Comes now the defendant, Andrew Marr, for the special purpose” as above stated. It is signed simply “Andrew Marr”. The subsequent pleadings—consisting of demurrers, replications and exceptions and the motions and orders to which this “special interplea” of Andrew Marr gave rise—need not be detailed herein, for as we view the questions submitted to us, they are of no importance in this appeal; the only significance of the “interplea” in this appeal being in the questions which its filing raises—whether Andrew Marr has not by it so appeared in this case as to give the Circuit Court jurisdiction of him personally as defendant and of any possible effects of his in the hands of garnishees.

On June 25, 1907, also, the following orders were entered by the court: The ad damnum was increased from $1,200 to $2,000 in the præcipe, summons, declaration and all subsequent pleadings. A motion of the plaintiff for the default of the defendant, Andrew Marr, and for personal judgment against him for the amount stated in the affidavit for attachment with interest was denied; a motion of the garnishees, Clay, Robinson & Company, for an order to quash the writ of attachment and discharge the garnishees was granted; and thereupon an order was entered discharging said garnishees, and giving them a judgment for costs against the plaintiff.

The bill of exceptions shows that on the motion which was denied, for judgment against the defendant, the plaintiff offered in evidence a transcript of a judgment against the defendant in Ogle county, Illinois, as described in the declaration, and offered to show that Robinson & Co., the plaintiff, was, when the judgment was entered and still is, the owner of the same.

It also shows that after this motion of the plaintiff was denied, the garnishees, Clay Robinson & Co., moved for a quashing of the writ of attachment and their discharge, and that on that motion the counsel for the garnishees “offered in evidence and called the attention of the court to the præcipe, summons, affidavit for attachment and attachment writ, all of which were dated and issued on June 14, 1898, and offered the return of the attachment writ made on July 18, 1898, and then offered the certificate of publication and the certificate of mailing notice to the defendant, Andrew Marr, dated July 25, 1900, and July 30, 1900, respectively, which was the only evidence submitted or offered upon the hearing of said motion”.

From the judgment quashing the writ of attachment, discharging the garnishees and decreeing costs against the plaintiff in favor of the garnishees, the plaintiff appealed to this court, perfecting its appeal by executing and filing an appeal bond to the garnishees as obligees, reciting the judgment appealed from as “a judgment against the above bounden Robinson & Co. for costs of suit and a judgment discharging” the garnishees. This is the appeal before us.

Although two of the four assignments of error declare that the Circuit Court erred in denying the motion of the plaintiff for a personal judgment against the defendant, Andrew Marr, and in denying a motion of the plaintiff for a judgment in attachment against the defendant, Andrew Marr, we do not think that we can pass on these alleged errors or the action of the Circuit Court thereon. Andrew Marr is not a party to this appeal and is not in this court, nor is the appeal from any judgment in his favor.

As we regard the judgment quashing the writ of attachment and discharging the garnishees as erroneous for the reasons hereinafter stated, we shall reverse it, but again, as when the judgment in favor of the garnishees was reversed by the Branch Appellate Court, the cause must be remanded.

The only ground on which the writ of attachment was quashed and the garnishees discharged, was that on the face of the record, the court had lost jurisdiction of the cause long before the trial of the issues between the garnishees and the plaintiff which resulted in the appeal to this court in 1902.

The reason given is that the writ of attachment in aid was sued out and returned served on the garnishees in June, 1898, and no publication of it was made or notice of it sent to the defendant, Andrew Marr, until July, 1900.

It is conceded that there is no specific statutory limit for the time of publication and notice. The statute concerning original attachments merely provides that no default or proceeding shall be taken against any defendant not served with summons, unless he shall appear, until the expiration of ten days after the last publication, and that if for want of due publication of service the cause shall be continued, the same proceedings shall be had at a subsequent term of the court as might have been had at the term to which the writ is returnable.

The statute concerning publication in the case of attachments in aid is: “Upon the return of attachments issued in aid of actions pending, unless it shall appear that the defendant or defendants have been served with process in the original cause, notice of the pendency of the suit and of the issue and levy of the attachment, shall be given as is required in cases of original attachment, and such notification shall be sufficient to entitle the plaintiff to judgment and the right to proceed thereon against the property and estate attached and against garnishees in the same manner and with like effects as if the suit had been commenced by attachment”.

It is, however, contended by the appellees that the decisions of this court in Parker v. Scheller, 60 Ill. App. 621, and Britton v. Gregg, 96 Ill. App. 29, so construe this statute as to show that “Upon the return of attachments issued in aid” means within a reasonable time thereafter, and that two years is an unreasonable time, and that the delay in publication and notice for that length of time in the present case, lost for the court all jurisdiction of everybody and everything in the cause.

Each of the cases in question was a case in which default judgments were entered against the original defendant and the appeal was by him. In Parker v. Scheller, the notice was sent to a place of residence which had been indicated by an affidavit filed nearly three years before. In such a case the notice, the object of which was to inform the defendant of the pend-ency of the suit, might well fail to reach him. It presumably did do so in Parker v. Scheller, since he made default, but afterward appeared and appealed. In the case at bar the notice was sent to an address declared unqualifiedly to be the then residence of the defendant, by an affidavit of an agent of the plaintiff made and filed five days before the notice was sent in July, 1900.

This differentiates the two cases very materially, especially as subsequent proceedings show that in whatever capacity Andrew Marr appeared in the cause at bar in 1904, he had notice of it and of what was going on in it, and no default had been taken against him before he had such notice.

In Britton v. Gregg, 96 Ill. App. 29, it does appear that the notice was sent to the place, which by an affidavit filed about a month before, had been stated to be the place of residence of the defendant “when last heard from”, and of it the court says: “The filing of the affidavit of non-residence of Serra V. Gallivan stating her then place of residence and the mailing of the copy of publication to her, more than two years after the return of the attachment writ, was ineffective as to her”, citing Parker v. Scheller, 60 Ill. App. 621.

But the primary cause for the reversal of the default judgment is given in the opinion of Mr. Justice Shepard as defects in essential particulars of the original affidavit for attachment, and even if we felt obliged and inclined, on this entirely subsidiary point, to follow the decision and opinion in Britton v. Gregg, it would certainly be very questionable whether this alleged defect in .“jurisdiction”, which existed against the defendant in 1900 and 1902, was in that sense “jurisdictional” so far as the garnishees were concerned, that after defending issues concerning their liability on the merits sucessfully in the Circuit Court, following an appeal to this court, and again contesting them unsuccessfully, then on remandment to the Circuit Court raising new issues on the merits—which are undetermined at present—these garnishees can have the whole attachment proceedings quashed as void on account of it. Our opinion is that it would not.

But at all events, whatever would have been their rights in this regard, on June 25, 1907, when this judgment was entered discharging them, if the defendant Marr had, up to that time, never appeared in the cause, nor shown that he had notice of it and opportunity to defend it, we cannot hold that there was any lack of jurisdiction over the garnishees, or over any effects or money of the defendant in their hands at that time. The defendant, against whom no judgment and not even a default had been taken (thus entirely distinguishing the case from Baldwin v. Ferguson, 35 Ill. App. 394), had appeared in the cause. He called the paper he filed an “interplea”, and he recited in it that he came into the cause for a ‘ ‘ special purpose”. But he came into it, made himself a party to it, called himself in the paper he filed “the defendant” and, what was more important and to the purpose, was the defendant. If he had chosen to plead to the merits of the cause, he would undoubtedly, on a proper showing or terms, have been allowed to. But his appearance, such as it was, and in the manner that it was made, was quite sufficient to prevent such a consummation of this case in favor of the garnishees as occurred. Nicholes v. The People, 165 Ill. 502. They should not have been discharged, nor should the writ have been quashed for want of jurisdiction, and the judgment will be reversed and the cause remanded for further proceedings and determinations not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Francis Perryman, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,063.
    1. Negligence—duty of gripman to child evincing intention to cross trades. It is a question for the jury to determine whether a gripman has used proper care in the handling of his car where within his view a child, too young to he subject to the charge of contributory negligence, has evinced an intention of crossing the tracks in front of the car.
    2. Imputable negligence—approved instruction upon subject of. An instruction upon this subject as follows, is approved:
    “The court instructs the jury that even if you believe from the evidence that the plaintiff’s mother was guilty of negligence in permitting the plaintiff to go upon the street, or that his brother , was guilty of negligence in not taking proper care of him while upon the street, still such negligence, if any, upon their part cannot be charged against the plaintiff, and it is not a defense to this suit.”
    3. Instruction—when, upon subject of negligence, properly refused. An instruction as follows, is properly refused where the negligence of the defendant is charged to lie in running its street car so negligently that it ran against or was brought into collision with the plaintiff so that he was thereby knocked down and injured:
    “If the jury believe from the evidence that the plaintiff ran into the side of the car in question, and that said car did not strike or run against the plaintiff, hut that the said plaintiff ran against and struck the side of the car, then the jury must find the defendant not guilty.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Statement by the Court. This is an appeal from a judgment for $9,000 of the Superior Court of Cook county, entered April 6,1907, against the Chicago City Railway Company in favor of Francis Perryman, a" minor. The judgment was based on the verdict of a jury in an action for personal injuries.
    The injury was the loss of the right leg just below the knee. The leg was there amputated in consequence of its being crushed by a street car which passed over it. The boy was four years old in May, 1905. The accident occurred on August 28th of that year, at about four o’clock in the afternoon, while the child was attempting to cross State street in Chicago. He lived on State street near the locality.
    After the declaration had been finally amended by the withdrawal of one count and a change in the remaining one, it charged the negligence of the defendant which rendered it liable, to be, that while the plaintiff was traveling westward across State street between Taylor street and Harmon court, exercising such care as could reasonably be expected of one of his years and intelligence, the defendant’s servants then in charge for the defendant of the operation and management of a street car going southward on railway tracks of the defendant on said State street, “managed and'operated said street car in such a reckless, careless and improper manner” that as a direct result thereof “said street car then and there ran against or was brought into collision with the plaintiff, and he was thereby then and there knocked down and run over by said street car and one of his feet was so crushed”, etc., that it became necessary to amputate it with part of the leg.
    The plea of the defendant was the general issue of not guilty.
    After the verdict of the jury had been rendered a motion for a new trial and a motion in arrest of judgment were made and denied. This appeal followed.
    The thirty-five assignments of error made by the appellant reduce themselves in the brief and argument to these:
    First. The record shows the facts to be such as to make it a matter of law that no negligence on the part of the appellant caused this accident.
    Second. Even if this be not so, the finding against appellant is against the weight of the evidence.
    Third. The court erred in giving to the jury, at the request of the plaintiff, two instructions in the opinion following referred to and numbered twelve and fourteen respectively. It also erred in refusing an instruction tendered by the defendant, numbered twenty-three, which will be hereinafter set forth.
    Fourth. In the examination of one witness for the plaintiff, a statement of the witness was objected to by counsel for the defendant as too indefinite and remote. The objection and a motion to strike the statement out were overruled.
    William J. Hynes, John E. Kehoe and C. LeRoy Brown, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Brown

