text:
    Edgar D. Swift, impleaded with, etc., v. Hugh Martin et al.

    1. Mechanics’ liens—Statutoby.—Mechanics’ liens are entirely the creation of statute, and are controlled absolutely by the provisions, requirements and conditions of the law which created them.
    2. Same—Dissolved upon statutoby bond being filed.—Upon a bond being filed by a contractor in accordance with sections 42 and 43 of chapter 82 B. S., entitled “ Liens,” conditioned for the payment of all just claims for such work or materials as they become due, etc., the effect is to discharge all such liens as shall have accrued before the filing thereof, including those upon which suits have been brought.
    3. Same—Pbaotice.—This effect should be given to the filing of such bond whenever, before final decree is entered, the fact of such filing and approval is properly brought to the notice of the court, in the proceeding to enforce the lien.
    4. Jurisdiction.—A judge of the circuit court in approving a bond filed by a contractor under section 42 of chapter 82 R. S., entitled “ Liens,” which will operate to discharge all liens, in no manner trenches upon the jurisdiction of any court in which a proceeding to enforce the lien may be pending; jurisdiction is properly exercised by dismissing the proceeding in such cases.
    5. Parties—Appeal.—A contractor has a manifest interest in the fund in the hands of the owner of premises against which a mechanic’s lien is sought, and has a right to appeal from a decree which gives alien.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed February 2, 1887.
    Appellant was the contractor for building three houses, one for his co-defendant in each of the above entitled cases. Appellee was a sub-contractor and furnished material for the construction of each building. Hot having received his pay from the contractor, appellee served notices on each of the owners, and afterward filed his petition in each of the cases to establish his lien. Answers were filed in each case, and when the cases came on for hearing, they were, by stipulation, practically heard and determined together, and though separate decrees were entered, by agreement one certificate entitled in all the causes was signed, and they were all brought to this court on one record. After the causes had been heard by the court, but before the entering of any final decrees therein, the appellant, Swift, filed his petition in each of said cases, setting forth that he had entered into bond with the owners of the premises, naming them, for the use of all persons who may do work etc., conditioned for the payment of all claims for work or material done or furnished pursuant to the contract between said Swift and said owners as they became due, said bond in the SI after case being in the penal sum of $2,300, and in each of said Moore cases in the penal sum of $8,112, the penal sum :in said bonds being in each case double the contract price agreed to he paid for the performance of the contract. Copies of tlie bonds were attached to the petitions, and the petitions prayed that the court proceed no further, but dismiss each suit at the defendant Swift’s costs.
    The petitions were duly verified. A general demurrer was filed by appellee to each petition, and was sustained by the court, and thereupon the court rendered in favor of appellees in each case, a decree in personam against Swift and against the owners for a lien to the amount that remained due and unpaid by the owners upon each contract, and from said decrees appeals are taken to this court, and the refusal of the court to grant the prayer of the petitions filed by appellant and dismiss the proceeding for lien, is assigned with other errors.
    Mr. S. E. Dale and Mr. F. W. Becker, for appellant;
    that liens were discharged by filing bond, cited Phillips v. Gilbert, 101 U. S. Sup. Ct. Rep. 72; Phillips on M. L., § 303 ; Day v. Garrett, 12 Phila. 265.
    Mr. Joseph B. Leake, for appellee;
    that a party can not assign for error that which does not prejudice his or her rights, cited Carter v. Rodewald, 108 Ill. 356; Nat. Bk. of Pontiac v. King, 110 Ill. 260; Hannas v. Hannas, 110 Ill. 61; Ransom v. Henderson, 114 Ill. 531.

       Three cases.

   Moran, J.

Liens in favor of mechanics and material men, are entirely the creation of statute, and are controlled absolutely by the provisions, requirements and conditions of the law which created them. Section 42 of chapter 82, R. S., entitled “ Liens,” is as follows :

“Upon entering into a contract to do any work or furnish materials for which a lien might accrue, under section 1 of this act, if the contractor will enter into bond with the owner, for the use of all persons who may do work or furnish materials pursuant to such contract, conditioned for the payment of all just claims for such work or materials as they become due, (which bond shall be in such an amount, not less than the price agreed to be paid for the performance of such contract, and with such surety as shall be approved by a judge of the circuit court, or a master in chancery of said court,) and shall file the same in the office of the clerk of said court, then no lien shall attach in favor of such sub-contractor, mechanic or other person.”

Section 43 is as follows:

‘‘ A - like bond may be made and filed, as provided in the foregoing section, at any time after the making of such contract, and shall have the effect to discharge all such liens as shall have accrued before the filing thereof, and to prevent the accruing of any such liens thereafter.”

Compliance by appellant with the foregoing sections of the law was brought to the knowledge of the court by the petition filed by appellant- in each of the cases in which an enforcement of the lien was being sought. It is not suggested that the method of bringing the filing of said bonds to the attention of the court was not appropriate, and the demurrers admitted the truth of the matters set up in the petitions. It is urged by the counsel for the appellees, that the bonds were not filed in time to prevent the enforcement of appellees’ liens by the court; that the bonds in order to discharge the lien, must be filed in the circuit court before the proceeding to enforce the lien has been commenced. We find nothing in the statute which gives support to this contention. Under the 43d section quoted above, the bond may be filed at any time after the making of the contract, and when filed the effect is to discharge all such liens as shall have accrued before the tiling thereof. There is nothing whatever in the law which would authorize us to say that liens which accrued before the filing of the bond were not discharged because proceedings to enforce such liens had been commenced before the bond was filed. It is said that by the mere ex parte proceeding of filing the bond in the circuit court, the jurisdiction of the superior court which had attached by filing the petition for lien, could not be ousted. There is no question of jurisdiction involved. The question is, what judgment shall the court enter upon facts properly brought to its notice, in a matter of which it lias complete jurisdiction. The judge of the circuit court, in approving the bond, was in no manner trenching upon the jurisdiction of any court in which a proceeding to enforce the lien might be pending. The approval of such bond is the act of the judge, and not of the court, and is to be performed by him when satisfactory surety is offered, wholly without reference to the question whether any liens have accrued in the particular case or whether any proceedings to enforce liens have been commenced. The effect of filing such bond, upon all liens which have accrued, is declared by the statute, and the effect so declared by the statute should be given to the filing of such bond whenever, before final decree entered, the fact of such filing and approval is properly brought to the notice of the court in the proceeding to enforce the lien. The court could no more proceed to declare the lien, after it had been shown that such bond had been filed, than it could decree a sale of property in a foreclosure suit, after it had been shown to the court that the property had been released from the lien of the mortgage by an instrument properly executed, pending the foreclosure proceeding. Jurisdiction is properly exercised by dismissing the proceeding, because the law applicable to the facts before the court requires that action, and it is in no sense an ouster of the jurisdiction of the court to prove facts arising after the commencement of the proceeding which deprives the complainant of the relief which the proceeding was instituted to obtain. The rights of the parties are fixed and controlled by the statute, and while the court is to construe statutes, it has no power to import into the laws passed by the legislature conditions, limitations or provisions which the plain terms of the statute exclude. The legislature might have provided that liens, to enforce which suits were pending, should not be discharged by filing the bond mentioned in sections 42 and 43 above quoted. It did not do so, but on the contrary declared that all liens accrued before the filing of the bond shall be discharged 'by the filing thereof. To except from discharge liens upon which suits had been commenced, would not be to construe the statute, but to interpolate a term into it which the legislature did not see fit to incorporate in the act. We can only administer the Tien Act as we find it. With the policy,. wisdom or abstract justice of its provisions, the court has nothing to do. The legislature is the sole judge of the terms under which a lien may be created and of the conditions by which it may be discharged. The question presented in this case does not appear to have been determined before in this State, and authorities cited to us by counsel, from other States, construing statutes similar in general effect, are of no aid to us. Each particular statute must, in the nature of things, furnish in its terms the basis of its construction, and our statute is, so far as regards the question here considered, so free from ambiguity that there is nothing left to construction. It is suggested that the parties against whom the liens were decreed have not appealed, and the appellant has no interest in the question as to whether the lien exists or not. The discharge of the lien by filing the bond, it is said, is for the benefit of the owner and not of the contractor. The contractor has a manifest interest in the fund in the hands of the owner. Out of such fund the owner has the right to discharge the lien declared upon his property. The fund, in fact, belongs to the contractor, if the lien does not exist. Who, then, has a greater interest in the question of lien or no lien? If the building is completed, and the owner has -[laid only according to the terms of his contract and in compliance with the provisions of the law, he becomes, in a proceeding to enforce a lien, a practically indifferent stake-holder between the sub-contractor or material man and the contractor. We have no doubt of t|ie right of appellant to assign error on the portion of the decree declaring a lien. He has the same right to question the decree here that he had to resist the granting of it in the court below.

It is unnecessary to consider other errors. The decrees entered in the cases in the superior court must be reversed and the cases remanded.

