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    Seth F. Hanchett v. Louis Weber et al.
    1. Ca. sa.—Partial satisfaction.—A judgment debtor, imprisoned under the Insolvent Debtor Act, by virtue of a writ of capias ad satisfaciendum, is entitled to a credit, upon such writ, of $1.50 at the end of and for every day he is imprisoned, irrespective of whether the duration is sufficient to satisfy the writ in full or not.
    2. Statute—Construction.—It is a rule of construction that that which is implied in a statute is as much a part of it as what is expressed; and American courts incline to a liberal construction in favor of persona liberty.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed October 29, 1885.

      The appellees, Weber and Friedman, in January, 1885, having a ca sa., in their favor, against one J. B. Wolf, for a sum exceeding one hundred dollars, it was delivered to Hanehett, the appellant, as sheriff of Cook county, to be executed. The latter took Wolf under the writ and committed him to jail. The plaintiffs in the writ paid Wolf’s board in jail, as required by the statute; after the latter had remained in jail twenty-one days, and which imprisonment, at §1.50 per day, amounted to the sum of §31.50, Wolf having caused the balance over and above that sum, due upon the execution, to be paid to the sheriff, the latter discharged him and returned the execution satisfied in part by imprisonment, and part by said payment, in accordance with the facts. Whereupon Weber and Friedman brought this action against the sheriff, to recover the §31.50, which he had allowed, on the execution, for the twenty-one days’ imprisonment, and the above facts b eing stipulated also, that Wolf was not entitled to relief un der Chap. 72 of the statutes, concerning insolvent debtors, the court gave judgment for said amount against appellant.
    Messrs. Campbell, Hamilton & Custer, for appellant;
    as to rule of construction of a remedial statute, cited C., B. & Q. R. R. Co. v. Dunn, 52 Ill. 260; Conkling v. Ridgely, 112 Ill. 43.
    Mr. Philip Steih, for appellees;
    that it is not permitted to interpret what has no need of interpretation, cited Potter’s Dwarris on Statutes, 126, 143. Sedgwick on Constructions of Statutory Law, 194; Fisher v. Blight, 2 Cranch, 358; Cooley’s Const. Lim. 55.
   McAllister, J.

The question submitted to the court below, by the agreed case, and for decision here, is whether or not the discharge of Wolf from imprisonment, under the execution against his body, was wrongful on the part of the sheriff; or, in other words, whether it was proper for the sheriff, under the provisions of the Insolvent Debtor Act, to credit Wolf, upon the execution, with the sum of thirty-one dollars a.nd fifty cents, on account of his twenty-one days’ imprisonment. Section 34 of that act provides: In any case where the defendant arrested upon final process shall not be entitled to relief under the provisions of this act, if the plaintiff will advance the jail fees and board in manner hereinbefore provided, the defendant may be imprisoned at $1.50 per day until the judgment shall be satisfied, and the officer making the arrest shall indorse the execution: Satisfied in full by im prisonment.”

It is stipulated that Wolf was not entitled to relief under the provisions of the act. He was therefore within the condition prescribed in said § 34. But it is insisted by appellee’s counsel, that a defendant so arrested is entitled, under that section, to no credit on the execution, except when he is imprisoned the requisite time, at $1.50 per day, to satisfy the execution in full. That position is, in effect, that if such imprisonment fell short for a day or even an hour of such requisite time to satisfy it in full, no credit at all was to be allowed on account of such imprisonment. To sustain that view would manifestly be to apply to the statute the rules of strict construction. What are the provisions of the section under consideration? When a defendant is arrested upon final process and shall not be entitled to relief under the provisions of the Insolvent Debtor Act, then if the plaintiff will advance the jail fees and board in the manner therein before provided, the defendant may be imprisoned at $1.50 per day. How long may he be thus imprisoned ? The statute answers: Hntil the judgment shall be satisfied.” When that takes place, what shall the sheriff do ? Why he shall indorse the execution: Satisfied in full by imprisonment.”' Does not that expression. satisfied in full by imprisonment,” imply, when taken in connection with what ]>reeedes it, that if the duration of the imprisonment fall short of what is necessary to operate as a satisfaction, “ in full,” it may nevertheless be taken as a satisfaction fro tanto, or in part, and devolve the duty upon the officer to make the indorsement on the writ according to the fact? We are inclined to the 02>inion that such an implication must arise from a fairly liberal construction of the statute. It is a rule of construction that that which is implied in a statute is as much a part of it as what is expressed. Potter’s Dwarr. on Stat. 145; U. S. v. Babbitt, 1 Black, 55.

It is entirely clear that several of the provisions of Chap 72 concerning insolvent debtors, including Sec. 34 in question^ were intended as a restraint upon judgment creditors, as regarded the imprisonment of their debtors, and to afford relief to the latter from the rigors of the old common law in that respect. One of the conditions to the relief provided in § 34 is, that the defendant, arrested on final process, is not entitled to relief under the other provisions of the act. Were it not for these provisions, a judgment creditor in an action of tort might be imprisoned for life, if so poor and destitute of friends as to be unable to pay the judgment and costs. Such provisions having for their basis motives of humanity, should be liberally and beneficially construed, according to the true intent of the legislature. American common law leans toward that construction of all statutes which is in favor of personal liberty, not that which is against personal liberty. Elum v. Rawson, 21 Geo. 142; Sedg. on Con. of Stat., 2d Ed., 223 and notes.

In addition to the common law rules of construction, our legislature has declared: u All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out.” 2 Starr & C. Stat. 2324.

We are of opinion that at the end of, and for every day Wolf was imprisoned under the execution, he was entitled to a credit upon such writ of $1.50, irrespective of whether the duration was sufficient to satisfy the writ in full or not.

The judgment of the court below will be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

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    John McCord et al. v. William O. Manson.
    1. Evidence—Principal and agent.—Where an agent from time to time renders to his principal reports and statements of the business of the agency and of the accounts between himself and his principal growing out of it, and such reports and statements are received and retained by the principal without objection, such facts are prima facie evidence of an implied admission on the part of the principal of their correctness.
    .2. Same.—Among merchants, an account rendered and not objected to within a reasonable time, becomes an account settled, and is conclusive between the parties, unless some fraud, mistake, omission or inaccuracy is shown.
    Error to the Superior Court of Cook county; the Hon Sidney Smith, Judge, presiding.
    Opinion filed October 29 1885.
    Messrs. Bisbee, Ahrens & Decker, for plaintiffs in error.
    Mr. Frank Baker, for defendant in error.
   Bailey, P. J.

This was an action of assumpsit for money had and received, brought by William O. Manson against John C. McCord and Joseph T. McCord, to recover certain moneys deposited by the plaintiff with the defendants, to be used by them as margins upon a series of contracts entered -into by them on his account, for the purchase and sale of grain "on the open Board of Trade of Chicago. These transactions, as it appears, commenced on the 24th day of Movember, 1882, and continued until the 30th day of Hovember, 1883, and during that time the defendants made, or claim to have made, a large number of contracts on the plaintiff’s account, involving the sale and purchase of nearly two million bushels of grain. The defendants during all that time resided in Chicago, and were engaged in dealing as brokers on said Board of Trade, while the plaintiff resided at Waverly, Illinois. The moneys in question were furnished by the plaintiff to the defendants from time to time, in different sums, as demanded by the defendants during the course of the transactions, the aggregate amount so furnished being §36,500.

It seems to have been the uniform practice of the defendants, on making a contract of purchase or sale for the plaintiff’s account, to immediately report to him the commodity purchased or sold and the number of bushels and price, and also, whenever they closed out-a previous contract for the purchase or sale of grain for future delivery, by a corresponding contract for the sale or purchase of the same amount of grain for a like delivery, to at once forward to him a statement of account, showing the amount purchased and sold, the contract quices, the commissions charged by them, and the balance of qjrofit or loss resulting from the transaction. From time to time, also, the defendants transmitted to the qdaintiff full statements of their account current, in which he was credited with the moneys received from him, and the net profits on all transactions resulting in a profit, and charged with the defendants’ commissions, and the various sums p-aid out by them in settlement of contracts which had resulted in losses. Hone of these statements disclosed the names of the parties with whom these various contracts of purchase or sale were made by the defendants on the Board of Trade. They were all received by the qdaintiff, however, and retained by him without objection to any of the items or matters therein contained, or in respect to any matters omitted therefrom, except that on one or more occasions, he objected to the amount of the commissions charged him by the defendants. By far the larger proqjortion of these reports showed losses instead of profits, and they were generally accompanied, or soon after followed^ by requests for additional margins, which, as a rule, were promqjtly forwarded by the qdaintiff. These accounts taken together show that upon the whole series of transactions the losses and commissions exceeded the profits by a sum sufficient to exhaust all the money advanced by the qdaintiff to the defendants, and to leave him in their debt in the sum of §491.50.

At the trial, the plaintiff proved the several sums of money deposited by him with the defendants, and also produced said several reports and statements of account, and the same were all put in evidence as a part of the plaintiff’s case in chief. On this evidence, the court gave to the jury, at the instance of the plaintiff, the following instruction:

The jury are instructed that, if they shall believe from the evidence that the defendants jointly assumed to act as commission merchants of and for the plaintiff, and by his authority, and for him, on commission, to make contracts with other commission merchants on the Board of Trade, for the purchase and sale of grain, and that the plaintiff, from time to time, deposited or paid to the defendants large sums of money as margins or security, that it devolves upon the defendant to show valid claims upon the money so deposited, by showing that it has been applied to pay losses upon contracts actually and bonafidely made, and if the jury find from the evidence, that no such valid claim has been shown in favor of the defendants, upon such money so deposited or any part thereof, then for the money so deposited or such part thereof as no valid claim has been shown by the evidence, the plaintiff is entitled to a verdict.”

The jury found the issues for the plaintiff and assessed his damages at §25,000, and for that sum and costs judgment was rendered in his favor.

The principal theory upon which the plaintiff claims a right to recover is, that a large number of the contracts for the sale or purchase of grain for future delivery, upon which the defendants pretend to have lost the moneys deposited with them as margins, were merely fictitious, and were only forms of contracts, made with themselves, or with other persons in their employ. It is therefore insisted that, after the plaintiff had shown the payment of said money to the defendants, the burden was thrown upon them to prove each of the transactions in which the money was lost, and that said transactions were each valid, bona fide contracts, actually made by them, and this view seems to have been adopted by the court and given to the jury as a rule of law by the foregoing instruction.

