text:
    Vespasian Warner, Appellant, v. William A. Armstrong, Sheriff, Appellee.
    1. Judgment, § 502

      —when res adjudicata as to rulings on fee bill. The giving of a bond in double the amount of the costs demanded in the fee bill and the motion to quash the fee bill constitute a replevy of such bill, within Rev. St. ch. 33, sec. 27 (J. & A. If 2741), and whatever the court does, in the exercise of the power therein granted, is res adjudicata and conclusive as to the correctness of such fee bill in the particular case, if not reversed by a court of review; and that rule holds good whether the matter comes before the court on a motion to retax, or on a hearing upon the replevy of a fee bill, or any like motion.
    2. Statutes, § 212*—when unenumerated powers excluded. The inclusion in a statute of specific powers amounts to an exclusion of all other powers.
    3. Appeal and ekrob, § 1197*—what collateral matters not reviewable. An order apportioning costs between the parties and specifically determining the amount each should pay, not having been reversed on appeal, was conclusive on the parties and finally disposed of all questions raised on an appeal from the denial of a subsequent motion to quash the fee bill.

      4. Costs, § 101

      —what not considered on replevy of fee hill. The question as to whether a fee bill should have been quashed because it did not run in the name of the People and was not under the seal of the court will not be considered, as it does not arise upon the replevy of such fee bill.
    5. Execution, § 44*—how defects objected to. Defects in the form of an execution, or questions as to the invalidity of the execution for want of a sufficient judgment, must be made by an attack on the execution, and not on a copy of the fee book attached to it.
    6. Appeal and error, § 864*—when transcript not resorted to. Although the court may go to the transcript of the record for reasons to affirm a judgment, it will never go back of the abstract for reasons to reverse one.
    7. Appeal and error, § 866*—what abstract must show. The appellant who prepares the abstract must cause it to show ail errors relied on for reversal.^
    Appeal from the Circuit Court of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    L. O. Williams and F. K. Lemon, for appellant.
    Underwood & Smyzer, Herrick & Herrick, Leonard W. Ingham and Fred Ball, for appellee; L. E. Herrick and Charles E. Young, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

After extended litigation in and a final determination of the case of Warner v. Warner, 235 Ill. 448, a motion by Vespasian Warner to have costs in that case taxed against the estate of John Warner, deceased, was filed in and heard by the Circuit Court of DeWitt county, where that case was instituted. At the November term of that court, 1910, the motion was denied and an order was entered disallowing an item of $195 for abstract fees which was contained in the then pending fee bill, and apportioning the costs on one branch of that litigation amounting to $1,124.89 between Vespasian Warner, Flora Warner McDermott,-Arabella Warner Bell and Minnie Warner Mettler, one-quarter thereof to be paid by each of said named parties. It was further ordered that Vespasian Warner and Flora Warner McDermott each pay one-half of the remainder of the costs in that case. Arabella Warner Bell and Minnie Warner Mettler paid the part of the costs assessed to them. Vespasian Warner and Minnie Warner Mettler prayed an appeal from that order but never perfected the same. At the November term of the same court, 1911, appellant here entered his further motion to retax the costs in that case, in which motion the costs taxed as master’s fees were expressly challenged. That motion was denied at that time.

On April 13, 1914, the clerk of the Circuit Court of DeWitt county issued an execution with a bill of costs attached, showing the amounts paid by Minnie Warner Mettler and Arabella Warner Bell and the balance unpaid. The return of the sheriff recites the receipt by him of a bond from Vespasian Warner in the sum of $4,521.78, which bond was returned with the execution. This bond recites that on April 13, 1914, “an execution for a fee bill issued.”

On June 22, 1917, there was filed in the office of the circuit clerk in this proceeding what purports to be an amended motion “to quash the fee bill issued in the case of Isabella Warner vs. Vespasian Warner et al.” on April 13, 1914. If there was an original motion of like character previously filed, it is not shown in this record. At all events, the amended motion was heard and on September 14, 1917, was denied and Vespasian Warner, as executor of the last will of John Warner, deceased, hás appealed from that order.

Eight specific reasons and one general reason for quashing the fee bill are assigned in the amended motion.

‘ ‘ First: That the said fee bill was not legally issued by the clerk, of said court.

“Second: That said fee bill does not run in the name of the People of the State of Illinois.

“Third: That said fee bill is not issued in the name of the People of the State of Illinois.

“Fourth: That the item, ‘master’s fees paid by complainant, $1,457.25’ is not itemized, and it is not set forth in said fee bill for what said charge is made, and is not a perfect or legal item of cost.

“Fifth: That the item of $1,457.25 mentioned in said fee bill as having been paid for ‘master’s fees’ by the complainant in said cause was not in fact paid to the master in chancery of the county of DeWitt by said complainant, and is not a proper item of costs in said cause.

‘ ‘ Sixth: That said fee bill was not issued under the seal of the Court.

“'Seventh: That the master in chancery of said Court should have made and filed with his report an itemized statement of his costs and charges, if any; that the said master in chancery did not make such itemized statement of his costs, and therefore the item of ‘master’s fees, $1,457.25’ is not a legal charge of costs in this proceeding.

“Eighth: That this is not a case in which a fee bill can be issued under the law; that said fee bill is therefore illegal and void.

“Ninth: For other good and sufficient reasons to be shown on the hearing of this motion.”

It will be observed that the motion was to quash the fee bill. No motion was made so far as this record shows to quash the execution. The giving of the bond in double the amount of the costs demanded in the fee bill and the motion to quash the fee bill, constitute a replevy of a fee bill, and is provided for by section 27 of chapter 33, Rev. St. (J. & A. If 2741). That section provides:

“When execution has been issued for any fee bill, the. party aggrieved may replevy the same by giving to the officer having the execution, bond, with sufficient sureties, to be approved by such officer, in double the amount of such fee bill, conditioned for the payment of such fee bill if the same shall not be quashed; and upon the receiving of such bond, such officer shall return the fee bill and bond to the next term of the court. And if it appears to the court that any item or charge contained in such fee bill is not authorized by law, or is for services not actually rendered, or any item is charged higher than is allowed by law, the court shall proceed to quash such fee bill and bond, and to correct the taxation of the costs for which such fee bill was issued, and upon such correction being made, such costs may be collected by the fee bill and execution as in other cases.”

It is a familiar rule that the inclusion in a statute of specific powers amounts to an exclusion of all other powers. Applying* that rule to the pending matter, it is manifest that all the Circuit Court has power to do in. any case where a fee bill has been replevied is to quash the fee bill and bond and correct the taxation of the costs, where it appears “that any item or charge contained in such fee bill is. not authorized by law, or is for services not actually rendered, or any item is charged higher than is allowed by law.” Even that power when once invoked is exhausted, and whatever the court does in the exercise of such power, if not reversed by a court of review, is res adjudicata and conclusive as to the correctness of the fee bill for all time in that case. Parrott v. Hodgson, 46 Ill. App. 232; Leigh v. Laughlin, 130 Ill. App. 530. That rule holds good whether the exact point was adjudicated on a former motion or not, and whether the rulings on the first motion were correct or not, so long as there was a hearing on a former motion and an opportunity to have the point adjudicated and the rulings of the court were not reversed on review. Godschalck v. Weber, 247 Ill. 269; People v. Chicago, B. & Q. R. Co., 247 Ill. 340. If the fee bill has been before the court in such a way that the correctness of the items in it was or might have been determined, the power of the court to correct it has been exhausted, and it is of no moment whether the matter came before the court on a motion to retax costs, or on a hearing upon the replevy of a fee bill or any like motion, the result is the same. Leigh v. Laughlin, 130 Ill. App. 530.

The motion of appellant to have the costs taxed to the estate of John Warner, deceased, that was disposed of at the November term, 1910, of the Circuit Court of DeWitt county, and the motion of appellant to redocket the case and retax the costs, that was disposed of at the November term, 1911, of that court, each raised the question of the correctness of the items of costs now sought to be challenged by a replevy of the fee bill. The' order entered at the November term, 1910, above referred to, apportioned the costs between the parties and specifically determined the amount each of them should pay. That order, right or wrong, not having been reversed on appeal or error, is conclusive on the parties and finally disposed of all questions raised on this appeal affecting the correctness of the costs taxed.

Appellant urges that the fee bill should have been quashed because it does not run in the name of the People of the State of Illinois, because it is not issued under the seal of the court, and because the court did not formally adjudge that Isabella A. Warner have and recover the costs in question.

