text:
    Mutual Mill Ins. Co. v. Clarence Gordon, use, etc.
    I. Insurance—Explaining answer in application.—In an action on an insurance policy upon the question of over-estimation of the property, the applicant was permitted to state that his answer in the application, that the property was worth $25,000, had reference to the mill as a whole. Held, that under the circumstances of this case such evidence was admissible.

      2. Insubancb—Statement as to inoumbbance.—A, B and C, tenants in common, mortgaged their mill and other real estate tor $37,000, and subsequently partitioned the property. The mill was deeded to A, and it was verbally agreed between the parties that the mill property should be held ior $17,000 of the mortgage, and the residue divided between the tracts taken by B and C. After the partition the parties occupied their respective portions in severalty. This arrangement as to the mortgage was satisfactoi y to mortgagors and mortgagees. A, in his application for insurance on such mill, stated there was $17,000 incumbrance on the property. Upon a loss occurring, the insurance company insist that this statement as to incumbrance, whether mistakenly or intentionally made, avoids the policy. Held, that the arrangement made between the parties to the mortgage after the partition, can be sustained as valid when assailed by the insurance company; that assured’s answers were therefore true and did not avoid the policy.
    3. Statute of Frauds.—The plea of the Statute of Frauds is personal to the one making the promise and a stranger to the contract can not be beard to say that the contract was not binding.
    4. Release of mortgage debt.—The mortgagee may deal with the mortgage debt in the same manner as though it were unsecured. A forma1, release of the mortgage of record maybe required to be under seal, but a release or discharge of the debt may be verbal or in writing. When the debt is released, the mortgage falls.
    5. Contract—Consideration.—The agreement between the tenants in common to accept a portion of the entire estate in severalty and to pay an equitable proportion of the incumbrance, is a sufficient consideration of the promise of the mortgagee to apportion his mortgage debt among the tenants in severalty.
    Appeal from the Circuit Court of Randolph county ; the Hon. George W. Wall, Judge, presiding.
    Opinion filed November 24, 1886.
    Action upon an insurance policy issued October 4, 1884, to one James Gordon, upon machinery, etc., in his mill at Sparta, in this State, and by him assigned with consent of the appellant to appellee, who purchased the mill property before the loss. The defense was made that the insured, James Gordon, overvalued the property, and also misrepresented in his application the amount of incumbrances upon the property. The defendant introduced in evidence the application, from which it appeared that certain questions were asked of and answers made by said Gordon which are set out in the opinion of the court. The loss, if any, was made payable to Borders & Boyle, as their interest might appear. The defendant then read in evidence the mortgage referred to in the answer of Gordon, from which it appears that said Gordon and Robert H. Rose-borough and Daniel P. Barker, on the 25th day of January, 1884, mortgaged said mill, with a large amount of other real estate, to said Borders & Bovle, to secure one certain promissory note for $37,000, payable to their order in five years from date, with interest at six per cent., payable annually. Testimony was also introduced that no part of the note had been paid. In rebuttal the appellee offered evidence over the objection of appellant, showing that after the mortgage was given and before the policy was issued, the said Gordon, Roseborougli and Barker, who were tenants in common of all the property described in the mortgage, made a partition of it, executing deeds to each other, and that the real estate upon which the mill in question was situated was deeded to said James Gordon in severalty, the other two taking other portions in like manner; that at the time the partition was agreed upon the mortgagees verbally agreed that their mortgage debt should be apportioned among the different tracts and parcels, and that the mill property in question should be held for the payment of but $17,000 of the mortgage debt, the residue being divided between the tracts taken by Rose-borough and Barber; that this arrangement was a part of the proceedings resulting in the partition. The parties, after the partition, occupied their respective portions in severalty, each claiming in fee subject to the amount of the mortgage debt apportioned to it as above stated. It was also shown that a few days before the trial Borders & Boyle, by an agent, had executed a writing evidencing the agreement as above, which, however, was excluded by the court upon objection, leaving the case upon this point depending upon the oral agreement. Evidence was also introduced tending to show that Borders & Boyle have always been and still are satisfied with their agreement apportioning the mortgage debt, and are willing to fulfill it. The appellant saved exceptions to the ruling of the court allowing the evidence to go to the jury. Upon the question of over-valuation of the property, the applicant, James Gordon, was allowed to state that his answer that the property was worth §25,000 had reference to the mill as á whole. Evidence was also introduced tending to show that the mill when insured was of that value, and that the machinery insured was worth exceeding §16,000. The jury returned a verdict for the plaintiff, and the defendant appealed.
    Messrs. Taylor & Pollard, for appellant;
    as to affirmative warranties in an insurance policy, cited Thomas v. Fame Ins. Co., 108 Ill. 100 ; Atlantic Ins. Co. v. Wright, 22 Ill. 474; Ins. Co. v. Fish, 71 Ill. 620 ; Barteau v. Ins. Co., 67 N. Y. 595; Witherell v. Ins. Co., 49 Me. 200; Wall v. Howard Ins. Co., 14 Barb. 385; Columbia Ins. Co. v. Cooper, 50 Pa. St. 339 ; Glendale Woolen Co. v. Ins. Co., 21 Conn. 19; Sheldon v. Ins. Co., 22 Conn. 235; Davenport v. N. E. Mut. F. Ins. Co., 6 Cush. 340; Hayward v. Ins. Co., 10 Cush. 444; Packard v. Ins. Co., 2 Gray, 334; Ins. Co. v. Winslow, 3 Gray, 431; Ins. Co. v. Winslow, 8 Gray, 38; Towne v. Ins. Co., 7 Allen, 51; Jacobs v. Ins. Co., 7 Allen, 132; Campbell v. Ins. Co., 98 Mass. 402; Hutchins v. Mut. Ins. Co., 11 Ohio St. 480; Byers v. Ins. Co., 35 Ohio St. 614.
    An agreement to abandon a valid claim, unless there be a consideration shown, is a mere nudum pactum: Wilson v. Keller, 9 Bradwell, 347; McLean v. McBean, 74 Ill. 135; Renamaker v. Cordway, 54 Ill. 303.
    The application and policy must be taken as embodying the contract of the parties, and the terms can not be changed by parol proof: Ins. Co. v. Fish, 71 Ill. 620; Schmidt v. Ins. Co., 41 Ill. 296; Higginson v. Dall, 13 Mass. 96; Alston v. Ins. Co., 4 Hill, 329.
    Messrs. Koerner & Horner, for appellee;
    that the parties to the mortgage were bound by the agreement, cited Shepley v. Raugly, 1 W. & M. 217; Pickard v. Sears, 6 Ad. & Ell. 474; Chapman v. Hamilton, 19 Ala. 121; Riley v. Quigley, 50 Ill. 304.
    A paid mortgage, though not released of record, is not an incumbrance; neither is a fraudulent mortgage or one invalid for any reason whatever, an incumbrance: Merrill v. Agricultural Ins. Co., 73 N. Y. 457; Hawk v. Dodge Co. Ins. Co., 11 Wis. 191; May on Insurance, 2d Ed., 192; Lycoming Ins. Co. v. Jackson, 83 Ill. 403.
   Pillsbury, J.