It is true that, ordinarily, where the evidence charges an agent with the possession of money to he employed or expended in the business of his agency, the burden is upon him, in order to discharge himself, to show that he has actually expended it in the bona fide performance of the duties of his agency. But this rule is subject to another well recognized rule of evidence, viz., that when the agent, from time to time, renders to his principal reports and statements of the business of the agency, and of the accounts between himself and his principal growing out of it, and such reports and statements are received and retained by the principal without objection, such facts are evidence of an implied admission on the part of the principal of their correctness, sufficient at least to throw upon him the burden of showing wherein and to what extent they are incorrect and untrue.

The cases are numerous where, as between debtor and creditor, an account rendered by one party and retained by the other without objection, is evidence of an account stated. Wiggins v. Burkham, 10 Wal. 129; Lockwood v. Thorne, 11 N. Y. 170; Same v. Same, 18 Id. 285; Phillips v. Belden, 2 Edw. Ch. 1; Powell v. Pacific Railroad, 65 Mo. 658; Coopwood v. Bolton, 26 Miss. 212; Anding v. Levy, 57 Id. 51; Terry v. Sickles, 13 Cal. 427; Ruffner v. Hewett, 7 W. Va. 585. The rule seems to be, that as between merchants, an account rendered and not objected to within a reasonable time, becomes a settled account, which is conclusive as between the parties, unless some fraud, mistake, omission or inaccuracy is shown. 1 Story’s Eq. Juris., Sec. 526; Sherman v. Sherman, 2 Vern. 276; Willis v. Jarnegan, 2 Atk. 251; Murray v. Toland, 3 John. Ch. 569; Freeland v. Horan, 7 Cranch, 147. There is some conflict in the authorities as to 'whether the same conclusive presumption should be extended to the dealings of persons other than merchants, but even those which hold the negative of that proposition, sustain the rule, that an account rendered and retained without objection, is at least evidence of an implied admission of the correctness of the account.

As said in Wiggins v. Burkham, 10 Wal. 129, “The principle which lies at the foundation of evidence of this kind is? that the silence of the party to whom the account is sent, warrants the inference of an admission of its correctness. This inference is more or less strong according to the circumstances of the case.” And as said by Selden, J., in Lockwood v. Thorne, 18 N. Y. 285, “Its effect is to establish prima facie, the accuracy of the items without other proof, and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the admission, and the strength of the evidence which will be necessary to overcome it, will depend upon the circumstances of the case.”

The same rule obtains in case of a statement of account by an agent to his principal. Tharp v. Tharp, 15 Vt. 105; Marshall v. Payne, 18 La An. 124. The case last cited was between a principal and an agent employed by him to purchase certain shares of stock, and where a statement of account by the agent received and held by the principal without objection, was held to establish an acquiescence on the part of the principal in the acts of his agent. In Mertens v. Nottebohms, 4 Grat. 163, it is held that an account of sales rendered by a consignee to his consignor is prima facie evidence of their correctness. This decision is placed upon the additional ground that as the consignee is bound, in the performance of his duty to his principal, not only to sell, but to keep and render proper accounts, it would be unreasonable for the principal, after the duty had been performed, to have the power of throwing upon the agent the task of furnishing evidence in relation to the transactions which may involve minute details difficult of proof. On this question Baldwin, J., says : “ I take it to be correct as a general proposition, that in case of a factor, agent, trastee or executor, whose duty it is, by law or by contract, to sell and account for the proceeds of goods in his hands, and who makes a due return of his sales to the proper person or the propjer custody, he may rely upon the same as prima facie evidence in his favor ; inasmuch as he is bound not only to sell, but to keep) and render an account of his sales.” The same doctrine is affirmed in Ruffner v. Hewitt, 7 W. Va. 585.

In the present case all the defendant’s letters, telegrams, statements, reptorts and accounts were put in evidence, as we think the record clearly shows, by the plaintiff. Some attempt is made to raise a question on this point, but, as we think, without any just foundation. It appears that the plaintiff being called as a witness in his own behalf at the beginning of the trial, produced several bundles of papers and identified the same, and that his counsel thereupon introduced in evidence said letters and telegrams, but in relation to the accounts of purchases and sales, he remarked that he did not offer them then, but produced them merely for the purpose of identifying them. As soon, however, as the cross-examination of the witness commenced, the defendant’s counsel propounded to him some question in relation to said accounts, whereupon the plaintiff’s counsel remarked, I think they are put in, Mr. Bisbee; ” and thereafter, so far as we can discover from the record, they were treated by both parties as having been admitted in evidence.

These letters, telegrams and statements of account being a part of the plaintiff’s evidence, were apparently ignored by the instruction, and the jury may well have understood it to hold that, in establishing their defense, the defendants were bound to prove their use of the money in question in paying legitimate losses incurred by them on behalf of the plaintiff, by evidence quite independent of that furnished by the statements and accounts rendered, thus in effect holding that no presumption arose from the plaintiff’s own evidence of an admission by him of the correctness of said accounts.

An instruction was given which submitted to the jury the question whether, under the evidence, any of the transactions in question were gambling contracts, and it is insisted that such instruction was erroneous, for the reason that there was no evidence to support it. From such examination as we have been able to give to the evidence and to the inferences legitimately arising from it, we are not prepared to say that the record is barren of evidence on that subject; but as the ease does not seem to have been tried upon the theory that said contracts, or any of them, were gambling contracts, we do not deem it our duty to review the evidence in detail. But for the error in giving the instruction first above set forth, the judgment will be reversed and the cause remanded for a new tidal.

Judgment reversed.


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    Frank Cihak v. Hynek Klekr et al.
    1. Conveyance.—A deed conveying a lot with “ appurtenances," but which makes no reference in terms to the adjacent alley, passes no right or interest in the alley, unless such right or interest passes as an “appurtenance."
    2. Easement—Extinguishment.—A previously existing easement becomes extinguished when the title to the dominant and servient estates becomes united in one person.
    3. Dedication—Private alley.—A dedication of a portion of land for a private alley is a dedication of it to the use of the persons who shall thereafter become owners of the lots included in the plat, but will not be a dedication of it to the use of owners of land situated elsewhere.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed November 4, 1885.
    This was a bill in chancery, brought by Frank Cihak against Hynek Klekr and others, to restrain the defendants from vacating and closing up an alley running along and adjoining one side of a lot owned and occupied by the complainant. It appears that in 1859, one Wilder was the owner of lots 19, 20 and 21, situate on the southwest corner of De Koven and Jefferson streets, in the city of Chicago, and located as shown on the following plat:

      At about that time an agent of said Wilder subdivided said lots 20 and 21, and drew a plat of the three lots, showing the subdivision, and rented the property from time to time to various tenants accordingly to such subdivision. Said plat, which was never acknowledged or recorded as a statutory plat was as follows:

    The strip of land ten feet in width on the west side of lot 20 seems to have been used from that time forward by the occupants of said lots, and to some extent by others, as an alley. There is considerable evidence tending to show that it was low and wet, so as to be covered with water or mud during a considerable portion of the year, and nearly or quite impassable, and that for that reason its use as an alley was quite limited. It was left, however, open at the ends abutting respectively on DeKoven street and the public alley, and some time after the plat was made, but at what precise date the evidence fails to show with much certainty, the alley was inclosed by fences and buildings, running along its east and west lines. The tenant occupying the east half of lot 19, erected a cottage fronting on DeKoven street, and running back on the line of the alley, and having a window opening upon the alley, and the occupants of the lots constituting the subdivision of lots 20 and 21 erected barns or sheds on or near the east line of the alley.

      Said lots and alley continued to be occupied and used, substantially as above stated, by the tenants of said Wilder and his grantees, until the 11th day of August, 1882, when Ann J. Hubbard, who was then the owner of all of said lots, made, executed and acknowledged a plat of a subdivision of said lots 20 and 21, said plat being as follows:

    After the foregoing plat was executed by Mrs. Hubbard, and before it -was examined and approved by the proper public officer, or placed on record, the complainant entered into negotiations with Mrs. Hubbard’s agent for the purchase of the east half of lot 19. The complainant’s agent or broker, on examining the abstract of the title to the property, discovered that there was no plat on record showing the alley, and called the attention of Mrs. Hubbard’s agent to that fact, -whereupon the latter replied: “That is all right, I have a plat here,” showing him the above plat, saying that he was going to put it on record, and also saying “I am going to sell the other lots subject to this plat, and the alley as it is being platted out.” At that time none of the other lots had been sold. The plaintiff refused to buy unless the plat was put on record, but on being assured that it would be recorded, he completed the purchase. The deed from Mrs. Hubbard to him contained no mention of the alley, and no reservation or covenant in reference thereto.
    Some time after the execution of said deed, said "plat was duly examined and approved by the proper officer and placed on record, but before it was recorded, lot 1 in the subdivision was conveyed by Mrs. Hubbard to said Hynek Klekr, and lot 2 to Joseph Kvasnicka, another of the defendants, both of said deeds containing a reservation of the use of the west ten feet of the lot conveyed for an alley. After the recording of the plat, lots 3 and i of the subdivision were conveyed to Jaroslav Lenock, another of the defendants.
    The defendants, thus being the owners of all the lots contained in the subdivision, for the purpose of vacating said alley, executed and placed on record, without the knowledge or consent of the complainant, an instrument conveying and releasing to each other any easement' or other interest they might have in said alley, and vacating the same. The bill prays that the defendants be enjoined from building upon or obstructing said alley. The cause being heard on bill, answer, replication and proofs, a decree was rendered dismissing the bill for want of equity at the complainant’s costs, and the complainant brings the record here by appeal.
    Messrs. Kbaus & Mayer, for appellant;
    that where the owner of two heritages, or of one heritage consisting of several parts, has arranged and adapted these so that one derives a benefit and advantage from the other of a continuous and obvious character, and he sells one of them without making mention of those incidental advantages or burdens of one in respect to the other, there is in the silence of the parties an implied understanding and agreement, that these advantages and burdens shall continue as before the separation of title, cited Morrison v. King, 62 Ill. 30; Ingals v. Plamondon, 75 Ill. 118; Hadden v. Shoutz, 15 Ill. 581; Gerber v. Grabel, 16 Ill. 223; Thomas v. Wiggins, 41 Ill. 471; Phillips v. Phillips, 48 Pa. St. 178; McCarty v. Kitchenman, 47 Pa. St. 239; Connor v. Boyd, 73 Pa. St. 179; Durel v. Boisblanc, 1 La. Ann. 407; Lampman v. Mills, 21 N. Y. 505; Simmons v. Cloonan, 81 N. Y. 557; Watts. v. Kelson, L. R., 6 Ch. App. 166; Dunklee v. Wilton, 24 N. H. 489; Jones v. Jenkins, 34 Md. 1; Sanderlin v. Baxter, 76 Va. 299; Elliott v. Rhett, 5 Rich. Law (S. C.), 405; Goodall v. Godfrey, 53 Vt. 219; Cave v. Crafts, 53 Cal. 138; Brown v. Berry, 6 Cold. 98; Washburn on Easements, * 50 et seq.; Gale on Easements, 4th Ed. 85; Goddard on Easements, Bennett’s Ed., 119-124.
    As to dedication by user: Angell on Highways, 135; Wilson v. Saxon, 27 Ia. 15; Harding v. Jasper, 14 Cal. 642; Green v. Chelsea, 24 Pick. 71; Dodge v. Stacey, 39 Vt. 574; Child v. Chappell, 9 N. Y. 256; Fisk v. Havana, 88 Ill. 208; Kile v. Logan, 87 Ill. 64; Ill. Ins. Co. v. Littlefield, 67 Ill. 368; Harding v. Hale, 61 Ill. 192; Guthrie v. New Haven, 31 Conn. 321; Joliet v. Verley, 35 Ill. 58; Rees v. Chicago, 38 Ill. 322.
    Messrs. Blum & Blum, for appellees ;
    that in order to constitute a dedication there must be an intention to dedicate cited 2 Hilliard on Real Property, 31, 34; Warren v. Jacksonville, 15 Ill. 240; Daniels v. People, 21 Ill. 439; Ill. Ins. Co. v. Littlefield, 67 Ill. 368; Carpenter v. Gwynn, 35 Barb. 395; Chicago v. Wright, 69 Ill. 319; Chicago v. Thompson, 9 Bradwell, 524.
    The words or acts which are to effect a dedication must be unambiguous: Smith’s Leading Cases (8th Ed.), Vol. 2, p. 182; Ill. Ins. Co. v. Littlefield, 67 Ill. 370; Angell on Highways, 11; Forbes v. Balenseifer, 74 Ill. 187; Trustees v. Walsh, 57 Ill. 364; Grube v. Nichols, 36 Ill. 96; Fox v. Virgin, 5 Bradwell, 515; Jacksonville v. Walsh, 67 Ill. 540; Stacey v. Miller, 14 Mo. 178; Morse v. Renno, 32 Vt. 600; Gowen v. Phil. E. Co., 5 W. & Serg. 141; Tallmadge v. East River Bank, 26 N. Y. 105.
    As to easement by implied grant: Turnbull v. Rivers, 3 McCord (S. C.), 89; McDonald v. Lindall, 3 Rawle (Pa.), 495; Seeley v. Bishop, 19 Conn. 134; Lawton v. Rivers, 2 McCord, 264; Randall v. McLaughlin, 10 Allen, 366; Carbury v. Willis, 7 Allen, 370; Screvin v. Gregorie, 8 Rich. 163; Nichols v. Luce, 24 Pick. 104; Ponfret v. Ricroft, 1 Saunders, 323, note: Collins v. Prentice, 15 Conn. 38; Pierce v. Selleck, 18 Conn. 321; Fetters v. Humphreys, 2 C. E. Greene, 260; Stuyvesant v. Woodruff, 1 Zab. 133; Brukely v. Harp, 1 Stockt. 9; Barker v. Clark, 4 N. H. 380; Johnson v. Jordan, 2 Met. 234; Philbrick v. Ewing, 97 Mass. 133; Suffield v. Brown, 133 L. J. (N. S.) Ch. 249; Warren v. Blake, 54 Me. 276; Gayetty v. Bethune, 14 Pick. 51.
   Bailey, P. J.

While the deed under which the complainant claims title conveyed to him the east half of lot 19 with the “ appurtenances,” it made no reference, in terms, to the adjacent alley. It follows that no right or interest in the alley passed to him by the deed, unless it passed as an “ appurtenance” to his lot.

It is claimed, in the first place, that by actual, open, visible and continuous use of the alley for more than twenty years by the public, it became a public alley, to the use of which the complainant became entitled as a member of the community. It is also claimed that it became a public alley prior to the conveyance of said lot to the complainant by dedication by the owner. The evidence as to both of those propositions, though voluminous, is inconclusive and unsatisfactory, and to a great extent conflicting. We have not the time nor the disposition to attempt to analyze it or to discuss it at length, since we could subserve no useful purpose by so doing. It will suffice to say, that in our judgment it fails to establish either of those claims, but rather the contrary, and that the court below was right in holding that.the complainant was not entitled to relief on the score of any public easement in the alley.

The public not being shown to have had such easement, it follows that, at the time the complainant purchased, the alley was private property. The title, not only to that, but to all the adjoining lots, was in Mrs. Hubbard. If there had previously been any easement in favor of tenants or others, the dominant and servient estates were then united in her, and the easement' became thereby extinguished. The entire property Mras under her sole and exclusive dominion, and she had the right to appropriate it to any purpose she saw fit. The complainant’s rights, then, must be limited and governed by the terms of the grant. The only claim that can be made is, as we have said, that an easement in the alley passed as an “ appurtenance ” to the lot conveyed.

In support of this claim, it is argued that the circumstances attending the negotiation which preceded the conveyance to the complainant, were such as should be held to estop Mrs. Hubbard, as well as the defendants, tvho hold by subsequent grant from her, from denying the complainant’s easement in the alley. And what are those circumstances ?

It appears that the complainant’s agent, on examin ing the abstract of the title of the property which the complainant was about to purchase, discovered that there was no record shown of any plat in which the strip of ground in controversy was reserved as an alley; that the vendor’s agent thereupon exhibited to him the plat of the subdivision of lots 20 and 21, which had then recently been executed, and assured him that such plat should be placed on' record, and that the lots therein described should be sold subject to the plat and to the alley as there platted; that the complainant was unwilling to purchase except upon the assurance that the plat should be recorded, but that on receiving that assurance he was content, and completed the purchase without insisting upon any reservation or covenant in his deed in relation to the alley.

How, what did all this amount to beyond a mere assurance to the complainant that the plat, such as it was, should be recorded, and that he should have all such rights and easements as the plat, properly recorded, would give him? This was all he asked, and this was all that was promised him; and the promise, such as it was, was performed. The plat was duly recorded shortly afterward, thus securing to the complainant all he demanded. It is clear, then, that the doctrine of estoppel has no application. Ho deceit was practiced upon him, and no assurances he’d' out which were not strictly and literally fulfilled.

Hpon what principle, then, can the alley be said to be an appurtenance of lot 19? We think it clear that it was not made so by force of the plat. That instrument was a subdivision of land of which lot 19 formed no part. The dedication of a portion of the land thus platted for a private alley, was a dedication of it to the use of the persons who should thereafter become owners of the lots included in the plat, but we know of no principle upon which it can be held to be a dedication of it to the use of the owners of land situated elsewhere. This, as we understand it, is the rule laid down in Smith v. Heath, 102 Ill. 130. There, a square in the interior of a tract of land subdivided was marked “private” on the plat, and it was held that the word “ private” indicated that the square was donated for the use of individuals who might thereafter become the owners of abutting lots, and not of the public.

Hor do we think that any easement in the alley passed as appurtenant to the lot by reason of the structure of the complainant’s building in relation to the alley. At the time he purchased, as we understand the record, the only building on his lot was a small cottage fronting on De Iloven street and abutting on the alley, said cottage having a window opening on the alley. After his purchase, the complainant moved the cottage to the rear of the lot, on the public alley, and erected a brick building in its place, with windows upon the alley, and leaving a vacant space between it and the cottage. With this arrangement of the buildings, the alley became a great convenience, especially in giving access to the open space or yard between the two buildings. But these facts, in our opinion, wholly fail to bring the case within the well recognized rule, that where the owner, of a heritage, consisting of several parts, has arranged and adapted the parts so that the one derives a benefit and advantage from the other of a continuous and obvious character, and sells one without making mention of those incidental advantages or burdens of the one in respect to the other, there is in the silence of the parties an implied understanding and agreement that such advantages and burdens shall continue as before the separation of the title. If the complainant was entitled to any rights in the alley hy reason of the peculiar structure of the cottage, such rights were immediately abandoned by him hy the removal of that building to another place, and placing it in an entirely different relation to the alley ; arid the subsequent erection of the brick building and arrangement of the premises with a view to convenient access thereto through the alley, were his acts and not those of his grantor, and were incapable of giving him any rights under the rule above stated.

As we find no error in the record the decree will he affirmed.

Decree affirmed.


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    Harry M. Ryan v. Edward Kirchberg.
    1. Practice—Forcible detainer—Confession.—When judgment is confessed in forcible detainer under power, etc., in a lease, and the defendant enters a motion to vacate said judgment and files therewith an affidavit, if such affidavit discloses a good defense in law to the plaintiff’s action, the motion should be granted, at least to the extent of giving the defendant an opportunity to interpose such defense.
    2. Landlord and tenant—Surrender.—The taking of a new lease hy parol is hy operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest, according to the contract and intention of the parties.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed November 4, 1885.
    Mr. C. Sthart Beattie, for plaintiff in error;
    as to surrender of lease, cited Livingston v. Potts, 16 John. 28; Ill. Statute of Frauds, R. S. Ch. 59, §§ 1, 2; Van Rensselaer v. Pennima, 6 Wend. 569; Wood’s Landlord and Tenant, § 492.
    Mr. John Lyle Dickey, for defendant in error;
    that verbal variations of sealed instruments are unavailable, cited Hume v. Taylor, 63 Ill. 43; Chapman v. McGrew, 20 Ill. 101; Barnett v. Barnes, 73 Ill. 216.
   Bailey, P. J.