We do not feel called upon to determine either of these questions. As already shown they are not questions which arise upon a replevy of a fee bill. Next, while the motion of appellant to quash the fee bill as well as the argument of his counsel here seem to assume the existence of a fee bill separate and distinct from an execution, an examination of the transcript discloses that but one paper was issued and that was an execution on the back of or attached to which there is what the clerk certified to be a true copy of his “fee book of court costs.” The motion to quash is based upon the supposed defects in or shown by that copy of the .fee book. If there are defects in form in the execution that are fatal to it, or if there is any merit in the contention that the execution is void for want of a sufficient judgment, the attack should have been made on the execution and not on the copy of the fee book attached to it. Leigh v. Laughlin, 130 Ill. App. 530. Again, we are aware of no law requiring a copy of a fee book attached to an execution to run in the name of the People of the State or to be under the seal of the court. Again, if the motion to quash the fee bill could be construed to be a motion to quash the execution, then the abstract is not sufficient to show the defects in form claimed to exist therein, and while this court will go to the transcript of the record for reasons to affirm a judgment, it will never go back of the'abstract for reasons to reverse one. The appellant who prepares the abstract must cause it to show all errors relied on for reversal. ,

For the reasons stated, the order of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    Clarence R. Hight, Defendant in Error, v. Farmers’ Grain Company et al., Plaintiffs in Error.
    1. Corporations, § 156

      —token petition to compel production of corporate books for transfer of stock sufficient. In mandamus to compel the production of the books of a corporation for the purpose of having stock purchased by the petitioner transferred thereon, the corporation Could not by demurrer be heard to object that the petition failed to show whether the stock was fully paid for, where from the copy of the certificates attached to the petition it appeared that such certificates recited that the stock was “fully paid and non-assessable” and transferable only on the corporate books by the holder or his attorney upon surrender of the certificate, and the indorsement showed that it was the intention that ’the certificates should be the subject of purchase and sale.
    2. Corporations, § 132*—token corporation estopped by recitals of stock certificate. A corporation which issued certificates of stock reciting that the stock was “fully paid and nonassessable” was not permitted to insist that the representations so made were untrue, in mandamus by a purchaser of stock to compel its transfer to him on the corporate books.
    3. Mandamus, § 150*—what not available on general demurrer to petition. In mandamus to compel the transfer on the corporate books of stock purchased by petitioner, the objection that the copies of the certificates could not be considered because they were attached to the petition as exhibits and were not incorporated in or made part of the petition, although good on special demurrer, was not available upon general demurrer.
    4. Corporations, § 156*—when petition to compel production of corporate books sufficiently alleges demand. A petition for mandamus to compel the production of corporate books, the transfer on such books of stock purchased by petitioner and the issuance of new certificates, sufficiently averred the making of a demand to effect such purposes, where the demand was shown to have been addressed to the secretary by name, and to the officers and directors, and it was alleged that among the duties of the secretary he was required to keep a true record of all stock issued, transferred and forfeited.
    5. Corporations, § 136*—when demand for issuance of stock sufficient. A demand on a corporation to do a thing is a demand that it set in motion the means by which the thing demanded can be performed ; and, therefore, where the president of a corporation was authorized to sign certificates of stock only when ordered to do so by the directors, it was not essential to make a demand on the directors to order the president to sign the certificates and then make a demand on the president to sign them.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    Hugh W. Housum and Fred Hamilton, for plaintiffs in error.
    Bedmon, Hogan & Bedmon, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

The Farmers’ Grain Company is a-corporation of which J. Mayes is president and J. H. Weidner is the secretary. Defendant in error, Clarence B. Hight, filed in the Circuit Court of Macon county his petition for a writ of mandamus to compel the said corporation and its said officers to produce the corporate books of the said company for the purpose of having certain certificates of stock of the corporation that defendant in error had purchased transferred thereon to him, and to issue new certificates for such stock. Plaintiffs in error filed their general and special demurrer to the petition, which demurrer was overruled. They elected to abide by their demurrer and refused to plead over. Thereupon the court entered judgment against plaintiffs in error for costs and ordered that a peremptory writ of mandamus issue as prayed for in the petition. The correctness of the ruling of the court in overruling the demurrer is challenged by proper assignments of error here.

The special causes of demurrer are as follows:

“1, The said .petition fails to allege or show that said petitioner ever made a demand on either of these defendants for any of the several matters and things for which he prays that the said writ may issue.

“2. The said petition is indefinite, insufficient and uncertain in that it fails to show the alleged ‘officers and directors of the Farmers’ Grain Company’ were, upon whom a pretended demand is alleged to have been made, the said petition merely showing, that ‘ one J. Mayes is now acting as president, and one J. H. Weidner is now acting as secretary of said corporation,’ and that ‘thereupon’ petitioner ‘presented’ said certificates to said Weidner, without stating when, or for what purpose.

“3. The portion of the by-laws of said company, as quoted, merely requires the keeping of ‘a true record of all stock issued, transferred or forfeited’ and the petition fails to show that petitioner has complied with all the requirements of said by-laws in regard to transfer of its stock.

“4. The said written notice contains no demand on either of these defendants.

“5. The said petition fails to show that said stock was wholly paid for at the time of said alleged transfer, or that the said assignment thereof was duly recorded, as required by statute, in the office of the recorder of deeds.

“6. The said petition fails to show that said writ prayed for will afford a proper and sufficient remedy for said alleged claims, in that it fails to show who the true and legal president and secretary of said corporation are.

“7. The said petition is further insufficient in law as will be shown upon the hearing hereof.”

These causes of demurrer are all technical. None of them reach the merits of the question of the petitioner’s right to have the relief sought.

The first point argued in this court by plaintiff in error is that the petition fails to show whether the stock sought to be transferred on the books of the corporation was fully paid for. A copy of the certificates of stock made the basis of the petition were attached to the petition. The original certificates were issued by the corporation, and on the face of each of them it is recited that same is “fully paid and nonassessable, transferable only on the books of the corporation by the holder hereof in person or by attorney upon the surrender of this certificate properly endorsed.” The indorsement referred to was in the following language which was printed thereon when the same was issued:

“For value received, I hereby sell, assign and transfer unto * * * shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint * * * attorney to transfer the said stock on the books of the within named corporation with full power of substitution in the premises. Dated..........................

From the recitals in and on these certificates of stock it is clear that it was not only intended that the same should be the subject of purchase and sale but to facilitate such sale by mailing the transfer thereof convenient, and by giving notice to all prospective purchasers how the same could be transferred and that the same was paid up and nonassessable. Under that state of facts, whatever evil results might follow an attempt to sell stock that was not fully paid for, neither the corporation nor its officers can be allowed to insist that the representations so made were untrue. Plaintiffs in error, however, insist that the copies of the certificates of stock above referred to cannot be considered because the same are attached to the petition as exhibits and are not incorporated in or made a part of the petition. The point would have been well taken if it had been raised by special demurrer, but it was not so raised and cannot now be availed of. McKinstry v. Bras, 180 Ill. App. 648; Schnert v. Schipper & Block, Inc., 168 Ill. App. 245.

It is next urged that no proper demand was made on plaintiffs in error to have the books produced, the transfer made and new certificates issued. The averments of the petition show the service of a notice on J. H. Weidner, the secretary of the corporation, of the purchase by the petitioner of several certificates of shares of stock and the assignment of the same to him by the original owners and a demand in the following words:

“I hereby demand permission under the different powers of attorney aforesaid, to make a transfer of each and every one of the above named certificates of stock 'upon the books of said corporation to me and herewith, present the said original certificates of the shares of stock aforesaid, and the endorsements thereon for the purpose of being allowed to transfer all of said certificates of stock on the books of the said corporation to me, and after the said transfer of all of the above mentioned certificates are so transferred by me on the books of the said corporation, I hereby demand of you and the officers of said corporation that new certificates of stock be issued to me by said corporation for all of the above mentioned certificates of stock.”