delivered the opinion .of the court.

The chief contention of the appellant in this cause is that the verdict is against the weight of the evidence, for this proposition may be said to include the narrower one that there is no evidence in the record sufficient to sustain a recovery and that the court should have directed a verdict for the defendant.

We cannot, however, assent either to the proposition that the Superior court should have directed a verdict or that it should have granted a new trial after the verdict for the plaintiff was returned. We think it clearly, a case for the jury and, though a close one, not free from doubt, one in which the verdict of the jury rendered, as we think it was, under adequate and accurate instructions, should not be interfered with by us. It is not manifestly against the evidence.

The facts, as we gather them from that evidence, are these:

The accident took place on State street between Taylor street and Harmon court. Harmon court extends from State street east two hundred and four feet south of where Taylor street runs into State street from the west. Neither Harmon court nor Taylor street cross State street. They end there. The little boy injured lived with his parents in a rear apartment at 510 State street, which is three doors south of Taylor street and on the West side of State street. Five hundred and ten was one of the even numbers running from 506 to 512 given to a building of a hundred feet frontage on said west side of State street and on the southwest corner of Taylor street.

South of this building, the west side of State street to beyond a point opposite Harmon court had no buildings on it, but a system of bill-boards was the western boundary of the sidewalk.

On the other side of the street there was a continuous line of buildings from opposite Taylor street south to Harmon court. On the northeast corner of Harmon court and State street was a building with a frontage of forty feet occupied as a saloon and numbered 523 and 525. North of that was a candy store numbered 521, with a frontage of twenty feet, and a doorway about fifty feet from the corner. North of that was a junk shop numbered 519, its doorway being about seventy feet north of the corner.

State street in this locality is one hundred feet wide. Two street car tracks are laid in the centre of it, the west track for south-bound and the east track for north-bound cars.

The east sidewalk on State street was twenty feet wide, and from the sidewalk to the east car track it was about twenty-five feet. The distance between the tracks was four feet and between the rails of each track four feet eight and one half inches. Thus the distance between the east rail of the west track and the curb of the east sidewalk was about thirty-four feet, and from that rail to the building line about fifty-four ' feet. The street at this point is a busy one.

At about four o ’clock in the afternoon of August 28, 1908, the mother of the plaintiff gave permission to him and to his older brother Edmund, who was eight years old, to go out in the street. She says that “they wanted to go down in front and sit on the steps awhile”.

They evidently crossed the street and went to the candy store at No. 521. They were seen by several people to come from this store, go a few steps south, and then attempt to cross State street to the west. The older boy, Edmund, crossed the tracks safely; the younger one, Francis, the plaintiff, was struck by the east foot-board of a south-bound grip car which was drawing two trailers. He was knocked under the grip car and his right leg so crushed that amputation was necessary.

There is a contention between the plaintiff’s and defendant’s counsel as to the exact movements of the plaintiff immediately before the accident. The theory of the plaintiff’s counsel is that the two boys were together until they both had crossed the east or northbound track, that between the tracks the older boy, perhaps in fear of the coming train, so quickened his movements as to cross the western or south-bound track and nearly reach the sidewalk before the cars came, but that the younger one, fearful or confused, hesitated, slowed up or stopped just momentarily, and then, as his brother turned and beckoned to him to hasten, ran forward just in time to be caught and thrown down by the nearest foot-board of the grip car of the approaching train. That train was eighty feet in length, and had stopped at the south side of Taylor street. The computation plaintiff’s counsel makes is, that as the accident happened about forty feet north of Harmon court, the train had run about 85 feet when it struck the plaintiff. It was not running at.a high speed. But it is claimed by the plaintiff that it had much to do with the unfortunate accident that some fight or disturbance was going on at the time on the west side of State street near the Taylor street corner, and that to this disturbance, as the plaintiff’s counsel puts it, “the gripman had been devoting his attention after starting up from Taylor street until just before striking plaintiff, when his attention was brought back to the track ahead by the hollering of persons on the east side of State street who had seen plaintiff’s danger. The gripman then also hollered and attempted to stop his train and did so in a short distance, but not until the east foot-board of the grip car had struck the plaintiff”.

The theory of the defendant’s counsel, on the other hand, to quote from their argument, is, “The accident happened about sixty feet north of Harmon court, * * * about the time the train stopped at Taylor street or a little before, the two little Perryman boys * * * started west from the' east sidewalk on State street. They ran together across that space between the east sidewalk and the east track. When that space had been covered, the little fellow stopped. The larger boy continued on to the west, and when he reached the west sidewalk, or within a few feet of that point, he turned and beckoned and shouted for the younger child to ‘come’ on to the west. Meanwhile, the street car train had started and was running slowly to the south. When the car was very close, about ten feet north of plaintiff, the little boy started westward again, and before the car could be stopped came in contact with the foot-board on the east side of the grip car and was injured”.

As subsequently stated in defendant’s argument, enlarging on the gripman’s actions, it is “When the front of the south-bound grip train had run about twenty feet from the stopping place and was about forty feet north of plaintiff, the gripman saw plaintiff approaching the car tracks j immediately the gripman applied his brake, and checked up the speed; this brought the car well under control and it could have been stopped before reaching the line on which plaintiff had been traveling; but when the car reached a point fifteen or twenty feet north of plaintiff, the plaintiff stopped still; the place where plaintiff stopped was about the east’ rail of the east track, which was nine or ten feet east of the track upon which the south-bound car was running; the gripman saw that the boy had stopped, apparently to await the passage of the train, and the gripman released his brake and put on the grip; a moment after he did this, the boy started from his position of stand-still and ran westward. The gripman immediately made efforts to stop, but as he had just released his brake he could not bring the car to a stop before plaintiff and the side of the car were brought in contact. * * * On the gripman’s own testimony, the question was whether he had a right to drive the car past the boy standing at the side of the tracks. If the testimony for the plaintiff as to the gripman looking-aside be believed, that testimony furnishes no ground for liability. The failure to see the child would make no difference, as the gripman would not have been required by law to stop had he seen the child. * * * It is a complete defense to the evidence of some of plaintiff’s witnesses on the subject of the gripman glancing aside, to show that, if the gripman had been looking at the Perryman hoy as he stood on the street, the gripman would not have stopped any way, because the little boy was then in safety and with no apparent intention of running into the course of the street car.”

It seems to us that in-the words of counsel’s argument which we have italicized lies the gist of it.

If it were clear that this was what the evidence showed, the case would he easier to decide, but we by no means consider it so clear. The contention of the plaintiff is not so much that in such a case the defendant would be liable, as it is that this is not such a case.

In distinguishing the catena of authorities produced- and discussed by the defendant’s counsel, the plaintiff’s counsel say: ‘ ‘ These, with one or two exceptions, were cases where the children, though perhaps close to the track in some instances, were still in a safe place, and indicating no intention of crossing the track, prior to a sudden and unexpected movement to do so, resulting in their injury”.