Decree reversed and remanded.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Herman Lowy v. Sophie L. Andreas.
    1. Practice—Demurrer.—Where a demurrer to a declaration is overruled, if the defendant wishes to plead over, he should ask leave to withdraw his demurrer, and file a plea. The granting or refusing of such motion, even if made at the same term, rests in the discretion of the court.
    2. ProMissoRY note—Words “order of.”—In this State the legal effect of a promissory note reading “pay to the order of A ” is the same as one reading “ pay to A.”
    S. Note executed in another State made payable here.—Where a note, executed in Nebraska, is made specifically payable in this State, it is governed by the laws of this State the same as if made here.
    4. Bona fide indorsee of note—Garnishment.—In such case, the fact that creditors of the payee have garnished, in a Nebraska court, the indebtedness represented by the note, which, under the Nebraska law, was not negotiable, and obtained judgment therefor against the maker, constitutes no defense which is available in this State against a bona fide indorsee of the note.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed February 2, 1887.
    Mr. Frank P. Reynolds, for appellant;
    that the omission of the words “ order of ” makes the note non-negotiable, cited Horsford v. Stone, 6 Neb. 380; R. S. of Neb., Ch. 32, § 1; Joslin v. Miller, 14 Neb. 91; Story on Promissory Notes, 176; Story on Conflict of Laws, 357.
    The law of the construction of the legal operation and effect of the contract is governed by the law of the place where the contract is made: Warren v. Copelin, 4 Metc. 594.
    The note not being negotiable it was an abuse of a reasonable discretion for the court to refuse appellant the right to make his defense: Alston v. Brownell, 4 Bradwell, 17.
    Mr. A. S. Bradley, for appellee;
    that the words “ order of ” are mere surplusage, cited Sappington v. Pulliam, 3 Scam. 387; Crittenden v. French, 21 Ill. 600; Roosa v. Crist, 17 Ill. 451.

      Bills of exchange or notes, fayable at a particular place, are to be treated as if made there without reference to the place where they were written, signed or dated: Mason v. Dousay, 35 Ill. 432; Skelton v. Dustin, 92 Ill. 53; Edward on Notes and Bills, § 217 ; 1 Daniel on Negotiable Instruments, § 895.
   Bailey, J.

This was an action of assumpsit, brought by Sophie L. Andreas against Herman Lowy. The declaration contains the common counts in the usual form, and a special count upon a promissory note for §10,000, executed by the defendant to one L. L. Smith, and by him indorsed to the plaintiff. Said note was dated at Omaha, June 27, 1885, and was payable six months after date, at the office of the defendant, at 110 Dearborn street, Chicago, Illinois, and bore interest at the rate of three per cent, per annum, and was described in the special count as payable to the order of said Smith. With her declaration the plaintiff filed her affidavit that her demand in said suit was upon the promissory note described in the declaration, and that there was then due to her from the defendant, after allowing him all just credits, deductions and set-offs, the entire principal of said note, together with interest thereon at the rate above mentioned from the date of said note. The defendant appeared and filed a demurrer to each count of the declaration, and said demurrer being overruled, judgment was rendered thereon in favor of the plaintiff for §10,281.63 and costs.

The point is made that the judgment is $23.33 in excess of the principal and interest appearing to be due on the note, but as that error has been obviated by a remittitur of that sum, it need not be considered.

The principal ground of complaint is the refusal by the court to‘permit the defendant to ¡dead after overruling the demurrer. It is said by counsel that, upon the submission by the defendant of his motion in that behalf, the court announced that such motion would be granted if the defendant would file an affidavit showing that he had a good defense. The record shows no such announcement or ruling by the court, nor does it appear that any affidavit was required as a condition to granting leave to plead.

The bill of exceptions recites that, after the demurrer was overruled, and before' judgment, the defendant moved for leave to plead, and in support of his motion submitted his affidavit. In said affidavit the defendant denied each of the several matters of indebtedness set up and alleged in the common counts, and denied the execution by the defendant of the promissory note described in the special count, but admitted the execution by the defendant to said Smith of a promissory note dated at Omaha, Nebraska, and differing from the note described in the declaration only in this, that said note was drawn payable to said Smith, instead of to the order of said Smith,” as alleged in said special count. The affidavit further states that said note was executed in the State of Nebraska, and that by the laws of that State, a note so drawn isnotnegotiable or assignable at law. Also, that on or about June 29, 1885, garnishee suits were commenced by various parties against the defendant in the district court of that State for the county of Douglass, said .court being a court of general jurisdiction, and that the defendant, on or about the day last aforesaid, was served with summons in said garnishee proceedings, as a debt- or of said Smith; that in said suits the defendant was required to answer for all moneys, goods, chattels, dioses in action and effects due, owing or belonging to said Smith, or in which he had an interest at the time of the service of the writ of garnishment; that said district court afterward rendered judgment in said garnishment proceedings in favor of the plaintiffs therein for the amount of the principal and interest of said promissory note, and ordered that the money due thereon should be paid to the plaintiffs in said proceedings.

It should be observed that, so far as the record shows, the defendant did not withdraw or offer to withdraw his demurrer on asking leave to plead. Where a demurrer to a declaration is overruled, if the defendant wishes to plead over, he should ask leave to withdraw his demurrer and file a plea. Conradi v. Evans, 2 Scam. 185; Weatherford v. Wilson, Id. 253; Godfrey v. Buckmaster, 1 Id. 447; Weatherford v. Fishback, 3 Id. 170; Town of South Ottawa v. Fisher, 20 Ill. 422; Herrington v. Stevens, 26 Id. 298; Voltz v. Harris, 40 Id. 155. The withdrawal of a demurrer is at the discretion of the party filing it, and can not bo compelled by the court, and until it is withdrawn, it remains in the record as an admission of the facts alleged in the pleading demurred to. A failure to withdraw a demurrer after it is overruled, operates as an election to abide by it, and justifies a judgment on the demurrer.

But even if it should be conceded that the motion for leave to plead was a withdrawal of the demurrer by implication, which, technically at least, in our opinion, it is not, there wa's no error of which the defendant can complain in refusing leave to plead. In Herrington v. Stevens, supra, the court say: “ The rule is well settled, where a demurrer to a declaration is overruled, if the defendant wishes to plead over, he should ask leave to withdraw his demurrer, and file a plea, and the granting or refusing of such motion, even if made at the same term, rests in the discretion of the court.” See also Conradi v. Evans, supra. It being thus a matter of discretion and not of right, the court was clearly justified in denying the defendant’s motion for leave to plead, in the absence of proof of a meritorious defense to the plaintiff’s action or some part of it. Did the defendant’s affidavit disclose such defense ?

In considering this question we may wholly disregard the common counts, since the recovery appears to have been only for the amount due upon the promissory note described in the special count. The affidavit denies the execution of the note set out in that count, it is true, but it admits the execution of a note of the same tenor and effect, except that the note declared on is described as being drawn payable to “ the order of” said Smith, while the note described in the affidavit is stated to have been drawn payable to said Smith, without the words “the order of.” Whether .these words were or were not in the note is, in this State, wholly immaterial, the legal effect of the instrument being in either case the same. Sappington v. Pulliam, 3 Scam. 385 ; Crittenden v. French, 21 Ill. 598 ; Roosa v. Crist, 17 Id. 450 ; Archer v. Claflin, 31 Id. 306. The difference between the note described in the count and the one admitted by the affidavit does not even constitute a variance.

But it is said that the note was executed in ¡Nebraska, and that by the laws of that State, such note is not negotiable. We are of the opinion that the laws of Nebraska have no application. Although it may have been executed there, it was made specifically payable in this State, and so, upon well recognized rules of law, it is governed by the laws of this State the same as if made here. This principle is fully sustained by the authorities cited by counsel for the appellee. In this State it is negotiable, so as to vest the assignee with the legal title, and to cut off defenses existing against it in the hands of the payee.

If it be true that creditors of Smith have garnished the indebtedness represented by the note in a Nebraska court, and obtained judgment therefor against the defendant, that constitutes no defense which is available here as against a bona fide indorsee of the note. If the defendant has suffered such judgment to go against him, he may run the risk of being obliged to pay the note twice, but that is no reason why a bona fide assignee of the note should not be permitted to collect it. It thus appears that the affidavit discloses no defense to the note, and consequently there was no error in refusing leave to plead.

The only error in the record having been obviated by the remittitur, the judgment will be affirmed. The appellant, however, should recover of the appellee his costs in this court, and a judgment for said costs will be entered against the appellee, the appellee also to pay his own costs in this court.

Judgment affirmed.


text:
    William H. Brackett v. Annie Nikirk.
    1. Depositions—Practice.—After a deposition taken in a canse has been read without objection upon one trial, it can not afterward be objected to on account of any defect existing at the time it was so used.
    2. Commission to take deposition.—Where a commission to take, the deposition of a non-resident witness, without being directed to any particular person as commissioner, was directed to any judge, master in chancery, notary public or justice of the peace of the county in which the witness resided and was executed by a notary public of that county, held, that this mode of directing a commission is warranted by the statute.
    8. Waiver op objections.—-A motion to suppress a deposition upon a specific ground is a waiver of all other grounds of objection.
    Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    Opinion filed February 2, 1887.
    Mr. John M. Beverly, for appellant.
   Bailey, J.