In this case, a judgment in an action of forcible detainer, in favor of Edward Kirchberg against Harry M. Ryan, was entered by confession, under a warrant of attorney contained in a lease. Said lease was executed by James B. Waller to the defendant, under the hands and seals of both lessor and lessee, bearing date May 31,1884, and demising the premises in question to the defendant, Bom the first day of June, 1884, to the 30th day of April, 1885, reserving rent at the rate of §30 per month, and also reserving the right on the part of the lessor, his heirs, agents or assigns, to terminate the lease at any time, by giving the lessee sixty days notice in writing of such termination. The demised premises were shortly afterward conveyed by Waller to the plaintiff, and on the 30th day of July, 1884, said Waller, by indorsement on said lease under his hand and seal, assigned the lease to the plaintiff, and the defendant thereupon duly attorned to him.

The lease contained, among other things, a covenant'on the part of the lessee to surrender and' deliver up said demised premises to the lessor, his heirs, executors, administrators and assigns, immediately upon the termination of said term, and that if he should thereafter remain in possession, he should be deemed guilty of a forcible detainer of the premises under the statute, and be subject to eviction and removal, forcibly or otherwise, with or without process of law. The lease also contained a warrant of attorney, empowering any attorney of any court of record, at any time after the determination of the lease, to enter the appearance of the lessee in any court of record and waive the service of process, and confess a judgment of guilty of a forcible detainer of said premises and for costs, in favor of the lessor, his heirs, executors, administrators and assigns, and release errors, etc., and'to consent that a writ of restitution be immediately issued upion such judgment.

On the 1st day of May, 1885, the plaintiff caused a judgment to be entered up against the defendant, under said waarant of attorney, the cognovit, in accordance with said power, waiving errors and consenting to the immediate issuing of execution. On the 2d day of May, 1885, the defendant entered his motion to vacate said judgment and stay the execution of said writ of restitution, and in support of said motion read his own affidavit, in which he states, that on or about the 15th day of August, 1884, the plaintiff notified him that he had pur, chased said premises, and would desire possession thereof, under the terms of said lease, on or before October 15th then next following; that affiant accepted said notice and agreed and did accept a termination of said lease, and prepared to surrender possession of said premises; that on or about the 10th day of October, 1884, the plaintiff came to the affiant and told him that he had changed his plans in regard to said premises and would not need them for a year or perhaps more, and that the defendant then and there entered into a contract of lease of said premises, by which the plaintiff leased them to the defendant for one year from October 1, 1884, at a rental of $30 per month; that defendant paid the rent to the plaintiff under the last lease, except for the month of April, 1885, which he tendered to the plaintiff on or about April 1, 1885, and which the plaintiff refused to receive. The court overruled the defend, ant’s motion, and the defendant brings the record to this court by writ of error.

The question is, whether the defendant’s affidavit disclosed a good defense in law to the plaintiff’s action of forcible detainer; for if it did the court should have granted his motion, at least to the extent of giving him an opportunity to interpose such defense. Walker v. Ensign, 1 Bradwell, 113. The defense is, that during the term of the lease under which the suit is brought, and when it had about seven months to run, the lessor and lessee entered into a new verbal lease running for the term of one year from that date at the same rate of rent reserved in the original lease, and that at the date of the entry of judgment, the defendant was in rightful possession of the demised premises under such verbal lease.

It is claimed, however, that the verbal lease was invalid because obnoxious to the rule that an executory contract under seal can not be modified or varied by a parol agreement. Chapman v. McGrew, 20 Ill. 101; Hume Brothers v. Moss, 63 Id. 43; Barnett v. Barnes, 73 Id. 216; Loach v. Farnum, 90 Ill. 368. Mo question is made that the rule of the common law here invoked prevails in this State, but we are of the opinion that it does not apply in this case, for the reason that the taking of the new lease was not a change or modification of the old one, but that it was, by operation of law, a surrender of the old lease. Thus it is laid down in 2 Starkie on Ev. (7th Am. Ed.) 474, that “ the taking of a new jease by parol is by operation of law a surrender of the old one, although it be by deed, provided it be a good one, and pass an interest according to the contract and intention of the párties, for otherwise the acceptance of it is no implied surrender of the old one.”

So Taylor, in his Treatise on the Law of Landlord and Tenant, § 512, says : “ The acceptance, by the tenant, of a new lease of the same premises, during the period of the first lease, will be deemed to be a virtual surrender of the former lease.” See also, Wood on Landlord and Tenant, § 492; Coe v. Hobby, 72 N. Y. 141.

It can not be said that the parol lease was invalid, either as contravening the Statute of Frauds, or as being without consideration. It was made on the 10th of October, 1884, and was to run for the term of one year from the 1st day of that month, and so wras neither an agreement that was not to be performed within the space of one year from the making thereof,” nor was it a contract for the sale of any lands, etc., or any interest in or concerning them, for a longer term than one year.” The consideration was the rent to be paid for the full term of one year. It then being a valid lease, entered into between the parties, while the former lease was in force, such former lease became, by operation of Jaw, surrendered, and the defendant, at the time of the entry of judgment, was rightfully in possession under the parol lease, and not guilty of a forcible detainer of the premises.

In our view, then, the affidavit stated facts which, if true, constituted a complete defense to the action, and the defendant therefore should have been given an opportunity of presenting such defense and establishing it by evidence.

For the error in overruling the defendant’s motion, the judgnient will be reversed and the cause remanded.

.Judgment reversed.


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    Chicago & Northwestern Ry. Co. v. George Trayes.
    1. Pleading.—To support a plea of the Statute of Limitations to a new count, where such plea will not lie in .the original declaration, it must appear that the new count imports into, the case a cause, of action which is substantively and essentially new.
    2. Official records—-Evidence.—The meteorological observations of the United States signal service come within the rule which admits in evidence official registers or records kept by persons in public office, in which they are required either by statute or by the nature of their office to write down particular transactions occurring in the course of their public duties or under their personal observation.
    Appeal from the Circuit Court of Cook county ; the Hon. Kmc Hawes, Judge, presiding.
    Opinion filed November 4, 1885.
    Mr. B. C. Cook and Mr. W. B. Keep, for appellant;
    as to pleading, cited T. W. & W. Ry. Co. v. Foss, 88 Ill. 553; C. B. & Q. Ry. Co. v. Harwood, 90 Ill. 425; I. C. R. R. Co. v. Cobb, 64 Ill. 140; Connett v. City of Chicago, 8 Chicago Legal News, 323; Skowhegan Bk. v. Cutler, 49 Me. 315; Woodward v. Ware, 37 Me. 564; Marble v. Hynes, 67 Me. 203; Woodbridge v. Hathaway, 45 Tex. 380; Sanford v. Scott 51 Ala. 557; Hawthorne v. State, 57 Ind. 286; Selma R. R. Co. v. Lacey, 49 Ga. 106.
    Mr. W. S. Johnson and Mr. Alva A. Knight, for appellee;
    that the replication was in proper form, cited Varner v. Varner, 69 Ill. 447; I. C. R. R. Co. v. Cobb, 64 Ill. 140.
   Bailey, P. J.

This was an action on the case, brought by George Trayes against the Chicago and ¡Northwestern ¡Railway Company, to recover damages for a personal injury to the plaintiff, caused by his being run against and struck by one of the defendant’s locomotive engines at a street crossing in the city of Chicago. The plaintiff was injured on the Moth day of ¡November, 1879, and the suit was commenced by the issuing of summons May 20, 1880, and a declaration, consisting of one count, was filed on the 12th day of July following. Said count charged, in general terms, that the defendant, by its servants, so carelessly and improperly drove and managed said engine, that through and by the negligence and improper conduct of the defendant, by its servants in that behalf, said engine ran on to and struck the plaintiff with great force and violence, thereby causing the injury complained of.

On the 9th day of March, 1882, four additional counts were filed by leave of the court. Of these counts the first charged the defendant with negligence in running its engine at a greater rate of speed than is permitted by an ordinance of the city of Chicago limiting the rate of speed at which engines may be run within the city; the second charged the defendant with negligence in running its engine at a high rate of speed, and neglecting to ring a bell thereon, as required by law and by an ordinance of the city; the third charged the defendant with negligence in running its engine backward in the night time, without a conspicuous light on the rear end thereof, in violation of an ordinance of the city, requiring such light, and the fourth charged the defendant with negligence in failing to station a flagman at said crossing, as is also required by an ordinance of the city.

The defendant thereupon filed its plea of not guilty, and also as to said additional counts, a plea alleging that the causes of action therein set forth did not accrue to the plaintiff within two years next prior to the filing of the same. To this plea the plaintiff replied that the several causes of action set forth in said additional counts were in substance and fact the same, and were the same cause of action set forth in the original count of the declaration, and that said original count was filed within two years next after the injury to the plaintiff therein set forth occurred.

To the foregoing replication the defendant interposed a special demurrer, which being overruled, he asked and obtained leave to rejoin to said replication so far as it applied to said third and fourth additional counts, and so far as it applied to said first and second additional counts, he elected to abide by his demurrer.

We do not feel called upon to follow the defendant through the course of special pleading in which it has seen fit to indulge in this case, for the sake of determining whether some error may not have intervened in the settling of the issues. It is manifest from the evidence, if not from a mere inspection of the pleadings, that the defense sought to be made by the plea of the Statute of Limitations is wholly without merit; and it follows that, even if there were some erroneous rulings in relation to subsequent pleadings, seeking to raise an issue of fact or of lawr upon that plea, such errors can have been in no way prejudicial to the defendant. No question can be made that the suit was brought and the original declaration filed within two years from the time the plaintiff’s cause of action arose, and in that declaration the real cause of action upon which all the additional counts are based is counted upon. As said in North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340, upon a very similar state of pleadings, the additional counts were not fór a cause of action in substance other and different from that stated in the first count. It was merely another mode of telling the same story. The object of each count in the declaration was to recover damages for the same identical injury,.and the negligence which is charged in the original count in general terms, is only averred and described more fully and specifically in the additional counts. To support a plea of the Statute of Limitations to a new count, where such plea will not be in the original declaration, it must appear that the new count imports into the case a cause of action which is substantially and essentially new. It must not be a mere amplification or more specific statement of the cause of action already declared upon.