He argues that in the case at bar, the four-year old child, although perhaps in a place of safety when first seen by the gripman, was nevertheless (and that this is so even assuming the gripman’s version of the accident to be correct) indicating an intention to cross the track. As it did indicate such an intention, the gripman, considering the infancy of the child, its inability to exercise care for its own safety, and its incapacity for contributory negligence, was held in law to anticipate that it might attempt to cross the track in such a manner that the car would catch and injure it. Such an anticipation imposed upon him a very high degree of care, and it was for the jury to determine whether it was given.

We are of the opinion that this argument is sound, and the conclusion that it was a question for the jury to determine whether the gripman was as careful as the law required (according to their instruction), is correct, if the premise is correct that the child was indicating an intention to cross the track.

And, moreover, we consider that this very question, whether or not the child was indicating an intention to cross the street when first seen by the gripman, was in itself another question for the jury.

This left them the judges of the facts to be legitimately inferred from all the testimony concerning the child’s position, appearance and surroundings when on the street, and of the actions of the gripman at, immediately preceding, and some little time before the accident. For we cannot assent to the proposition of the defendant’s counsel that it is immaterial whether or not “after the car started up from its position of standstill at Taylor street and before the accident, the gripman had turned to the northwest and by reason of his gaze being so diverted in that direction, failed to see the little boy”.

It seems evident to us that it by no means follows from the fact, if it be a fact, that “the gripman started to stop just as soon as the little boy left his position of safety and started toward the car”, that there could have been under no circumstances a duty which he failed to perform because of his not having his attention properly directed before him, while coming from Taylor street southward.

If when only a few feet from the plaintiff he first saw him, it might well have been true, as he himself said it was, that although he saw the two boys, “there was nothing to indicate to him that they were together or that they had any interest in each other”. But if his attention from the time that he left Taylor street had been directed to his immediate duty, it might, on the other hand, have been properly inferred from the other testimony that he would have seen the movements of these two small children from a point at least slightly further back, and seen what we have indicated was an essential part of this whole matter—that although for a moment, perhaps, standing still and, at that precise moment, “in a place of safety”—the plaintiff was, and at every moment since leaving the sidewalk had been, “indicating an intention to cross the track”.

In other words, while the gripman may have believed from what he actually saw, that the child was indicating no such intention, that belief might have been erroneous (as we think it was) and the result of not seeing what he ought to have seen—the start together, the running together, the separation by the naturally greater agility of the older child, his call to the other by action and voice to come on, the fear, confusion and hesitation of the little child—all indicating his “intention to cross the street”, and calling for a great degree of care and caution on the part of the gripman in running his train.

If the proper decision of this cause turns on the matters on which the witnesses are in conflict, we can find no reason for holding that the verdict of the jury, assuming it to have been based on that version of the story most favorable to the plaintiff, was clearly and manifestly against the weight of the evidence. It is not necessary to remind us, as is often done, that it is our right and duty to weigh evidence. We are quite aware of it. But when the question of the weight of the evidence turns purely on the credibility of the respective witnesses, when, to establish the greater weight on the one side or the other, the argument used must be from their habits, appearance, business, manner of testifying, or the like, it is plain that it is the jury and not we who have the best chance and ability to reach a right decision, and that arguments and analysis of the testimony very appropriate before them can be of small service to us.

In this case, however, except as to the looking away of the gripman during his approach to the immediate locality of the accident (to which five witnesses substantially swear), we think the differences between the witnesses not very material. Some were more definite than others and their testimony as it appears in print more clearly expressed; but whether it was just after or before the east track was passed by the plaintiff, for example, that the fatal short stop, hesitation or fear appeared, is not, in our opinion, the turning-point of this case, and this is all materially that the witnesses differed about.

The question, therefore, whether we should affirm this judgment or not, reduces itself to whether there is or is not shown reversible error in the rulings on the admission of evidence or on instructions.

One instance only of the first is objected to. When the witness Ash, who at the time of the accident was standing in front of 521 State street and saw it, was on the stand in direct examination, he testified that he saw at about the same time “some excitement going on at Taylor street”, and that he noticed the gripman of this south-bound car looking back northward; that he couldn’t tell the exact locality of the car at the time, but that it was between Taylor street and Harmon court.

At the close of the direct examination before the cross-examination began, the counsel for the defendant moved to strike out this testimony on the ground that the position of the car when the gripman was looking back was too indefinitely described. The court denied the motion.

The entire distance from Taylor street to Harmon court is only 204 feet, and the computations of plaintiff and defendant respectively fix the place of the accident at some distance between sixty-five and eighty-five feet from the point at which the grip car stopped after crossing Taylor street. We think, as we indicated above, that it was material whether the gripman looked back instead óf ahead at any time after the train started from Taylor street until the accident occurred.

The court committed no error in refusing to strike out this testimony.

Examination of the instructions given to the jury convinces us that the jury were fully and fairly instructed on the law, and that all the insistence that could be properly desired by defendant was placed in the given instructions on the proposition of law that if the accident in question was due to any cause but the negligence of the defendant’s servants, the defendant was not liable, and that they must not find the defendant guilty unless they believed from the evidence that the defendant’s servant was so guilty of negligence which was the proximate cause of the injury. They were told in various forms that the gripman was held only to ordinary care, and that the happening of the accident in itself furnished no ground for holding the defendant liable.

It is, however, insisted that the instruction numbered twelve, tendered by the plaintiff and given by the court, as follows: “The court instructs the jury that even if you believe from the evidence that the plaintiff’s mother was guilty of negligence in permitting the plaintiff to go upon the street, or that his brother was

guilty of negligénce in not taking’ proper care of him while upon the street, still such negligence, if any, upon their part cannot be charged against the plaintiff, and it is not a defense to this suit”, was erroneous.

It is conceded by the defendant that this instruction down to the words “and it is not a defense to this suit”, is unobjectionable, but it is said that the addition of these words made it misleading to the jury. We do not think so. The brother’s act was not a defense to the suit, and the jury were, as we have noted, repeatedly told that if the defendant was guilty of no negligence, that was a perfect defense.

The definition of negligence in instruction fourteen tendered by the plaintiff and given by the court, is objected to as improper in an instruction although “passable” in an opinion of a court. We do not so regard it. Since its original use by Baron Alderson in 1856 in Blythe v. The Birmingham Water Works Company, 11 Exch. 784, it has become almost a classic in legal literature and has been quoted with approval by the Supreme Court of this State several times, as well as by that of many other jurisdictions: We see no reason to regard it as misleading or inapplicable in the context in which it was used in the instruction complained of.

Instruction numbered twenty-three, tendered by the defendant, was refused. It ran as follows:

“If the jury believe from the evidence that the plaintiff ran into the side of the car in question, and that said car did not strike or run against the plaintiff, but that the said plaintiff ran against and struck the side of the car, then the jury must find the defendant not guilty”.

Its refusal is complained of as reversible error by the defendant. We do not think it should have been given. The amended declaration charged the negligence of the defendant to lie in running its street car so negligently that it ran against or was brought into collision with the plaintiff, and so that he was thereby knocked down and injured.

It did not make any difference whether it was the end of the foot-board (as seems almost certain from the evidence) or some other part of the car which first struck the plaintiff (Chicago West Division Railway Company v. Ryan, 131 Ill. 474; South Chicago City Railway Company v. Kinnare, 216 Ill. 451), if it was through its negligent operation that the collision occurred. And even if the instruction were not in itself likely to be misleading and objectionable, it would hardly be reversible error to refuse it, The jury, as we have said, were fairly and fully instructed on the law applicable to the defendant's theory of the facts.

The judgment of the Superior Court is affirmed~

Affirmed..


text:
    John Joseph Reinisch et al., Appellants, v. Chicago & Northwestern Railway Company, Appellee.
    Gen. No. 14,071.
    This case is controlled by the decisions in C., B. & Q. R. R. Co. v. W. C. St. R. R. Co., 156 Ill. 255; Pennsylvania Co. v. City of Chicago, 181 Ill. 297; Doane v. Lake St. E. R. R. Co., 165 Ill. 510; and People v. General Elec. Ry. Co., 172 Ill. 129.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    J. Henry Kraft, for appellants.
    S. A. Lynde, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an. appeal from a decretal order of a chancellor in the Circuit Court dismissing, for want of equity, on general demurrer a bill in equity, which is thus described in his argument by the counsel for complainants below and the appellants here. The bill he says sets forth: First, that the complainants are abutting and adjacent property owners on and are directly interested in Brand street in the city of Chicago; second, that except for the nuisance about to be committed by occupation of said street "for railroad purposes, said street is one of the public highways of the city; third, that the Chicago & Northwestern Railway Company is about to obstruct said street with a railroad track, and is about to take possession of said street; fourth, that said Chicago & Northwestern Railway Company pretends to do so under an ordinance passed by the city council of Chicago; fifth, that no attempt has been made to comply with the statute in such case made and provided in reference to frontage consent; sixth, that no petition or frontage consent has ever been signed by the abutting property owners or filed with said city council; seventh, that the said common council of Chicago, in violation of the law, granted permission to lay down the track and to commit the nuisance; eighth, that abutting property owners protested both to the committee having the matter in charge, and to the city council, but without avail; ninth, that the railroad track creates a nuisance upon West Fullerton avenue, which is the intersecting street with Brand street, for the reason that said railroad track or switch track crosses Fullerton avenue at a sharp incline from the Fullerton avenue bridge; and tenth, that the attempt by the Chicago & Northwestern Railway Company would cause irreparable injury and damage to the abutting property owners.