This demand was addressed “To J. H. Weidner, Secretary of the Farmers’ G-rain Co., Dalton City, Illinois, a corporation, and to the officers and directors of said corporation.” The petition further shows that among the duties of the secretary of the corporation he is required “to keep a true record of all stock issued, transferred or forfeited.” The petition therefore sufficiently shows that the demand was made on the officer of the corporation charged with the duty of keeping the records of such transfers of stock as the petitioner was desirous of making, and was clearly sufficient. Case v. Citizens’ Bank of Louisiana, 100 U. S. 446; Smith v. Northampton Bank, 4 Cush. (Mass.) 1, 11; Commercial Bank v. Kortright, 22 Wend. (N. Y.) 348; Cook on Corporations (4th Ed.), vol. 1, pp. 742, 743 (note). Notice to, or a demand on, or a knowledge of, the managing officers of a corporation is binding on the corporation. American Strawboard Co. v. Peoria Strawboard Co., 65 Ill. App. 522; Indiana, I. & I. R. Co. v. Swannell, 157 Ill. 616; Quincy Coal Co. v. Hood, 77 Ill. 68; Waters v. West Chicago St. R. Co., 101 Ill. App. 265. The demand was broad enough to base an order on, for all the relief prayed for in the petition and the service of the demand on the secretary of the corporation was a demand on the corporation and all of its officers who were called upon to move in performing the acts demanded. The contention made by plaintiff in error that because the president of the corporation was authorized to sign certificates of stock only when ordered to do so by the directors and that therefore a demand must be made on the directors to order the president to sign the new certificates and then a demand afterwards made on the president to sign them, cannot be upheld. The things demanded were to be performed by the corporation which of course can only act through its officers and directors, and a demand on a corporation to do a thing is a demand that the corporation set in motion the means by which the thing demanded can be performed. In the case of Commercial Bank of Buffalo v. Kortright, 22 Wend. (N. Y.) 348, the court in speaking of how a demand on a corporation should be made said:

“It is sufficient for him to apply at the bank during the usual hours of business, and make' his demand upon the officers and clerks who may be in attendance there; and in case they are not authorized to transact that particular business, they must either refer him to the proper officer in the bank, or procure the attendance of such officer, or of the board of directors, if necessary, without any reasonable delay. * * * In the absence of any proof to the contrary, it,may be fairly presumed that the principal officer or clerk in attendance at the bank, during the usual hours of business, is authorized to permit such a transfer when proper. ’ ’

The petition in this case contained all of the averments necessary to warrant the issuance of the peremptory writ, and the order and judgment of the Circuit Court are affirmed.

Affirmed.


text:
    John R. Abbott, Appellant, v. County of Adams of State of Illinois et al., Appellees.
    1. Counties, § 59

      —when employment of county attorney ultra vires. A contract between a board of county supervisors for the employment of a county attorney to perform stated services was ultra vires such board, under Const. 1870, art. VI, sec. 22, providing for the election of State’s Attorneys, and Rev. St. ch. 14, sec. 5 (J. & A. If 616), defining the duties of State’s Attorneys, and making it the duty of the State’s Attorney to do every act and thing required to be performed under the contract in question.
    2. Counties, § 25*—right to employ county attorney. There is no provision of the statute that authorizes a county to employ at public expense an attorney to perform the duties of State’s Attorney, and county boards are limited in their power to such as is expressly granted to them by the legislature, or such as is necessarily inferred or implied from the powers so expressly granted.
    3. Counties, § 32*—who are constitutional officers. The only county officers created by the constitution are county judge, sheriff, treasurer, coroner and clerk of the Circuit Court, and neither by the constitution nor the law is there such an office as county attorney created, nor is there any authority vested in the county board from any source either expressly or by implication to create such an office.
    Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.

      Roy D. Johnson, for appellant.
    J. LeRoy Adair, S. A. Hubbard and C. H. Wood, for appellees.

      See Illinois Notes Digest, Vols. XI to N.y, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Graves

delivered the opinion of the court.

In June, 1917, the Board of Supervisors of Adams County adopted as one of its rules governing the transaction of business one known as rule 18, which is as follows:

“Rule 18, Section 1. At the September meeting of the Board in each year, and of the first day thereof, there shall be employed, upon recommendation of the Finance Committee, a County Attorney for the ensuing year, at a salary then to be agreed upon.

“Sec. 2. It shall be the duty of the County Attorney to advise all county officials, Supervisors individually as to their official duties, and the County Board and the various committees thereof, prepare or approve before execution all contracts, and bonds to secure the same entered into with the county, attend to all litigation in which the county is directly interested in the county, to see that such proceedings are taken as necessary to prevent the giving of county aid to those who are not paupers, or who have relatives liable, and able to support them, to prepare, or at least approve changes in old forms, or draft of new forms to be printed for official use, as blanks or records of the county, to direct all proceedings required for collection of the state inheritance tax and the county revenue, and attend to such other legal business as shall be provided by the contract for his services, which shall be in writing, and shall include the duties specifically here pointed out.

“Sec. 3. Any committee of the Board shall have the right, without an order from the Board, to call upon the County Attorney for his opinion upon any question of law upon which the committee is in doubt, concerning any "business before them, and in all such cases the committee shall report the opinion of the County Attorney with their report to the County • Board.”

At the September meeting, 1917, of the board of supervisors of that county upon the recommendation of the finance committee of that board, a contract in the name of the said county as party of the first part and one John T. Ingram an attorney at law of said county as party of the second part was entered into, whereby for a salary of $1,500 per year and $300 per year for services of a stenographer the county undertook to “employ, engage and retain” the said Ingram for the year ending September 1, 1918, which contract is in part as follows:

“To attend to all legal matters of and concerning said county to prosecute all litigation instituted by said county, to defend said county in all suits and matters now pending and which may hereafter be instituted against the said county, to represent the said county in all suits, proceedings and litigation which may become necessary to prosecute or defend to enforce the collection of all taxes charged on the state assessment, including among other matters, the foreclosure suits for forfeited taxes now pending, as well as suits to be instituted for foreclosure for forfeited taxes, to render all legal services requisite and necessary in and about the assessment and collection of the taxes required to be collected by the county and to render to the Board of Supervisors of said county and the several committees and sub-committees thereof and to the county officers and appointees of said county such legal advice and counsel from time to time as may be requisite or necessary in and about the business and matters of the said county and to perform all and singular the duties and services specifically pointed out and designated in Bule 18, Section 2 of the Buies of the Board of Supervisors of said county; Provided, however, that this contract shall not impose upon said attorney the performance of any duties which of necessity under the law, may not be performed by any other than the State’s Attorney of said county; but as to such duties said attorney shall hold himself in readiness at all times to assist and shall assist, the said State’s Attorney as a special counsel.

“And the said John T. Ingram hereby accepts the attorneyship of the said county for the period aforesaid and agrees to render the legal services aforesaid to the best of his skill and ability.”

On October 9, 1917, appellant filed -his bill in chancery in which by apt averments the foregoing facts are set forth. It is also averred that there is in the county of Adams a regularly elected and qualified and acting State’s Attorney, who is and has at all times been ready, able and willing to perform all of the services which the said Ingram was employed, to perform by the terms of the contract in question, and that the contract referred to is illegal and void, and prays that the county and its officers be enjoined from carrying it out and from paying out the money of the county to the said Ingram, pursuant to the terms of such contract. A general demurrer was interposed to the bill and was heard and sustained. Appellant elected to abide by his bill and the same was dismissed for want of equity.

The appeal-presents for determination by this court the one question, whether the contract in question is a valid and enforceable contract or not.

Section 22 of article VI of the Constitution of 1870 of this State provides for the election of a State’s Attorney in each county in the State in 1872 and every 4 years thereafter.

Section 5 of chapter 14, Rev. St. (J. & A. 616) defines the duties of State’s Attorney as follows:

“First—To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in his county, in which the People of the State or county may be concerned.

“Second—To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, or to any school district or road district in his county; also, to prosecute all suits in his county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois.

“Third—To commence and prosecute all actions and proceedings brought by any county officer in his official capacity.

“Fourth—To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county.

“Fifth—To attend the examination of all persons brought before any judge on habeas corpus, when the prosecution is in his county.

“Sixth—To attend before justice of the peace and prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before a court of record, when in his power so to do.

“Seventh—To give his opinion, without fee or reward, to any county officer and to justices of the peace, in his county, upon any question of law relating to any criminal or other matter, in which the People or the county may be concerned:

“Eighth—To assist the Attorney General whenever it may be necessary, and in cases of appeal or writ of error from his county to the Supreme Court, to which it is the duty of the Attorney General to attend, he shall, a reasonable time before the trial of such appeal or writ of error, furnish the Attorney General with a brief, showing the nature of the case and the questions involved.

“Ninth—To pay all moneys received by him in trust, without delay, to the officer who by law is entitled to the custody thereof.

“Tenth—To perform such other and further duties as may, from time to time, be enjoined on him by law.

“Eleventh—To appear in all proceedings by collectors of taxes against delinquent tax payers for judgments to sell real estate, and see that all necessary preliminary steps have been legally taken to make the judgment legal and binding.”