Upon a trial before the court and a jury, the plaintiff recovered a judgment for $3,000 damages and costs. The evidence was conflicting, and we are unable to say from the record that there was any such preponderance in favor of the defendant as would make it our duty to set aside the judg. ment on that ground. The jury saw and heard the witnesses and had a better opportunity and were better qualified to judge of their credibility than we can be with only the record before us. To this must also be added the weight proprerly due to the opunion of the judge before whom the trial was had, who also saw and heard the witnesses, and -who, by denying the defendant’s motion for a new trial, gave to the verdict his official sanction. The record most clearly demonstrates that the court and jury have erred in their construction or estimate of the evidence, before an appellate tribunal should venture to interfere.

We are able to perceive no substantial error in the rulings of the court upion the instructions.

Complaint is made of certain rulings in excluding evidence offered on behalf of the defendant. It was shown by the plailitiff that his injury was received at about fifteen minutes after seven o’clock in the evening. The evidence of the plaintiff’s witnesses tended to show that it was a cold, dark and stormy night, the storm consisting of mingled rain and sleet, and that such was the condition of the weather not only at the precise moment of the accident, but until a late hour of the night when the surgeon went to visit the plaintiff. To rebut this evidence the defendant offeied in evidence, among other things, a transcript, duly authenticated by the certificate of the Secretary of War under the seal of the War Department, of the records of the Signal Service of the United States, showing the observations taken at the Signal Service office at Chicago on the day and -night in question. These records showed observations of the weather taken at various hours, from seven o’clock in the morning to eleven o’clock at night, including one at two o’clock in the afternoon and cne at nine o’clock in the evening. Each cne of these observations showed that the weather was clear and that there were neither clouds, fain nor sieet; and the condition of both the barometer and thermometer during both the afternoon and evening was shown to be such as to warrant an inference that the plaintiff’s witnesses, in testifying that the night was stormy, were mistaken. This record being objected to by the plaintiff’s counsel was excluded by the court, and its exclusion is assigned for error.

Two questions arise: first, whether said record was competent, and second, whether it was material.

The meteorological observations of the Signal Service of the United States are taken and recorded by public officers under the authority of law, and as a part of their official duty. They are of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence official registers or records kept by persons in public office, in which they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties, or under their personal observation. Evanston v. Gunn, 99 U. S. 660, and authorities cited. Even the registry of the weather, kept by a public institution, as an insane asylum, has been held to be admissible to prove the temperature upon a given day some distance in the past. DeArmond v. Neasmith, 32 Mich. 231. Under these authorities, it seems clear that the record" in question was competent.

That it would have had a tendency to dispute the testimony of the plaintiff’s witnesses as to the character of the night, is, we think, too clear for controversy. The state of the weather and the darkness of the night were material as bearing upor the question of the negligence of the parties contributing to the injury. True, the material question was as to the state of the weather at and immediately prior to the accident, but we think that the record of observations taken at intervals during the day and night, both before and after the accident, would have a bearing upon that question, although no observation was taken at the precise. moment of the accident. The evidence of the plaintiff’s witnesses was not confined to that particular moment, but they testified as to the state of the rveath, er during the entire evening and late into the night, and the character of the storm of which they speak was such that the jury may, from their own knowlédge and experience, have concluded that it could not have occurred as testified to by the witnesses, if the observations reported by the signal service were true. We think that the exclusion of said record was erroneous, and for that error the judgment must he reversed and the cause remanded.

Judgment reversed.


author: McAllister, J.

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    Chicago & Eastern Illinois R. R. Co. v. Englewood Connecting Ry. Co.
    Eminent domain.—The eminent domain statute is a remedial statute and should be liberally and beneficially construed. The court is of "opinion that appellant has property vested under its lease which is embraced within the scope and intention of the statute.
    Appeal from the Circuit Court of Cook couuty; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed November 4, 1885.
    Mr. William Armstrong for appellant;
    that an interest in the property was given by the grant, cited 1 Washburn on Easements, § 1, par. 5.
    Messrs. Willard & Driggs, Mr. E. Biddle Egberts and Mr. F. J. Loesch, for appellee.
   McAllister, J.

This was a bill brought by the appellant in the court below against the appellee, for an injunction restraining the latter from constructing a railroad crossing for its tracks over the tracks of the Chicago & Western Indiana R. R. Co. at a point on Wallace, street, in the town of Lake, between 58th and 59th streets. The grounds upon which the injunction was prayed were, in brief, that before the appellee wras created as a corporation, the appellant, hy lease, duly executed and recorded, became the lessee of the tracks of the said Chicago & Western Indiana E. E. Co. from Dalton on the south to the northern terminus thereof in the city of Chicago, to the extent of a right to use the same for the running of its (appellant’s) locomotive engines, cars and trains, for the term of 999 years at a certain annual rental, amounting to a large sum of money, to be paid by appellant to said Chicago & Western Indiana E. E. Co.; that the construction and use of said crossing would seriously interfere with appellant’s use of said line of which it was such lessee, and result in great damage; that said Chicago & Western Indiana E. E. Co. was the owner of a perpetual easement in the street at the place in question; that by the lease of the latter to appellant, it acquired an interest therein as well as the right to the use of the tracks of the former; that to interfere with and disturb appellant injuriously in such use, constituted a damage to its property within the meaning of the c’ause of the constitution and provisions of the statute in that respect; that appellee not having made appellant a party to any proceeding for condemnation, or made any compensation for such damage, it should be restrained from putting in such crossing until the proper proceedings are had. The appellee answered, admitting appellant’s lease-hold interest, set up hy way of a bar, a proceeding in the county court under the eminent domain statute, after appellee’s lease was so made and recorded, in which the lessor, said Chicago & Western Indiana E. E. Co. was alone made a party, and to which alone damages were awarded. The court below dissolved the temporary injunction it had awarded in this present suit, and dismissed appellant’s bill.

We do not deem it necessary, nor incumbent upon us, in complying with the statutory requirement of stating briefly our reasons in writing, to attempt to set out the various provisions of the very voluminous lease in question, or even an abstract or analysis of them; because there can be no question but it creates the relation, quasi at least, of landlord and tenant, and confers upon appellant a vested valuable interest in the tracks, with a right of user for 999 years, upon the condition, among others, of its payment of the large rent therein provided. The interest thus acquired, whatever it technically may be, is undoubtedly a right of property grafted upon, or incident to, the perpetual easement which the lessor had in Wallace street. Moreover, it became in the eye of the law, appellant’s private property, and the question is, can it be damaged for public use, without just compensation ? To us it is quite clear, that under § 2 of the Eminent Domain Act, appellant’s lease being of record, it was the duty of appellee to have made the former a party with the lessor, the Chicago & Western Indiana B. B. Co.

The eminent domain statute is a remedial statute, and, as was said by Chief Justice Shaw in Barks v. Boston, 15 Pick. 203, “It is a remedial act, intended to carry into execution that most equitable jnovision of the constitution,” that whenever the public exigencies require that the property of any individual should he appropriated to public uses, he shall receive a reasonable compensation therefor. “ To give effect to this highly important and equitable provision, it is necessary to construe the termjproperty as including every species of valuable vested right.” Ellis v. Welch, 6 Mass. 251; Railroad Co. v. Davis, 26 Pa. St. 238.

But under our constitution and statute, a party is entitled to compensation where his property is damaged for the public use. Rigney v. The City of Chicago, 102 Ill. 64.

The assessment of compensation to the Chicago & Western Ind. Co., in a proceeding to which appellant was not a party, and of which it had no notice, in nowise affects appellant’s rights'. There should be a separate award of each, lessor and lessee. It is not for us to say that appellant could be entitled to only nominal damages. There was no investigation in the court below as to the measure of damages. The case seems to have gone off upon the idea that appellant had no property to be damaged within the proper construction of the statute and constitution. We are of opinion, that the statute being remedial, it should be liberally and beneficially construed; and that therefore, appellant has property vested under its lease, which is embraced within the scope and intention of the statute. If, upon a proper proceeding, the jury shall find only nominal damages, because no greater can be established, it will be proper to do so. N. O., M. & T. R. R. Co. v. Telegraph Co., 53 Ala. 211; Lund v. City of New Bedford, 121 Mass. 286.

We are of opinion that the court below erred in dismissing the bill for' want of equity, and its decree must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


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    Samuel B. Raymond v. George M. Vaughan.
    1. Pabtnebship—Dissolution.—Insanity does not work a dissolution of a partnership ipso facto.