The prayer is for a permanent injunction against the proposed action of the defendant.

The theory of this bill and its prayer are so inconsistent with the law of this State as it has been declared in C., B. & Q. Railroad Company v. West Chicago Street Railroad Company, 156 Ill. 255, and Pennsylvania Company v. City of Chicago, 181 Ill. 297, and especially and elaborately in Doane v. Lake Street Elevated Railroad Company, 165 Ill. 510, and The People v. The General Electric Railway Company, 172 Ill. 129, with all which cases counsel is undoubtedly familiar, that no explanation of the appeal to this court is possible save that it is a necessary stepping stone to an opportunity to urge on the Supreme Court a reversal or overruling of their formerly announced doctrine. When the Doane case supra (which the appellants’ counsel calls “a judical announcement nullifying a wholesome statute”—meaning thereby the frontage consent statute on which he relies) was in this court, there was a dissent by one member of the court, which dissent was based on the “Frontage Act”, and its supposed effect on the right of an abutting property owner in a case like this. But the dissenting-judge declared that he should bow to the decision of the Supreme Court when made and meanwhile to the opinion of the majority of this court.

It is hardly reasonable to expect us now to overrule or disregard the deliberate decisions of the Supreme Court.

The decree of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    John E. Kavanagh, Appellant, v. Bank of America et al., Appellees.
    Gen. No. 14,014.
    1. Negotiable instruments—effect of indorsement of certificate of deposit. An indorsement by the payee of a certificate of deposit makes it in effect payable to the bearer so that title thereto passes by mere delivery.
    2. Negotiable instruments—status of certificates of deposit. By statute of Illinois as well as by the common law, certificates of deposit are negotiable instruments.

      3. Negotiable instruments—when bona fide purchaser for value of certificate of deposit not subject to equitable defenses. A bona fide purchaser for value of certificates of deposit the execution of which has been procured without fraud or deception, is not subject to equitable defenses involving the insufficiency of consideration, or the like, existing as between the maker and the original payee.
    4. Receiverships—form of order directing payment of claim. An order directing a receiver to pay a claim allowed against an estate should not direct payment “forthwith” but should provide that such payment be made “in due course of administration”.
    Bill for receiver, etc. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Edward J, Stevens, for appellant; David K. Tone and Edgar L. Masters, of counsel.
    Adams & Froehlich, for appellee, Gilbert C. Pryor.
   Mr. Justice Holdom

delivered the opinion of the court.

The appellant, John E. Kavanagh, filed a bill to wind up the affairs of the appellee Bank of America and for the appointment of a receiver as a means to accomplish that end. Daniel D. Healy was appointed such receiver. In the process of the administration of the bank, the marshalling of its assets and in ascertaining its liabilities, one Gilbert C. Pryor in an intervening petition presented a claim as assignee of six certificates of deposit of the Bank of America, each for the sum of $2,500. On June 10, 1907, after a hearing-before the chancellor, the claim was allowed for $15,903.42, the amount of principal and interest due on the six certificates of deposit, and a decree entered to that purport and directing- “that said receiver be and he is hereby ordered, adjudged and decreed to pay to said Gilbert C. Pryor the said sum of fifteen thousand nine hundred and three dollars and forty-two cents ($15,903.42) forthwith”. From this finding and decree John E. Kavanagh prayed, was allowed and perfected an appeal to this court. Daniel D. Healy, the receiver, also prayed and perfected an appeal to this court, but has since caused his appeal to be dismissed.

The material findings of the decree are as follows: “That the said Gilbert G. Pryor is the holder and owner of six certificates of deposit, each dated the 15th day of January, 1906, for twenty-five hundred dollars * * * respectively, due respectively, two in five, two in six and two in seven months after date, all of said certificates being payable to the order of F. E. Creelman and by the said F. E. Creelman endorsed in blank; that the said F. E. Creelman sold the said certificates of deposit to the Jackson Trust & Savings Bank and the Jackson Trust & Savings Bank received such certificates in the regular course of business for a valuable consideration, namely, the sum of fifteen thousand dollars * * * in money paid by the said Jackson Trust & Savings Bank to said F. E. Creelman ; that said Jackson Trust & Savings Bank received all of said certificates before the maturity of any of them, and was ignorant of the defenses, if any, which said Bank of America might have or have had against the enforcement of liability on said certificates in the hands of said F. E. Creelman.

“And the Court further finds that said Jackson Trust & Savings Bank transferred the said certificates to the said petitioner, Gilbert C. Pryor, and received therefor the sum of fifteen thousand dollars * * * before the maturity thereof, and the said Gilbert C. Pryor received said certificates in the regular and ordinary course of business and was ignorant of any defense which the said Bank of America might have against the payment thereof.

“And the Court further finds that the said certificates are a good and valid claim against the estate of said Bank of America now in the hands of the receiver, Daniel D. Healy, and that the amount now due on said certificates is the sum of fifteen thousand nine hundred and three dollars and forty-two cents, * * * which should be allowed as a claim against the assets in the hands of the receiver of the said Bank of America. * * * M

We have examined with care all of the testimony appearing in the record, and without here again reciting such testimony, content ourselves by declaring it as our opinion that the findings of fact above recited are abundantly sustained by the proofs in the record.

The certificates in dispute are in the following form: “Bank of America No. 20 $2500.

Chicago, Jan. 15, 1906.

F. E. Creelman has deposited in this Bank twenty five hundred dollars, payable in current funds five months from date, with interest at the rate of 3% per cent per annum on return of this certificate properly endorsed.

C. A. Sawtelle, B. H. Howe,

Teller. Cashier.

No. 3224.”

Endorsed: “F. E. Creelman.”

The other five certificates are exactly the same, with the exception of their numbers and time of payment of four of them.

Counsel for intervener stated upon the trial that they would agree that any defense that could be made against the bank—meaning the Jackson Trust & Savings Bank—could be used against Pryor.

In view of this concession we will now determine the rights of the Jackson Trust & Savings Bank as affecting the character of the title which they transmitted to the intervener claimant, Pryor.

While, as we have already said, the proof sustains the findings of fact in the decree, neverthelesss the right of recovery depends upon the application of principles of law governing and controlling such facts.

The burden of the argument of appellant is devoted to two propositions:

First. That the Bank which acquired the certificates of deposit from Creelman is not an innocent assignee of such certificates in the usual course of business, and that Pryor is not the holder by assignment from the bank. These contentions involve an attack upon the probative force of the facts.

Second. That “where fraud in the inception and issuance of negotiable paper is shown by the maker, the burden is on the indorser to prove himself to be an innocent holder”. This raises the questions of law in the case and leaves for our decision whether the last quoted statement announces a legal proposition which, upon the facts in the record, inhibit a recovery.

First. The evidence, uncontradicted, of Lawton, the cashier of the Jackson Bank, called by appellant and made his own witness, thereby vouching for his credibility, was that he did not know how the certificates were obtained by Creelman from the Bank of America; that these certificates were purchased and received by the Jackson Bank in the regular course of business. Lawton was the cashier of the bank and as such received the certificates from Creelman. Creelman, it is true, had many other dealings with the Jackson Bank, and at the time of negotiating the certificates in suit was an officer and stockholder of the Bank of America, whose fidelity in his dealings with that bank is challenged in the bill filed for a receiver. That many irregularities were practiced by the president and other officers of the bank, to its detriment and ruin, are matters of judicial history. No knowledge that any fraud was practiced in the procuring of these six certificates from the Bank of America by Creelman or any one else, is fastened upon the Jackson Bank or its officers by the proof in the record; nor is any such knowledge reasonably inferable from any proof therein.

In the light of the stipulation orally made at the conclusion of the evidence for the defense by counsel for intervenor, and impliedly, for want of objection or challenge upon the part of any one defending, acquiesced in by appellant, we think it is immaterial whether evidence is in this record sustaining title of Pryor in the certificates as assignee of the Jackson Bank. Mr. Adams, speaking’ for the intervenor, at the close of the defense said: “It is stipulated that the case shall proceed the same as if the Jackson Trust & Savings Bank were the real plaintiffs here in the place of Pryor, trustee, and that no point will be raised by reason of the fact that Pryor, trustee, failed to show that he paid any actual consideration for those certificates to the Jackson Trust & Savings Bank”. This stipulation was, in its effect, a concession to appellant and favorable to the defense, as it eliminated tile question of the protection which the law extends to remote assignees for value of such banking paper acquired before maturity and without knowledge, actual or imputable, of irregularities in their issue or fraud in obtaining them. This requirement was waived, and appellant is now estopped to make the objection on appeal which he impliedly, at least, waived on the trial. Aside, however, from these considerations, we find evidence in the record, uncontradicted, that Pryor actually paid the Jackson Bank $15,000 and accrued interest for the certificates at the time they were delivered to him, before their maturity. Such delivery by the Jackson Bank without further endorsement was sufficient to vest the title to them in Pryor. The indorsement by Creel-man of these certificates made them, in legal effect, payable to bearer, so that the title to them would pass by delivery to a third party, and no further indorsement was needed to pass the title. Authorities sustaining this proposition will be found in the Encyclopaedia of Law & Procedure, vol. 7, p. 759, and cases there cited.