Upon the oral argument of this cause one reason suggested for reversing the judgment was that the declaration was fatally defective in failing to aver that the property was destroyed by fire; bxxt counsel for appellee claiming that this defect was a clerical error in the copyist, the counsel for appellee consented that an amendment might be filed with the declaration, curing the omission in this particular, and that the same should be considered a part of the record. This was done, and the cause submitted to us to be determined xxpon the merits. The eiTors assigned which were relied xxpon in argument, qxxestion the action of the court below in allowing parol testimony to be introduced to the jury, explanatory of the answers of James Gordon, in the application, as to the vahxe of the property insxxred and the amount of the incumbrance thereon, and in instructing the jury in conformity to such ruling of the court that such evidence was proper for their consideration. Upon the question of the value of the property insured by this policy there was evidence that new machinery, etc., of the kind and quality in the mill, would cost to exceed §21,000, and that insured had, by use, depreciated it aboxxt25 per cent., leaving its value when insured over §16,000, and that other insui’ance xxpon it amounted to §10,900, making a total insurance of §13,900; and that the appraised value of loss by fire was §7,430.50, which was apportioned among the several companies according to the amoxxnts covered by their respective policies. The amount of the recovery against the appellant was for its proportion of the loss thus adjusted, and no objection is made to the ainoxxnt if any liability xxpon the policy is shown; but it is insisted, fix’st, that the policy was avoided because of the statement in the application that the property was worth §25,000, and that allowing Gordon to state that he supposed that the question referred to the value of the mill complete, was error. The application and policy were filled out upon blanks of the insurance company, and an examination of them discloses the fact that they were designed for use where a mill was to be insured, section 8 of the conditions attached to the policy going so far as to describe the property insured in this case as the buildings, and allowing repairs and improvements to the premises ; and by the first clause of the application relating to any property the mill is described as a whole, and then by the third clause the amount insured is placed upon the “ mill machinery, shafting, gearing, belting, tools, etc., while in said building. The specific questions asked of the insured, and his answers, so far as necessary to notice, are as follows: Are you the sole owners of the property to be insured (exclusive of the land)? Yes. Age of building? Twenty-seven years. Is it occupied by owners ? Yes. What is the present cash value of the property to be insured exclusive of land and property not specified? Twenty-five thousand dollars. Is there any incumbrance ? Yes. What is the amount and character of incumbrance, to whom payable, and when ? $17,000. Mortgage to Borders da Boyle, five years from February, 188f. What part of principal or interest is past due and unpaid ? Hone. Do you own land in fee simple ? Yes. If land is leased when does lease exph'e ? Does it contain privilege of renewal ? Is there any litigation present or threatened affecting the title to any part of the property? No.” The property covered by this policy was a part of the mill, a part of the real estate, and the underwriter, desiring to be advised of all the circumstances surrounding the risk, directed the attention of the appellant to the condition of the entire property upon which the risk depended. If the mill burned it would necessarily injure the machinery therein, and the danger of the risk about to be assumed was dependent upon its condition as much as though the building was itself the subject of the insurance, and their inquiries therefore are directed to the condition of the property as to its entirety, the title to the real estate, how held and by whom occupied, the age of the building, the value of the land. Then follows the inquiry as to the value of the property to be insured exclusive of land and property not specified. Not specified where ? Not in the policy, for it had not been issued. It must be, then, in the application; and requesting a statement of the value of the property, exclusive of the land and property not specified, would lead any applicant to suppose the question was intended to include the building of which the insured property was a part and parcel. The land was excluded by the interrogatory, showing a knowledge upon the part of the underwriter that the applicant would state its value if not excepted. Under such circumstances we are of the opinion that the applicant was justified in giving the value of the mill complete in answer to such question. Having led him by the questions propounded reasonably to suppose that the insured desired the value of the mill as an entirety to be stated, it ought not now to be permitted to take a technical advantage of a misunderstanding of the true import of the question into which he was led by the course pursued in obtaining the information desired, especially when it is apparent that no injury has resulted to the company. Wells v. Carpenter, 65 Ill. 447. All the insurance on the property was less than its value, and the damage sustained to it by the fire far less than the insurance upon it, and in such case it is hard to understand how the statement as to value becomes very material in the absence of any proof whatever that the over-estimate was fraudulently made or had anything to do with the cause of the loss. The evidence introduced, that the applicant gave the value of the mill complete, had a tendency to show his good faith in making the answer and to negative the averment in the plea of the defendant that it was falsely and fraudulently made, and no error was committed by the court in allowing it. It is next insisted, and this seems to be the main point relied upon, that the statement of the applicant that there was but §17,000 incumbrance was untrue, and the policy therefore never took effect, and that such answer was shown to be untrue by the production of the mortgage to Borders & Boyle for §37,000, followed by proof that it was unpaid. Counsel contend that this statement, under the terms of the application and policy, became a part of the contract and a warranty of its correctness by the insured, which avoids the policy, if untrue, whether mistakenly or intentionally made. This we may concede to be tlie law without referring to the authorities cited in support of the proposition; but if the arrangement between the tenants in common and the mortgagees, made upon the partition of the lands, can be sustained as valid, when assailed by the appellant, it can not be contended that the answers of the assured were untrue. The defense, then, depends upon the validity of this agreement to apportion the incumbrance between the tenants in severalty, and two objections are made by the appellant to the validity of such agreement: 1st, that it was in parol, and 2d, that it was without consideration. As to the first objection, we are of the opinion that the appellant is not in the position to avail itself of the plea of the Statute of Frauds, as that plea is personal to the one making the promise (Mitchell v. King, 77 Ill. 462), and a stranger to the contract can not be heard to say that the contract was not binding. Chicago Dock Co. v. Kinzie, 49 Ill. 289, Even if the contract related to an interest in the land and was by parol, unless the statute be relied upon by plea, it will be as valid as though in writing. Dock Co. v. Kinzie, supra. If Borders & Boyle made the contract and desire to fulfill it, upon what principle of law can the appellant urge that they shall not do so ? The mortgage debt is the principal thing, and the mortgage but a mere incident of it. Coffing v. Taylor, 16 Ill. 457. The mortgagee may deal with the debt in the same manner as though it were unsecured. A formal release of the mortgage of record may be required to be under seal, but a release or discharge of the debt may be verbal or in writing, as in other business transactions, and where this is done the mortgage falls with the dqbt and is no longer a lien, although not technically released of record. The vitality of the mortgage lien depends upon an existing indebtedness, and is an incumbrance upon the premises only to the extent of the subsisting indebtedness. Again, it is said that there was no consideration for the promise of the mortgagees to look to this land for $17,000 only, and to other tracts "for the remainder. It is conceded that the partition is valid between the tenants in common, and they are bound by its terms whether the mortgagees can retain their entire debt against every parcel or not. Each tenant in common takes and must hold his interest after the partition in severalty, and if the mortgagees see proper to agree to equitably apportion their mortgage as a part of the agreement for partition, it would seem to be unjust to one of them to compel him to discharge the entire debt or lose the land assigned to him. It is clear it would be a detriment to him and might result very disastrously to his estate in the land. Equity never compels a party to act illegally, or to do what he ought not to do, yet if this partition had been made by judicial proceeding it would have been the duty of the court to ascertain the amount of the incumbrance and apportion it according to the rights and interest of the parties. Kingsbury v. Buckner, 70 Ill. 514. The partition of the lands and the apportionment of the mortgage debt among the various parcels set off in severalty, were and still are entirely satisfactory to the parties interested, and we must assume that they would have been content if the same result had been provided by a decree. And if the court of equity would have compelled such partition and apportionment of the mortgage, why may not all the parties to be affected, mutually agree to the same result without resorting to the courts ? We have no doubt that the agreement between the tenants in common to accept a portion of the entire estate in severalty, and to pay an equitable proportion of the incumbrance, is a sufficient consideration for the promise by the mortgagee thus to apportion his mortgage debt among the tenants in severalty. Erom the evidence introduced we fail to find any untruthfulness in the answer regarding the incumbrances, or that it was made in bad faith or has worked any injury to the underwriter. What we have said disposes of the objections taken to the ruling of the court in giving and refusing instructions, except as to the second of plaintiffs, which it is claimed submits the construction of the policy to the jury. This instruction may not be as clearly expressed as it should be, but taken in connection with the first it could not have misled the jury, and in our view of the evidence, even if erroneous, the appellant has not been injured. Considering the whole record, we find no such error as would justify us in reversing the judgment, and it will therefore be affirmed.

Judgment affirmed:


source: Caselaw Access Project

author: Geeen. J.

license: Public Domain

text:
    People ex rel., etc., v. Mark Bird.
    Quo WARRANTO—COURTS INQUIRING INTO ELIGIBILITY OF ALDEBMEN. —The power conferred upon the Common Council of East St. Louis to judge of the qualification of its members, does not oust the courts of jurisdiction by quo toarranto to inquire into and determine the eligibility of a person assuming the duties and powers of alderman, and admitted to a seat as such, and to render judgment of ouster against him, if he is found ineligible.
    Ebbob to the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Opinion filed November 24, 1886.
    Mr. M. Millabd, for plaintiff in error;
    as to the jurisdiction of circuit courts, cited Myers v. People, 67 Ill. 503; Mapes v. People, 69 Ill. 523; Wilson v. People, 94 Ill. 426; Darling v. McDonald, 101 Ill. 370; Klokke v. Dodge, 103 Ill. 128; Hankins v. People, 106 Ill. 637.

      Quo warranto lies to test the right of a person who may be actually filling the office of alderman: Dillon on Municipal Corporations, §§ 202, 889, 890, 891; People v. Hall, 80 N. Y. 117; High on Extraordinary Remedies, § 685.
    Even when election contests are allowed by statute, the State has power to proceed by quo warranto, and ascertain whether the person declared elected is entitled to the office : Am. Law of Election (McCrary), § 307; People v. Holden, 28 Cal. 123; People v. Jones, 20 Cal. 50 ; People v. Hall, 80 N. Y. 117.
    Mr. B. H. Canby, for defendant in error;
    that the circuit court did not have jurisdiction, cited Linegar v. Rittenhonse, 94 Ill. 210; Dillon on Municipal Corporations, 3d Ed., § 200; People v. Metzker, 47 Cal. 524; Dickey v. Reed, 78 Ill. 261; State v. Marlow, 15 Ohio St. 114.
   Geeen. J.