This suit was commenced by Annie FTikirb against William H. Brackett before a justice of the peace, and afterward taken by appeal to the county court, where a trial was had before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for §72.90.

On the day the cause was reached for trial in the county court, but before the trial commenced, the defendant moved to suppress the plaintiff’s deposition, taken in the Territory of Dakota, before a notary public, under and by virtue of a commission issued by the justice of the peace, the only ground specified in the motion being that no commissioner was named in said commission. Said motion was overruled, the bill of exceptions reciting that it appeared to the court from evidence adduced, that said deposition was opened and read on the trial of the cause before the justice of the peace without objection, in the presence of the defendant and his counsel.

The rule seems to be well recognized that after a deposition taken in a cause has been read without objection upon one trial, it can not afterward be objected to on account of any defect existing at the time it was so used. Evans v. Hettich, 7 Wheat. 453; Spence v. Smith, 18 N. H. 587 ; Hill v. Meyers, 43 Pa. St. 170; McMillan v. B. & M. R. R. Co., 56 Iowa, 421; Woodruff v. Monroe, 33 Md. 146; Brayton (Vt.), 77. This is upon the principle that a party, by allowing a deposition to be read without objection, thereby waives any defect or irregularity in the mode in which it has been taken, and is precluded from afterward alleging or taking advantage of what he has thus waived.

But we do not think that the objection urged would have been tenable even if it had been interposed in apt time. The commission, without being directed to any particular person as commissioner, was directed to any judge, master in chancery, notary public or justice of the peace of the county in which the witness resided, and was executed by a notary public of that county. This mode of directing a commission to take the deposition of a non-resident witness seems to be warranted by the statute. That provides that such commission may be “ directed to any competent and disinterested person as commissioner, or to any judge, master in chancery, notary public or justice of the peace of the county or city in which the witness may reside.” R. S., Chap. 51, § 26. Under such direction, as we understand the statute, any one of the officers named would be competent to take the deposition, and so long as this desposition was actually taken by a notary public of the county, it seems to be quite immaterial that no individual was expressly named as commissioner. His name, under the circumstances, would have been mere surplusage, and its omission was immaterial.

It should be observed that no complaint was made in the defendant’s motion to suppress, that the deposition was not properly taken, or that it was not taken by the proper officer, the only ground stated being, that no commissioner was named in the commission.” A motion to suppress a deposition upon a specific ground is a waiver of all other grounds of objection. Bartee v. Jones, 33 Ala. 34; Saltmarch v. Bower, 34 Id. 613.

The suit was for services rendered by the plaintiff to the defendant as cook in his hotel, for a number of years, the defense being payment. The evidence bearing upon the issues thus raised was in many respects quite conflicting, the plaintiff’s evidence tending to show a considerable balance yet due her for her wages, and the defendant’s evidence tending to show that she had been paid in full. We are unable to say that the jury were mistaken in their conclusion as to the facts, and we see no reason for disturbing their finding.

There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Green, J. Pillsbury, J., dissenting.

text:
    Fourth District
    August Term, 1886.
    H. R. Miller v. Bensley & Wagner, use, etc.
    1. Gambling contracts.—Under the decisions of the Supreme Court section 180, chapter 88 of the statute relating to gambling contracts does not prohibit the purchase or sale of grain with an option given to the purchaser to deliver, or to the seller to receive, within a time limited in the future, but the option prohibited is “ puts ” or “ calls." • -
    2. Purchase of corn to be delivered in the future.—The court is of opinion that the evidence in this case justified the jury in finding the purchase o£ corn, to be delivered within a limited time in the future, by appellees for appellant, was a real and not a pretended purchase, and that the contract was valid.
    8. Intention of parties.—The offer of appellant to prove that he did not intend when he ordered the purchase of the grain, to receive and pay for it, but intended to settle the deal upon differences, was properly refused.
    Appeal from the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Ashcraft & Stillman, for appellant;
    that the evidence does not sustain the verdict and judgment, cited Lyon v. Culbertson, 83 Ill. 38; Beveridge v. Hewitt, 8 Bradwell, 467; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Walker v. Rogers, 40 Ill. 278; Thackray v. Blackett, 3 Campbell, 164; Morgan v. Peet, 32 Ill. 288; Trimble v. Thorn, 16 Johns. 153.
    The intention of the parties is material: Tenney v. Foote, 4 Bradwell, 594; 95 Ill. 99; Grizewood v. Bane, 11 C. B. 73, E. C. L. R. 538; Yerkes v. Solomon, 18 N. Y. Sup. Ct. 473; Gregory v. Wendell, 39 Mich. 337; Colderwood v. McCrea, 11 Bradwell, 543.
    Messrs. Farmer & Brown and Mr, Jacob Fouke, for appellees ;
    that time contracts made in good faith for the future delivery of grain or other commodity are legal, cited Wolcott v. Health, 78 Ill. 433; Cole v. Milmine, 88 Ill. 349; Logan v. Musick, 81 Ill. 415 ; Tenney v. Foote, 4 Bradwell, 594.
   Green, J.

This was an action of assumpsit against appellant, to recover for money paid and advanced and commissions. The trial below resulted in a verdict for plaintiffs, and defendant’s motion for new trial having been overruled and judgment rendered on the verdict, this appeal was taken. It appears from the evidence that appellant, by letter dated August 27, 1882, ordered"plaintiffs to buy for him, for delivery during the month of May, 1883, 5,000 bushels of corn, at a price not exceeding 62 cents per bushel, and plaintiffs acting on such order, on August 30, 1882, bought that amount of corn for appellant of McDermen, Buss & Co., on the Board of Trade in Chicago, at 61-£ cents per bushel, for such May delivery, and advised appellant by mail of their action; the price paid was the prevailing market price on August 30th; there was no option in the contract, except the sellers had the right to deliver the corn on any day during May, and were bound to deliver It to the buyers within that month, and the latter were bound do then receive and pay' for it. After notifying appellant of .said purchase plaintiffs drew on him as he instructed them to do, for the margin required, and through the bank he had named, but the draft was returned dishonored, and on September 2, 1882, this fact was made known to appellant by letter "from plaintiffs, in which they ask for remittance to project them, or for instructions about closing put the deal; not receiving any reply or remittance, and the price- of corn dedining, to prevent further ioss, (as Bensley testifies,) plaintiffs sold the corn purchased, on September 5, 1882, at a loss of §343.75, and so informed appellant by letter, at the same time sending him a statement of their account; no answer to this was made by appellant, and plaintiffs advanced the money for him, and paid this loss on December 8, 1882 ; this purchase of corn was for the actual delivery of it, and the commission of $12.50 charged appellant, was shown to have been reasonable. It is insisted for appellant, this transaction between the plaintiffs and himself is a gambling contract, and void under this clause of our statute, section 130, chapter 38: Whoever contracts to have or give to himself or another, the option to sell or buy at a future time, any grain * * * he shall be fined *- * * and ap contracts made in violation of this section shall be considered gambling contracts and shall be void.” This clause has been frequently construed by our Supreme Court, and such construction upon the facts as shown in this case, is adverse to the theory of appellant. It was not intended or designed by that provision of the statute, to prohibit the purchase or sale of grain, with an option given to the purchaser to deliver, or to the seller to receive within a time limited in the future, but the option prohibited is defined in Pixley v. Boynton, 79 Ill. 351, to he puts ” or “ calls; ” a “ put ” is a privilege to deliver or not deliver grain or other commodity; a “ call ” is a privilege to call or decline to call for such delivery.

In Logan v. Musick, 81 Ill. 415, the court holds that contracts for future delivery are not prohibited, nor does it make any difference as to the legality of the contract, whether the party selling for future delivery has the grain on hand or not. In Pixley v. Brown, supra, the option, as in this case, was as to the time of delivery, and the contract was held to be legal.

In Corbett v. Underwood, 83 Ill. 323, a case like this in its facts, it is said, the transaction was not a deal in options, but the defendant purchased from third parties, corn to be delivered at a future day, and had margins been kept good by plaintiff, as required by the rules of the Board of Trade under which the contract was made, there is nothing to justify the belief it would not have been delivered. See also Cole v. Milmine, 88 Ill. 349. The facts proven, justified the jury in finding the purchase of corn by plaintiffs for appellant, to have been a real and not a pretended purchase, and under the construction given the statute by the Supreme Court the contract was valid, although the right was reserved to deliver the corn within a limited time in the future. The refusal to give the 1st, 3d, 5th and 10th instructions asked for by defendant below, is also assigned for error, but the 1st, 3d, and 10th of these, are based upon the assumption that the contract of purchase made by plaintiffs was not real, was not intended by the parties to it to be a sale and purchase, but was a mere wager on the future state of the market; this assumption had no support from any evidence in the record, and the only attempt to give such a character to the contract, was the offer, to prove by appellant that he did not intend, when he ordered the purchase of the grain, to receive and pay for it, but intended to settle the deal upon differences, which testimony the court very properly refused to admit; first, for the reason such intent of appellant only, even if known to plaintiffs, could not affect the contract made by them, and also because the order given by appellant for the purchase directly contradicted such intent, and having given such order he was bound by it. The 5th instruction refused is also obnoxious to the objection that no evidence supports it. We will not lengthen this opinion by commenting upon the authorities cited by counsel for • appellant in support of their theory in this case, further than to say, those authorities are not in point upon the facts proven here. We think this case was fairly tried, the verdict of the jury was supported by the evidence, and the judgment ought not to be disturbed; it is therefore affirmed.