Second. It is contended .that the certificates of deposit are not negotiable instruments within the meaning of- the statutes of this state on that subject, and not being negotiable the Bank of America may avail of all defenses, legal and equitable, which it might make were such certificates in the hands of the original owner. It is further urged that these certificates are not negotiable under the Negotiable Instrument Act. Chapter 98, B. S. and Sections 3 and 4, are cited in support of such claim.

Section 3 provides that “All promissory notes, bonds, due-bills and other instruments in writing made or to be made by any person * * * whereby such person promises or agrees to pay' any sum of money * * * or acknowledges any sum of money * * * to be due to any other person, shall be taken to be due and payable, the sum of money * * * therein mentioned by virtue thereof to be due and payable as therein expressed”.

The certificates in question contain the quality and indicia of instruments in writing made by the Bank of America—an artificial person promising to pay a sum certain to a person named, at a definite time, with interest at a specified rate on surrender of the certificates properly indorsed. The statute is not confined in its operation to promissory notes, bills of exchange or due-bills, but includes instruments in writing of the nature of these certificates. To obtain payment when due, the certificates must be surrendered duly indorsed. The indorsement means that of the person named in the certificate. When so indorsed and offered for surrender, the amount due is payable to the person presenting the same for surrender and payment. The certificates when indorsed in blank are, by operation of law, payable to bearer.

Section 4 supra provides that “any such note, bond, bill or other instrument in writing, payable to any person named as payee therein, shall be assignable by indorsement thereon under the hand of such person. * * *” Applying this section to the certificates, the person named therein, F. E. Creelman, is the payee, and they were assignable by his indorsement under his hand. The certificates are therefore negotiable instruments and were assignable by the indorsement of Creelman and payable to the person to whom they were delivered upon surrender. Furthermore, it was decided in Telford v. Patton, 144 Ill. 611, that a certificate of deposit is in fact and law a promissory note for the payment of money. Beckstrom v. Krone, 125 Ill. App. 376.

We think that in every material particular the certificates of deposit have all the essential qualities of a promissory note as defined in Dorsey v. Wolff, 142 Ill. 589, where the court say: “Various definitions have been given of a promissory note. In general terms, it may be defined to be a written promise by one person to pay another person therein named, or order, a fixed sum of money at all events and at a time specified therein, or at a time which certainly must arrive”.

Certificates of deposit of the character of those in the record pertain to the business of banking, and are issued, generally, in the usual course of the business of bankers. They are as well recognized and understood in the business world of today as a legitimate method and means of banking, as the dealing of bankers in domestic and foreign bills of exchange, due bills and other negotiable paper, have been for centuries recognized and understood as the major part of the active business of bankers and banking. These certificates were issued by the accredited officers of the Bank of America to Creelman in the usual course of the business of the bank. They passed current among bankers as assignable, negotiable paper. As we have hereinbefore demonstrated, they are negotiable instruments, the title to which passes by indorsement and delivery. But it is insisted that there are equitable defenses to the certificates between the maker and Creelman, and that those defenses can be successfully interposed against the intervenor and the assignee, the Jackson Bank. These defenses go, in the main, to the adequacy of the consideration moving from Creelman to the bank, involving also the integrity of the Bank of America’s executive officers. Whatever the facts regarding such contentions may be, the record fails to connect either the officers of the Jackson Bank or Pryor with knowledge, in the slightest degree, of any illegal conduct or fraud or conspiracy between the bank’s officers and Creelman in the obtaining of the certificates. The whole argument rests for its support in surmise and conjecture, upon the apparent assumption that Creelman, in his dealings with the Jackson Bank, had developed such a character as an unsound and unsafe financier that his possession of the certificates was sufficient to raise a presumption that he obtained them irregularly and that they were not issued to him by the Bank of America in the regular course of its business. With proof that the certificates were acquired by the Jackson Bank from Creelman for full value paid by the bank to Creelman, that for such consideration they were indorsed and delivered by Creelman to the Jackson Bank before maturity, and that they were subsequently delivered by the bank, without further indorsement, to Pryor, the latter made a prima facie case against the receiver for an allowance of the amount of the principal and interest due upon them.

The evidence given in defense failed to fasten upon either the Jackson Bank or Pryor knowledge of any fraud or irregularity in their issue, or that they were in fact issued without consideration. The fact, if it be a fact, that the consideration for the issue of the certificates was inadequate, or that the officers of the Bank of America issued them without due regard to their duty as officers of the bank, or in disregard of such duty, did not impute knowledge to the Jackson Bank or Pryor of these derelictions upon the part of the bank’s officers, making it necessary for Pryor to put in any rebutting proof. There is no pretense that any fraud or deception was practiced by Creelman in procuring the execution and delivery of the six certifificates to him by the Bank of America, nor is there any evidence that they were not issued in the usual course of the business of the Bank of America. Fraud or deception necessary to invalidate the certificates, must have been practiced in the obtaining of them in the first instance. Inadequacy of consideration will not invalidate them .in the hands of an innocent holder for value before maturity. Martina v. Muhlke, 186 Ill. 330; Richelieu Hotel Co. v. Mil. Enc. Co., 140 ibid. 257; Bradwell v. Pryor, 221 ibid. 606; Connolly, Admr., v. Dammann, 232 ibid, 175.

Lawton, the cashier, was the officer of the bank who bought the certificates-from Creelman for the Jackson Bank, and we see nothing in this record needing any contradiction by Eagan, the president of the Jackson Bank, or justifying any inference that Eagan had any knowledge of any frauds by the bank officers in issuing the certificates or on the part of Creelman in obtaining them.

There is nothing in the reported conversation between Daoust of the Defiance Bank and Eagan which tends to charge Eagan with knowledge of any irregularities or frauds in the issuing of the certificates to Creelman, imposing upon Eagan the necessity of testifying in contradiction. Nothing in this record tends to prove a common design on the part of Creelman and the officers of the Bank of America and any officers of the Jackson Bank of conspiring to defraud the Bank of America in procuring the issuance of the six certificates of deposit in dispute. Nor do any of the eases cited by appellant hold to any such doctrine on facts anywhere near similar to those in the case at bar.

The objection is made that the direction in the decree to the receiver, to pay the amount found due on the certificates “forthwith” is contrary to the usual course and practice in cases of claims ordered paid by receivers in liquidation proceedings, and that the order should have been that the amount found due should be paid by the receiver in the due course of the administration of the bank’s estate. The costs of liquidation, including receiver’s charges, are primarily payable from the assets of a concern in liquidation

before the receiver pays other claims. We think this objection is well taken, but it does not necessarily require a reversal of the chancellor’s decree.

The decree of the Superior Court will be modified by striking out of it the last word thereof, viz, “forthwith”, and inserting in its place the words, “in due course of the administration of the estate of said Bank of America in liquidation in this court”.

And as so modified the decree of the Superior Court is affirmed.

Affirmed.


text:
    John E. Kavanagh, Appellant, v. Bank of America et al., Appellees.
    Gen. No. 14,036.
    This ease is controlled by the decision in Kavanagh v. Bank of America, ante, p. 201.
    Bill for receiver, etc. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Edward J. Stevens, for appellant; Edgar L. Masters and David K. Tone, of counsel.
    Bulkley, Gray & More, for appellee; Albert S. Eagan and C. Paul Tallmadge, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

John E. Kavanagh, the appellant, filed a bill in the Superior Court of Cook county, seeking to wind up the business and affairs of the appellee Bank of America, an Illinois corporation, of which he was a stockholder. and for the appointment of a receiver for that purpose.

Daniel D. Healy was appointed receiver, and in the order of appointment it was directed that the affairs of the bank be wound up and that the receiver proceed with all convenient speed to collect in and distribute its assets under the direction of the court, etc.

On April 2, 1906, leave was given Alberta S. Eagan to file, and in pursuance of such leave she did file, an intervening petition, setting forth that she was the owner and holder of three certificates of deposit of the Bank of America, each for the sum of $500; that the same were transferred to her by the payee in the certificates mentioned, F. M. Creelman, for a valuable consideration paid by her to said Creelman therefor; that said certificates were all dated January 13, 1906, and were payable respectively in three, four and five months after their date, with interest at the rate of three per cent, per annum, upon surrender of the certificates properly indorsed.