      2. Consebvator—Res adjudicata.—The rendering of a final account and discharge of a conservator in the matter of his insane partner's estate in the county court, in which whole matter said conservator had neither inventoried nor brought into the account his ward’s partnership interest, will not operate as a res adjudicata, upon a bill in chancery being filed against the conservator for an accounting by his partner after his recovery from insanity.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Moban, Judge, presiding.
    Opinion filed November 4, 1885.
    This was a bill brought in the court below, Oct. 11, 1880, by the appellee, Vaughan, against the appellant, Eaymond, as partner and trustee, for an accounting. There was a hearing upon pleadings, proofs and master’s report, resulting in a decree in favor of the former and against the latter, for the sum of $9,586.28, from which the latter appealed to this court.
    It appears that for several years prior to September 15; 1874, Vaughan had been representing, as broker, in the wholesale sugar market of Chicago, the Franklin Sugar Refinery, of Philadelphia, Pa., whose business was there conducted by Harrison, Havemeyer & Co., residents of that city, and that Vaughan had not only enjoyed the confidence of that firm* but, from his business as such broker, had realized a very satisfactory income by way of commissions. It also appears that Raymond had, for several years prior to said date, been likewise engaged as broker in the wholesale sugar market of Chicago, he representing Rwo or more sugar refineries in the East, from which he had realized large sums by way of commissions; that about September 15, 1874, the two, by agreement, entered into a sort of copartnership, and began business together; that, by that agreement they were to occupy the same office and conduct their respective agencies or business as such brokers in their individual names, as before; that no partnership name should be adopted; that no time for the continuance of their relations should be fixed, but that from time to time the total amounts of their commissions should be divided between them—Vaughan receiving one third and Raymond two thirds; and they were to share losses and expenses in the same proportion. A copartnership relation is alleged in the bill, and expressly admitted by Raymond in his answer. It appears that the parties carried on their business together under that arrangement down to January, 1876; that during that period they had made several divisions of commissions received by them respectively, but that they had no actual settlement of all their matters, that, January 20, 1876, while their relations were subsisting as formerly, Vaughan was, upon proceedings duly commenced in the county court, adjudged to be temporarily insane, and committed to the hospital for the in. sane at Elgin, 111. It further appears that in the order adjudging "Vaughan to he insane, Raymond was appointed custodian of his person until he should he taken to the asylum; that on the same day of that order Baymond filed and presented his petition to the county court for that purpose, and was appointed conservator of the estate of said Yaughan, with hond in the sum of $13,000; that letters'of conservatorship were duly issued to him, March 13, 1876, at which date he filed an inventory in said court of the property of his ward. Yaughan was not discharged from the asylum until May, 1879. But it-appears that June 6, 1878, Baymond presented his final account to the county court, and was upon consideration of it discharged by the court from the duties of his tr^st as such conservator. It appears that in neither the said inventory nor final account, did Baymond make any mention of said joint or partnership business. There was no evidence tending to show that Baymond, at any time between that of Yaughan becoming- insane and his discharge from the asylum, signified, by any act or word, an election on his part to terminate the relations formed between them by the partnership agreement of Sept. 15, 1874. But the evidence shows that from and after Yaughan had been declared ¡insane, Baymond continued to carry on the business of said partnership in all respects as it had been carried on before, with the exception of Yaughan’s ¡personal attention to it, until the discharge of the latter from the asylum. And it was shown by a clear preponderance of the evidence that Baymond recognized the continuance of Yaughan’s interest in such business while he was so carrying it on after the latter had become insane. It further 'appears that after Yaughan left the asylum, and some time in May, 1879, he met Baymond in Philadelphia, and that through the intercession of Harrison, Ilavemeyer & Co. an arrangement was made by which Yaughan was to surrender, in favor of Baymond, the agency of the firm of Harrison, Ilavemeyer & Co., so far as related to Chicago, in the future; in consideration of which Baymond was to pay Yaughan $2,500, in monthly installments, and Harrison, Ilavemeyer & Co. agreeing to give Yaughan a like agency in the city of Baltimore, in place of that in Chicago which he had formerly had. In making that arrangement no mention was made of any matters relat. ing to the business carried on in Chicago during Vaughan’s lunacy.
    Messrs. Flower, Bemy & Gregory, for appellant;
    that the relation between the parties was not a partnership, cited Blue v. Leathers, 15 Ill. 31; Snell v. DeLand, 43 Id. 323; Adams v. Funk, 53 Id. 219; Smith v. Knight, 71 Id. 198; Irvin v. Nashville, etc., Ry. Co., 92 Id. 103.
    Even though it should be conceded that the relation between the parties was a partnership one, it was dissolvable at will, as no time was agreed upon for its continuance: 1 Lindley on Partnership, p. 220; Carlton v. Cummings, 51 Ind. 478; McElroy v. Lewis, 76 N. Y. 373; Lawrence v. Robinson, 4 Col. 567.
    A dissolution of a partnership at will may be inferred from circumstances, although no notice to dissolve has been given, and the rule applies, although one of the parties be a lunatic: Wellerah v. Kean, 27 Beav. 236; Robertson v. Lockie, 15 Sim. 285; Southwick v. Allen, 11 Vt. 75; Grover v. Hall, 3 H. & J. 43; Bouche v. Pendergast, 3 Ib. 33; Emerson v. Parsons, 2 Sweeney, 447; Parsons on Partnership, pp. 418 and 419.
    Where the decree is in the nature of proceedings in rem, as is generally the case in matters of probate and administration it is conclusive against all the world: 1 Greenl. on Ev., Sec. 550; Wells on Res Adjudicata, Sec. 426; Smith v. Sims, 77 Mo. 269; Cecil v. Cecil, 19 Md. 79; Caujollie v. Ferrie, 13 Wall. 465; Chippen v. Dexter, 13 Gray, 330.
    Mr. John Gibbons, for appellee;
    as to the relation of the parties and the duties arising therefrom, cited Townsend v. Townsend, 1 Giff. 201; Wedderburn v. Wedderburn, 22 Beav. 84; Sticking v. Sewell, 1 Myln. & Cr. 8; Heathcock v. Hulme, 1 Jac. & W. 122; Morris’ Appeal, 71 Pa. St. 106; Sholer v. Trowbridge, 1 Len. (N. J.) 595; Lewin on Trusts (7th Ed.) 253, 254, 298, 299, 312; Freeman v. Freeman, 136 Mass. 260; Cook v. Collingridge, 1 Jac. 608.
    I he cestui que ti'ust may still inquire into the administration of the trustee after his discharge: Wright’s Trusts, 3 K. & J. 419; Clark v. Deveaux, 1 S. C. 172; Anson v. Osborne, 6 Ves. 455; Cranshay v. Collins, 15 Ves. 218.
   McAllister, J.

The first point made by appellant’s counsel is, that no copartnership relation ever existed between these parties, and that consequently none existed at the time that appellee became insane. The answer to that position is, that the formation of a partnership between them on or about Sept. 15, 1874, and its continuance to the time of appellee’s insanity and while he was in the asylum, are alleged in appellee’s bill, and its formation and continuance until appellee became insane are expressly admitted by appellant in his answer to that bill. The latter is therefore precluded from questioning the existence of the partnership at the time appellee became insane. But in connection with that position, appellant’s counsel say even if a partnership did exist, it was one determinable at the will of either party. We understand that the partnership between these parties was of that character. But counsel further say, that a dissolution of a partnership at will may be inferred from circumstances, although no notice to dissolve has been given, and the rule applies although one of the partners be a lunatic.

Suppose the correctness of that proposition be conceded, does it not logically follow that the converse of it must also be true, and that the continuance of the partnership after appellee’s insanity may likewise be inferred from circumstances ? We have no doubt that it may, and that we regar 1 as a determinative principle in one aspect of this case. Counsel, however, not taking that view, supplement then- proposition with the further one that the adjudication of appellee’s insanity ipso facto dissolved the partnership. Chancellor Kent says: “ Insanity does not work a dissolution of partnership ipso facto. It depends upon circumstances under the sound discretion of the court of chancery.” 3 Kent’s Com., Holmes’ Ed., 58 Marg. 65; Story on Part., § 295; Ewell’s Lindley on Part., Vol. I, p. 224.

We can not afford the space requisite to an analysis of the authorities bearing upon that proposition, and it is unnecessary, for no case has been cited, and we venture to say that none can be found, which holds that where one partner is adjudged to be affected with temporary insanity, and the same party chooses to continue the partnership notwithstanding, and has made large profits, and is called upon in a court of chancery by such formerly insane party, after restoration to reason, to account to him upon equitable principles for said - profits, such same party may defend against the claim by setting up that the adjudication of insanity ipso facto dissolved the partnership. • Such a decision would be against natural justice, and shock the moral sense of the common average of mankind.

How, what are the circumstances as respects this part of the case? These parties had been copartners, doing a profitable business together, from about Sept. 15, 1874, to January 20, 1876, when an adjudication was made in the county court, that appellee was affected with temporary insanity. In that very order appellant was made custodian of his person, until he should be committed to the custody of the warden of the State Hospital for the Insane. Appellant upon his own petition was thereupon duly appointed conservator of his estate. He thereby voluntarily took upon himself a most sacred judiciary relation to appellee. That relation, upon the clearest doctrine of equity, not only disqualified appellant, but positively prohibited him from securing to himself any pecuniary interest or advantage, adverse to those of appellee, his ward. Occupying that position, appellant, having theretofoz-e in no maimer signified, by act, word or circumstance, his election to terminate the partnership, goes right along with its business as before, giving out, from time to time, by express declara^ tions, that he was cazTying on that business for the benefit of appellee as well as himself. Under the relations subsisting between these paz'ties, the fact being conceded by appellant that he actually continued to carry on the business the same as before, substantially, very slight ciz-cumstances would be sufficient, if any evidence at all were necessary, to show that he was canying it on under the paz’tnez’ship z-elations. The good will was an element of vahze, and even though there had been a dissolution, the appellant might he required to account. Pine v. Ormsbee, 2 Abb. Pr., N. S. 375; Cranshaw v. Collins, 15 Ves. 218. As to good will of the business, see 2 Ewell’s Lind. on Part. 859.

The next position taken in argument by appellant’s counsel is, that the discharge of appellant by the county court, upon rendering his final account there as conservator, was a proceeding in rem, and, so long as it remains unreversed, is a complete bar to the relief sought by this bill, upon the principles of res adjudieafa. That proceeding, so far as it relates to the adjudication as to the status of appellee, was, in our opinion, in the nature of a proceeding im> rem,. But the matters upon which the right to and claim for an accounting are based, were of a wholly different nature. This claim was not included in the inventory which appellant made as conservator, nor mentioned in his final accounting, upon which he was discharged. Passing upon it, was in no respect necessary to the exercise of the jurisdiction of the court in the first instance, nor was it directly involved, or a necessary incident to any adjudication made. It was a matter of mere private individual right between these two parties, over which a court of chancery has jurisdiction, and over which, if the county court had any jurisdiction, it was in no sense exclusive. Besides, appellee was at the time confined in a lunatic asylum, and had no notice, actual or constructive. The distinction between those matters which are necessarily involved in a proceeding in rem, or in one in the nature of a proceeding in rem,, as to which the decree is conclusive against all the world, and matters inter jpa/rtes, or of mere private litigation, is recognized by the authorities, and has its foundation in the nature of things. 2 Smith’s Leading Cases, 7th Am. Ed., 632; 1 Greenleaf on Ev., § 550.

To hold a claim barred by a proceeding in which it was in no wise involved, and of which the party to be estopped had no kind of notice, would be to subvert and trample upon some of the most essential, fundamental principles, upon which the doctrine of the conclusiveness of judgments and decrees is based; because appellee never had his day in court as to this claim.