This was a proceeding by quo warranto, instituted to oust the defendant in error from the office of aider-man. The information consisted of two counts; the first count charges defendant with usurping and intruding into the office of alderman of the Fourth Ward of the city of East St. Louis. Second count. That on April 20, 1886. he was an alien and entered into and unlawfully assumed the powers and duties thereof. To this information a demurrer was interposed by defendant, assigning, as special cause, the want of jurisdiction of the circuit court “to hear, try or determine upon quo warranto, the qualifications of members of the city council of said city.” The demurrer was sustained; the relator elected to stand by his information; it was dismissed by the court, and to reverse the judgment dismissing the same, this writ of error was sued out. It is provided by the city charter, “Ho person shall be a member of the city council unless at the time of his election he shall have resided twelve months within the city, and shall be at the time twenty-five years of age, a freeholder of the city, a citizen of the United States, and a resident of the ward from which he was elected.” The demurrer admits the defendant was an alien, and within the inhibition of the foregoing clause ; hence, in violation of the terms of the charter, a compliance with which was obligatory upon the city council, the defendant was unlawfully permitted to perform the duties and exercise the powers of an alderman; but yet it is insisted' the circuit court had no power to oust him, because it is further provided by the city charter, “ The city council shall judge of the qualification, and of the election and returns of their own members, and shall determine all contested elections.” This is not a contested election case between individuals, to be determined by the council, nor is the election nor are the returns involved; hence the authorities cited on behalf of defendant are not in point, and the position we are asked to sustain is this: That the legislature, having conferred the power upon the city council to judge of the qualification of the members thereof (but upon the condition an alien shall not be such member), yet if the city council, in violation of this condition, shall judge an alien to be qualified, and give him a seat, and permit him to perform the duties and exercise the powers of an alderman, snck judgment is conclusive; tlie legislative will can be thus defeated, and the courts are powerless to prevent this wrong to the people by ousting the person so unlawfully usurping the office. Such a doctrine we can not sustain ; we have found no case in which the precise question here presented has been decided by our Supreme Court, but in Linegar v. Rittenhouse, 94 Ill. 208, it is said, “We presume these enactments concerning contested elections do not deprive the circuit courts of the pov or to hear and determine -cases of quo warranto,” and also, “ The power conferred upon a city council to judge of the election of its own members may not be a bar to a quo warranto or a mandamus proceeding,” and the question of the jurisdiction of courts in a case like this has been the subject of discussion by text writers, and has been frequently decided by courts of last resort of other States. The fact that a city council has admitted an ineligible member to a seat therein, does not prevent courts from investigating the matter on quo warranto and ousting the member. Wei's on Jurisdiction, 468. It is not unusual for charters to contain provisions that the common council shall he the judge of the qualification of its own members; this will not ordinarily have the effect to oust the jurisdiction of the courts. Dillon on Mun. Cor. 141. The case of Com. v. Allen, 70 Penn. St. 464, is directly in point. It was a proceeding in quo wart'anto to oust a member of the common council in a case where the charter provided, “ The city council shall in like manner as each branch of the legislature, judge and determine upon the qua'ification of its members,” and as in the case at bar, the jurisdiction of the court was challenged by a demurrer to the information, assigning as cause that the council was the proper tribunal. But the court say: “ Granting the common council have power to judge and determine the qualification of its members, it does not follow that the authority of the court is taken away to inquire into a forfeiture, which does not take place until the member has been admitted to his seat: then only does it become necessary to enforce the law by giving the judgment of ouster; if the council suffer the member to sit, and fail afterward to inquire into and declare the disqualification, it can not be argued that the forfeiture which took effect the moment the member was sworn in, and continued so long as the prohibited relation continued, can not be judicially ascertained and determined.”

People v. Hall, 80 N. Y. 117, People v. Holden, 28 Cal. 128, and High on Ex. Rem., § 685, sustain the views expressed in Com. v. Alien. By the light of the authorities cited, and entertaining the view we do of the purpose and scope of the proceeding by quo warranto, we hold the power conferred upon the common council of East. St. Louis to judge of the qualification of its members was not conferred with the intent to oust the courts of jurisdiction, by quo warranto, to inquire into and determine the eligibility of a person assuming the duties and powers of alderman and admitted to a seat as such, and rendering judgment of ouster against him if he is found ineligible. Sustaining the demurrer and dismissing the information was error for which the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Green, J.

text:
    Ann Tennant v. Mary Ann Neal et al.
    Liability of heir.—The heir is not personally liable on bis "ancestor's contracts except to the extent of the assets coming to him from the estate.
    Error to the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed November 24, 1886.
    Mr. A. G. Gordon, for plaintiff in error.
    Mr. William Hartzell, and Mr. Joseph B. Simpson, for defendants in error.
   Green, J.

Plaintiff in error brought assumpsit against Mary Ann Heal, the widow and administratrix, and Mary E. Hume and Martha Henson, the children and heirs of Thomas F. Heal, deceased. The real cause of action is a claim against the estate of Heal for §549.24 in favor of plaintiff, allowed by the county court, July 15, 1877, and the right to recover the amount of it against defendants in this suit is based upon the alleged facts that there were no personal assets of said estate to pay said claim, or any part of it, and defendants inherited, as heirs of Heal, real estate which they owned and controlled. Mary E. Hume was not served with process, and entered no appearance in the court below; the cause was tried by the court and a finding and judgment against plaintiff was rendered, to reverse which this writ of error was sued out. The record shows Mary Ann Heal was appointed on May 17, 1875, administratrix of Heal’s estate; the personal assets thereof were insufficient to satisfy her widow’s award. The claim of plaintiff against the estate for §549.24 was allowed June 17, 1877, and June 16, 1884, in response to a citation, the administratrix made her final report, showing that plaintiff’s claim had not been paid for want of assets, and no assets of said estate remained with which to pay the same; that the inventoried real estate was a homestead, worth less than §1,000, claimed and occupied by the administratrix, as widow of said Heal, and that a balance of §572.90, due her upon her widow’s award, remained unpaid. On the same day the county court, by its order, made said balance of §572.90 a lien on said homestead, approved this final report, and discharged the administratrix from further liability in the premises. It was further shown on the trial below, that Heal, at his death, left his said widow- and no other children or heirs than Mary E. Hume and Martha Henson, and died seized of no other than said real estate, which he claimed and occupied as his homestead up to the time of his death; and thereafter it was and is claimed and occupied by his said widow as her homestead up to and at the time of the trial. The value of this real estate did not exceed §800, and said heirs had not derived or received anything from said land, or from the estate of their deceased father. On this record plaintiff was not entitled to recover against defondants in error. This was an action against them jointly, and manifestly the administratrix was not liable. She had fully administered, and long before the commencement of this suit had been discharged from all liability as administratrix by a court of competent jurisdiction, and its judgment was conclusive ; hence, under plaintiff’s declaration, counting against defendants jointly, no recovery could be had, and the judgment of the circuit court was right; moreover, even if the pleadings were so amended as to make Martha Henson sole defendant, we do not think she would be personally liable to the plaintiff, as heir of Heal, under the evidence. The clause relied on to create the liability is Sec. 12, Chap. 59, Starr & Curtis’ Stat., providing, “When any lands, tenements, or hereditaments, or any rents or profits out of the same, shall descend to any heir, * * * and the personal estate of the ancestor of such heir * * * shall be insufficient to discharge the just demands against such ancestor * * * such heir shall be liaffie to the creditors of his ancestor to the full amount of the lands, etc., or rents and cprofits out of the same, as may descend to said heir.” This statute was not designed to make the heir personally liable for the payment of his ancestor’s debts, in cases as in this, where nothing had been or could be derived from the estate by the heir. As has been shown already, nothing remains of this, estate but a homestead worth not more than §800, held by the widow rightfully under the law, to her exclusive use, which can not be sold (even subject to the homestead right), to pay debts, and incumbered by a lien to the amount of $572.90, and accrued interest. Under these circumstances, to hold this heir liable to a personal judgment for the amount of plaintiff’s claim, would be a violation of the spirit and purpose of the statute, and not in harmony with the decisions of the Supreme Court. The heir can only be chargeable with the debts of the ancestor to the amount of the lands, or rents and profits out of the same, that may have descended to her. Certright v. Stanford, 81 Ill. 240; Grey v. Gerricks, 85 Ill. 429; Ibid. 453; Vanmeter v. Love, 33 Ill. 260. The heir is not personally liable on his ancestor’s contracts, except to the extent of the assets coming to him from the estate. Forman v. Stickney, 77 Ill. 576. Having neither sold, aliened, or received any rents or profits from this land, it would have been error to have rendered a personal judgment against her. Branger v. Lucy, 82 Ill. 91. We have refrained from discussing some questions presented in the briefs, touching misjoinder of parties defendant, limitation, and the necessity of having jurisdiction of the heir, Mary E. Hume ; the real controversy being, as we view the case, fully decided and sufficiently discussed. The judgment is affirmed.

Judgment affirmed.


text:
    Thomas V. Whitesides et al. Trustees, etc., v. Cyrus L. Cook et al.
    1. Agency.—An agent employed to settle a debt can not purchase it for himself. One who agrees to act for another is not allowed to deal in the business of his agency for his own benefit, or to do an act having a tendency to interfere with the proper discharge of his duties.
    2. Purchase or a debt by agent.—A, as agent of a church, undertook to collect its assets and apply such collections to the payment of a note secured by trust deed, -given by the church to B. A bought the note of B, neglected to collect- all the assets, but represented to the church that it was out of debt. The first intimation the church had of A’s purchase was the recording of the trust deed years after the assignment- of the note. The church thereupon brought a bill against A, to procure the cancellation and surrender of the note. A filed a cross-bill claiming to be the assignee of the note, and praying that payment be made. Held, that A can not recover anything upon the note, and that the church is entitled to the relief prayed for.
    Error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Happy & Travous, for plaintiffs in error.
    Mr. A. W. Metcalfe and Mr. Cyrus L. Cook, for defendants in error.
   Green, J.