A comparison of that section with the part of the contract in question quoted above discloses the fact that it is the duty of the 'State’s Attorney to do every act and thing which is required to be performed by Ingram, under the contract in question. For such services liberal compensation is provided for the State’s Attorney out of public funds, which is paid annually regardless of what services he actually renders. When an office is created either by the constitution or the laws of the State and the duties to be performed and the compensation to be received by the incumbent of that office for the performance of those duties are fixed by law, and the office has been duly filled and the incumbent is ready, willing and competent to perform the duties of that office, there exists in no man or set of men outside of the legislature itself the right or authority to expend, or authorize the "expenditure of, other public funds for the performance of those same duties. It is the application of that rule that underlies the holdings of the Supreme Court in Fergus v. Russel, 270 Ill. 304. To a great degree the same is true in Stevens v. Henry County, 218 Ill. 468. What is said in Howard v. Burke, 248 Ill. 224, is not in conflict with the views here expressed. The question there litigated was whether the record showed an employment at all, and the court held that inasmuch as the attorneys had appeared for the defendant it would be presumed, in the absence of proof to the contrary, that they had been properly employed. What is said in Gillett v. Board of Sup’rs Logan Co., 67 Ill. 256; Franklin-County v. Layman, 145 Ill. 138; Ottawa Gas Light & Coke Co. v. People, 138 Ill. 336; Barnard v. Sangamon County, 190 Ill. 116, in apparent conflict with the views here expressed we understand to be overruled by Stevens v. Henry County, supra, and Fergus v. Russel, supra. The legislature has already provided that under certain circumstances an Assistant State’s Attorney may be appointed and paid out of the county treasury, but when that is done such assistant is to be named by the State’s Attorney. Chapter 53, Rev. St. (J. & A. If 5675). People v. Toledo, St. L. & W. R. Co., 267 Ill. 112; People v. Cook County, 274 Ill. 158. It is also provided by chapter 14, Rev. St. (J. & A. ff. 617), that in case of the sickness and certain other disabilities of the State’s Attorney, some competent attorney may be appointed to perform his duties, but that appointment is to be made by the court after it has been judicially determined that cause exists for so doing. Lavin v. Board of Com’rs Cook Co., 245 Ill. 496. Private counsel cannot appear for the People unless appointed by the court. Gilbert v. People, 121 Ill. App. 423. It is also true that private parties may in the discretion of the court be permitted to employ counsel to assist the State’s Attorney, provided they pay the fees of counsel so employed. There is no provision of the statute as above stated that authorizes the county to employ at public expense an attorney to perform the duties of State’s Attorney, and county boards are limited in their power to such as is expressly granted to them by the legislature, or such as is necessarily inferred or implied from the powers so expressly granted. Stevens v. Henry County, 218 Ill. 468; Marsh v. People, 226 Ill. 464. The contract under consideration was in no sense an attempt on the part of the county to come within any of the provisions above referred to, whereby assistance was to be furnished to the State’s Attorney, or to secure the performance of his duties in case of some disability, but was clearly an attempt to create a new office to be known as county attorney, fix the term of such office and provide what the duties and emoluments of the incumbent of that office should be, and to fill that office and fix the salary of the incumbent by contract and to provide for the payment of such salary out of the public funds in the county treasury. The constitution defines an “office” to be “a public position, created by the constitution or law, continuing during the pleasure of the appoint-, ing power, or for a fixed time, with successors to be elected or appointed,” while an “employment” is there defined to be “an agency for a temporary purpose, which ceases when that purpose is accomplished.” Section 24, art. V, Const. 1870. The only county offices created by the constitution are county judge, sheriff, treasurer, coroner and clerk of the Circuit Court. Neither by the constitution nor the law is there such an office as county attorney created.. Neither is there any authority vested in the county board from any source either expressly or by implication to create such an office. Rule 18 of the Board of Supervisors of Adams County above quoted is nugatory, and the contract above referred to is ultra vires the county board and void, and is an attempt to misappropriate public funds to the extent of the annual salary and expenses which by the same it was proposed to pay to Ingram as county attorney. The bill states a good cause of action and the demurrer should not have been sustained. The decree of the Circuit Court is reversed and the cause is remanded to that court with directions to overrule the demurrer to the biH

Reversed and remanded with directions.


text:
    Elmer McClain Appellant, v. J. M. Myers et al., Appellees.
    1. Mandamus, § 3

      —what is effect of existence of another remedy. Since the passage of chapter 87, sec. 9 (J. & A. 7338), providing that mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy, it has been held that while the existence of another remedy will not bar relief by mandamus, yet the court to whom such a petition is presented may consider the existence'of another remedy in determining whether to assume jurisdiction in a particular case.
    2. Waters and watercourses, § 12*—when petition for manda, mus seeks performance of private duty in removal of obstructions from ditches. A demurrer in mandamus against commissioners of highways to compel the removal of obstructions in certain parts of an open ditch constructed by private contract, existing in a district in which lands owned by the petitioner and numerous others and roads controlled by defendants were included, was properly sustained, as the duty sought to be enforced was a private duty as distinguished from a public or official duty, such as keeping highways in condition for publics travel.
    3. Waters and watercourses, § 12*—what does not render removal of ditch obstructions public duty. In mandamus to compel highway commissioners to remove obstructions in an open ditch, where such ditch was part of a drainage system created by mutual consent and therefore the duty sought to be enforced was a private duty, the fact that the petition charged that defendants placed the obstruction complained of in the ditch did not change the rights of the parties, as if the defendants were liable in damages for obstructing the ditch, or possibly to a prosecution for the recovery of a penalty, their liabilities in those respects were personal and private which did not arise from the exercise or neglect of public duty.
    Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Frank T. O’Hair, for appellant.
    Frank Van Sellar, Edward C. Craig and Donald B. Craig, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant filed in the Circuit Court of Edgar county his petition for mandamus by which he shows that a combined system of drainage by means of open ditches, as well as other drains, created by mutual consent and license, exists and has existed for more than 25 years, in which lands owned by the petitioner and roads controlled by respondents as well as lands owned by numerous other persons are included; that the ditches and drains were constructed by the highway commissioners of the township of Young America and Shiloh in said county, together with the other landowners in the district; that certain obstructions have been placed by the respondents in a certain part of the open ditch which exists along the highway in the townships mentioned, to the detriment of the lands of petitioner as well as that of the other landowners in the district. The prayer of the petition is for a writ of mandamus to compel the commissioners of highways of the two named townships to remove such obstructions. A demurrer to that petition was sustained, and the petitioner elected to abide by his petition. Thereupon the court entered judgment that the petitioner take nothing by his suit and that defendants go hence without day. The petitioner has appealed to this court.

Appellees contend that a writ of mandamus will not be awarded where an adequate means of enforcing the right sought exists either in equity or by an ordinary action at law, and cites People v. Salomon, 46 Ill. 415, at 419. That was formerly the law, but section 9 of chapter 87 (J.. & A. jf 7338) provides that “the proceedings for a writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy.” Since the passage of that act it has been held that while the existence of another remedy will not bar relief by man-damns (Brokaw v. Highway Com’rs of Bloomington Tp., 130 Ill. 482; People v. Village of Crotty, 93 Ill. 180; People v. Wells, 255 Ill. 450; Lower v. United States, 91 U. S. 536; City of East St. Louis v. Millard, 14 Ill. App. 483), yet the court to whom a petition for mandamus is presented may consider the existence of another remedy' in determining whether to assume jurisdiction in a particular case (People v. Wells, 255 Ill. 450), and that the allowance of the writ is discretionary. Brokam v. Highway Com’rs of Bloomington Tp., 130 Ill. 482.

The relation existing between the relator, the defendants and the other landowners in the district as shown by the petition is that of private owners of separate tracts of land in a drainage district existing by mutual consent. The duty that is sought to be enforced is a private duty. The defendants, as highway commissioners, are not shown by the petition to owe to the petitioner or the other landowners in the district a separate or distinct duty, independent of a like obligation on the part of the other landowners in the district, to maintain or keep clean the ditch where it crosses the premises over which they have control, any more than it is the separate duty of each landowner to maintain and keep clean the ditch where it crosses his lands. Their duty in that regard is a joint one with all the other landowners in the district to pay each his respective part of the expense of maintaining and keeping clean the whole system of ditches. It follows that the duty sought to be enforced in this proceeding is a private duty as distinguished from a public or official duty, such as the keeping of the highways in condition for travel by the public. The duty sought to be here enforced is a contractual one, in which only the limited number of persons are interested who own lands in the drainage district, while a public or official duty arises by operation of law. Baughman v. Heinselman, 180 Ill. 255; Young v. Highway Com’rs of Maguon Tp., 134 Ill. 569 on 581; Barnard v. Highway Com’rs of Town of Nokomis, 172 Ill. 393; People v. Magruder, 237 Ill. 345. The fact that the petition charges that defendants placed the obstruction complained of in the ditch does not change the rights of the parties in this proceeding. It may be these defendants are liable in an action for damages for obstructing the ditch, or possibly to a prosecution for the recovery of a penalty, but, if so, their liabilities in these respects are personal and private which do not arise from the exercise or neglect of public duty. People v. Mattinger, 212 Ill. 531; Haines v. People, 19 Ill. App. 354. Nor where the duty is a public one, if the real purpose of the litigation is to determine private rights. People v. Davis, 39 Ill. App. 162. Neither will it lie to enforce contractual rights. City of Chicago v. Chicago Tel. Co., 230 Ill. 157; People v. Klokke, 92 Ill. 134; People v: Dulaney, 96 Ill. 503. Mandamus lies to compel the performance of a public duty. People v. Kipley, 171 Ill. 44; People v. Dunne, 258 Ill. 441. The petition in this case fails to show a clear right to the writ sought and the demurrer to it was properly sustained. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    A. M. Kauffman, Appellant, v. Joel Miller, Appellee.
    1. Improvements, § 5