Judgment affirmed.

Pillsbury, J., dissenting.

Being unable to agree with my brethren that this judgment should be affirmed, I feel constrained to state some of the reasons that lead me to conclude that error waS committed upon the trial of this cause. The issues formed upon the plea filed in this case, presented the question whether the transaction between appellant and appellees was a gambling one. The defendant below offered to prove, in addition to what already appeared in the record, that he did not intend to receive and pay for the corn, but intended to settle the deal upon differences, and that the plaintiffs knew what his intentions were when they made the purchase for him. The court below refused such offered proof, and exception was duly taken. “ Agreements for the future delivery of grain or any other commodity are not prohibited by the common law, nor by any statute of this State, nor by any policy adopted for the protection of the public. What the law does prohibit, and what is deemed detrimental to the general welfare, is speculating in differences in market values.” Pickering v. Cease, 79 Ill. 329. Here we have a definition of a gambling transaction on the Chicago Board of Trade made by our own court of last resort, and from which it has never, to my knowledge, departed. In Tenney v. Foote, 4 Bradwell, 594, Judge McAllister wrote an opinion at the circuit, which was affirmed by the appellate court and fully indorsed by the Supreme Court, 95 Ill. 99, in which he says that “no matter what form the transaction bears as to the terms of the contract, still, if such form be colorable only, and the real intention of the parties be that there is to be no sale of the article, no delivery or acceptance of it, but the transaction to be adjusted only upon differences, it is a gambling transaction within the statute.” The real intention of the parties theft becomes a material question of fact, and any evidence offered tending to show what such intention was, should be submitted to the jury. It may be that under the decisions in this State we are to presume that every deal made on the Board of Trade is honest and legitimate within the law, casting upon the party questioning the validity of the transaction, the burden of proof to establish its illegality. This, however, is but a mere presumption, and in the light of common observation and experience regarding the custom of buying and selling upon the Board of Trade, as well as the testimony of one of the appellees in this record, that perhaps twenty per cent, of the deals made there are settled ,by the delivery of the commodity, such pre.sumption, in my opinion, becomes a very weak one, and it should require but slight evidence of the intention of the parties to' settle upon differences to send the case to the jury to determine what their intentions were, in a given instance. When, therefore, the appellant offered to show that his intension when he gave the order to appellees, was not to receive the grain but, to settle the deal upon differences in market value, and thaf appellees knew that such was his intent, I think error was¡ committed by the court in excluding such offered proof. If they ¿new his proposition to them was made for pure speculation in-differences in market values, it was their plain duty to accept the order in that view or reject it entirely, .if their method of doing business did not allow them to kid the appellant in any illegal transaction.

Mr. Justice Breese says, in Wells v. Carpenter, 65 Ill. 447, that “"the true principle of sound ethics is to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it.” The same1 principle should be applied here especially as the parties can not escape the effect of the statute by any form of the contract, if in fact it was designed as a cover for a gambling deal. Again, I think there was sufficient evidence in the record to submit the question to the jury whether the transaction was not obnoxious to the statute. It seems that appellees received three' communications from the appellant, the first being as follows:

Vandalia, Ill., Aug. 15, 1882.
Bensley & Wagnek, Chicago, Ill.
Tours of late date in reply to postal to hand. Tes, I have some information relative to terms, etc. Have bought grain both in Chicago and St. Louis; was unfortunate enough to be on the b,ull side last fall. I will know nothing of to-day’s market until to-morrow morning, at which time will receive Chicago price current. In case I decide to make a, purchase or sale on receiving prices in the morning will wire -you, and if -you execute order, make draft on me through Farmers and Merchants National Bank, for 3c margin on corn or oats, or 5c on wheat. I may not send, order; may wait to hear again from you. Don’t want any draft on the firm—only myself. What do you think of May corn? I believe it opened at 72, and yesterday was 66j-. I believe it is a good buy at 65c. Possibly a man might have to re-margin ; I think it is an option a man can make money on to either buy or sell. What is your opinion on oats ? Do you think September oats a-good buy at 36?
Tours, H. E. Miller.
On August 19th they received the following:
Vandalia, III., Aug. 18, 1882.
Bensley & Wagner, Chicago, Illinois.
Should May corn continue to drop and reach 60c, buy me 5,000 and make your draft for margins. This looks pretty low foi‘ the article, but there is a possibility of its reaching the figure.
Tours truly, H. E. Miller.

August 29th they received a letter requesting them to purchase 5,000 bushels of corn for May delivery at 61£ or 62 cents per bushel. This letter is claimed to have been lost and was not introduced upon the trial. The appellees introduced these letters as a basis for their actions in purchasing the coin for the appellant, and in my opinion thereby sufficiently showed the illegality of the transaction, to authorize the court to send the case to the jury upon that issue. The object and purpose of the appellant in trading upon the board is very manifest; from his letter of August 15th to the appellees, it is seen that he had dealt both in St. Louis and Chicago, but the fall before was so unfortunate as to be on the bull side of the market. He is not sure whether he wants to buy or sell corn, but on receiving prices will wire them but may not send any order. May wait and hear from them again; wants to know what they think of May corn; believes himself that it would be a good buy at 65 but might have to re-margin; thinks it is an option a man can make money on either to buy or sell; asks their opinion of oats and whether oats at 36 would be a good buy. How the appellees could understand from this letter that the appellant intended to become an honest trader on the Board of Trade, is beyond my comprehension. When lie does not know whether he wanted to buy or sell, but is willing to take an option either way to make some money, it seems to me it is clear that he intended to enter into a barefaced speculation in differences. There is no element of an intended honest transaction in it. There is no intimation that he is in need of 5,000 bushels of corn if he buys, nor that he has that amount to deliver if he sells; but the May option to receive or deliver is his object and which one he will take must depend upon the state of the market. There is nothing in the other letters that show any change of intention upon his part, but having ascertained which side of the market he desires to take, he gives his order to buy and again finds himself upon the wrong side. I have no sympathy for the appellee whatever, as his design was to make money without returning any equivalent for it. His gain would be a clear loss to some other speculator in differences and neither the loser nor the winner is entitled to any very tender consideration at the hands of a court of justice. The statute was enacted for a wise and beneficent purpose, and a fair, liberal construction and a prompt and earnest enforcement of it by the courts will greatly promote the public welfare, and lessen the evil it was designed to eradicate. The court below, in giving the instruction for the plaintiff and refusing the first and third of those asked by the defendant, substantially took from the jury the question whether the deal was a gambling transaction, and in so doing I think error was committed as the evidence was sufficient to submit that question to them.

In my opinion the judgment should be reversed.


author: Green, J.

text:
    Harvey J. Peavler et al. v. Hesekiah McLaughlin.
    Usurious contract.—A note made in 1876 as follows : “ Three months after date for value received we promise to pay * * * with thirty per cent, per annum after maturity for non-payment when due, and a reasonable attorney’s fee if collected by suit.’ Held, that such contract was not usurious. As the note was made in 1876, the act of 1879, making such contracts usurious, did not apply to it.
    Appeal from the Circuit Court of Jefferson county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed November 24, 1886.
    Mr. Wm. H. Green, for appellants.
    Mr. T. S. Casey and Mr. G. B. Leonard, for appellee.
   Green, J.

This action was brought by appellee against appellants to recover upon the following note: “Mt, Vernon, Ill., Otc. 16, 1876. Three months after date, for value received, we, or either of us, promise to pay to the order of H. McLaughlin, one hundred and fifty dollars, at the Mount Vernon National Bank, with thirty per cent, per annum after maturity, as liquidated damages for non-payment when due-, and a reasonable attorney’s fee if collected by suit.