We are of opinion that the transaction between the parties in May, 1879, at Philadelphia, falls entirely short of a settlement of the claim, so as to bar appellee’s right to an accounting. This claim and the matters out of which it arises, were none of them mentioned by either party. Being of opinion that the evidence supports the decree, and that the points made against it are not well taken, it must he affirmed,

Decree affirmed.


author: Wilson, J.

text:
    Baltimore and Ohio R. R. Co. v. Daniel R. Brant.
    Evidence.—Parol evidence of antecedent or cotemporaneous verbal agreements is inadmissible to contradict, vary or add to the terms of a valid written contract. As the parol evidence introduced by appellee changed the written contract in one of its essential features, its admission was erroneous.
    Appeal from the Superior Oourt of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed Nov. 17, 1885.
    Mr. 0. 0. Olarke and Mr. J. B. Skinner, for appellant.
    Mr. Daniel B. Brant, for appellee.
   Wilson, J.

Appellee, Brant, brought the present suit against the Baltimore and Ohio Bailroad Company before a justice of the peace, to recover damages for an alleged breach of a contract to furnish free passes for himself and his wife from Chicago to Baltimore and return. He recovered a judgment before the justice of the peace, as also in the superior court on appeal, for §94.23, and the railroad company bring the case here for review.

It appears from the bill of exceptions that in 1882, when settling a litigation between Brant and the railroad company, the latter, in part consideration for the settlement, agreed with Brant to give him each year for the next succeeding ten years, two trip passes from Chicago to Baltimore and return.' The contract was in writing and provided that one of said passes was to be used by appellee and no other person, and the other pass was to be used by appellee’s wife and no other person. ,

In the year 1883, the company, in part performance of the contract, issued to appellee two trip passes as called for by him, one to himself and one to his wife.. The pass so issued to the wife was given by appellee to his daughter, Mrs. Heed, who used it to go east and return, with, the knowledge and consent of appellee, in violation of said contract. When passes were called for by appellee the next year, the railroad company having meanwhile learned of the use made of Mrs. Brant’s pass the previous year, refused to issue them unless appellee would make restitution for the wrong done to the company in giving his wife’s pass to Mrs. Reed to be used by her the year previous as just stated. Whereupon Brant, without making or offering to make such restitution, commenced this suit.

That the use, with the knowledge and consent of appellee, which was made of the pass issued to his wife, was a breach of his contract with the railroad company, does not admit of debate. It was in violation of the express stipulation that the pass was to be used by appellee’s wife and by no other person. One thus using a pass, issued to another perpetrates a fraud upon the company over "whose road he rides, and he who is cognizant of, and aids and abets in the perpetration of the fraud, is, in law, equally guilty with the person wrongfully using such pass.

But it was claimed by appellee, and he was allowed to testify against the objection of appellant, that at the time of making the contract for the passes, or in October previous thereto, it does not clearly appear which, it was verbally agreed between the company’s attorney and himself that Mrs. Brant’s ps,ss might be used by any member of appellee’s family. The effect of the parol testimony thus admitted, was- to engraft upon the written contract a provision directly contrary to the express terms of the writing. 2STo rule is better settled than that parol evidence of antecedent or cotemporaneous verbal agreements is inadmissible to contradict, vary or add to the terms of a valid written contract. When parties have deliberately put their engagements into writing, in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties was reduced to writing. 1 Greenl. Ev., § 275; 12 Wend. 573; Keegan v. Kinnaire, 12 Bradwell, 484, and cases there cited. Here the effect of the parol evidence was to change the contract in one of its essential features, and its admission was manifestly erroneous, and prejudicial to appellant.

Other questions are presented by the assignment of errors which we do not pass upon, as they were not very fully discussed by counsel, and the case is to be sent back for a new trial. It is proper, however, to say that if the plaintiff shall make a case by his proof, entitling [him [to damages, the defendant, we think, may recoup whatever loss it has sustained, if any, by reason of appellee’s breach of the contract.

The judgment is reversed and the cause remanded to the court below for a new trial.

.Reversed and remanded.


text:
    George W. Prins v. William E. Hinchliff.
    1. Affidavit fob attachment.—An affidavit for attachment must allege some one or more of the grounds for such writ prescribed by the statute positively and unequivocally. An allegation in the alternative is not sufficient.
    2. Same.—An affidavit for attachment which fails to state the place of residence of the defendant, or that upon diligent inquiry the affiant had not been able to ascertain the same, is defective.

      Error to the Superior Court of Cook county; the Hon-Elliott Anthony, Judge, presiding.
    Opinion filed November 17, 1885.
    ¡M¡r. James R. Maun and Mr. C. C. Copeland, for plaintiff in error;
    cited Thormeyer v. Sisson, 83 Ill. 189; Reitz v. People, 77 Ill. 518.
    An affidavit for attachment in the disjunctive form is insufficient to sustain a judgment by default: Drake on Attachment, 6th Ed., §§ 101, 101a ; Rosenheim v. Fifield, 12 Bradwell, 302; Devall v. Taylor, Cheves (S. C.), 6.
    Mr. Fred. Aend, for defendant in error ;
    that the appear anee of defendant cured all defects in the process, cited Miles v. Goodwin, 35 Ill. 52; Martin v. Judd, 60 Ill. 78.
   Bailey, P. J.

In this case William E. Hinchliff commenced a suit by attachment against George W. Prins, to recover an indebtedness of $661.50, for goods sold and delivered The affidavit for the attachment, after setting forth the nature and amount of the indebtedness sued for, stated that the defendant had departed from this State with the intention of having his effects removed from this State, or had within two years, then last.past, fraudulently conveyed or assigned his effects or apart thereof, so as to hinder and celty his creditors, or had within the two years then last past fraudulently concealed or disposed of his property so as to hinder and de lay his creditors, or was about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder .or deh'^y his creditors. The affidavit contained no statement as to the place of residence of the defendant, or that such residence was not known, or that the plaintiff, upon diligent inquiry, was not able to ascertain the same. The return of the sheriff showed a levy of the writ upon divers goods and chattels of the defendant, and also certified that the defendant was not found in the county. A notice to the defendant having been published for the period prescribed by the statute, and the defendant not appearing, judgment was rendered against him hy default for §661.50 and costs.

It is manifest that this judgment can not be sustained. The affidavit states several of the statutory grounds for an attachment in the alternative, but neither of them positively. An affidavit for an attachment must allege some one or more of the grounds for such writ prescribed by the statute positively and unequivocally. Dyer v. Flint, 21 Ill. 80; Archer v. Claflin, 31 Id. 306. An allegation in the alternative is not sufficient. Hagood v. Hunter, 1 McCord, 511; Devall v. Taylor, Cheves (S. C.), 5; Miller v. Munson, 34 Wis. 579; Drake on Attachment, § 104, et seq. A creditor may allege as many grounds as he chooses, but they should be alleged cumulatively, and if one be proved it will sustain the writ: Rosenheim v. Fifield, 12 Bradwell, 302.

The affidavit is also defective in failing to state the place of residence of the defendant, or that, upon diligent inquiry, the affiant had not been able to ascertain the same. This is one of the material requirements of the statute now in force, and without it a writ of attachment can not properly issue. R. S., Chap. 11, § 2.

It is claimed, however, that the defendant waived the defects in the affidavit by an appearance. It is sufficient to say that the record is absolutely barren of evidence tending to show that any such appearance was entered. The claim is based upon certain affidavits, filed on behalf of the plaintiff below, in support o.f a motion for a rule on the sheriff to amend his return. These affidavits were not preserved by bill of exceptions, and are no part of the record, and can not be considered here for any purpose, although the plaintiff’s counsel has seen fit to have them copied into an amended transcript and filed in this court. Only matters properly pertaining to the record should be brought to this court, and the practice of incumbering the transcript with affidavits and other papers, not made matters of record, is an abuse which should be discountenanced and condemned.

There being nó sufficient affidavit to warrant the issuing of a writ of attachment, the judgment thereon was erroneous. The judgment will therefore be reversed and the cause remanded.

Judgment reversed.


text:
    Robert Eaton v. Patrick Henagan.
    Limitation—Justice’s judgments.—Suit can not be maintained upon a judgment obtained before a justice of the peace more than ten years previously; as to whether more than five years, quaere.

    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed November 19, 1885.
    Mr. Lyman M. Paine, for appellant;
    cited Shirtliff v. People, 2 Scam. 7; Bemis v. Stanley, 93 Ill. 230.
    Messrs. Dent, Black & Chatty Bros., for appellee.
   Bailey, P. J.

This was a suit commenced by Patrick Henagan against Robert Eaton and another, on the 24th day of September, 1883, before a justice of the peace, and afterward taken by appeal to the circuit court, where a trial was had before the court without a jury, resulting in a judgment in favor of the plaintiff. The only evidence offered at the trial was a transcript of a judgment recovered by the plaintiff against the defendants before a justice of the peace on the 28th day of August, 1873, and the only question we need consider is, whether the plaintiff’s right to recover upon said judgment was barred by the Statute of Limitations.

It is very clear that judgments recovered before justices of the peace do not come within the provisions of Sec. 25, Chap. 83, of the Revised Statutes. That section simply provides that the time within which actions may be brought upon “judgments of any court of record in this State” shall be limited to twenty years. Without attempting to formulate a definition by which courts of record, may be distinguished from courts not of record, it is sufficient to say that justices of the peace have been uniformly regarded and treated in this State as inferior courts not of record. As early as the case of Shirtliff v. The People, 2 Scam. 7, it was held that a statute conferring certain jurisdiction upon justices’ courts did not make them courts of record, and the uniform course of legislation, as well as of judicial decision, has been to the same effect. Thus, one code of practice and pleading is provided for courts of record, and a wholly different one fur justices of the peace. The same distinction is observed in the statutes in relation to attachment, to garnishment, to costs, to the lien of judgments? to forcible entry and detainer, to distress for rent, in the criminal code, and in various other statutes which need not be .enumerated. It can not be doubted that the legislature used the phrase “court of record” in the statute in relation to limitations, in the same sense in which it is uniformly employed elsewhere in the statutes, and in that sense courts of justices of the peace are manifestly excluded.

Justices’ judgments, then, must come within the provisions of either section 15 or section 16 of the limitation law. There is no other section of the statute that can have any ap„ plication. Section 16 provides that suits upon written con. tracts, “or other evidences of indebtedness in writing,” shall not be brought after the expiration of ten years next after the cause of action accrued, and section 15 provides that all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. If a justice’s judgment is to be regarded as an “evidence of indebtedness in writing,” the period of limitation is ten years; if not, it is only five years. But in the present case the suit was not brought until more than ten years after the rendition of the judgment sued on. It thus becomes immaterial for us to determine which of these sections applies, as the longer period of limitation had expired before the commencement of the suit, and the action would be barred under either. The court below should have so held, and rendered judgment for the defendant.