      —when owner of land must account for. Where a son-in-law had for 17 years occupied a farm belonging to his father-in-law, under an arrangement between the latter and his daughter which the son-in-law understood required him to pay his father-in-law parts of the crops raised and certain cash each year, and also that the land was, upon the death of the father-in-law, to become the property of the sbn-in-law and his wife, and where, after part of the land had been conveyed to the daughter, the son-in-law was expelled from the other land, the father-in-law was required to account for all expenditures of time and money made by the son-in-law in making lasting improvements on all premises of the father-in-law, except those so conveyed.
    2. Account—extent of duty to account for expenditures under supposed agreement. Where a son-in-law had for 17 years occupied a farm belonging to his father-in-law under an arrangement between the latter and his daughter which the son-in-law understood required him to pay his father-in-law parts of the crops raised and certain cash each year, and also that the land was, upon the death of the father-in-law, to become the property of the son-in-law and his wife, and where, after part of the land had been conveyed to the daughter, the son-in-law was expelled from the other land, the father-in-law, although required to account for expenditures made by the son-in-law on the land excepting that conveyed to the daughter, was. not required to account for money expended by the son-in-law, in acquiring title in himself, to 7 acres which had stood outside a partition fence, and which, after removing such fence, he fenced in with the father-in-law’s land; nor was an accounting required for money spent by the son-in-law without the father-in-law’s knowledge, to meet the difference between the price demanded for a 40-acre tract purchased by the father-in-law and that which the latter had offered therefor.
    3. Improvements, § 7*—when hearsay admissible to show good faith. Testimony by a husband, in an action against his father-in-law to state an account of expenditures made by the husband during his occupancy of the defendant’s land for 17 years, that his wife, who was defendant’s daughter, told him in substance that her father had agreed that if she and plaintiff went into possession of the land in question and would make improvements they could in the end have the land, was competent to show what plaintiff’s belief was when he made the improvements, as to who was to be benefited thereby, although it would not have been competent to establish the fact that a contract had heen entered into between defendant and plaintiff’s wife, acting for him as well as for herself.
    Appeal from the Circuit Court of Douglas county; the Hon. Geokqe A. Sentee, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    A. L. Gtlliom and Charles Troup, for appellant.
    P. M. Moore and John H. Chadwick, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant is the son-in-law of appellee. For 17 years he occupied a farm belonging to his father-in-law under an arrangement that was,made between appellee and his daughter, the wife of appellant, and which appellant understood required him to pay to appellee certain parts of the crops raised and certain cash each year, and by which arrangements appellant also understood the land was, upon the death of his father-in-law, to become the property of himself and his wife. The money and the share of the grain above mentioned were annually turned over by appellant to appellee in compliance with his supposed agreement, and the same was accepted from time to time by appellee without question or objection. The land, or at least a portion of it, was low, inclined to be wet and needed drainage. To improve the same in that respect appellant put in a large amount of tile, and paid for the construction of some open ditches, part of a combined drainage system. He also built about 1,000 rods of fence. All of these improvements were made by appellant with the knowledge and consent of appellee. About seven acres of the premises, which by the legal description appellant was supposed to be in possession of under the arrangement by which he occupied the balance, was in fact outside of a supposed partition fence and was in the actual possession of neighbors and had not been in possession of either appellee or appellant for years, if ever. Appellant purchased the rights of the neighbors in possession of the 7 acres and took deeds therefor in his own name. He then took up the old fence that had separated it from the balance of the premises and built a new one further south so as to include this tract. There was also a 40-acre tract near by that appellant thought should belong to the premises in question. After some conference and negotiation appellee offered for the land within $200 of what the owner offered to sell it for, and appellant, without appellee’s knowledge, put in the additional $200 and the premises were deeded to appellee. Fifty-four acres of the tract originally occupied by appellant under the arrangement spoken of, and on which appellant had built a house, two bams and a crib and. on which he had made other lasting and valuable improvements, were deeded by appellee to the wife of appellant and the heirs of her body. This conveyance was made at a time when appellee, who is a very old man and wealthy, was making a partial distribution of his property among relatives. Thereafter appellant continued to occupy as before all of the premises he had formerly been in possession of, until the bishop and some preachers, of the Amish Mennouite Church, of which both of these parties were members pretending to have power to expel appellant from that church, did pretend to expel him. Shortly thereafter, appellee notified appellant to leave the land and assign as a cause that the mies of the church compel its members to discontinue all relations with an expelled member. He refused to vacate the premises and suit was brought for possession. He thereupon undertook to have the church authorities settle the difference between him and his father-in-law, but the only thing he accomplished by it was to get in default in the suit for possession and was dispossessed of the Same.

This bill in equity was filed by appellant to compel the father-in-law to account to him for the moneys expended and the improvements made on the premises he occupied during the 17 years preceding his expulsion therefrom, except the 54 acres theretofore deeded to his wife by her father, and to pay back to him the money paid in the purchase of the outstanding claim of title the neighbors had in the 7 acres that lay south of the old supposed line fence and the $200 he paid on the consideration of the 40 acres purchased, reference to which has already been made.

There is no theory on which the money paid out on these last two items can be recovered from appellee. As to the 7-acre tract, appellant took the title he purchased, whatever it amounted to, in his own name. There is nothing to indicate that the money paid out by him in that transaction was intended for the benefit of appellee, or that it so resulted. For all that appears in this record, appellee may have absolute title to that 7 acres and be able to obtain its possession by law; as to that we express no opinion, but no equitable rig’ht to relief in regard to that land is shown by the bill or the evidence in this case.

As to the $200 paid on the consideration for the 40 acres of land purchased, that was nothing more or less than an executed gift to appellee and cannot be recovered.

As to the items for fencing, tiling and draining the premises of which appellant has now been dispossessed, the situation is different. As to those matters, the evidence shows that appellee not only had the full benefit of all the money so expended in the greatly enhanced value of the land, but that he knew all about it when the improvements were being made, and when the money-was being expended, and made no objection to it The proof further shows that appellant made those improvements with the expectation, as appellee knew, that the land would one day be deeded to himself and wife. Under such a state of facts, while the evidence might not warrant a decree for specific performance, it is ample to show that it would be inequitable and unjust to permit appellee to become enriched at the expense of his son-in-law. In such a ease equity will require an accounting. Ransom v. Ransom, 233 Ill. 369; Worth v. Worth, 84 Ill. 442; King’s Heirs v. Thompson, 9 Pet. (U. S.) 204, 9 L. Ed. 102; Mechanics’ Sav. Bank, & Trust Co. v. Scoggin, 52 S. W. (Tenn.) 718.

Appellee insists that the testimony of appellant that his wife after a conference with her father returned to him and told him in substance that her father had agreed that if they, appellant and his wife, would go into possession of the farm in question and make certain improvements then in the end they could have the farm, was incompetent. The point is not well taken. It would not be competent for the purpose of establishing the fact that a contract had been entered into between appellee and appellant’s wife, acting for him as well as for herself, but is competent as fending to show what appellant’s belief was when he made the improvements as to who was to be benefited thereby, and when considered in connection with the long-continued occupancy of the premises by appellant and his wife upon the terms upon which the wife told appellant her father had agreed that they might occupy the same, and the further fact that appellee made statements at different times which, if not open admissions of the existence of the agreement, were at the least strongly suggestive of the fact that such a contract existed, together with the additional fact that appellant was not dispossessed until appellee conceived himself forced to do so by the rules of his church, is convincing to the point of conclusiveness that the improvements were in fact made by appellant while laboring under the belief claimed by him.