Daniel D. Healy as receiver answered the intervening petition, in which answer he charged that the certificates were obtained from the Bank of America by fraud and conspiracy between certain of. the officers of the Bank of America and the Jackson Trust & Savings Bank, among others, William H. Eagan, the then president of the Jackson Bank, and further charging that the interest of William H. Eagan and that of the intervenor, Alberta S. Eagan, in said certificates, are the same, and that the name of Alberta S. Eagan was used by William H. Eagan for the purpose of making it appear that the latter was an innocent purchaser for value, but that in fact said Alberta S. Eagan was a mere dummy, or that William H. Eagan was the agent of Alberta S. Eagan in procuring the certificates to be delivered by F. M. Creelman, and that Alberta S. Eagan had notice on January 13, 1906, the date of the certificates, that F. M. Creelman had no money on deposit in the Bank of America, but that on the contrary he was indebted to that bank.

On the hearing the intervenor produced as a witness C. A. Sawtelle, who was a teller in the Bank of America at the time the certificates of deposit were issued, and whose name is signed to each of the certificates, and he testified that his name and that of R. H. Howe, assistant cashier of the issuing bank, were upon the certificates; that the indorsement upon the certificates was that of F. M. Creelman; that the certificates were issued in the regular course of the business of the bank, and that he knew nothing against their validity at the time they were issued. The certificates were Then offered in evidence and the intervenor rested her case.

The depositions of William H. Eagan and Alberta S. Eagan, the intervenor, read in evidence in support of her petition, tend to prove that William H. Eagan loaned to F. E. and F. M. Creelman $1,500 of the money of Alberta S. Eagan, taking as security their note and the bonds of the Lattonier Land Company to the amount of three thousand dollars; that upon request of F. M. Creelman, William H. Eagan changed the loan by surrendering the Lattonier bonds and the note of F. E. and F. M. Creelman, and took the certificates of deposit in evidence from F. M. Creelman in payment of the loan; that the certificates were so taken before the maturity of any of them, and without any knowledge of any defenses thereto by the Bank of America; that William H. Eagan acted in these dealings as the agent of Alberta S. Eagan.

Much evidence was submitted in defense of Mrs. Eagan’s claim, tending to prove mismanagement and bad business judgment upon the part of the Bank of America and some shrewd manipulations on the part of some of the officers of the Jackson Bank, in disposing of some securities of doubtful value to the Bank of America. But we are unable to find any testimony in this record affecting the bona fides of the dealings of Mrs. Eagan with the Creelmans, or imputing to her knowledge of any irregularities in the issuing of the certificates here involved, if any irregularities in fact existed.

On April 15, 1907, the chancellor, after hearing all the proofs appearing in the record, found that the intervenor, Alberta S. Eagan, was the holder and owner of the three certificates of deposit, and that she was entitled to be paid out of the funds of the Bank of America in the hands of the receiver, upon surrender and cancellation of the three certificates, the sum of $1,556.25, the principal and interest due thereon, and ordering Healy, as receiver, to pay that amount out of the funds of the Bank of America.

The legal questions here involved are relatively the same as those in a case brought by appellant on appeal from the allowance of the claim of the intervening petitioner, Gilbert C. Pryor, and numbered in this Court 14014, in which we have this day handed down our opinion. Ante, p. 201. We refer, without here again repeating, to our opinion in the Pryor case, for a statement of the law of this case, as well as to the cases there cited in support of our reasoning. They are equally as decisive of the questions here raised as there involved, and we would regard it as a work of supererogation, never to be indulged or tolerated, to again repeat here what we have so decisively said in the Pryor case.

The three certificates of deposit of the Bank of America in dispute were issued in due course of the bank’s banking business. They are negotiable instruments. The intervener, Alberta S. Eagan, acquired ownership of them before maturity and for a valuable consideration, without knowledge, actual or imputable to her, of any defenses to them by the Bank of America.

The decree of the Superior Court is sustained by proof and legal precedent, and it is therefore affirmed.

Affirmed.


text:
    John P. Foss, Appellant, v. The Peoples Gas Light & Coke Company, Appellee.
    Gen. No. 14,048.
    1. Lis pendens-operation of doctrine of. One who acquires rights in corporate stock during the pendency of litigation involving the determination of the ownership of such stock, takes subject to all of the infirmities of title existing in his assignor.
    2. Amendments and jeofails-what not abuse of discretion. It is not an abuse of discretion to refuse to allow an amendment of a bill of complaint at the time of the entry of a final decree thereon upon demurrer sustained thereto; the application to amend being two months after the hearing upon the demurrer, being the second which had been made, the first having been granted.
    3. Pleading-what not legal averment of status as stockholder. Held, that the following allegation in that it did not set up facts, failed legally to allege the ownership of stock: "That in or about the year 1857 he became, ever since has been and now is, a stockholder of the People's Gas Light & Coke Company, and the owner of 1,500 shares, of the par value of fifty dollars each, of the original capital stock of the said defendant corporation."
    4. Pleading-when indefIniteness of demand raises preswmption of laches. The allegation of a demand upon the defendant that a right of the plaintiff be accorded him being made without date, may be presumed to have been made but shortly before the institution of the suit, and if having been so made would have then in fact have been made at a time when the right would have been lost by virtue of laches, the pleading is insufficient, and its insufficiency may be availed of by general demurrer.
    5. Statute or Limitations-availability of, as between corporation and stockholder. The Statute of Limitations as well as the doctrine of laches may be availed of by a corporation against a stockholder.
    6. Laches-what constitutes as against stockholder. Fifty years of unexplained delay in asserting rights of accounting and participation in stock increases constitutes laches and bars the action.
    Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Statement by the Court. John P. Foss, the appellant, filed in the Circuit Court a bill, not under oath, praying for an accounting from and a receiver for the appellee, The Peoples Gas Light & Coke Company.
    The right to the relief sought was predicated upon the alleged fact that in or about the year 1857 Foss became and ever since said date has been the owner of 1,500 shares of the original capital stock, constituting one-fifteenth part of such original corporate stock, of the Gas Company, said stock being of the par value of $50 a share; that from such ownership he became entitled to fifteen per cent, of the increased capital stock of the Gas Company from time to time as such capital was increased; that the Gas Company absorbed other gas companies at various times, and on such occasions increased its capital stock. Foss alleges that the Gas Company has kept him in ignorance of its dealings, has failed to pay him dividends upon his stock, or to allot him pro rata additional shares of stock at any of the times when it increased its capital stock. The bill further charges that the Gas Company has acquired stocks, bonds, and other securities of other companies by consolidation and that the same is of great value, and that they have in whole or in part been distributed among various so-called “favored” stockholders, but that Foss has been excluded from the benefits of such distribution. The bill then proceeds to charge, as disclosed by the abstract, that “although complainant has demanded the proportion of the capital stock of said company distributable to him by reason of his original holdings, and the increase in said capital, and has demanded an account from defendant of and concerning its business and affairs since complainant became a stockholder therein, and of the amount of the profits distributable to its stockholders as aforesaid, and of the amount and disposition of the profits distributable to complainant upon account of his said holdings, but heretofore and now withheld from complainant by defendant, and although complainant has demanded from defendant, through its officers and agents, the privilege of inspecting the books, records and papers of defendant to which complainant is entitled as a stockholder as aforesaid, defendant and its officers have hitherto failed, neglected and refused and still refuse to account to complainant as aforesaid, or to permit complainant to examine the books, papers and records of defendant or to deliver to complainant the proportion of the capital securities and profits of defendant to which complainant is entitled, as aforesaid; and the officers and agents of defendant are fraudulently diverting the revenue, gains and profits of said corporation from the proper channel and from its stockholders, and applying said revenue, gains and profits to the benefit of certain of the stockholders, thereby defrauding complainant and other of said stockholders of his and their rights in the premises”, etc.
    To this bill the Gas Company interposed a general demurrer, which, after a hearing and argument by counsel for the several parties, being sustained, Foss asked and obtained leave to file an amended bill.
    On July 3, 1905, Foss filed his amended bill, which, while setting forth with more particularity many of the averments of ultimate facts appearing in the original bill, in no substantial particular affects the rights of the parties as they were made to appear by the averments of the original bill.
    It appears from the amended bill that the Gas Company came into existence under a special charter granted by the legislature of this State approved February 12, 1855, and that the same was amended February 7,1865; that the charter conferred the power to make and vend'gas for illuminating and other purposes in the city of Chicago, and to do all things and to acquire and own all property necessary to that end; recites various public acts affecting the Gas Company and its business, including the right to acquire by purchase, merger or otherwise, other gas plants; that as it lawfully might, it acquired in various ways the property and business of the Chicago Gas Light & Coke Company, Consumers Gas Company, Equitable Gas Light & Fuel Company, Suburban Gas Company, Lake Gas Company, Hyde Park Gas Company, The Mutual Fuel Gas Company and the Calumet Gas Company; that the original capital stock was in the sum of $500,-000, and that it has since been increased until it now amounts to $32,969,100 of stock outstanding.
    On March 14,1906, one Samuel Doll filed his petition for permission to intervene and be made a party defendant to said amended bill, for the reason that on March 8, 1906, Foss assigned unto him a quarter interest in his stock holdings of the Gas Company and to the accumulations of dividends and other interests thereon claimed by Foss. On March 22, 1906, Doll filed his answer, admitting the material averments of the amended bill and also at the same time filed a cross-bill, seeking substantially the same relief prayed by Foss. On June 27, 1906, Doll filed an amended cross-bill. On August 12, 1905, the Gas Company filed a general demurrer to the amended bill of Foss, and on July 7, 1906, filed a general demurrer to the amended cross-bill of Doll. A hearing upon these demurrers resulted in their being sustained May 2, 1907, and on July 11, 1907, a decree was entered dismissing the amended bill of Foss and the amended cross-bill of Doll for want of equity. Both Foss and Doll prayed and were allowed separate appeals to this court from the decree last mentioned, but Foss alone perfected his appeal.
    Knight & Hoyne, Francis W. Walker, Robert F. Pettibone and Fred H. Raymond, for appellant.
    An averment of an ultimate fact is sufficient to sustain a cause of action without the recitation of any fact to support such averment.
    Gillett v. Robbins, 12 Wis. 329; Gage v. Kaufman, 133 U. S. 471; Ely v. New Mexico &c Railroad Co., 129 U. S. 291; Bixler v. Summerfield, 195 Ill. 148; Dunbar v. Amer. Tel. Co., 224 Ill. 9; 3 Dan. Ch. Pr. (Perkins Ed.), 1947, 1958, 1963, 1972, 1979, 1988, 1990, 1997, 2019; 1 Dan. Ch. Pr. (Perkins Ed.) 367; Kantzler v. Bensinger, 214 Ill. 589; 21 En. Pl. & Pr. 719, note 1; 16 Cyc. 228, 229.
    To make laches available as a defense on demurrer, the laches must appear on the face of the bill.
    Kerfoot v. Billings, 160 Ill. 563; 16 Cyc. 268; People ex rel. v. Sterling Mfg. Co., 82 Ill. 457; Coquard v. National Linseed Oil Co., 171 Ill. 480; Higgins v. Lansingh, 154 Ill. 301; Beach v. Miller, 130 Ill. 162; Roseboom v. Whittaker, 132 Ill. 81; Atwater v. American Ex. Bank, 152 Ill. 605.
    Where a dividend has been declared, a shareholder is entitled to an accounting in equity.
    Cook County Brick Co. v. Kaehler, 83 Ill. App. 448.
    Sears, Meagher & Whithey, for appellee; James F. Meagher and Jesse J. Ricks, of counsel.
    An averment of ownership of stock which is not supported by a recitation of any fact tending to sustain the averment, is a conclusion of law and insufficient to support a cause of action.
    Sterling Gas Co. v. Higby, 134 Ill. 557; Shickle v. Watts, 7 S. W. (Mo.) 274; Cook on Corporations, Par. 10; Kuhn v. The Academy of Music, 15 Weekly Notes Cases, 251; Travelers Insurance Co. v. Healey, 33 N. Y. Suppl. 911; McCloskey v. Barr, 38 Fed. 165; Savage v. Walshe, 26 Ala. 619; Thomas v. Desmond, 12 Howard Pract. 321; Plant v. Schuyler, 30 N. Y., Sup. Ct. R. 271; Thompson v. Cook, 21 Ia. 472; Poorman v. Mills, 35 Cal. 118; Miller v. Stalker, 158 Ill. 514; Becher v. Wells Flouring Mill Co. et al., 1 Fed. 276; Williamson v. Wager, 86 N. Y. Sup. 684; Allen v. Reilly, 15 Nev. 452; White v. Brown, 14 Howard Pract. 282; Encyc. Pleading & Pract., Vol. 12, p. 1020; Kilgore v. Ferguson, 77 Ill. 213; Garner v. McCullough, 48 Mo. 318.