A. M. Green,

W. Dupe Green,

H. J. Peavler.”

On which was indorsed, Dec. 5, 1883, a credit of §47.83. The cause, by consent of parties, was tried by the court, and judgment against defendants was rendered for §522.17, and costs of suit. Defendants’ motions for a new trial, to set aside judgment and in arrest of judgment, being overruled, defendants appeal. The defenses relied on were usury, and release of sureties. Our Supreme Court have uniformly held contracts of the kind sued on, when made with a single purpose to secure prompt payment, not usurious, and such was the law in this State up" to 1879, when, by an act in force July 1st of that year, it was among other things provided: That all contracts executed thereafter, where a greater rate of interest than eight percent, should be reserved on account of non-payment at maturity, should be deemed usurious. This note did not come within the operation of that act, and the court was justified in finding from the evidence that the clause providing for thirty per cent, liquidated damages was inserted to enforce prompt payment of the principal at maturity, and not with a purpose to exact usurious interest; there was no agreement shown for forbearance after maturity, and appellants had the right to pay the note when it became due, and thus avoid the payment of the • penalty. As to the defense of release of sureties, there was no evidence supporting it even if appellants W. Duff Green and Peavler were sureties as they claim to .be. Ho written notice was given by them, or either of them, to McLaughlin, to bring suit upon the note, and the latter told each of the appellants the note was not paid, on several occasions after it was executed and before this suit, was brought; moreover W. Duff Green, asíate as Dec. 3,1883, knew the note was unpaid and had the amount of his medical bill against appellee credited thereon. Peavler also admits he was-asked about the note by appellee, and knew it was not paid as late as 1883; nor was any agreement made with A. M. Green by appellee to extend the time of payment beyond the maturity of the note. Such being the facts shown by the record, the law applicable thereto, as laid down by repeated decisions of the Supreme Court of this State, is clearly with the appellee, and the judgment of the circuit court in his favor against appellants was right and must be affirmed.

Judgment affirmed.


author: Pillsbury, J.

text:
    Albert B. Voorheis et al. v. Hugh L. Bovell, Adm’r, etc.
    1. Evidence.—In a suit by an administrator to recover for the services of deceased as manager of a store, where the evidence tended strongly to establish the fact that the compensation of such manager was to be measured by one half of the net profits, and was amply sufficient to destroy any presumption arising from the fact of his performing service that he was to bo paid what such services were reasonably worth, the books of the clothing house kept during the time of such management would he admissible in evidence to show the profits and losses of the business.

      2. Instruction—Express contract.—The instruction that “ an express contract is one where the parties have agreed upon an express or stipulated price ” was, under the peculiar circumstances of this case, misleading. A contract of employment is no less express because the “ price ” or “ amount,” that the party may receive, is not agreed upon in advance, but is made to depend upon the uncertain result of some business venture, or upon some other contingency which will in the future determine the compensation to be received.
    3. Witness.—An instruction that “ to render conversations between * * * worthy of consideration as evidence, it is necessary that the witnesses who testify to snch conversations should be able to give the substance of all that was said in such conversations,” is erroneous.
    Appeal from the Circuit Court of Crawford county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 24, 1886.
    It appears from the record in this case that Lutes, appellee’s intestate, and his brother, failed in the clothing business in the spring of 1879, and made an assignment for the benefit of their creditors. The firm was owing the appellants more than all their other debts combined. The assignee sold all the assets to appellants, and on April 1, 1879, they opened the Eobinson Clothing House, with Lutes as manager, who had charge of the business until Dec. 1, 1884. It appears that he kept the books of the new firm, made all the purchases, and rendered weeky accounts of sales, expenses, etc., to appellants, who were nonresidents of the State. Lutes died in 1885, and this suit' was brought by his administrator to recover for his services as such general manager for appellants. The appellee recovered §2,000, and the defendants appealed.
    Messrs. Olwine & Newlard and Messrs. Wilson & Hutchinson, for appellants.
    Messrs. Callahar & Jobes and Messrs. Robb & Bradberry, for appellee.
   Pillsbury, J.

" The contention upon the trial below was, under what terms or arrangement did Lutes perform the services for appellants." The appellee insisted that they were performed without any express contract, and that he was entitled to recover as upon a quantum meruit, and did succeed upon that view.

The defendants insisted that after they bought the stock, they agreed that Lutes might take charge of the store, manage it in their name, and to have for his services one half of the net profits, and out of the profits they were to be paid their claim against the former firm of Lutes Bros., less any dividends they might receive through the county court in settling up that estate. It does not appear that any witness testified to hearing any contract made between Lutes and appellants, but they called one Gr. W. Harper, who testified that he was the assignee of Lutes Bros, and as such sold the stock of goods to appellants, and then stated: I think it was the day after I sold the stock of Lutes Bros., that I had a conversation with Mr. Voorheis and Mr. Lutes in my office. Mr. Voorheis said in that conversation, in the presence of Mr. Lutes: £I am going to give Mr. Lutes a better chance than he has ever had before. I am going to give him a chance to make some money.. Mr. Lutes is to have one half the profits, and out of the profits of the stock he is to pay our claim in full, less dividends.’ Mr. Lutes seemed pleased and said he was going to try to live more economical, and try and save something. They also talked of the manner of conducting the business, and Mr. Lutes said he could collect more of the notes and accounts I had sold Voorheis than anyone else, by continuing the business.” The substance of that conversation was, that Voorheis- and Miller were to get their claim against Lntes Bros, in full, less dividends, out of the profits of the business; on his cross-examination, he testified: “ This conversation was in my office, after the sale of Lutes Bros, had been made, and I think it was the next day. I was not called on as a witness to any contract. I understood that they were stating a contract that had been made. Mr. Voorheis said that out of the profits of the business, their claim was to be paid in full, less dividends. I heard all that conversation and have given the substance of it. .It was in another and later conversation, when Rutés said he thought he could live on $300. Mr. Voorheis said that he was going to give Lutes an interest in the .sales, and out of the profits they would get their money.” Thomas Browning testified : 1 had a long talk with Mr. Lutes about his business in August or September, 1884. He died in March, 1885-; .Lutes said if he had good luck and his health got better, it would not be very long until he was his own boss. He did not explain liis meaning.”' '

John Olwin testified: “I talked witli-Lutes,fall of 1884, about the store ; I was thinking of taking charge of the business myself." I asked him to state the facts as to how he was managing the business; he said, 1 The goods are bought and put in here; all expenses are paid out of sales, and the net profits are divided by two and I get one half.’ I was negotiating with Miller and Voorheis myself, and. proposing to take Mr. Lutes’ polace; Lutes said the sales run from $12,000 to $1.5,000. a year, and profits from 20 per cent, to 25 per cent, with expenses about $1,2Q0 a year.” Cross-examination: Cl Mr. Lutes was not trying to sell me the stock. I was negotiating with Voorheis and Miller to buy the stock; had corresponded with them about it.” Dillon Fowler testified : “I am clerk in the 'Kobinson clothing house: Have been there several, years. Mr. Lutes first hired me at $30 a.month, then at $40. I heard Lutes say several times, if things continued as they were and .business kept good, he would own the entire store.” The 'appellants after introducing the above testimony, offered the books of the Robinson clothing house, to show the profits and .losses of the business, but upon objection the court held that they could only go in evidence to show any payments made to Lutes by the defendants, and to show the annual sales of stock under the management of Lutes and the amount of expense. Exception was taken to this ruling and is urged here as error. We are unable to perceive why the books should not be admitted in evidence for the purpose for which they were offered. The evidence already introduced, tended strongly to establish the fact that the compensation of Lutes was to be measured by one half of the net profits of the concern managed by himself, and in our opinion it was amply sufficient to destroy any presumption arising from the fact of his performing service that he was to be paid what such services were reasonably worth. The boobs then would undoubtedly show, if the jury should find a special contract established, the true measure of his recovery under that contract, as they would show what net profits, if any, had been made in the business.

To limit their effect to the amount of annual sales and the expenses, would not prove the amount of profits made as the cost of the goods would have to be taken into the account. We do not understand that the contract to give him a certain share of the profits as compensation for his services, necessarily made him a partner : Burton v. Groodspeed, 69 Ill. 237; but if it did, the proof of such fact would defeat the present action.. If he was to receive one half of the net profits, the appellants certainly should have been permitted to prove what such profits were. Some of the instructions for the plaintiff we think are somewhat misleading as applied to the facts of this case, but we will not attempt to notice them in detail, as the point can be made clear by reference to the fourth, which informs the jury that an express contract is one where the parties have agreed upon an express or stipulated price, and an implied one is where work has been done by one party for- the benefit of another, and which has been accepted by him, and no express or stipulated amount has been agreed upon. The idea conveyed by this instruction seems to pervade the entire series given upon the question of the character of the contract, and from them the jury must have understood that no express contract could exist unless a “stipulated price’’ or a “stipulated amount ” had been agreed upon as compensation for the services. The contract of employment is no less express, because the “ price ” or “ amount,” that the party may receive is not agreed upon in advance, but is made to depend upon the uncertain result of some business venture or upon some other contingency, which will in the future determine the compensation to be received. The fifth instruction is as follows: “The court instructs the jury that in order to render conversations between Howard B. Lutes and witnesses, or between Lutes and Voorheis in the presence of witnesses, worthy of consideration as evidence, it is necessary that the witnesses who testify to such conversations, should be able to give the substance of all that was said in such conversations.” When it is remembered that all the evidence introduced in support of the theory of a special contract consisted of conversations had by Lutes with the appellants or the witnesses, the effect of this instruction could not but be very prejudicial to the defendants below. It is very rarely indeed, that we find a witness of such remarkable memory, as to recall the substance of all that was said in a conversation occurring years before,and yet portions of it maybe fully recollected by him, and may contain statements or admissions covering the very point at issue, and he be able fully to detail upon the witness stand the, substance of such statements; and is the jury not to consider the testimony of such witness worthy of any consideration, because he can not give the substance of all that was said in such conversation? We know of no case, and it is believed none can be found, that announces such a rule of evidence. If the recollection of the witness as to everything that was said is at fault, that fact may affect the weight that should be given to his testimony, but it can not be conceded that his testimony is for that reason unworthy of consideration by the jury. It is objected that, the court erred in refusing to admit in evidence the claim of the appellants filed in the county court, and the amount of the dividends that had been paid thereon. The record does not disclose the claim, nor wherein the proposed evidence would be material, and we can not therefore sa,y error was committed in this respect. For the reason given, the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    Ellen J. Bassett et al. Ex’rs, etc. v. Alice E. Bassett.
    1. Husband and wife—Enticing husband away.—A wife has, in this State, a right of action against any one who maliciously entices her husband to separ tte himself from her, whereby she is deprived of his society, affection, protection and support.