Plaintiffs in error exhibited their original and amended bills against defendants in the court below, to procure the cancellation and surrender of a note and trust deed of the church property securing the same. Cook, defendant, after answering, filed 1ns cross-bill claiming to be the assignee and lawful owner of said note and trust deed, praying payment of said note be decreed, and in default of payment that the premises (being the lot and church building thereon) be ordered sold to satisfy the debt, etc. Issues were made up on bills and cross-bills, hearing thereon, and a final decree was entered dismissing the original and amended bills, and granting the relief substantially as prayed for in cross-bill, to reverse which this writ of error was sued out. The gionnds alleged in the original bill for the relief therein prayed were, that said Cook, on November 2, 1876, agreed with the church, in consideration of the transfer to him of certain assets of the church, consisting of outstanding, unpaid subscriptions to be collected by him at his own risk, to assume and pay off said note and interest; that said subscriptions were so assigned and transferred to him, and pursuant to said agreement he procured Keller, the payee of said note, to assign and deliver it and said trust deed to him, whereby the same were fully paid and satisfied so far as the church was concerned, but that, in violation of said agreement, Cook holds the note and trust deed, claiming to own the same, and retains and refuses to deliver up the same to the church and threatens to sell said property under the power in said trust deed to satisfy the debt. Cook’s answer denies any agreement as alleged, admits his possession of note and trust deed as assignee and purchaser thereof from Keller, on November 2, 1876, for $430.43, the amount then due, but avers it was not paid for the church but for himself as purchaser. That the church being unable to then pay the debt, and Keller demanding such payment of respondent under a parol promise made in 1872 by respondent, to pay the debt to Keller if the church failed to pay, and the respondent being thereby personally responsible to Keller for such payment, he was obliged to and did so pay. The proof shows that in 1875 Cook, as agent of the church, undertook to collect its assets and apply such, collections.to the payment of this note; in the same year, the entire outstanding, uncollected assets of the church being subscriptions for the payment of the church debt, and amounting to more than the unpaid principal and interest due on said note, were placed in Cook’s hands for the purpose of such payment, and he then received and promised to collect the same and so apply such collections. After this and prior to the time the note was assigned to him, he reported and consented to reports made from time to time to the church, in substance and effect informing the church its debt was provided for and it was virtually out of debt, and up to the time the trust deed was recorded (which was not until October 10, 1884,) he did not claim the church was in any way indebted to him, or demand payment of said note or disclose to the church or its officers that he held or claimed to own said note or trust deed, and the church, thus kept by Cook in ignorance of the assignment thereof to him, and confiding in him, placed out of its possession and in his hands the entire and only means it had for the payment of this note. He knew all this, yet during all the time he held this note, which he claimed to own as a purchaser in good faith, he retained possession of these assets, did not offer to surrender them or decline his agency, and admits he refused and neglected to collect subscriptions which he might have' collected. Under these circumstances, Cook, by his cross-bill, invokes the aid of equity; such aid is rendered to those only who have obeyed its rules and enter its eouit with clean hands. The complainant in the cross-bill has not done this ; having undertaken this agency he was bound to perform the duties thereof consistent with and not adverse to the interest of the church for which he was agent; as such he can not be permitted to neglect the collection of these assets and proper application of the sums collected, induce his principal by acts and reports to believe he was performing his duty as agent, secretly purchase this note, hold it as an interest-bearing indebtedness for years, and then enforce the payment of the principal and accrued interest; even if he undertook this agency without reward and commenced to perform the duties, he was bound to proceed and execute it with the same diligence as if paid. Switzer v. Sidles, 3 Gil. 529. Text writers on agency and trusts, as also our Supreme Court, have laid down and enforced as rules applicable here, that an agent employed to settle a debt can not purchase it for himself, and one who agrees to act for another is not allowed to deal in the business of his agency for his own benefit, or to do an act having a tendency to interfere with the proper discharge of his duties. Story on Agency, Sec. 211. Story’s Eq. Juris. Chap. 7, Secs. 315, 316, 317, el seq. Concerning the claim of Cook to be subrogated to the rights of his assignor, Keller, in the note and trust deed, because of the payment to the latter on November 2, 1876, of the amount then due under the verbal promise made in 1872, it is sufficient to say the promise-was by parol, made without the knowledge or consent of the church, was void under the statute, and in no way changed or abridged the duty Clark owed to the church as its agent. From what has been said it follows the decree of the circuit court was erroneous, even if it he conceded the agreement, as alleged in the original bill, was not proven. Cook was not in equity entitled to recover anything upon the note under the evidence, and his cross-bill should have been dismissed. Under proper allegations in the bill the church, as the proof appears in this record, would be entitled to have the note and deed of trust canceled and surrendered to it. The decree of the circuit court is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    County of Clinton v. Elam S. Ramsey.
    Construction on contract.—A party to a contract will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract. A physician agreed with a board of supervisors to give the paupers of the county “medical treatment” for a stipulated price. Construed, that “ medical treatment” included services in surgical cases.

      Appeal from the Circuit Court of Clinton county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Murray & Andrews, for appellant.
    Messrs. White & Lamb and Messrs. Van Hoorebeke & Ford, for appellee.
   Green, J.

This cause was tried by the court below without a jury, by consent of the parties, resulting in a finding and judgment thereon for 8150 in favor of appellee, and the court having overruled appellant’s motion for a new trial, this appeal was taken. Appellee was the county physician of Clinton county, duly appointed as such by the board of supervisors, for the year 1884. His contract was “ for medical treatment (including necessary medicine), of all paupers supported by the county in the poor-house during the year 1884, including prisoners in jail, and all paupers in the township of Carlyle, without regard to their legal right of support by the county.” For these services as county physician he was to receive 8160, to be paid in quarterly installments; it was admitted by appellee on the trial, he had received his salary in full for the year 1884, according to the terms of said contract, but it is insisted on his behalf, the words “ medical treatment ” in the contract, did not include surgical treatment, and that appellee, while acting as county physician, in the early part of the year 1884, at the instance of the supervisor of the town in which is the county poor-house, amputated the feet of two inmates thereof, and was entitled to recover the value of his services in performing such surgical operation. It appears from the evidence, however, that he was not employed by the county, except as county physician, and as such, performed these surgical operations. He testified that he notified said supervisor the amputations were necessary to save the lives of the two paupers, and the supervisor told him to go ahead and do what he thought best. The uncontradicted testimony of the supervisor is, that he never, at any time, directed appellee to perform these services, other than as county physician, and there never was any intimation or suspicion that he should get any extra pay for these services. Under these circumstances, we apprehend, even if the contract should he construed as insisted on by appellee, no recovery could be had by him for these services. There was neither an express nor implied contract proven, by which the county became liable to pay him extra therefor, or other compensation than his salary; but we are further of opinion, the proper construction of said contract is not that given it on behalf of appellee. It appears from the evidence, “ medical treatment’’ in its enlarged sense, includes surgery, and in a restricted sense, as used in medical parlance, may mean a division of the curative art, exclusive of surgery. Appellee knowing this, and knowing the board of supervisors supposed at the time the contract was made, those words included services in surgical cases, to be performed bv him as county physician, failed to inform the board of the distinction between the meaning of those words in the enlarged and restricted sense, and purposely permitted it to enter into the contract, with the belief, he was bound by the terms thereof to perform the services sued for, as a part of his employment, and now insists upon a construction giving the restricted meaning to said words, excluding surgery, and permitting him to recover extra pay for said services. The facts, under the recognized rules for construing contracts, forbid this. “ If the intention is doubtful, it must be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction, and according to the subject-matter and motive.” 2 Kent’s Com., part 5, p. 555; it is essential, “to give the contract the sense in which the person making the promise believed the other party to have accepted it.” Ibid. 556. The undertaking of each must be construed in that sense in which he supposed it to be understood by the other.” 1 Story, Con., Chap. 20, Sec. 775. A party will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract.” 2 Parsons on Con., Chap. 1, Sec. 3, p. 11. Applying these rules to the evidence, it would undoubtedly be the proper construction of this contract, that appellee was bound thereby to perform these services in surgery as a part of his employment as county physician, and his own acts indicate such to have been the construction given it by him; for although the services were rendered by him in the early part of 1884, he claimed no extra pay therefor, or in any way notified said board he intended to claim it, until after his re-appointment for the year 1885. The only other service included in the judgment, the value of which appellee claimed he was entitled to recover, was for treatment of Ellen Mitchell, and on the ground that although she resided in Carlyle she was not a pauper; and the direction given by the supervisor residing in that town, to treat her, bound the county to pay him extra for such service. The supervisor testifies without contradiction that he directed appellee to render this service as county physician and not otherwise; hence, if not within the terms of the contract, appellee should have declined to obey the direction given him; but he elected to act under such direction and is not entitled to extra pay for the service. From a careful examination of the record, we are satisfied that the services sued for by appellee were all performed by him as county physician, and as such he was bound by his contract with the county to render them without other compensation therefor than the salary fixed. He has received that salary in full, and has no further claim upon the county. Entertaining this view, the judgment of the circuit court is reversed without remanding the cause.