The decree of the Circuit Court is reversed and the cause is remanded to that court with directions to refer the cause to the master in chancery to state an account of all expenditures of time and money made "by appellant in making lasting improvements on all of the premises of appellee, except the 54 acres deeded by appellee to the wife of appellant and the heirs of her body, and the 7-acre tract above mentioned, and when the said master shall have reported such an account, to then decree that appellee pay to appellant the amount, if any so found due, and to further decree the same to be a lien upon the premises in question.

Reversed and remanded with directions.


text:
    William C. Bradshaw, by Leslie W. Benson, Conservator, v. Oscar J. Lucas. William C. Bradshaw, Appellee, v. Leslie W. Benson, Conservator, Appellant.
    1. Insane persons, § 29

      —when income under trust should be ordered paid to conservator. Where, in a spendthrift trust created by a father in favor of his son, the trustee was directed to pay the net income to such son in such manner as the trustee might deem to the best interest of the son, and where after the death of the father the son was adjudged distracted and a conservator for his- property was appointed, on a bill by the conservator for accounting and for construction of the trust, a decree directing payment of such incomp to the son direct was improper, as same should be made to the conservator.
    2. Insane persons, § 29*—-what expenses chargeable against income. In such case the decree properly directed that the income was chargeable with the payment of taxes, insurance and repairs on the trust estate and the compensation of the trustee.
    3. Insane persons, § 13*—what is effect of adjudication. From the time a person is adjudged to be- distracted and incapable of caring for his property, he has no more legal power to act for himself than if he were dead, and business dealings concerning him must be had through the conservator and what is to be paid to him must be paid to such conservator, and what is so paid to the conservator is in law paid to the ward in person.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    Redmon, Hogan & Redmon, for appellant.
    Vail, Pogue & Allen, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Andrew J. Bradshaw, deceased, during* his lifetime, by certain deeds and a declaration of trust, created a spendthrift trust in favor of his son, "William C. Bradshaw, of which Oscar J. Lucas was made trustee. By the terms of the trust so created, the said Lucas was to have possession of certain real estate and receive the rents and profits therefrom “and to pay over the same to the said William O. Bradshaw in such manner as the said Oscar J. Lucas shall deem most efficient and to the best interests of the said William O. Bradshaw.”

After the death of Andrew J. Bradshaw, William C. Bradshaw was adjudged to be a distracted person and, in consequence of such disability, incapable of managing and caring for his property and effects, and Leslie W. Benson was appointed as his conservator, and he thereupon qualified as such. Thereafter the said conservator filed a bill in the Circuit Court of Macon county in the name of his ward, making the said trustee, Oscar J. Lucas, defendant, in which he prays for an accounting by the said Lucas of the said trust fund; a construction of the trust; that the said Lucas be required to give a bond as such trustee, and that a portion of the rents arising from said trust estate be paid over to the conservator and that the said trust be thereafter executed under the supervision and direction of the court. Although Lucas, the trustee, had in the meantime removed from the State of Illinois, he answered the bill and such proceedings were had in the case that on April 6, 1917, a decree was entered by the agreement between the said trustee and the said con- • servator in which the said trustee was ordered to lease the trust property and collect the rents; that he first pay the taxes annually levied' against the trust estate; that he keep the buildings on the estate insured and in repair; that he retain 5 per cent of the moneys collected by him for his compensation; that he next pay to Benson, the conservator, ,to be used for the support and maintenance of the said ward, under the direction of the court, the sum of $1,800 per annum, and that he loan the balance of such fund; that the trustee give bonds in the sum of $15,000, and that he make annual reports to the court of all moneys collected and paid out by him as such'trustee. On April 27, 1917, William O. Bradshaw, by one J. T. Whitney, filed a petition in his own name in which he asks the court to appoint, a guardian ad litem or next friend to represent him, and prays that the decree entered on April ,6th be so modified as to require the said trustee to pay directly to the said petitioner such sums as in the judgment of the court upon a full hearing are sufficient and ample for his support and maintenance. To this petition the conservator filed his answer in which, among other things, he avers affirmatively that the petitioner has been adjudged to be a distracted person; that he has been appointed conservator for him and that he is still acting as such; that the trust in question was created before the said cestuis que trust petitioner was adjudged to be a distracted person, that since the said trust was created the said trustee Lucas had removed from the State; that the said petitioner is a person of unsound mind who, by reason thereof, is incapable of having any correct knowledge of the value of money; that he has squandered and wasted such money as has been given him for candy and intoxicating liquors and with lewd women. No replication to this answer was filed by or for the petitioner, but the court, on the motion of petitioner, set the cause down for hearing on the petition and answer and entered a decree without proof, finding that the averments in the petition were true, although some of such averments were directly denied by the answer; and without any findings as to the affirmative facts averred in the answer of the conservator, the court finds that the equities are with the petitioner and orders that the former decree be modified as prayed in the petition and directs the said Lucas, as such trustee, to turn over to the petitioner such sums at such times and in such manner as the said Lucas shall deem most efficient and to the best interests of the said petitioner, and as part of said decree and without any prayer therefor except the prayer for general relief, the court enjoihed the conservator from asserting or demanding any rights or interests as such conservator in or to said trust fund or the income therefrom. In all other respects the original decree remains unchanged. This appeal is prosecuted by Benson, the conservator.

Appellee contends that the disposition of the income from the trust fund was wholly within the discretion of Lucas, the trustee, and that the court was ■without power to require him to make any particular disposition of it, and was without power to require him to pay it, or any part of it, over to Benson, the conservator of William O. Bradshaw, the ward and cestuis que trust.

When Andrew J. Bradshaw created this spendthrift trust, he undertook to provide for the proper maintenance of his son, William.0. Bradshaw, from the income of certain property without placing it in his power to squander the property from which the income was derived. To effectuate that purpose he provided that Lucas, the trustee named, should have possession of the trust property and receive the rents therefrom and other income accruing thereon ‘ ‘ and to pay over the same to William C. Bradshaw in such manner as the said Osear J. Lucas shall deem most efficient and to the best interests of the said William C. Bradshaw.” By the terms of that declaration of trust, Lucas was to pay over to William C. Bradshaw in all events all of the rents and income from the trust estate. While it is there provided that the heirs of the body of William C. or his next of kin shall, at his death, have the trust estate, there is no provision or suggestion anywhere that an accumulation of the income from the trust estate was contemplated as a possibility. The only discretion he was given in the matter was as to the manner of its payment, which was to be such as Lucas should deem most efficient for the best interest of William C. That discretion is not an arbitrary one, but is one that must be so exercised as to carry out the purpose of the trust, which clearly does not contemplate an accumulation of the income from year to year in the hands of .Lucas; or, in other words, the clear purpose of Andrew J. Bradshaw in creating this trust was that William O.

Bradshaw should annually have all the net income from the trust estate. The construction given this clause by the Circuit Court was correct, in so far as it held that such rents and income were chargeable with the payment of taxes, insurance and repairs on the trust estate, and the compensation of the trustee. In other words, it was only the net rents and income that it was intended should be paid to William O. It is also true that the payments were by the terms of the trust to be made to William C. and not to any one for him or for his use. At the time that trust was created and the powers and duties of the trustee were defined, Andrew J., while not considering William C. to be a suitable person to have the control of the whole trust estate, did consider him capable of handling and entitled to have and manage the entire net rents and income from such estate. After the death of Andrew J., William C. was adjudged to be a distracted person, and in consequence of such disability incapable of managing and caring for his property and effects, and appellant was duly appointed his conservator, and qualified as such. From the time a person is adjudged to be distracted and incapable of caring for his property and effects, until, if ever, he is adjudged to be restored, he has no more legal power to act for himself than as if he were dead. A contract made, or release or receipt given, by him has no legal significance. Chapter 86, sec. 14, Eev. St. (J. & A. ft 7298). Persons who during that time have business transactions in which he is concerned must deal with him through his conservator. Chapter 86, sec. 5, Eev. St. (J. &. A. 7289). What is to be paid to him must be paid to his conservator. Chapter 86, sec. 5, Eev. St:, and what is paid to the conservator is in law paid to the ward in person and is not paid to some one else for his use, as would be true if the same were paid to his creditors.'- The fact that a person is unfortunate to the extent of losing his ability to manage, handle and care for his property and effects in no way interferes with his right to have the income from trust property that has been set aside to supply him with'either necessities, comforts or luxuries so applied. His disability tends to increase rather than to decrease his needs. The Circuit Court erred in decreeing that Lucas, the trustee, should pay any portion of the income from the trust estate directly to William C. Bradshaw in person, and in enjoining the said conservator from asserting or demanding any interest in the income.