      The relief sought by appellant should be denied on the ground of laches imputable from the fact of forty-eight years delay in asserting his claim, without reasonable excuse.
    Kerfoot v. Billings, 160 Ill. 563; In re Severn & Wye and Severn Bridge Ry. Co., 1 Law Reports 1896, Chan. Div. 559; Smith v. Cork & Banden Ry. Co., Irish Repts., 5th Eq. Ser. 65; Winchester & Lexington T. Co. v. Wickliffe's Admr., (Ken.) 38 S. W. 866; Reynolds v. Summer, 126 Ill. 58; McDonald v. Stow, 109 Ill. 40; 19 Am. & Eng. Ency. of Law, 196; Codman v. Rogers, 27 Mass. 111; Shelburne v. Robinson, 8 Ill. 597; Thrall v. Mead’s Estate, 40 Vt. 540; Palmer v. Palmer, 36 Mich. 487; Keithler v. Foster, 22 Ohio St. 27; Morrison v. Mullin, 34 Pa. St. 12; Jameson v. Jameson, 72 Mo. 640; A. T. & S. F. Ry. Co. v. Burlingame Township, 36 Kas. 628.
    A stockholder’s remedy to recover a dividend is at law and not in equity.
    King v. Paterson, 29 N. J. Law, 504; Morawetz on Corporations, Par. 450; Coles v. Bank of England, 10 Ad. & El. 437; Bank of England v. Davis, 5 Barn & C., at p. 185; Hall v. The Rosehill & Evanston R. R. Co., 70 Ill. 673; Scott v. Central R. R. & Banking Co. of Georgia, 52 Barb., Sup. Ct. (N. Y.) 45; Stoddard v. Shetucket, 34 Conn. 542; Ellis v. Proprietors, 19 Mass, 243; Jackson's Admrs. v. Newark Plank Road Co., 31 N. J. Law, 277; Wheeler v. N. W. Sleigh Co., 39 Fed. 347; West Chester & P. R. R. Co. v. Jackson, 77 Pa. St. 321; Chaffee v. Rutland R. R. Co., 55 Vt. 110; Ford v. Easthampton Rubber Thread Co., 32 N. E. (Mass.) 1036; King v. Paterson and Hudson R. R. R. Co., 29 N. J. Law, 82; Gleason and Railey Co. v. Hoffman, 168 Ill. 25; Badger v. McNamara, 123 Mass. 117; Beggs v. The Edison Elec. Light and Illuminating Co., (Ala.) 11 So. 381.
   Mr. Justice Holdom

delivered the opinion of the court.

The claimed rights of Doll not being involved in this record, with them we therefore have no concern.

Our opinion and discussion on the errors assigned will be restricted to three points: (1) The refusal of the chancellor to allow the motion by Foss to amend his amended bill; (2) the insufficiency of the allegation of ownership of stock, and (3) the doctrine of laches as applied to the averments of the bill.

First. The decision of the court upon the demurrers. was rendered May 2,. 1907. Foss did not at this time move the court for leave to file an additional amendment. He allowed the matter to rest undisturbed until the entry of the final decree, more than two months thereafter. The contention of counsel that the Foss demurrer was heard without their being afforded an opportunity to present their client’s cause, and that the hearing upon the demurrers was confined to the demurrer interposed to the amended cross-bill of Doll, is untenable and without force in the light of the record. Doll confessedly took whatever right he had after Foss filed his hill. The doctrine of Us pendens circumscribed Doll in his ability to prevail. Foss must first demonstrate that he had a cause of action before Doll could have any standing in virtue of his cross cause. Whatever rights Doll might have rested for their support upon the ability of Foss to maintain his cause. Doll had no rights independent of those of Foss. In the first instance, and as a preliminary to the right of either of them to prevail, the necessity arose for Foss to maintain that he was a stockholder as averred in-his pleadings. Failing this, all of Doll’s claims against the Gas Company disappear. The counsel of Foss were afforded ample opportunity to argue their cause; if they failed to avail of such opportunity when it offered, it is too late now to complain or seek any advantage or procure any indulgence because of such dereliction on their part. We are not able to believe that counsel for Foss were in any manner misled by the chancellor. Nothing appears in this record from which it can even be surmised that in the presentation of Doll’s cause counsel for Foss were not fully aware that both demurrers were on hearing. In fact, the cause and cross cause are so interdependent one upon the other, that an argument as to the sufficiency of the cross cause, as stated in Doll’s amended cross-bill, naturally involved a consideration of the Foss pleadings. Then, again, the record is contrary to the contention now made, which contention cannot prevail as against that record, which alike binds the parties and the court. The matter of allowing Foss to further amend his amended bill was addressed to the sound discretion of the chancellor. We are unable to say that a refusal to allow a further amendment on the motion made at the time of entering the final decree—a period of time exceeding two months from the rendering of the chancellor’s decision upon the demurrer—was an abuse of such discretion, especially in view of the fact that the chancellor rendered his opinion in writing, which was made a part of the record and from which it clearly appears that the chancellor heard both demurrers and in that opinion expressly sustained both of them.