      2. Statute of Limitations—Personal injury.—The cause of action for an injury to the person which is barred by the Statute of Limitations of two years is limited to a direct physical injury,
    8. Five years limitation.—An action by a wife for enticing her husband away and depriving her of his society, is governed by the Statute of Limitations of five years.
    4. Evidence that the wife was not deprived of any love.—In such an action brought by the wife against her father-in-law, evidence by the defendant that his son was married to the plaintiff while intoxicated, and that he bad never had any affection for her before or after the marriage, was admissible in mitigation of damages, and to prove defendant’s theory that the husband voluntarily left the plaintiff.
    Appeal from the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Opinion filed November 24, 1886.
    Action on the case, by the appellee against George W. Bassett, the father of her husband, charging him with wrongfully and maliciously enticing her said husband to separate himself from her, whereby she was deprived of his society, affection, protection and support, for which she seeks to recover damages. The general issue and the Statute of Limitations of two years were pleaded, to which last plea a demurrer was sustained. Upon trial a verdict and judgment were rendered for §3,000 and the defendant below appealed to this court, pending which he died, and his executors were substituted as parties appellants in this court.
    Messrs. Ashcraft & Stillman, for appellants;
    that the action can not he maintained, cited 2 Share. Bl. Com. 142; 1 Addison on Torts, § 51.

      The evidence offered as to the marriage and the absence of love on the husband’s part was admissible: Schouler on Domestic Relations. 57; Cooley on Torts, 224; Dance v. McBride, 43 Ia. 624; Sedgwick on Damages, 547; 1 Greenleaf on Evidence, § 102; Coleman v. White, 43 Ind. 429; Harter v. Crill, 33 Barb. 283.
    Messrs. Farmer & Brown and Messrs. Casey & Dwight, for appellee;
    that the action was maintainable, cited Emerson v. Clayton, 32 Ill. 493; Hayner v. Smith, 63 Ill. 430; Hennies v. Vogel, 66 Ill. 401; Cooley on Torts, 225; Martin v. Robson, 65 Ill. 129; Westlake v. Westlake, 34 Ohio, 621.
   Pillsbury, J.

The first objection urged against the judgment in this case raises the question whether a wife can maintain an action in her own name against one who wrongfully induces the husband to put her away or to desert her. By the common law upon marriage, the husband and wife became one person in law, and the husband was that person. The legal existence of the woman was suspended during marriage, being treated as incorporated or ' consolidated into that of the husband. If she had personal estate it became the absolute property of the husband upon his reducing it to possession, and he became master of the profits of her real estate during coverture; and if the estate was one of inheritance, upon birth of living issue he became a tenant for life of the lands. If she was injured in her person or property, she was without redress by action, unless her husband would join with her. She could make no valid contract. He could not grant anything to her or enter into any covenant with her, for the grant would be to suppose a separate existence, and the covenant would be with himself. 1 Blacks. Com. 443. For a slight battery of the wife the husband could recover damages by joining the wife, but if it were so severe as to deprive him of her company and assistance for any time, he had his action in his own name, per guod consortium amisit, in which he recovered satisfaction. An injury to the wife was treated by the law as to him only. He was allowed to inflict moderate chastisement upon her, if, in his judgment, it became necessary to keep her in proper subjection and in the line of duty. Indeed, at the common law, the woman upon marriage became as near a legal nonentity as any human being could well be, unless it were one who liad abjured the realm or was banished, and therefore dead in the law. But then she could reflect that “ the disabilities which the wife lies under are for the most part intended for her protection and benefit, so great a favorite is the female sex of the laws of England.” 1 Blacks. Com. 444.

We believe, however, that the common law did • recognize the right cf the wife to the protection, support and society of the husband, but as an injury to her personal rights was in law an injury to him only, and she having no legal standing in a court of law to redress her wrongs or enforce her rights, where her husband saw proper to put her aw;ay or to abandon her, she could not well sue, joining him, to recover for the-injury which he caused, although he may have been influenced by another to do the wrongful act. If he failed to support her she might use his credit for the necessaries.of life, but beyond this it is doubtful if the law allowed her any remedy for-the violation of the right to the society or support of the husband. Although it was thought by some of the judges in Lynch v. Knight and wife, 9 H. of L. 577, that in an action of slander, charging adultery by the wife, in consequence of which the husband abandoned her, she, in an action joining the husband, might allege and prove as special damages the loss of the conjugal society of her husband. But what effect has the legislation of this State upon these doctrines of the common law? Our statute relating to husband and wife, Ch. 68, R. S. 1874, provides that a married woman may in all cases sue and be sued without joining her husband with her, to the same extent as if she was unmarried; and an attachment or judgment in such action maybe enforced against her as if she were, a single woman. When husband and wife are sued together she may defend in her own right, and when either deserts the other the one deserted may prosecute or defend in the name of the other to the same extent as he or she could do if personally present in court. The husband is no longer liable for,the torts of the wife, and neither is liab’e for the debts -of the other except as provided for in the statute. The wife is entitled to her own earnings, and may make contracts (except entering into partnership business), with like effect as if a feme sole. She may own real and personal estate, and manage, sell and convey the same to the same extent as the husband can his property; and if he unlawfully interferes with her property the same remedy is open to her for redress as if they were not married. The expenses of the family and the education of the children are chargeable upon the property of both in favor of creditors, and in relation thereto they may be sued jointly or separately. By the act in relation to dower, the tenancy by the curtesy of the husband in the wife’s real estate is abolished, and each takes the same interest in the lands of the other—a dower interest. We can but think that the effect of this legislation is to destroy the unity of the husband and wife in one person as existing at common law respecting the personal and property rights of the wife. She now loses none of the “rights” pertaining to natural persons, that of personal security, personal liberty and of private property, by marriage, to any greater extent than does the man.

Regarding these absolute rights they are placed upon an equality. The same remedies are open to each to enforce those rights or to redress any injury arising from their violation. The husband is not now required at his peril to keep a bridle upon the tongue of his wife, or respond in damages if she use it to the injury of the reputation of her neighbors. He is to answer for his own torts only, and she for hers. If she be injured in her person or estate the damages accrue to her and she alone can sue. Thus, under the Married Woman’s Act, as it is called, of 1861, it was held, in C., B. & Q. R. R. Co. v. Dunn, 52 Ill. 260, that a wife who was injured by a railroad must sue alone, although that statute was far less comprehensive in its provisions concerning the rights of married women than our present one. This has been followed by other cases affirming the doctrine there announced, and in an action to recover rent upon a lease of the wife’s land, it was held error, in Hayner v. Smith, 63 Ill. 430, to join the husband in the suit as a party plaintiff. If she be injured in her reputation or in any of her personal rights, the same rule would undoubtedly be applied. The injury no longer accrues to the husband, but is personal to herself, and the statute gives her the right to sue, in all cases, in her own name. The statute has clothed her with a legal existence, or perhaps a better expression would be, places her under no legal disabilities as to personal and property rights because of her marriage, and leaves her endowed with the same rights and remedies to enforce them that the law confers upon the husband. It follows from this, that if the wife still has a right to the support, comfort and society of the husband free from the unlawful interference of outside parties, for any wrongful deprivation of that right she ought to find a remedy in the law. The reason of the rule existing at common law which deprived her of the right to sue in her own name has ceased, and the rule itself ought to go with it. To me, personally, it seems there never was any valid reason for holding that the loss of the consortium of the husband was any less an injury to the wife than the loss of that of the wife was to the husband. Indeed it would appear from her state of dependence upon him, that her loss was infinitely greater, yet the common law gave the husband his action against any one who wrongfully destroyed his home by corrupting his wife and enticing her to leave him. That our law now recognizes an equal right in the husband and wife to the affection, society and companionship of the other, we have no doubt, and for a destruction of this right we hold the statute gives an equal remedy to the injured one. This was so held in Westlake v. Westlake, 34 Ohio St. 621, under the .Married Woman’s Act of that State, which is no broader than ours, in a case like the present, and the opinion is a well-considered one and worthy of great respect. In a similar action, brought in the City Court of Brooklyn, Brennan v. Paesch, 7 Abb. N. C. 249, a similar conclusion was reached by Nelson, C. J., in a very clear and satisfactory opinion.