The first decree, all but one clause of which still stands as a part of the decree appealed from, recites that the facts material to the trial of the issues had been agreed upon in a writing which was on file in the ease, and that the findings of fact in that decree were based on that writing. Those findings of fact have not been challenged by either of the parties to this suit. We therefore assume that they are correct. On that assumption the court should have ordered the trustee to pay annually to Leslie W. Benson, the conservator for William C. Bradshaw, during the life of the said ward, all of the net income from the trust estate at such times during each year in such manner as the said Lucas, in the exercise of a sound judgment, shall deem most efficient and to the best interest of the said William C. Bradshaw.

The decree appealed from is therefore reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed cmd remanded.


text:
    The People of the State of Illinois ex rel. Elizabeth Wedeking, Appellee, v. Harry Enke, Appellant.
    1. Bastabds, § 32

      —when exclusion of child from court room may he refused. In a bastardy case it was not error to deny the motion to exclude the child from the court room during the trial.
    2. Bastabds, § 34*—when instruction as to date of conception correct. An instruction that the exact date upon which prosecutrix became pregnant was not material and that the material question to be determined was whether defendant was the father of the child is correct, the acts of intercourse covering a period of many weeks, and the period of gestation varying.
    3. Bastabds, § Si*—when instruction not erroneous in calling attention to defendant’s testimony. In a bastardy case, an instruction stating in substance that while defendant was a competent witness in his own behalf, it was left to the jury to judge of his credibility, and that in doing so the jury had the right to consider the probability or improbability of his story, etc., was not erroneous under the rule prohibiting the calling of the attention of the jury to the testimony of one or two parties, such an instruction having been expressly held proper in a bastardy case.
    Appeal from the County Court of Scott county; the Hon. Franklix C. Funk, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Wilson & Butler, for appellant.
    T. J. Priest, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Scott county against appellant in a bastardy case. The evidence is conflicting. The complaining witness testified to acts of intercourse with appellant during the period of gestation, and also that appellant after the birth of the child came to the home of complaining witness to see her and the child and that he said the baby had his eyes. She also testified that when she found,she was pregnant she told appellant and he said to her that if she would go away he would help her out. She is corroborated in her testimony by the testimony of appellant that he went to the house after the child was bom to see it. She is further corroborated by other testimony to the effect that the parties were together during the period of gestation under circumstances when they could have had intercourse. Appellant denies that he ever had intercourse with the mother of the child and denies that he said the child had his eyes, but admits he went to the home of the mother to see it. The jury saw the witnesses and heard them testify and found the defendant guilty. It was the province of the jury to judge the credibility of the witnesses and weigh their testimony. We see nothing in the evidence to cause us to question the correctness of the verdict. In fact, while it is assigned for error that the verdict of the jury is the result of passion and prejudice on the part of the jury, no assignment of error charges that the verdict is contrary to the weight of the evidence.

A motion was made by appellant at the opening of the trial to exclude the baby from the court room during the trial, which motion was denied. Appellant cites Robnett v. People, 16 Ill. App. 299, to support his contention that it was error to deny that motion. It is held in that case that it is improper to introduce a bastard child in evidence for the purpose of showing a resemblance between it and the defendant, and the court then proceeds to discuss more grievous errors in that record and reverses the judgment. That case has never been cited either with approval or disapproval, and so far as we are able to find it is not supported by any well-considered authority. While it is not necessary to decide the point in this case, and while it may well be incompetent to introduce a bastard child in evidence for the purpose of making a comparison of its features or peculiarities with those of the putative father, it is clear that for some purposes it might not only be competent but imperative that the child should be produced in court and testimony offered of its identity, as, for instance, in case it should be denied in a bastardy case that a child had been born at all, or that it had since died, the child itself would be the best evidence of its existence, and it could not be objected to its production for that purpose that the jury might notice a similarity of features or color of eyes. In this case the child was not offered in evidence and no comparisons were made to its resemblance to the putative father except when a witness repeated what it was claimed the defendant said as to such resemblance. At all events, it has been held in this State that allowing the mother of a bastard child to hold it in her lap while she is testifying in a bastardy case is not error. Benes v. People, 121 Ill. App. 103. It was not error to deny the motion to exclude the child from the court room during the trial.

There is no merit in thé contention that the State’s Attorney was guilty of misconduct in his statement to the jury before the introduction of evidence. He was well within his rights and confined his statements to what he expected to prove in the case.

The court instructed the jury in substance that the exact date upon which the prosecuting witness became pregnant vas not material, that the material question to be determined was whether the defendant was the father of the child. The instruction was clearly right. The period of gestation often varies in length a number of days and sometimes weeks. The evidence in this case tends to show repeated acts of'intercourse between these parties covering 6 to 10 or more weeks. It was not material which of those acts produced pregmancy. The important question was whether it was the defendant’s act that caused it.

The court instructed the jury in substance that while the defendant was a competent witness in his own behalf it was left to the jury to judge of his credibility, and that in doing so the juiy had a right to consider the probability or improbability of his story in the light of all evidence in the case, and appellant argues that thereby the rule was violated that prohibits calling the attention of the jury to the testimony of one of two parties in the case as calculated to lead the jury to understand that the court considers that there is some reason why the evidence of the party mentioned should be particularly scrutinized. The rule contended for is well established, but we are not aware that it has ever been applied to bastardy cases but on the contrary, in People v. Bibb, 155 Ill. App. 371, it was expressly held to be a proper instruction in such a case. In prosecutions in the name of the People, such instructions referring to the testimony of the defendant are proper. Henry v. People, 198 Ill. 194; Dunn v. People, 109 Ill. 642. Some other criticisms have been made on the rulings of the court in giving and refusing instructions, but they are without merit. It is also said by appellant that he was unduly restricted in the cross-examination of the complaining witness. We have read her entire testimony, both on direct and cross-examination, and find that defendant was in no way restricted to his detriment in the matter complained of. Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    A. C. Griffith and Everett Griffith, Appellees, v. George A. Orrill, Appellant.
    1. Trusts, § 72

      —when parol reservation creates constructive trust. Where, upon transfer of land, there was no reservation in the deed, hut it appeared that the consideration paid was for the land without the wheat growing thereon, and that it was expressly agreed that the grantors were to have the wheat which was growing on the land when conveyed, and that the reservation was omitted from the deed at the instigation of the grantee and that the grantors acquiesced in such omission only after having been assured that the reservation was not necessary and that the grantors should at all events have the wheat, and where nevertheless the grantee harvested the wheat and retained the proceeds, he was a trustee ex maleficio.

    2. Trusts, § 64*—how constructive trust created. Where one party by words, acts or other means intentionally misleads another, and thereby induces him to pursue a course not contemplated by him, and which places it within the power of the former to possess himself of the property of the latter and he does thereby so possess himself of it, although he has no right to it or its possession, he is in law a trustee ex maleficio, and holds such property in trust for the party wronged.
    3. Trusts, § 65*—when Statute of Frauds inapplicable to parol trust. Where a conveyance is-made to a person because of his fraud and deceit that would not otherwise have been so made, and he verbally agrees to hold the property so conveyed in trust, such trust will be enforced notwithstanding the Statute of Frauds, because the fraud and imposition brings it within the definition of constructive trusts, to which the Statute of Frauds is inapplicable.

      Appeal from the Circuit Court of Pike county; the Hon. Harry Higher, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    W. E. Williams, A. Clay Williams and George C. Weaver, for appellant.
    William Mumford and Barry Mumford, for appellees.

      See Illinois Notes Digest, Vols. XI tp XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant bought from appellees a tract of land. There was no reservation in the deed by which the land was conveyed to him. There was at the time the deed was made a quantity of wheat growing on the land conveyed. Appellees claim the wheat, by an oral agreement made before the execution of the deed whereby it was to remain their property.' They also claim that appellant, by promises that they should have the wheat at all events, and other persuasions, lulled them into acquiescence with his request to have no reservation of the wheat in the deed. Before the wheat matured, appellant notified appellees that they could not have the wheat and that they should not come on the premises for any purpose. Appellees then, it yet being before the wheat was harvested, filed their bill in equity to have appellant declared to be a trustee ex maleficio of the wheat and to hold the same for appellees. Appellant proceeded to harvest the wheat and the proof shows realized therefrom $656.68 net. The case was referred to the master in chancery to take proofs and the proofs were taken accordingly and reported to the court. The court heard the case on the pleadings and proofs so taken and the report of the master in chancery, and entered a decree whereby the issues were found for appellees and appellant was directed to pay to appellees $656.68, and to pay the costs of the proceeding.