The judgment will accordingly be reversed and the cause remanded.

Judgment reversed.


text:
    Ferdinand Riebling v. Harlan P. Tracy.
    1. Trover—Bill of sale.—Where a corporation gave its acceptance of draft and a bill of sale of 80,000 pounds of wrapping paper to secure the said acceptance, the bill of sale reciting that the company held the wrapping paper in its basement in trust as security for the payment of the said acceptance, and the company afterward made an assignment under the statute on suit in trover by the holder of the acceptance against the assignee. Held, that trover could be maintained for the 80,000 pounds, although that quantity had not been separated from the bulk.
    2. Evidence—Parol.—In order to apply a written instrument to its subject it is competent to introduce parol evidence not inconsistent with the writing for that purpose, and further parol evidence may be introduced to rebut any difficulty or ambiguity introduced by such extrinsic evidence.
    Appeal from the Superior Court of C^ok county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed November 17, 1885.
    Messrs. Dent, Black & CrattyBbos., for appellant;
    that the warehouse receipt executed by the company to appellant was in proper form to vest the title to the 80,000 pounds of paper in appellant as against said company and its assignee, and a recovery in trover for the conversion of the paper should have been adjudged, cited German National Bank v. Meadowcroft, 4 Bradwell, 630; German National Bank v. Meadowcroft, 95 Ill. 124; Jackson v. Anderson, 4 Taunt. 24; Whitehouse v. Frost, 12 East, 614; Woodell v. Coventry, 2 Hurls. & Colt. 164; Gillette v. Hill, 2 Crompt. & Mees. 530; Hurff v. Hires, 40 N. J. Law, 581; Chapman v. Sheppard, 39 Conn. 413; Waldron v. Chase, 37 Me. 414; 1 Chitty on Pleadings, title Trover, page 146.
    Messrs. Flower, Remy & Gregory and Mr. H. K. Teneey, for appellee;
    that on the sale of personal property where the subject of the sale is part of a mass of the same description the title does not vest in the vendee until the part sold is separated from the common mass, cited Hutchinson v. Hunter, 7 Penn. St. 140; Golden v. Ogden, 15 Id. 528; Haldeman v. Duncan, 51 Id. 66; McLaughlin v. Piatti, 27 Cal. 451; Horr v. Barker, 8 Id. 603; Courtright v. Leonard, 11 Iowa, 32; Cook v. Fagan, 7 Id. 142; Reeder v. Machem, 57 Md. 56; Murphy v. The State, 1 Ind. 366; Scott v. King, 12 Id. 203; Lacy v. Weaver, 49 Id. 373; Lester v. East, Ibid. 588; Ferguson v. North. Bank of Ky., 14 Bush, 555; Jennings v. Flannagan, 5 Dana, 217; Moss v. Meshew, 8 Bush, 187; May v. Hoaglan, 9 Id. 171; Newcomb v. Cabell, 10 Id. 460; Davis v. Hill, 3 N. H. 382; Messer v. Woodman, 22 Id. 172; Warren v. Buckminster, 24 Id. 141; Fuller v. Bean, 34 Id. 290; Gilman v. Hill, 36 Id. 311-20; Ackington v. Richey, 41 Id. 275; Bailey v. Smith, 43 Id. 141; Merrill v. Hunnewell, 13 Pick. 213; Young v. Austin, 6 Id. 279; Ropes v. Lane, 9 Allen, 502; Scudder v. Worcester, 11 Cush. 573; Keeler v. Goodwin, 111 Mass. 490; Galloway v. Week, 54 Wis. 604.
   McAllister, J.

This was an action of trover by appellant, Riebling, against appellee, Tracy, to recover damages for the wrongful conversion by the latter of 80,000 lbs. of wrapping paper. The case was tried upon the declaration and plea of not guilty, before the court, without a jury, resulting in a finding and judgment for the defendant, and the plaintiff brings the record to this court by appeal.

The undisputed facts in evidence were, that there was a corporation doing business in Chicago, known as the Consolidated Paper Company; that the plaintiff, Riebling, was a manufacturer of wrapping paper at Joliet, Ill., and had sold divers large quantities of his paper of ordinary weights and sizes to said company; that February 1, 1884, said company was indebted to Riebling for paper he had sold and delivered to it, in the sum of $1,187.60, evidenced by acceptances of the company which had matured, and which the company, being embarrassed, was unable to pay; that about February 1, 1884, an oral agreement was entered into between the company, acting through its manager and [authorized agent, and Riebling, to the effect that the latter should loan to the former the amount due on the acceptances, in money; should surrender to the company said matured acceptances, and take another for same amount payable in sixty days; and that, in order to secure Riebling, for such advance of money, he should have security upon 80,000 lbs. of wrapping paper of his own make, at one dollar and fifty cents per hundred, the paper then being in the possession of said company; that when this agreement came to be earned into execution, a new draft for the amount, payable in sixty days, was drawn by Riebling and accepted by the company; that the latter prepared a paper in the words and figures following:

“ Chicago, Feb. 1, 1884.

“ F. Riebling, Joliet, Ill.

“ Bought of the Consolidated Paper Co.”, 80,000 lbs. rag wrapping 160, 1200 ordinary weights and sizes.

“ We hold above in trust for Mr. Riebling, in our basement, 53 and 55 Michigan avenue, as security for the payment of our renewal acceptance for $1,187.60, dated January 29, 1884.

“ When said acceptance has been paid, or otherwise satisfactorily cared for by us, this bill of sale to be null and void ; but until then, it shall remain in force for the protection of Mr. Riebling’s interests.

“The Consolidated Paper Co.,

“By R. P. Dart, Mgr.”

That Riebling surrendered the former acceptances, took the new one, paid over the money and took away said paper; .that the company afterward, March 7, 1884, made an assignment, under the statute, to the defendant Tracy ; that when said acceptance matured, there was wrapping paper in the defendant’s hands, as such assignee, of Riebling’s manufacture, more than the requisite quantity mentioned in said agreement, and there were also divers large quantities of other and different' manufacturers’ products; that Eiebling caused the defendant, as such assignee, to be informed of his rights in said paper, and demanded the 80,000 pounds of him ; that the defendant refused to comply, asserted his right and declared his intention to sell all of the paper so in his possession.

Upon the foregoing facts the court below found for the defendant, and the question is, were they sufficient to establish a cause of action in trover?

There is no evidence tending to show that the defendant, Tracy, had any other property in the goods than that acquired by virtue of the assignment by the paper company. By that he was simply placed in the shoes of his assignee, subject to the performance of certain trusts, and had no right as such assignee superior to those of his assignor, but was bound to recognize any liens or rights upon or in the property in question, in favor of third persons, which were good as against the paper company. In this aspect the case is to be considered the same as if such paper company had been the defendant instead of its assignee. This view is not controverted by appellee’s counsel. But they make the point that, inasmuch as the 80,000 pounds of paper mentioned in the receipt had not, at any time before the assignment to defendant, been separated from other masses of paper in the warehouse of the paper company, no title to any specific quantity of paper ever passed to Eiebling, so as to warrant a recovery in trover. The evidence shows that the paper which Eiebling had sold and delivered to the company, and of his own make, was kept by the company in its warehouse distinct, and therefore distinguishable, from the paper obtained from other manufacturers, and that his paper was of ordinary weights and sizes. From the receipt which the company gave Eiebling, it is entirely clear that the intention of the parties at the time was that the title to 80,000 pounds of paper then in the possession of the company should pass from the latter to him, without any act on the part of the company or him by way of weighing or separation. But neither a court or jury could ascertain from the face of the receipt what wrapping paper it was intended should comprise the 80,000 pounds. The only designation was that it was ordinary weight and sizes. In order to apply the instrument to its subject, it was competent to introduce parol evidence not. inconsistent with tlie7writing for that purpose.

. In Taylor on the Law of Evidence, Vol. 2, § 1082, it is said: “ It may be laid down as a broad and distinct rule of law, that extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, or, in other words, to identify the persons cmd things to which the instrument refers, must of necessity be received.” Atkinson v. Cummins, 9 How. (U. S.) 479. In Noonan v. Lee, 2 Black, 504, the court said: “ Parol evidence not inconsistent with a written instrument, is admissible to apply such instrument to its subject.” 1 Greenlf. on Ev., § 288; McDonald v. Longbottom, 1 Ellis & Ellis, 977.

Parol evidence was admitted without objection below, or here, which showed that it was paper of Eiebling’s own make that was the subject-matter of the receipt or instrument in writing. When the nature and situation of the different masses of paper in the warehouse of the company were shown by parol evidence, a difficulty arose in ajoplying the words of the receipt to the subject-matter, and it was competent to introduce further parol evidence to remove that difficulty and explain what was the subject-matter really intended. Miller v. Travers, 8 Bingham, 244. In that case, Tindal, Ch. J., stated the rule thus : In all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject, calculated to explain what was the estate or subject-matter really intended to be granted or devised.”

The parol evidence in the case at bar, clearly shows that 80,000 lbs. of the paper of Eiebling’s own make was the paper which it was intended the receipt should cover. That being the case, we can perceive no difficulty in maintaining trover, although it be conceded that no particular 80,000 lbs. was separated from a lot or mass comprising a larger quantity. Riebling’s paper was uniform as to quality and value, and when the defendant was notified of the facts upon which plaintiff’s right was based, and a demand was made upon him to deliver it to plaintiff, the defendant, having the paper in his possession and control, not only refused to comply, but asserted both his right and intention to sell it all. That constituted a wrongful conversion of plaintiff’s 80,000 lbs., just as much as if he had actually sold the whole mass or lot of paper of plaintiff’s make. Under the facts in evidence, we are of opinion that trover can be maintained for the 80,000 lbs., although that quantity had not been separated from the bulk. German Nat. Bank of Chicago v. Meadowcroft, 4 Bradwell, 630; S. C. affirmed in 95 Ill. 124.

The judgment of the court below will be reversed, and the cause remanded.

Judgment reversed.