It is next objected that the court erred in sustaining the demurrer to the Statute of Limitations of two years. The section of the statute upon which the plea is based provides that “Actions for damages for an injury to the person, or for false imprisonment, malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years.” Applying the familiar principle that the statute does not bar a cause of action unless it comes clearly within its provisions, we are of the opinion that the section relied upon is not broad enough to include the present case. The cause of action for an injury to the person which is barred in two years is limited to a direct physical injury to the person. If it were intended to include all injuries to personal and relative rights, the legislature would not have considered it necessary in the same act to provide specially for a period of time in which an action should be brought for many of the injuries to such rights. Thus actions to recover damages for slander and- libel, false imprisonment, malicious prosecution, abduction, seduction and criminal conversation, are expressly provided for, showing the clear intent of the legislature to limit “injuries to the person” to those of a physical nature. This case is one of those not specially provided for, and would therefore seem to be governed by the fifteenth section of the act making five years the limitation.

It is next urged that the court erred in excluding evidence offered by the defendant below. It would extend this opinion td an unreasonable length to notice in detail the several items of offered evidence that were rejected by the court upon objection! and we shall confine ourselves to a general view of its character and its competency. It was shown by the evidence that the husband was addicted to the use of intoxicants, and frequently would have drunken sprees lasting several days, and at such times would become reckless and incapable of exercising his judgment in the ordinary affairs of life. That at such times he would talk and act like a crazy man; would leave his business and go to St. Louis and other places, without leaving any word with his friends or informing them of his whereabouts. That at such times his father would send parties to find him and bring him home, when he would wait upon him and care for him until again sober. That when sober be was a high-minded gentleman and an excellent physician, attending strictly to his business and enjoying the respect and esteem of all who knew him. The evidence further shows, that on the evening of July 4, 1881, before his marriage, he commenced drinking very heavily, and the next morning about six o’clock, was seen in a buggy with the plaintiff driving out of the city of Vandalia. The next seen of them they were in Effingham on the morning of the 5tli of July, where a license was procured and they were married in the office of the county clerk. They did not return to Vandalia until the evening of the 6th of July and remained in the hotel over night. On the morning of the 7th, his father, learning, from the plaintiff, of the marriage, and where his son then was, went to the hotel, and finding him still drunk, took him home. The evidence for the plaintiff tends to show that at this time the father was exceedingly angry because" of his son’s marriage, and most emphatically declared that they should never live together, and that the plaintiff should never cross the threshold of his home. It Avas claimed by the defendant below that his son had never kept company with the plaintiff, and had no affection for her; that the plaintiff Avas a designing woman and took the opportunity when the son Avas in a drunken condition, and not capable of exercising his reason, to entrap him into such marriage, and that after the marriage, and Avhen he came to realize his position, the abandonment of the plaintiff by him was purely voluntary upon his part, in nowise affected by any advice or solicitation of the defendant. To support this theory the defendant offered to prove that previous to the marriage his son never kept company with the plaintiff nor paid her any such attention as indicated any love for her, or any marriage contract between them, and that at the time he was married he was in such a state of intoxication as not to knoAv what he was about, and so continued until he was taken home by his father and cared for until he was sober. Upon objection the court excluded the evidence offered, and in this we think error was committed. We are"of the opinion that this evidence was admissible upon the ground, first, that it should be considered in mitigation of damages. The plaintiff claims that by the act of defendant she was deprived of the love and affection of her husband, for which she claims damages. Marriage, of itself, can not be considered as conclusive proof of that mutual regard and love which should he entertained by husband and wife, and where one of them seeks to recover damages for the loss of love and affection, we know of no case that goes so far as to deprive the defendant of the right of showing the real feelings of the other to the plaintiff. So it has been held in cases brought by the husband for criminal conversation, that evidence as to the terms upon which the plaintiff and his wife lived together was competent in mitigation of damages: Harter v. Crill, 33 Barb. 283; Palmer v. Crook, 7 Gray, 418; or that the plaintiff and his wife were both adulterers before her connection with the defendant: Rea v. Tucker, 51 Ill. 116; or that the marriage was not one of affection and had not ripened into love before the seduction: Dance v. McBride, 43 Iowa, 624; Coleman v. White, 43 Ind. 420. We are unable to see why the same principle should not apply in this case. The plaintiff could undoubtedly show in aggravation of damages, that she and her husband entertained the highest degree of love for each other; that their happiest moments were when in each other’s society; that such affection for each other'had long existed, and would have continued but for the wrongful acts of the defendant. What is competent for her to show in aggravation of damages, the contrary thereof is equally competent for the defendant to show in mitigation. The man who maliciously invades a home where love reigns supreme, and conjugal happiness is undisturbed, and destroys that home by alienating the love of either husband or wife from the other, and causes a separation between them, inflicts a much more serious injury and deserves severer punishment in the way of heavy damages than if no such love and happiness ever entered therein, or having once existed, were impaired or destroyed without his aid. So, here, if this marriage took place while the husband was in a maudlin state of intoxication, and from such cause was not able to understand what he was about to do, and was not the result of any affectionate regard he had for the plaintiff, she surely would not be entitled to recover damages for loss of affection that never existed. Second, the proposed evidence, was competent to be considered upon the question made that the husband voluntarily abandoned the plaintiff without the advice of the defendant. The question whether he did, "lay at the foundation of plaintiff’s ease; and to deprive the defendant of the right to show that the marriage was consummated when his son was in an almost unconscious condition, but for which it would not have occurred, as he had no affection for the plaintiff, was to take from the jury one of the strongest circumstances corroborative of the other testimony tending strongly to show that the, desertion was not the result of the action of the defendant, but was voluntary upon the part of the husband. If this marriage was brought about as claimed by the defendant, and under the circumstances sought to be proved, it would tend very strongly to corroborate the testimony of the defendant and the son, that the defendant never advised or encouraged the separation of the husband and wife. The instruction given that the plaintiff was entitled to recover damages in this action for the loss of support of the child born to them was improper, and is substantially conceded to be so by counsel. How much the damages were enhanced by this direction we can not of course say, but it allowed a latitude to the jury in assessing damages that might work great injury to the defendant. The objections taken to the other instructions seem to be rather to form than substance, and as such objections can be avoided upon another trial, if the attention of the court is directed to them, we will not further notice them. For the reason stated, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Henry S. Pettingill v. James M. Lawrence et al.
    Pleading;—Trespass.—In a case of trespass to real estate, where defendants in a plea seek to justify their acts in entering upon and taking possession of a portion of the premises of plaintiff against his consent, by virtue of pi'Or ceedings claimed to be had under drainage -laws of this State, such fads should be stated as to show to the court, upon the face of the plea, that Iho plaintiff’s land had been legally taken and appropriated, under the statuté for drainage purposes. .
    Error to the Circuit Court of Madison county; the Hon, William: H. Snyder, Judge, presiding.
    Opinion filed November 24, 1886.
    Declaration in trespass to real estate with plea of justification as follows: And for a further plea in this behalf, leave, etc., according, etc., the defendants say, actio non, because, they say, that at the said several times when, etc., the said close in the said several counts of the said declaration mentioned was situated within the limits of the Elm Slough Cut-off Drainage District, a corporation organized for drainage purposes, under and by virtue of the statute in such case made and provided, and was a part of the territory of said district, and the said system of works, which said corporation was organized to construct and maintain, had been located over and across the said close, eight and one-half acres thereof having been taken and appropriated for that purpose, and the said close had- been found by .a jury, impaneled and sworn according to the provisions of said statute, to be benefited and not to he damaged by the system of works which said district was organized to construct and maintain, and assessed for the construction and maintenance thereof; and the defendant James M. Lawrence, was then and there lawfully appointed acting commissioner of said drainage district, and as such was authorized, by the terms of the act and the proceedings by which said district was organized and established, to enter upon said close and cause to be constructed over and across the same the said ditch or drain and levees necessary for said works, and being so authorized the said James M. Lawrence made and entered into a contract with the defendants Thomas T. Ramsey and Fielden Wooldridge, for the construction of said ditch or drain and said levee or dam: and the defendant, at the said several times when, etc., acting under and by virtue of the power aforesaid, entered upon the said close and dug up the soil thereof, and cut and carried away the trees and saplings growing thereon, for the purpose of constructing the ditch or drain and dam or levee aforesaid, doing no more injury to the said close than was necessary for that purpose, as they lawfully might according to the terms and provisions of said contract and the requirement of the plans and specifications of the works, for the construction and maintenance of which the said drainage district was organized and established; which are the same supposed trespasses in the said several counts of said decoration mentioned whereof the complainant has complained against them; and this the defendants are ready to verify and therefore they pray judgment, etc. To this plea a general and special demurrer was interposed, which was overruled by the court, and the plaintiff declining further to answer it judgment was rendered against him for costs of suit and he brings the case to this court.
    Mr. Henry S. Pettingill, for plaintiff in error.
    Mr. John G. Irwin, for defendant in error.
   Pillsbury, J.