There can he no doubt that all of the reliable proof supports the decree. That offered by appellees shows that the consideration paid for the premises sold was for the land without the wheat growing thereon; that it was expressly understood and agreed between the parties that appellees were to have the wheat then growing on the premises; that the wheat was to be reserved to appellees in the deed; that the reservation was omitted from the deed at the instigation of appellant; that appellees acquiesced in such omission only after being assured by appellant that such reservation in the deed was not necessary and that they, appellees, should have the wheat in all events; that such representations and promises were made by appellant for the purpose of obtaining an unconscionable advantage over appellees, and to defraud them out of the wheat in question, and to thereby obtain for himself that which in equity and good conscience belonged to appellees, and which appellant had no right to retain. Part of those facts was proven by the testimony of appellees and part by proof of statements made by appellant out of court. Although appellant denied most of the important facts testified to by the witnesses for appellees, he was not corroborated in any manner and was successfully impeached as to his general reputation for truth and veracity. This left his testimony of little or no value, and the court correctly found the facts to be as testified to by witnesses for appellqes. A careful résumé of all the authorities on the subject of what constitutes a constructive or implied trust arising etc maleficio cannot be made without unduly extending this opinion, but it may be laid down as a general proposition that where one party by words or acts or other means intentionally misleads another, and thereby induces him to pursue a course not contemplated by him, and which places in the power of the first party to possess himself of the property of the second party, and he does thereby so possess himself of it, although he has no right to it or its possession, he is in law a trustee ex maleficio and holds such property, in trust for the second party. The leading case on that subject in this state is Lantry v. Lantry, 51 Ill. 458. The following authorities also support that proposition. Fischbeck v. Gross, 112 Ill. 208; Markham v. Katzenstein, 209 Ill. 607-616; Beach v. Dyer, 93 Ill. 295; Larmon v. Knight, 140 Ill. 232-236; Crossman v. Keister, 223 Ill. 69-83; Cyc., vol. 39, page 172, par. 6, etc.

Where a conveyance is voluntarily made to a person without his having procured it to be done, but merely accepts it and makes a verbal promise to hold the property so conveyed in trust, equity will not enforce it because of the Statute of Frauds, but where a conveyance is made to a person because of his fraud and deceit, that would not otherwise have been made to him, and he verbally agrees to hold the property so conveyed in trust, such trust will be enforced notwithstanding the Statute of Frauds, because the fraud and imposition practiced on the grantor brings it within the definition of constructive trusts. Lantry v. Lantry, 51 Ill. 458; Fischbeck v. Gross, 112 Ill. 208; Markham v. Katzenstein, 209 Ill. 607-616. The Statute of Frauds has no application to constructive trusts. The decree of the Circuit Court is correct on the facts proven. Decree affirmed.

Affirmed.


text:
    W. E. Lyon, composing the firm of W. E. Lyon & Company, Appellee, v. Aaron T. White and the Fidelity and Casualty Company of New York, Appellants.
    1. Appeal and error, § 1063

      —when assignment of error insufficient. An assignment of error that “The court erred in sustaining the demurrer to plea number........as filed by defendants,” pre-, sented no error requiring consideration, where a demurrer was sustained to several pleas and there was no way in which the court could tell which plea defendants had in mind in making such assignment of error.
    2. Pleading, § 117*—what admitted by failure of plea to deny. When a matter material to plaintiff’s right to recover is alleged in a declaration and is not denied by a plea, such matter is to be regarded as admitted and will he presumed to be true.
    3. Mechanics’ liens, § 62*—what necessary to bar subcontractor’s lien. Before a subcontractor or materialman can be barred of his rights to a statutory lien by the terms of the original builder’s contract, he must have knowledge of its terms, or there must he proof that a written and signed agreement to that effect has been filed in the office of the recorder of deeds of the county where the building is situated, not less than 10 days prior to the sub contractor or materialman’s contracts. Hurd’s Rev. St. 1917, ch. 82, sec. 35 (J. & A. IT 7159).
    4. Mechanics’ liens, § 60*—when subcontractor’s recovery on surety bond not barred by contract between surety and owner. A subcontractor was not precluded from recovering under the principal contractor’s surety bond securing those who might become entitled to a lien, because of a provision of the contract between the owner and the surety, to which the contractor was not a party, that neither the contractor nor any subcontractor or materialman should file, have or maintain any mechanic’s lien on the building in ques-' tion, where the proof conclusively showed that such subcontractor did not have actual notice or knowledge of the terms of such contract.
    5. Pleading, § 151*—what is function of affidavit of merits. A defendant’s affidavit of meritorious defense does not take the place of a plea; it merely limits the proofs that can he made under the plea, to such facts as are set forth in it.
    Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Hardin W. Masters, for appellants.
    O’Barras, Wood & Walker and John W. Williams, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Appellant A. T. White entered into a contract to build a church building for the First Presbyterian Church of Carthage, Illinois, and gave his bond, in the sum of $5,000, with the Fidelity and Casualty Company of New York as surety, to said church “orto any others that may become entitled to a lien” under the contract referred to, conditioned that the said White should perform and carry out his part of the building contract and should pay all claims for labor or materials chargeable to him.

This is an action in debt on the bond. In the declaration it is alleged that appellee furnished materials that were placed into the church building in the performance by White of his contract; that appellee has not been paid for such materials; that there is due him for such materials $2,600.09; and that he is one of the obligees in the bond referred to and has a lien under the law on the church building constructed by appellant which has never been paid or satisfied.

A number of pleas were filed by appellant. To all except the second plea, demurrer was sustained. While appellant mentions the fact in his argument that the action in sustaining the demurrer to the pleas was erroneous, there is no assignment of error that requires this court to consider that question. There is an assignment of error in the following words: ‘1 The court erred in sustaining the demurrer to plea number...... as filed by defendants,” but as the demurrer was sustained to several pleas, there is no way in which this court can tell which plea appellant had in mind in making his said assignment of error. •

The only plea left in the case when it went to trial was the second. In that plea it is averred in substance that by the original contract between appellant and the church it was expressly agreed that neither the contractor nor any subcontractor or materialman should file, have or maintain any lien commonly called a mechanic’s lien, either for materials furnished for or work performed on the church building under such contract, and that the right to maintain such lien was expressly waived, except under some express circumstances not affecting this case, and that appellee had actual notice before he furnished any of the materials, and before work was begun on the church building, of the terms of the stipulation referred to. Appellee replied to this second plea, that he was not a party to the contract referred to in that plea, and that he had no actual notice of the provisions thereof, set up in said plea. The issues were tried by the court without a jury. The finding and judgment were for the plaintiff for $5,000 debt, and $2,419.13 damages and for costs.

The plea and the replications thereto put in issue the question whether the right of appellee to a lien has been waived by the terms of the contract between appellant and the church. While the plea does not expressly confess the averments in the declaration, it does so in effect, and it is in fact a plea of confession and avoidance. It certainly does not traverse any of the averments of fact in the declaration from which the right to a lien arises, and appellant does not contend that the declaration fails to show facts sufficient to warrant a. recovery unless the rights arising from the facts there disclosed have been waived by the clause of the contract set up in the plea. WThen a matter material to the plaintiff’s right to recover is alleged in a declaration and is not denied by a plea, such matter is to be regarded as admitted and will be presumed to be true. Smith v. Bellrose, 200 Ill. App. 368-372, and cases there cited.

The rule undoubtedly is that before a subcontractor or materialman can be barred of his rights to a lien under the statute, by the terms of the original contract between the owner of the premises and the builder, he must have actual knowledge of the terms of such contract, or there must be proof that a duly-written and signed stipulation or agreement to that effect has been filed in the office of the recorder of deeds of the county where the building is situated not less than 10 days prior to the contract of the subcontractor or material-man. Chapter 82, sec. 35, Hurd’s Rev. St. 1917 (J. & A. 7159). That appellant understands that to be the law is shown by the language of his plea where he avers “that the said plaintiff, W. E. Lyon, as a materialman had actual notice” of the terms of the contract before he furnished any of the materials sued for.

The proof offered on the issue joined on the plea conclusively shows that appellee did not have actual notice or knowledge of the terms of the contract in question by which the right to claim or have a lien was waived, and there is no proof that such contract was ever filed in the office of the recorder of deeds of the county wherein the building is located, and appellee is not barred of his rights thereby.

Some space has been devoted to a discussion of the office of an affidavit of meritorious defense. It does not take the place of a plea. It merely limits the proofs that can be made under the plea, to such facts as are set forth in it. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276. There is no circumstance under which a plea can be expanded by an affidavit of meritorious defense, or where it will put in issue or authorize proof of facts not put in issue by a proper plea. In this case no proof has been offered by appellant and excluded by the court that would have been competent before an affidavit of meritorious defense was required.

No reversible error has been pointed out and the judgment of the Circuit Court is affirmed.

Mr. Justice Waggoneb took no part.