Judgment reversed.


author: Pillsbury, J.

text:
    St. Louis, Alton & Terre Haute R. R. Co. v. City of Belleville.
    1. Ordihawce void, hot passed by legal majority.—-The ordinance vacating Spring street, having been passed by a vote of less than three fourths of the members of the council as required by ’statute, is held void.
    2. Public highways—Railroads.—While it is a legitimate use of a street or alley of a city or town, to permit railroad tracks therein, j-et under the decisions of our Supreme Court such use must be consistent with the public interests in them, and such city or town can not confer upon any one an exclusive right to their use, thereby depriving them of their character of public highways.
    • 3. Estoppel nsr pais.—As the city never legally consented to allow the appellant the exclusive use of the street, or to its obstruction beyond that incident to a reasonable and proper management of the trains, the doctrino of estoppel hipáis does not apply.
    Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Opinion filed November 24, 1886.
    This action was instituted by the city of Belleville to recover a penalty provided by ordinance for the obstructing of a street in Chandler and Abend’s addition to the city. The road of appellant runs in a northwest and southeast direction through such addition, crossing Richland, Spring and Illinois streets running north and south, and Sixth and Seventh South streets running east and west. The depot of the railroad is located on Seventh South street, to the east of its junction with Spring street, and the appellant claims the right to the exclusive use of Spring street for its yards and necessary use. The appellant is the successor of the Belleville and Illinoistown Railroad Company and entitled to all its property, privileges, grants and franchises. It appears from the record that Spring street, running north and south, and the next street west of the depot of appellant upon Seventh street, was dedicated to the city of Belleville in 1849. In 1853 a resolution was adopted by the city council permitting the predecessor of appellant to use certain streets of the city, which was as follows:

      “ Resolved, by the city council of the city of Belleville, that the use of the following named streets in the city of Belleville, in Chandler and Abend’s addition thereto, be and the same are hereby appropriated to the Belleville and Illinoistown Railroad Company, so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, and other machinery and fixtures necessary to be used or employed by them in operating said road, namely: High, II linois, Spring, Richland, Race, Fourth, Fifth, Sixth and Seventh South streets, and such alleys in said Chandler and Abend’s addition as are crossed by said road track, Provided, that the same shall be occupied with as little detriment and inconvenience to the public as possible, and if the said railroad shall find it necessary in crossing any of said Streets to raise embankments across the same, the streets crossing said embanked street shall be so graded as not to make their said embankments an obstruction to crossing the same.”
    The plaintiff below also introduced an ordinance prohibiting the obstruction of street crossings of any railroad by leaving thereon any car, etc., and on the trial the defendant admitted that it had obstructed Spring street before the commencement of the suit. The defendant claimed that that portion of Spring street within its yards had been vacated in 1852, and until that part of the addition south of its road had been considerably built upon, no controversy had arisen between it and the public, concerning their use of Spring street. ¡No action of the city council entered of record was introduced, showing any such vacation. It was also claimed that when the people living along Spring street south of the road, made complaints that on account of the railroad obstructing the street they were prevented from going to the northern part of the city, the council appointed a committee to consult with the railroad authorities about the matter, and an understanding was reached that the railroad should procure the ground and lay out a roadway on or near the south line of its right of way, connecting Illinois street with Spring street, and Spring street with Richland street, thus enabling persons to pass from Spring street to either of the others, and there cross the tracks of the road. This the railroad company did, but as in the case of the vacation, there seems to be no record evidence of the action of the city. The city council, on July 5, 1885, passed an ordinance by a majority vote, vacating so much of Spring street and Seventh South street as lies in the depot and railroad grounds, upon condition that the roadway, built by the company between Spring and Illinois streets, should be dedicated to the city, and the roadway from Spring to Rich-land street should be kept open and maintained for travel by the company. It was further shown that a deed was prepared by the company and given to the city attorney, and some time afterward upon the claim of the attorney that he had lost it, a duplicate was executed and delivered to him, conveying the roadway between Spring and Illinois streets, which was subsequently laid before the council, when a resolution was adopted reciting that the ordinance vacating the street was not passed legally by the council, and that the present council refused to pass that or any similar ordinance, and the clerk was therefore ordered to return the deed to the railroad company. This deed was sent back in accordance with the resolution. The first deed was never presented to the council. The court, trying the cause without a jury, found the defendant guilty, and assessed the penalty of ten dollars, and the defendant appealed.
    Mr. R. A. Halbert, for appellant;
    that it is a legitimate use of a street or highway to allow railroad tracks to be laid on it, and a city may grant the right to use a street or a particular locality therein for particular purposes of trade, cited Moses v. P., F. W. & C. R. R Co., 21 Ill. 523; Murphy v. City of Chicago, 29 Ill. 279; Chicago v. Rumsey, 87 Ill. 361; I. C. R. R. Co. v. Grabill, 50 Ill. 244; C., R. I. & P. R. R. Co. v. Joliet, 79 Ill. 25.
    As to estoppel in pais of a city: C., R. I. & P. R. R. Co., v. Joliet, 79 Ill. 25; Logan Co. v. Lincoln City, 81 Ill. 156; C. & R. W. Ry. Co. v. People, 91 Il . 254; Quincy v. C., B. & Q. R. R. Co., 92 Ill. 21; Martel v. East St. Louis, 94 Ill. 67.
    Mr. M. W. Schaefer, for appellee;
    that a railroad company can not procure a public street to the absolute exclusion of the public, cited Stack v. City of East St. Louis, 85 Ill. 381; City of Pekin v. Brereton, 67 Ill. 480; City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540; City of Quincy v. Jones, 76 Ill. 231; Village of Princeville v. Auten, 77 Ill. 325; City of Morrison v. Hinkson, 87 Ill. 587; P., F. W. & C. R. R. Co. v. Reich, 101 Ill. 157; City of Quincy v. Bull, 106 Ill. 337; Chicago Dock & Canal Co. v. Garrity; Parlin v. Mills, 11 Bradwell, 402; Dillon on Municipal Corporations, 2d Ed. § 581.
    Even if the evidence would warrant an estoppel in pais in favor of appellant, it would be no defense in this case : Canal Trustees v. Haven, 11 Ill. 554; City of Quincy v. Bull, 106 Ill. 349.
   Pillsbury, J.

The ordinance of July 5, 1883, attempting to vacate a portion of Spring street for the exclusive use of the appellant, was not legally passed, as the record shows that at that time the council was composed of fourteen aldermen, of whom but nine voted for its passage, less than three fourths of all its members, the number requisite to pass a valid ordinance for the vacation of streets and alleys (B. S. 1874, Chap. 145, Sec. 1), and therefore under this ordinance the appellant can not sustain its position that it had the right to the use of the street to the exclusion of the public. This ordinance never having been passed by a legal majority of the council, the question arises whether by any other acts, ordinances, grants, or resolutions of the city, or by virtue of any law of the State, the appellant has acquired the right of possession and use of Spring street, to the exclusion of the public from its use as a way for travel. , The only other ordinance or resolution relating to the use of the street by the railway, is that of 1853, granting the right to the Belleville and Blinoistown Bail-road Company, to whose rights the appellant succeeded, to use certain of the streets for railroad purposes, with a proviso therein contained, as above set forth. This ordinance would seem to be a fair exercise of the powers conferred upon municipal corporations to permit the streets of the city to be used for railroad purposes, as while allowing such use, it carefully preserves the right of the public to the joint use of them as ways with the railroad company. While it has ever been held in this State that it was a legitimate use of a street or alley of a city or town to permit railroad tracks therein, yet it seems to be now the settled doctrine of the Supreme Court that such use must be consistent with the public interests in them, and such city or town can not confer upon any one an exclusive right to their use, thereby depriving them of their character of public highways. Thus, in the case of City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540, the court says: " Streets and a public square are donated. Each has a well known and well defined use and meaning. The one was designed for the purpose of travel; and the right of passage over the streets in any mode not to destroy their usefulness, was given by the plat. * * * The power of the legislature to repeal the charters of municipal corporations can not be extended to the right to divert property to the public for one use to a wholly different and inconsistent use. The power can not exist to divert property from the purpose for which it was donated.” In the case of Quincy v. Jones et al., 76 Ill. 231, the court says: It is the unquestioned duty of the city in controlling and improving the streets, to prepare them for public use as streets at such time and in such manner as the public necessities may require. Holding them in trust for the public, and having no authority to convey or divert them for other uses, it would seem inevitably to follow that they can have no power to grant to individuals rights or easements in the street which might in any way interfere with the duty of preparing them for the public use, to meet the public necessities ; for it is obvious that if such rights may be granted, then the practical use of the streets may become so burdened with private rights as to place it beyond the pecuniary ability of the city to discharge its duty to the public with reference to them. It is not consistent to say that a city owes a duty to the public, and yet that it may voluntarily place it beyond its power to discharge that duty.” Also citing Dillon on Municipal Corporations, Sec. -541: “ The fundamental idea of a street is not only that it is public, but public for all purposes of free and unobstructed passage, which is its chief and primary, but by no means sole use.” In the case of Stack v. City of East St. Louis, 85 Ill. 377, in which several of the former decisions were reviewed, the court says: It is true that the city holds the fee, but it is in trust for the use of the public for the purposes of a street. The city has no power to sell, lease, or otherwise appropriate it to other purposes; nor can it be closed or obstructed so as to deprive the public from its use as a highway. Such public pass ways are indispensable to the owners of lots in cities and villages. They are laid out and appropriated for that purpose, and it is the duty of the city government to keep them open and in repair, for the use of all persons who desire to use them for travel or passage over them. It has, however, been held that a city or village may authorize the laying of railroad tracks in their streets ; that such a use is not inconsistent with the trust for which they are held by the city. But in thus permitting them to be used, the city has no right to so obstruct the streets as to deprive the public and adjacent property holders from their use as streets. The primary object is for ordinary passage and travel, and the public or individuals can not be rightfully deprived of such use,” etc. So in City of Morrison v. Hinkson, 87 Ill. 587, it was held that a part of the street only could not be permanently used by the city for the erection of a water-tank, even for the purpose of supplying the city and residents thereof with water. In the case of Pitts., Ft. W. & C. R. R. Co. v. Reich, 101 Ill. 157, the grant to the railroad company was similar to the resolution of 1853 in this case, in which the court says: “Although, in a general sense, highways or streets, where the fee is in the State or a municipal corporation, are lands belonging to the people of the State or to the municipal corporation, they are in legislation universally, so far as we recall, referred to as ‘highways,’ or ‘streets,’. and not as public lands. The ownership in reality in such cases is but nominal, and entirely subordinate to the public trust for which the title is held. It results, then, that while under its charter the railroad corporation may doubtless have had the right to lay its tracks in Stewart avenue, that right was not an exclusive one, and could only be enjoyed in common with the use of the avenue by the public as an ordinary highway, and without materially impairing its usefulness as such.” So in the case of Chicago Dock and Canal Co. v. Garrity, 115 Ill. 155, the court says: “It is not claimed that the use of streets can be permanently granted for private purposes ; and wo recognize as unquestionable law that the use of the streets, whether for vehicles drawn by animals, for those riding upon animals, for footmen, or for the passage of railway cars, must be for the public, and that no corporation or individual can acquire any exclusive right to their use, or the use of any part of them for private purposes.” The claim of the appellant here is to the exclusive right to use and occupy Spring street for railroad purposes, and to close up the street if they so desire, by leaving its cars upon the tracks of its road where they cross the street, thus preventing any person from crossing the track along the street. This we think, under the authorities cited, it can not do, nor can the city, in violation of its trust to the public, authorize it so to do. It is not denied by the appellee that the appellant has a right to use the street in common with the public, but denies its right to the exclusive use of it, or unreasonably to obstruct public travel upon it by leaving its cars standing upon it as a place of storage for them. The acts of the city officials and the ordinance of the city, properly passed, which are relied upon as an estoppel in pais, can not have the effect claimed for them, as from the evidence it appears that at no time has the city ever legally consented to allow the appellant the exclusive use of the street, or to its obstruction beyond that incident to a reasonable and proper management of its trains. And if it had done so, such acts could not have bound the public, which, under the dedication, had an equal right to its use, and would not be concluded by acts of the city authorities, which only established a violation of the trust imposed upon it in favor of the public by the dedication, and voluntarily accepted by it. As the appellant claimed the right to obstruct the street for the reason that it had the right to exclude the public from its use, its admission that it had obstructed it should be taken as concluding it that such obstruction was in the assertion of such claimed right, and as we have seen no such right did or could exist, the court was right in holding it liable to the penalty imposed by the ordinance. What we have said disposes of the propositions of law submitted to the court, and justifies its action in refusing them, and it is unnecessary further to notice them. The judgment will be affirmed.