In our opinion the demurrer should have been sustained to the plea. It abounds in conclusions of the pleader, and no such facts are averred as would enable the court to determine whethero such conclusions are properly drawn from the existing facts. The defendants admit the entry into the premises of the plaintiff, and doing the acts complained of, and seek to justify under one of them, Lawrence, who, they say, “ was lawfully appointed a drainage eommissioner,” but when and where and by what authority docs not appear, neither does it appear that he ever qualified after his appointment. It is not shown under what act of the legislature the corporation was organized, or he claims his authority to act. The averments of the plea in this respect would be as equally true if he was one of the three commissioners appointed by the county court as though he was sole commissioner appointed by a justice óf the peace; yet if the former, it would not be competent for him alone to enter into the contract alleged in the plea. Again it is statedin the plea, more by way of recital than by averment of fact, that eight and one half acres of land had been taken and appropriated for the construction of the drain, but by whom it was taken and appropriated, or under what right and authority, does not appear. The plea is silent as to any proceeding being had to condemn the land in any court, or the nature or character of such proceedings. Such facts should be stated as to show to the court, upon the face of the plea, that the plaintiff’s land had been legally taken and appropriated under the statute for drainage purposes. Chitty says, 1 Chitty Pl. page 534, that “In trespass, where the defendant justifies under a writ, warrant, precept or any other authority, he must set it forth particularly in his plea, and it is not sufficient to allege generally that he committed the act complained of by virtue of a certain writor warrant directed to him, but he must set it forth specifically, and the defendant ought further to aver in his plea that he has substantially pursued such authority. ” And our court has held that a party pleading for his defense the order or process of a court of limited and not general jurisdiction, must state such facts as will show that theeourt has jurisdiction of the subject-matter and of the person of the party (Von Kettler v. Johnson, 57 Ill. 114), and this rule we think should be applied in cases like the present, where the defendants seek to justify their acts in entering upon and taking possession of a portion of the premises of a party against his consent, by virtue of proceedings claimed to be had under the drainage laws of this State. Ho such proceedings are set forth in the plea as will enable us to determine whether the lauds of the plaintiff have been legally condemned for the purposes claimed, and we will not therefore attempt to adjudge that point until the facts are properly presented. The judgment of the court below will be reversed and the cause remanded with directions to sustain the demurrer to the plea and for further proceedings.

Judgment reversed.


author: Pillsbuby, J.

text:
    St. Louis Bolt and Iron Co. v. John Brennan.
    Negligence.—Where employes are free to adopt their own method of doing the work, and the work can easily be done without injury to life and limb, but they voluntarily choose a perilous method because it is more convenient, they can not in case of an injury recover from their employer.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 24, 1886.
    The appellee, with six other men, all in the employ of appellant, were sent by the foreman of the work to load a car standing upon the side track, with iron bars and plates. Two men were required upon the car to take the plates from the other workmen upon the ground, who handed them up, and properly place them for transportation. The appellee, and Peter Mulligan, another of the employes, got upon the car for this purpose, and they piled the bars upon the opposite side of the car from where they received them to such an extent as to upset the car, and the plaintiff received thereby quite serious injuries, for which he brought this suit, alleging the negligence of the appellant through its superintendent in directing the loading of the car so as to cause it to overturn. He recovered in the court below, and the defendant appealed.
    Mr. Marshall W. Weir, for appellant.

      Mr. L. H. Hite, for appellee.
   Pillsbuby, J.

The proof shows that the foreman directed the seven men to load the flat car with angle plates and put on a good load, some of the witnesses saying sixty thousand pounds. After giving this general direction he left the men and went to attend to some other duties. Brennan and Mulligan took their places upon the car to pile the plates because they thought it easier than to hand them up from the ground. There were no specific directions given by the foreman as to the manner they should pile the bars in order to get on the load recpiired. Brennan and Mulligan used their own discretion in piling the plates first handed up to them, and commenced to place them on the back side of the car, and continued piling them up until the weight upon that side overturned the car. Three of the men upon the ground testified that they warned them that they were piling too much upon that side, but they deny hearing it. The evidence also shows that the appellee had been accustomed to loading cars with these plates before the time of the injury. We are unable to see from the evidence in this case that the appellee has established any right of recovery. He voluntarily assumed the position he occupied upon the car, and piled the plates himself in such a manner as to overturn the car. He is presumed to be a man of ordinary intelligence, and to know, as well as any one, how much weight it would be safe to put upon one.side of the car before loading any upon the other side to preserve the equilibrium of the car. The danger of loading the car as he was doing it was as apparent to him as to any one, and being under no obligations so to load it and not having been specially directed so to do it, he must be held to have .voluntarily assumed the risk of his own act and must bear its consequences. Indeed he does not deny that he and Mulligan could have piled the plates over the entire floor of the car as well as to one side, his only excuse for not so doing being that it would be more inconvenient for the men upon the ground to hand the plates up. This excuse, however, is not sufficient to justify them in disregarding all care for their own safety. It seems to us, from all the evidence, that the injury to him is the result of his own want of ordinary care rather than from any negligence of the appellant. The appellant only directed them to perform the labor they were accustomed to do, and which confessedly could have been done without incurring any danger to life or limb, it not being of itself a dangerous undertaking, and the injury resulting from the manner they did the work, and not from any peril or danger inseparably connected with it, and they being free to adopt their own method of doing the work, and voluntarily choosing the perilous one, can not hold the appellant for the consequences.

Judgment reversed.


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    William Deimel v. George Obert.
    1. Giving notice in writing.—The giving one year’s notice, in writing, of an intention to remove a division fence, as required by statute, means a delivery of the original notice, or a true copy of it.
    2. Illegal removal of division fence—Damages.—The year’s notice of appellant’s intention to remove a division fence was simply read to appellee, and neither the original notice nor a copy was furnished him. After the removal of the fence animals came upon appellee’s premises and damaged his crojps. In order to protect his crops, appellee rebuilt the fence. In an action for damages against appellant for such removal, held, proper to recover damages for the crops destroyed and for the cost of rebuilding the fence.
    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;
    that the cost of rebuilding the fence was a proper element of damages, cited Richardson v. McDugal, 11 Wend. 46.

      As to notice: Hart v. Gray, 3 Sumner (U. S.), 339; Wade on Law of Notice, § 1342.
   Pillsbury, J.

This action was brought by the appellee to recover damages resulting from the act of the appellant in removing his portion of a division fence between the lands of the parties. After the removal of the fence the crops of the appellee were damaged by domestic animals coming upon his premises, until by rebuilding the division fence he protected his crops. He claimed to recover for crops destroyed and also for rebuilding the fence, and on the trial below was allowed both items. The appellant had a notice prepared, informing the appellee that at the expiration of a year he would remove such fence, and on election day, 1884, employed a constable to read it to appellee. That the constable read the notice to the appellee seems to be conceded, but the evidence is véry conflicting upon the point whether he gave it to him. The appellee and the constable both testify that it was read only and was not handed to him, while the appellant and some others who were near them say that Obert took it from the constable. The jury saw proper to give credit to the officer and the appellee in preference to the others, and we do think that their finding is so clearly against the weight of the evidence as to call upon us to interfere with the verdict upon this ground. Before a person can remove a division fence or any part thereof, owned by him, he must first give the adjoining owner one year’s notice, in writing, of his intention so to do, otherwise he is made responsible for all damages that may accrue to such adjoining owner. R. S., Chapter 55, Sections 14, 15. This statute requires something more than the mere reading of a notice to appellee to give the appellant the right to remove the fence. To “give one year’s notice in writing” we think means a delivery of the original notice, or a true copy of it. Judge Story said, in Hart v. Gray, 3 Sumner, 339, “ I believe no case can be produced where a notice, required to be served and given in writing, has been held valid unless the service has been by the delivery of the paper or a copy in writing.” Wade, in his work on the Law of Notice, section 1342, says: “It seems to be settled both upon principle and authority, that a written notice can only he served by delivery of the original or an authenticated copy.” The statutory notice not being given by the appellant, he was clearly in the wrong in removing the fence and thereby subjecting the appellee to a loss and injury by having his crops destroyed. It is objected that the cost of rebuilding the fence was not a proper element of damage to be recovered in the cause. The removal of the fence was wrongful and the duty still remained with the appel'ant to build and maintain his portion of it as he had previously done. This duty he owed to the appellee for the protection of his crops, and for a violation thereof must respond in damages for any loss of the crops appellee might sustain, yet the appellee would not he obliged to lie quietly by and suffer such loss, but had the right to protect himself from injury by rebuilding the fence at the expense of appellant. This conclusion is sustained by the case of Richardson v. McDougall, 11 Wend, 46, where, under a statute similar to ours, such damages were allowed and such construction of the statute was said to be the only reasonable and consistent one. Some objections have been taken to the instructions, hut our attention having been, directed to the record we find that no exceptions were taken and preserved to the action of the court in either giving or refusing instructions, consequently we can not notice the assignment of error upon this point made in argument. Finding no substantial error in the record the judgment will be affirmed.

Judgment affirmed.