Second. The averment in the amended bill of Foss as to ownership of stock, is in these words: “that in or about the year 1857 he became, ever since has been and now is, a stockholder of the Peoples G-as Light & Coke Company, and the owner of 1500 shares, of the par value of fifty dollars * * * each, of the original capital stock of the said defendant corporation”. This is obviously the conclusion of the pleader, without the statement of any fact from which the court can say, as a matter of law, that Foss at one time or at any time since 1857, was or is a shareholder of the G-as Company. Did Foss receive any certificate of stock of the Gas Company? And if so, was it acquired from the Gas Company or by assignment of a certificate or certificates owned by a third party? Has Foss ever been a shareholder, whose rights as such have received recognition by the Gas Company? Has he ever voted at any stockholders’ meeting the stock which he says he owns Í There is no averment of any evidential fact supporting his claim, from which the court may be able to say, as a matter of law, that he is such owner. The cases are numerous, many of which are cited in the brief of counsel for the Gas Company, that an averment of an ultimate fact, without instance to support it, is but the conclusion of the pleader and insufficient to constitute a cause of action. The principle is well stated in Vol. 12, Ency. Plea. & Prac., 1020, thus: “To constitute good pleading the facts alone must be alleged. It is a general rule, which applies to all pleadings, whether at common law, in equity, or under the codes, that legal conclusions should not be pleaded, and that a bill, answer, complaint, declaration or other pleading is bad if it contains nothing more than bare averment of a legal conclusion”. The averment of ownership of stock by Foss in his amended bill is a conclusion of law entirely unsupported by the recitation of any fact tending to support such conclusion. It is therefore insufficient to support a cause of action. Such defect in the pleading made it obnoxious to the general demurrer interposed to it. This was so decided in Kilgore v. Ferguson, 77 Ill. 213, where it is said: “A familiar elementary rule of pleading is that the facts only are to be stated, and no arguments or inferences, or matter of law. Chitty Pl., 245. * * * It is not enough to.say the bond was good and sufficient. The existence of the facts should have been distinctly averred that make it good and sufficient. The question of whether it was good arid sufficient is for the court and not for the plaintiff to determine. Unless by facts averred and proved it shall clearly be made to appear that the defendants have wilfully and corruptly injured the plaintiff * * * there can in no event be a recovery. The demurrer was properly sustained”.

If Foss is entitled to any relief at all, it must arise from his being a bona fide stockholder in the Gas Company. The averment in the bill in this regard is a mere conclusion, barren of any stated fact upon which it can rest for support; consequently the amended bill fails to state a cause of action.

Third. There are two averments in the amended bill of a demand made by Foss upon the Gas Company. One is a demand for an accounting, and the other concerns a demand for the examination of the books, records, etc., of the Gas Company. These averments are, first, “that before the commencement of this suit he demanded of the said defendant that it account with your orator”, etc.; second, “and also before the commencement of this suit demanded of the defendant opportunity to examine the books”, etc. These averments as to time are remarkably indefinite, not to say wholly unsatisfactory. Here was a lapse of forty-eight years between the time the claimed rights of Foss became vested, according to his contention, and his appeal to the law to enforce them. Did Foss rest as long before he demanded his rights of the Gas Company as. he did in his appeal to the courts in an attempt to enforce them? In other words, when did he, during the running of these forty-eight years, make these demands upon the Gas Company? Of this the pleading of Foss affords no enlightening information. If any inference is permissible, about which we express no opinion, a date approximating that on which the bill was filed would do no violence to interpretation of these vague and uncertain averments. A failure to assert rights in varying periods of from three to forty years has in numerous cases in this state, under the doctrine of laches been held to be a complete defense to a suit in equity for relief. We, however, do not find any recorded case where a party applied to our courts for relief after sleeping upon his rights for so inexcusable a length of time as in the case at bar. We think the quotation from note to.par. 965, Pomeroy’s Equity Jurisprudence, third ed., p. 1788, appearing in appellee’s brief, is forcefully applicable to the conditions of this case: “The doctrine concerning acquiescence from conduct and from lapse of time, is applied with special strictness in mercantile contracts, such as dealings with stock, subscriptions for shares and in agreements of a speculative nature”. The mutations of time bring about many changes in physical conditions. It is plain from the statements in Foss’ amended bill that during nearly a half a century of somnolence upon his part, the Gas Company has experienced many changes. Its capital stock has been increased from half a million of dollars to thirty-five millions of dollars. The franchises and rights of eight other gas companies have been taken over, either by way of merger or by acquisition of the right to operate their several plants. No obstacle to the asserting of any of Foss’ claimed rights appears from any averment of his amended bill. No excuse for not sooner asserting his rights and enforcing his claim is disclosed. But Foss proceeds upon the theory that the Gas Company, as to dividends, is a trustee of the stockholder, and that the doctrine of laches is inapplicable because limitation statutes have no application between trustee and cestui que trust, and in support quote from 10 C. Y. C., 506, that “dividends declared upon the capital stock of a corporation and payable on demand are not subject to the running of prescription or limitation until there has been a demand and refusal”. Whatever may be the rule in other jurisdictions, such is not the doctrine in this state. The relationship of the stockholder and the corporation as to dividends declared is not that of trustee and cestui que trust. At the most there is but an implied trust in the corporation as to such dividends. As to implied trusts, the doctrine of laches and the Statutes of Limitations are, in this forum, invokable as a defense. Such in effect is Reynolds v. Summers, 126 Ill. 55, where the court say: “In respect of resulting or implied trusts, laches or the Statute of Limitations may constitute a bar to the action. Such trusts may be barred by the mere lapse of time.” McDonald v. Stow, 109 ibid. 40.

The application of the doctrine of laches or the bar of the Statute of Limitations as a defense by a corporation to dividends declared upon its stock, involves the further question of demand. But the law will no more sanction inexcusable delay in making a demand for such dividends than it will tolerate laches in asserting a claim in a forum of competent jurisdiction. Such dividends being payable upon demand, the Statute of Limitations will not commence to run until after a demand is made. But there is of necessity a limitation to the right to make such demand, for, as said in Codman v. Rogers, 27 Mass. 111: “A party must not be permitted to sleep over his rights to the prejudice of the party on whom he makes a claim. * * * A demand must be made within a reasonable time; otherwise the claim is considered stale, and no relief will be granted in a court of equity”.

As to what may be considered a reasonable time, the court in case supra say: “What is to be considered a reasonable time for this purpose does not appear to be settled by any precise rule. It would depend on circumstances. If no cause for delay can be shown, it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand that there is for hastening the commencement of the action, and in both eases the same presumptions arise from delay. In the present case the plaintiff, by his own showing, is chargeable with great laches. He has lain by for seventeen years without making any claim. * * * • No sufficient reason is suggested in the bill for this long delay; and to decree an account under such circumstances would be a most dangerous precedent, against public policy and the principles and rules of equity”.'

The force of this reasoning is thrice accentuated in its application to the half century of inactivity of Foss in making demand or the asserting by him of any right against the Gas Company during that time. In the absence of any pretense of an excuse for such protracted delay in the assertion of rights which have, during this time, grown from a claimed stock interest of $75,000, to the claim of stock interest now aggregating the enormous sum of $5,250,000, it would certainly be unprecedented to hold that this action can be'maintained. It would seem that if a case can be conceived, of the nature of the one at bar, where the doctrine of laches and the bar of the Statute of Limitations are invokable under the facts appearing upon the face of the bill, that this case is its most extreme example. During this nearly half century of time, many persons, we may assume, actively engaged in the business of the Gas Company and intimately acquainted with its affairs, have passed on to another life—persons who, in all probability, could have satisfactorily explained the whole transactions here involved. The unprecedentedly long delay in the assertion of the rights now claimed can only reasonably be accounted for upon the theory that Foss was waiting for the death of all persons who could shed any explanatory light upon his claim, leaving himself as the last survivor—a witness whose testimony could not be contradicted or refuted. Statutes of Limitation are statutes of repose. It is the policy of the' law that there should be some fixed time within which rights may be asserted and enforced, and after which time they should be forever barred. Winchester v. Wickliffe’s Admr., 38 S. W. R. 866.

We think it beyond dispute that laches is plainly apparent upon the face of the bill, and that there is no statement of any facts or circumstance either explaining or excusing such laches; and as in Kerfoot v. Billings, 160 Ill. 563, such laches may be urged as a defense in bar of the action under a general demurrer.

The Supreme Court in Wilcoxon v. Wilcoxon, 230 Ill. 93, announces a doctrine which by analogy is pertinent to the pleading here under discussion. The court say: “It is one of the fixed doctrines of courts of equity that nothing can call forth this court into activity but conscience, good faith and reasonable diligence, and the absence of any of these elements is equally fatal to a recovery, whether they appear in a cross-bill or in an original bill. ’ ’

In the Wilcoxon case supra the relief sought was denied on the express ground of laches imputable from the fact of fifteen years’ delay in asserting the claim, without reasonable excuse.

The doctrine that a corporation is a trustee for a stockholder as to dividends declared, does not prevail either in England or in Illinois. In re Severn & Wye & Severn Bridge Railway Co., 1 Law Reports, C. D. 559, (1896); Smith v. Cork & Brandon Ry. Co., 5 Eq. Series Irish Reports, 65.

In Illinois the trust, if any, is one implied from the relationship of the parties and under decisions already cited both the doctrine of laches and the bar of the Statute of Limitations are invokable as a complete defense, and such defense may be raised by general demurrer wherever such laches or the bar of the statute appears upon the face of the pleading to which such general demurrer is interposed.

The decree of the Circuit Court, being without error, is affirmed.

Affirmed.