Judgment affirmed.


author: Wilkin, P. J.

text:
    George Litzelman v. John Howell, use, etc.
    1. Unauthorized signing op note—Ratification.—Where a person without authority signs another’s name to a promissory note, the subsequent assent and ratification "by the latter of such signing is equivalent to an original authority and confirms what was originally an unauthorized and illegal act.
    2. Estoppel.—Where a son, without authority, signs his father’s name to a note, and the latter, by admissions as to its genuineness, or by promises to see that it is paid, induces the holder of it to delay talcing steps to collect it from the son until the son has left the State, the father is estopped from afterward denying the execution of the note.
    Appeal from the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Gibson & Johnson, for appellant.
    Messrs. Halley & Honey, for appellee.
   Wilkin, P. J.

This suit was begun before a justice of the peace against appellant and Joe C. Litzelman, by appellee, on a promissory note. Appellant alone was served. He appeared and filed an affidavit denying that he executed the note or in any way authorized the signing his name to it. On the trial the justice of the peace gave judgment against him and he appealed to the circuit court, where the case was tried by a jury, and the judgment being adverse to him, he brings the case here. The errors assigned are the overruling defendant’s motion for a new trial, and giving oral instructions to the jury. Under the first assignment of error the only reason for reversal urged is, that the verdict is contrary to the law and evidence.

Although appellant did not execute the note sued upon, yet if it sufficiently appears from the evidence that he assented to and ratified the signing of his name thereto; asis said by the Supreme Court in Hefner v. Vandolah, 62 Ill. 485, “such subsequent assent and ratification would be equivalent to an original authority and confirm what was originally an unauthorized and illegal act.” 2 Daniel on Negotiable Instruments, p. 319, Sec. 1351, citing Howard v. Duncan, 3d Laws, 174. Or if, by his admissions as to its genuineness, or promise to pay the note or see that it was paid, he knowingly and designedly induced appellee to delay taking steps to collect it from his son when it could have been collected, until the son left the State, he would be estopped from afterward denying its execution. 2 Daniel on Negotiable Instruments, p. 319, Sec. 1352; Hefner v. Dawson, 63 Ill. 403. The case of Hefner v. Vandolah, 57 Ill. 520, relied upon by counsel for appellant, is not in conflict with the authorities cited. In that case it was shown that the admissions that the note was genuine were made by mistake. There was, therefore, no ratification. The evidence failed to show that the holder of the note was, by the admissions or conduct of Hefner, induced to act or delay action to his injury. Hence it wras held the doctrine of estoppel in pais did not apply. In this case John Howell, appellee, testified, after the note became due he met appellant, and asked him if he was security on the notes sued on and he said he was; also that he said he would leave word at the house for his son Joe to pay it, and said, “ Iwill see that it is paid.” Dr. A. A. Frank testified that in a conversation with appellant he asked him why he told Howell he signed the note, if he did not. He said, “ When I told Howell I signed that note I was not under oath.” William England and James Kelley, who were present at that conversation, corroborate Frank. It is true that appellant denies that he admitted to Howell that he was security on the note, but in giving his version of the conversation with him, he does say, “I did not know anything about it, and 1 just told him I would see that it was paid? It also appears from the evidence of both Howell and Frank that they were induced to delay suing on the note by the statement of appellant, and that they could have at that time'collected it of Joe Litzelman; that Joe left in the night and that it was not until after he had gone that appellant denied that he signed the note and refused to pay it. It also appears from the testimony of Kelley that in the conversation with Frank appellant gave as one of his reasons for the admission to Howell that he did not have to tell on his son.” Appellant alone testified in his own behalf, and giving him the benefit of the most favorable construction of his evidence, he neither admitted nor denied signing the note when the inquiry was made by Howell, assigning as a reason that he “ was not bound to report on his boy.” While it is true that it was not his duty to become an informer on his son, and the instincts of a parent would plead strongly for the concealment of facts known to him, which, if disclosed, might expose him to a criminal prosecution, yet if he concealed the facts when asked if he was security on the note, and by such concealment intended to lull appellee into security and thus enable his son to escape, thereby working an injury to appellee, he could not, after the son was gone, escape liability on the plea that he did not execute the note. We think the evidence justifies the finding of the jury either upon the theory that there was a ratification of the execution of the note or upon the doctrine of estoppel.

The bill of exceptions shows that the court, by consent of each party, gave oral instructions to the jury. Appellant does not deny that he so consented, but is in the unenviable position of attempting to maintain that the court erred in doing just what he agreed should be done. This he can not do. Bates v. Ball et al., 72 Ill. 112. The judgment of the circuit court is affirmed.

Affirmed.


text:
    John H. Smith v. The People, etc.
    Witness beeoee grand jury—Contempt.—A was summoned before the grand jury as a witness to testify in regard to gaming in the county. The foreman told him that he was not obliged to criminate himself and that the question was not intended to apply to his acts. The following question was then asked him: “ Do you know of your own knowledge of any person or persons having played for money or other valuable thing with cards * * * within eighteen months in this county? If so, state who, for what and with what did they play? ” A replied “I can not answer that question without criminating myself or divulging the names of witnesses who would criminate me and of which witnesses the people have no knowledge, as I believe, other than would be derived from my testimony in answering the question.” Upon being again asked if he would answer the question he said, “ I refuse to answer the question for the reason I have given.” He was then sent before the court for contempt; the answer was held to be evasive, and upon his refusing to go before the grand jury and make further answer he was fined for contempt. Held, that the judgment of the court below was proper.
    Error to the Circuit Court of Franklin county; the Hon. E. M. McCartney, Judge, presiding.
    Opinion filed November 24, 1886.
    Mr. W. H. Williams, for plaintiff in error;
    cited 1 Greenleaf on Evidence, 9th Ed., 451 16 Ves. 242 ; 1 Burr’s Trial, 244; Brooks v. McKinney, 4 Scam. 316.
    Mr. W. S. Cantrell, for defendant in error;
    cited 1 Bouvier’s Law Dictionary, 354.
   Wilkin, P. J.

Plaintiff in error was brought before the grand jury of Franklin county at the April term, 1886, and sworn as a witness. It is stated in the bill of exceptions that he was instructed by the foreman as follows: That he was called before the grand jury to testify in regard to gaming in Franklin county within the past eighteen months; that he is not asked or compelled to give evidence against himself or evidence tending to expose himself to a penal liability or to any kind of punishment or to a criminal charge. And that in answering the following questions he was not required to state anything about himself; that the jury could not and would not presume anything against him, and the question was not intended to apply to the acts of the witness, but as to what ho might have seen others do.- The following question was then asked the witness: “Do you know of your own knowledge of any person or persons having played for money or other valuable thing, at any game with cards, dice, checks, or at billiards, or with any other article, instrument or thing whatsoever which may be used for the purpose of playing or betting upon, or winning, or losing, within eighteen months in this county ? If so, state who, for what, and with what did they play? ” Plaintiff in error answered, “I can not answer that question without criminating myself, or divulging the names of witnesses who would criminate me, and of which witnesses the people have no knowledge as 1 believe, other than would be derived from my testimony in answering the question.”

Thereupon the following interrogatory was propounded to him: “ Mr. Smith, in view of what has been stated to you, that you are not asked to criminate yourself, but to state what you may have seen others do, will you state if you have seen any persons playing cards for money or other valuable thing within eighteen months in this county or not?” Plaintiff in error answered as follows: “I know of no person or persons playing with cards for money or other valuable thing except in games where two or more were playing, and to which I can not testify without leading to the crimination of myself.” The foreman of the grand jury then said to witness: “ We do not ask you to criminate yourself. Will you answer the question ? ” Plaintiff in error responded as follows: 111 refuse to answer the question for the reason I have given.” The foreman thereupon sent plaintiff in error under charge of an officer, before the court to be dealt with for contempt, together with the foregoing proceedings before the grand jury. Plaintiff in error stated in open court that the foregoing was a correct record of the proceedings before the grand jury. That the explanation was made that the questions were propounded to him and the foregoing were his answers to the same, and that he refused to make further answer to said questions for the reasons given in his said answers. The court held the answers to be evasive and the reasons of plaintiff in error not sufficient, and required him •to make further answer to said questions. It is then further stated in the bill of exception, as follows: “ Whereupon said witness refused to go before the grand jury and make further answer to said questions or to either of them; ” and the court found that said witness was in contempt and assessed a fine of §25 against him, and ordered him to pay costs and that he be committed to common jail until fine and costs are paid.”

It will be seen from the foregoing facts that the witness makes-no complaint of the manner in which the questions were propounded to him, nor that he did not fully understand them. We need, therefore, only determine whether or not, taking the-explanation of the foreman with the questions, the answers, or either of them, were evasive. It will also be observed that plaintiff in error refused to make further answer to the questions or either of them, as required by the court. Had the explanation been incorporated in the first question, it would read in substance as follows: Without giving evidence against yourself, or evidence tending to expose you to penal liability or any kind of punishment, or to a criminal charge, do you know of your own knowledge of any person having played for money or other valuable thing, any game of cards, etc.? Thus stated (and so the witness must have understood it), the only direct answer would be yes or no. If he knew of persons having played for money at any game, etc., about which he could state without giving evidence tending to criminate himself, his answer would have been yes,” stating “ who, for what, and with what they played.” If, on the other hand, he knew of such gaming, but was himself so connected with it that his evidence as to who played, what was played with, and for what, would tend to expose him to penal liability, his obvious answer would be “ no.” The law defining the privilege of witnesses is well stated in Sec. 451, Greenleaf on Evidence, where it is said the law excuses the witness from answering if Ms answer would tend to criminate him. These questions violate no such rule. With the explanation, they allow the witness to be the sole judge of the effect of his answer, and in this respect is even more liberal than the law. The law does not require a witness to explain in the first instance how his answer will criminate him or tend to dó so, because such explanation itself would, or might, deprive him of the protection. These questions do not ask the witness to explain why he can not answer, but, with the preceding instructions, ask for a direct answer. The witness, however, insists upon going into an explanation and giving reasons for not answering, and when required by the court to make further answers refuses to do so for reasons given. It may be said that his answers amount to the same as a direct denial. That is not necessarily so. Take the expression, “or divulging the names of witnesses who would criminate me.” Why would they criminate him? Because they were gambling with him, or because his divulging as to their having gambled would induce them to retaliate by disclosing some crime or misdemeanor of which he was guilty and about which they knew. Either may be his meaning. The latter would certainly furnish no valid excuse for refusing to answer the question. The answer as a whole is, therefore, evasive.

The second question, “Will you state if you have seen any person playing cards for money or other valuable thing within eighteen months in this county or not ? ” could only be properly answered by yes or no. Can it be said that either of these answers would tend to criminate the witness ? But again he persists in entering into an explanation not asked for, and refuses to answer the question for reason, etc. We have no disposition to give a strained or narrow construction to the rules of the law privileging a witness when it reasonably appears that his answer will have a tendency to criminate him. But neither public interest nor private rights are to be sacrificed by allowing a witness to evade and refuse to answer questions merely because they may be distasteful to him, or because he may conclude that his answers will furnish the names of others who might, because of his answer, have a motive to disclose facts prejudical to him. In this case the answers of plaintiff in error have very much the appearance of being previously prepared for the occasion, and his refusal to make further answers when required was a contempt of the court, for which he was properly punished, and the judgment will be affirmed.

Affirmed.


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    Mary Suppiger v. The Covenant Mutual Benefit Asso. of Ill.
    1. Action on certificate of insurance.—An action at law on a certificate of insurance, where the insured was not in default in any duty he was required to perform, by the contract, can be maintained against the insurer for a breach of its obligation and agreement in refusing to comply with the terms of the certificate, and in such action the plaintiff is under no obligation to introduce the application upon which the certificate issued.
    2. Waiver of proof of loss.—The letter of the insurer informing plaintiff in substance that it denied its liability to pay because of a breach of the conditions of the certificate, was a waiver of proof of loss.
    3. Practice—Taring case from jury.—As the evidence introduced by plaintiff under the rules applicable to the case not only tended to support her cause of action, but made out a clear prima facie case, the court erred in taking the case from the jury.

      4. Life insurance—Condition against suicide.—Notwithstanding a condition against liability in case of suicide in contracts of life insurance, if, at the time of the suicidal act, the insured was so insane as to be unconscious of the act, or if he was driven to its commission by some insane impulse which he had not the power to resist, the condition does not attach, and the insurer is still liable.
    5. Same—Pleading.—Where the plea of the insurer was that the insured violated the condition against self-destruction (whether committed when sane or insane, felonious or otherwise) by compassing his own death by shooting himself, such shooting being an act of self-destruction, and the replication was “ that at the time when the alleged act of self-destruction was committed, the insured was of unsound mind, wholly and entirely unconscious of the physical and moral consequences of the act and was the subject of an insane impulse which he had no power to resist,” held, that a demurrer to such replication was properly sustained because it did not deny the material allegation of the plea that the act of self-destruction was intentional.

      Appeal from the Circuit Court of Madison county ; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 24, 1886.
    This suit was brought by appellant against appellee on a certificate of insurance issued to her husband, Bobert Suppiger, for §5,000, by which it is provided that upon due notice and satisfactory proof of the death of the said Bobert, filed with the secretary of appellee, an assessment should be made upon all the members for the full amount named in their respective certificates, and the sum so collected, less cost of collection, to be paid to appellant within ninety days from the date of the acceptance of the evidence of death. One of the conditions upon which the certificate was issued was as follows: “ If the holder of this certificate shall die by reason of any act of self-destruction whatever (whether at the time of committing the same he be sane or insane, whether felonious or otherwise) this certificate shall become null and void and of no effect, except that the aggregate amount of money which shall have been paid the association on this certificate, and no more, shall, on the delivery of this certificate properly receipted, be paid to the beneficiaries as hereinafter provided, within ninety days after receipt of proof of death.”
    Robert Suppiger died Aug. 22, 1883, and appellee was notified of his death. Its secretary thereupon sent to Timothy Grruag, who was acting for appellant, blanks, upon which to make formal proofs of death. These were filled up and returned to the company on the lltli of September, 1883, and their receipt duly acknowledged by the secretary without objection. In December following, in answer to a letter by Grruag, calling attention to the claim and urging its settlement, the following reply was received: “ Dec. 24,1883, Timothy Grruag, Highland, Illinois. Dear Sir and Bro.: In reply to your favor of the 13 inst., which I delayed answering in order to have the claim of Bro. Suppiger presented to the Board of Managers, at hand, and contents noted. I can now inform you that at a meeting of the board a few days since, after a full and careful consideration of the proofs of death, and of the evidence learned by our

      assistant general manager in regard to same, the claim was unanimously ordered paid in accordance with the terms of the contract, that is, to return the amount which has heen paid by Bro. Suppiger as membership fee and assessments, which is §120.12. Upon the receipt of certificate properly signed by Mrs. Mary Suppiger, I will send her draft on Chicago for that amount. This you understand is the full payment in accordance with the terms in the contract. Tours fraternally, E. J. Phelps, Secretary.” Without further correspondence this suit was brought on the 28th of February, 1884. The pleas upon which the trial was had were general issue, tender, and a special plea alleging that Robert Suppiger, while he held said certificate, violated its condition by “ compassing his own death, and did then and there die, on, to wit, Aug. 22,1883, hy shooting himself, such shooting being then and there an act of self-destruction.” To this plea three replications were filed, the first two traversing the allegations of the plea; the third is by way of avoidance, in this language: “ Because she says that at the time when the alleged act of self-destruction was committed the said Robert Suppiger was of unsound mind, wholly and entirely unconscious of the physical and moral consequences of the act, and was the subject of an insane impulse which he had no power to resist.” On the first and second replications issue was joined and to the third a general demurrer was filed and sustained.
    On the trial, the certificate sued on was read in evidence over the objection of appellee, 1st, that it does not show a promise to pay money, and 2d, that the application must accompany it. The evidence also showed payment of all assessments due from Robert Suppiger, his death, the furnishing of proofs thereof, the receipt of the foregoing letter from the secretary, and that appellant was the widow of the said Suppiger. The following stipulation was also read in evidence: It is agreed and stipulated that if the plaintiff is entitled to recover that she is entitled to a judgment for §5,000; it is further agreed the defendant has paid in to the circuit clerk the full amount of the money paid by Suppiger to said defendant as assessments and premium, and the costs of the court to day of payment. Thereupon at the instance and request of the appellee the court gave the following instruction to the jury :
    “ The court instructs the jury that under the evidence in this case the jury must find for the plaintiff and assess the damages at the sum of one hundred and twenty-one dollars and two cents.” To the giving of this instruction appellant excepted. The verdict was in obedience to the instruction and a motion for a new trial being overruled, judgment was rendered against appellee for $121.02, but it was ordered that appellant should pay the costs of the suit, and to this judgment exceptions were duly taken by appellant. The case is in this court by appeal.
    Messrs. Krome & Hadley, for appellant;
    that the term “ self-destruction ” in the policy is synonymous with suicide, cited Schultz v. Ins. Co., 40 Ohio, 217; Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284; Lawrence v. Mut. Life Ins. Co., 5 Bradwell, 280.
    As to the construction given to a provision against self-destruction in a policy: Lawrence v. Mut. Life Ins. Co., 5 Bradwell, 280; Bigelow v. Berkshire Life Ins. Co., 93 U. S., 284; Adkins v. Columbia Life Ins. Co., 70 Mo. 27; Conn. Mut. Life Ins. Co. v. Groom, 86 Penn. 92; Life Ins. Co. v. Terry, 15 Wallace, 580.
    The onus of showing the requisite capacity of the insured, as well as the act of self-destruction, to bring the case within the proviso, rests upon the company: Schultz v. Ins. Co., 40 Ohio, 217; Knickerbocker Ins. Co. v. Peters, 42 Md. 414; Phillips v. Ins. Co., 23 La. Ann. 404.
    Messrs. McKenzie & Calkins, for appellee;
    that the contract against death by suicide, sane or insane, is legal and valid, cited Pierce v. Traveler’s Life Ins. Co., 34 Wis. 389; Snyder v. Mut. Life Ins. Co. of N. Y., 3 Ins. L. J. 579; De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y., 235 ; Supreme Commandery v. Ainsworth, 71 Ala. 436; Salentine v. Mut. Ben. L. Ins. Co., Chicago Legal News, July 4, 1885; Riley v. Hartford L. Ins. Co., 15 Ins. L. J. 137.
   Wilkin, P. J.

We are aware of no rule of practice which would justify the action of the trial court in talcing the case from the j ury, under the issues and proofs made. For the purpose of this opinion, however, the case may be treated as though the instruction had been to find for the defendant, which it was in effect, as to the principal sum sought to be recovered. It appears from the rulings of the court below that it held the introduction of the proof of loss or death was essential to appellant’s right to recover, and based the foregoing instruction on the want of that evidence alone. An effort is now made to sustain the action of that court in so intructing the jury, upon the further ground that the action can not be maintained in a court of law, and that the contract or certificate- of membership was improperly admitted in evidence, unaccompanied by the application. These last propositions may be briefly disposed of first. On the allegations of her amended decoration, appellant was entitled to recover the full amount of the certificate, unless by some defense that amount was reduced. Elkhart Hut. Aid, etc., Ass’n v. Houghton, 2 N. E. Reports, 763.

The stipulation filed in this case amounts to an admission that if appellee had made assessments according to the terms of the contract, the full amount of §5,000 would have been realized. There is no pretense that the insured was in default in any duty he was required to perform by the contract. Ho reason is perceived why an action at law can not be maintained in such a case, against the insurer, for a breach of its obligation and agreement in refusing to comply with the terms of the policy or certificate. While a court of chancery might furnish a more adequate remedy, as is said in Benefit Association v. Sears, 114 Ill. 113, it does not follow that a court of law has no jurisdiction. On the contrary, the above cited case recognizes a common law jurisdiction in like cases.

Appellant was under no obligation to introduce the application upon which the certificate issued. It was a paper properly in possession of appellee, and if it desired it in evidence, it was its duty to produce and introduce it. Mut. Benefit Life Ins. Co. v. Robertson, 59 Ill. 136.

The ground upon which the court based its action is equally untenable. The letter of December 24, 1883, by the secretary of appellee, as effectually waives all proof of loss as though it had been written for that express jmrpose. There could be but one reason for requiring appellant to introduce the proof of loss furnished appellee, that is, to show that she had complied on her part with the terms of the certificate. It would have been competent for no other purpose. Knickerbocker Ins. Co. v. Gould et ah, 80 Ill. R. 393. In the face of the letter above referred to, appellee could not insist that satisfactory proof of loss had not been furnished, and it was therefore wholly unnecessary for appellant to offer other evidence that she had complied with the requirements of the certificate in that regard. Peoria Marine and Fire Ins. Co. v. Whitchill, 25 Ill. 466 ; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164; Phœnix Ins. Co. v. Tucker, 92 Ill. 64.

The evidence introduced by appellant under the rules of law applicable to the case not only tended to support her cause of action, hut made out a clear prima facie case, entitling her to a verdict and judgment for $5,000. The court therefore of red in taking the case from the jury, and for this error the case must be reversed and remanded.

An important question arises on the decision of the circuit judge on the demurrer to the third replication to the third plea, and as the case must be re-tried, that question can not be properly ignored here. The plea sets out the condition in the certificate exempting appellee from liability, if the holder should die by reason of any act of self-destruction, and then avers that Robert Suppiger violated said condition by compassing his own death, and did then and there die on, to wit, Aug. 22, 1883, by shooting himself, such shooting being then and the e an act of self-destruction. The replication seeks to avoid this plea in this language: “ Because she says that at the time when the alleged act of self-destruction was committed, the said Bobert Suppiger was of unsound mind, wholly and entirely unconscious of the physical and moral consequence of the act, and was the subject of an insane impulse which he had no power to resist.” The condition in the certificate set up by the plea is to he treated as though the word suicide had been used instead of self-destruction, the terms being equivalent when used in the same connection in insurance policies. It is uniformly held that notwithstanding a condition against liability in case of suicide in contracts of life insurance, yet if, at the time of the suicidal act, the insured was so insane as to be unconscious of the act, or if he was driven to its commission by some insane impulse which he had not the power to resist, the condition does not attach, and the insurer is still liable. The irreconcilable conflict of authorities is on the question as to whether the unconsciousness must extend to the moral right or wrong of the act, thus bringing the subject within the legal definition of suicide, or whether any voluntary intentional self-killing is sufficient to discharge the insurer. The Supreme Court of the United States is committed to the former doctrine and holds that there must be an act of criminal self-destruction. Life Ins. Co. v. Terry, 15 Wallace, 58; Manhattan Life Ins. Co. v. Broughton, 3 Sup. Ct. Rept. 99 ; Bigelow v. The Berkshire Life Ins. Co., 93 U. S. (3 Otto) 284. The courts of last resort in many of the States adopt the same rule, while in others and in England it is held that a voluntary self-destruction is within the terms of the condition, although at the time of the act there was not sufficient mental understanding to appreciate its moral turpitude. Bomdarle v. Hunter, 5 M. & Gr. 693; Clift v. Schwate, 3 M., Gr. & Scott, 437. The cares cited and the conflict here mentioned, will be found to furnish a reason and some clew to the object of insurance companies in adding to such conditions the expressions, “ sane or insane,” voluntary or involuntary,” “ voluntary or otherwise,” all of which are held to be equivalent; and the weight of authority seems to be that they are added for the purpose of avoiding the stricter construction above referred to, and not to exempt the company from liability in all cases of self-killing. Hence, so far as the courts have been called upon to give construction to such policies, it has been held that the additional words relieve the insurer in all cases of voluntary intentional self-destruction, but not in cases where the act is committed in a fit of frenzied madness, and the like, when there is no ability to form an intention. In the case of Bigelow v. The Berkshire Ins. Co., supra, Justice Davis says: “ Nothing can be clearer than that the words sane or insane were introduced for the purpose of excepting from the operation of the policy any intentional self-destruction, whether the insured was of sound mind or in a state of insanity.” To the same effect are the cases of Adkins v. L. Ins. Co., 70 Mo. 27, and Pierce v. Travelers L. Ins. Co., 34 Wis. 389. In the former it is said, “ The words sane or insane conclusively show that it was the purpose of the defendant to avoid the risk of intentional self-destruction by an insane man, and we are of the opinion that the addition of these words is adequate to the accomplishment of the purpose.” The test, then, would seem to be, was the act intentional. The plea in this case is to have the same effect as though it had in express terms charged that ¡Robert Suppiger intentionally shot himself. The replication doesnot deny that allegation; as was said in Bigelow v. Berkshire L. Ins. Co., the replication concedes, in effect, all that is alleged in the plea. The language used in the replication in that case which was held bad, was that the deceased “ was of unsound mind and wholly unconscious of the act.” This language was treated by Justice Davis, and similar language by Judge Nelson in Breasted v. The Farmers’ Loan and Trust Co., 4 Hill, 73, as an averment only that the assured was insane when he killed himself ; Justice Davis in his opinion saying, “ They can be treated in no other way ; if the self-destruction was not intended, the replication would have said so.” While the language there used is more general than in this replication, the effect is the same and must have a similar construction. We think the demurrer was properly sustained to it, because it does not deny the material allegation of the plea, and only attempts to do so by way of argument. For the reasons stated the judgment will be reversed and the cause remanded.

Reversed and remanded.