author: Mr. Justice Gridley

text:
    National City Bank of Chicago, Appellee, v. National Bank of the Republic of Chicago, Appellant.
    Gen. No. 25,372.
    1. Bills and notes, § 219

      —what is effect of. fogged indorsement. Nothing is better settled than that a forged instrument does not pass title to commercial paper negotiable only by indorsement and does not justify the payment of such paper.
    2. Bills and notes, § 219*—when alteration constitutes forgery. The eradication of the name of the payee in a draft which had been stolen and the insertion of the name of the thief in such draft, and the indorsement of such person’s name on the back and his obtaining jewelry and money on the draft, constituted a forgery which in practical effect amounted to a forged indorsement of the name of the real payee.
    3. Bills and notes, § 306*—when drawee may recover money paid on forged draft. A bank which was the drawee in a draft which was stolen and the name of the payee erased and a new name inserted, was entitled to recover the amount paid by it to another bank which had received the draft from one of its customers.
    4. Bills and notes, § 306*—what is effect of statute as to right of drawee to recover money paid on forged draft. Section 61 of the Negotiable Instruments Act (Hurd’s Rev. St. ch. 98, J. & A. j[ 7700), providing that the drawer admits the existence of the payee and his then capacity to indorse, etc., and section 62 (J. & A. If 7701), providing that the acceptor admits the _existence of the drawer, the genuineness of his signature,"'his capacity and authority to draw the instrument and the ^existence of the, payee and his .then capacity to indorse, considered in an action by the drawee bank to recover the "amount of a stolen draft which it paid to another bank which had received it from a customer, and held that under said section 61 the drawer could be held to admit the existence and such capacity of the original payee whose name had been written by the drawer, and not the existence and such capacity of another person whose name had been fraudulently substituted as payee by some one after the instrument left the hands of the drawer; and that under section 62 the acceptor likewise should be held only to admit the existence and capacity of the original and true payee.
    Appeal from the Circuit Court of Cook county; the Hon. A. D. Morgan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed October 13, 1920.
    Moses, Rosenthal & Kennedy, for appellant; Hamilton Moses and Henry Jackson Darby, of counsel.
    Nelson, Little, Gordon & Wire, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of. the court.

^his is an appeal from a judgment for $768.26, entered June 5, 1919, by the circuit court of Cook county against the National Bank of the Republic of Chicago, defendant, in favor of the National City Bank of Chicago. Plaintiff’s declaration consists of the common counts. In its affidavit of claim it is stated that “the nature of plaintiff’s demand is for money had and received by the defendant on or about January 12, 1915, when plaintiff paid defendant $629.80, upon * * * a check or draft, which before said date had been altered by erasing the name of the payee and inserting therein the name of Andrew H. Manning; and that there is due to plaintiff from defendant * * * the sum of $629.80 with interest thereon from January 12, 1915, at 5 per cent per annum.” The defendant filed a plea of the general issue, supported by an affidavit of merits. The case was tried before the court without a jury upon a stipulation of facts, supplemented by the introduction in evidence by defendant of a certain memorandum in writing, made by plaintiff on January 9, 1915, and ¿sailed a “certification debit.” The court found the issues in favor of plaintiff and assessed plaintiff’s damages, including interest, at the sum of $768.26.

It appears from the stipulated facts, in substance, that in January, 1915, plaintiff and defendant were corporations, then and since engaged in the banking business at Chicago, Illinois; that the Broadway Savings Trust Company (hereinafter referred to as the St. Louis hank) was engaged in the banking business at St. Louis, -Missouri; that the Jackes-Evans Manufacturing Company (hereinafter referred to as the Jackes Co.) was engaged in the manufacturing business at St. Louis; that the American Sheet & Tin Plate Company (hereinafter referred to as the Tin Plate Co.) was engaged in the manufacturing business at Pittsburgh, Pennsylvania; that Philip Barnett, doing business as Barnett Bros., was engaged in the jewelry business at Chicago; \that on January 4, 1915, the Jackes Co., being indebted to the Tin Plate Co. for merchandise in the sum of $629.80, purchased a draft for said amount of the St. Louis bank for the purpose of paying said indebtedness; that said draft, No. 5584, was on that day drawn by said St. Louis bank on the plaintiff bank, as drawee, in the sum of $629.80 and was payable to the order of “The American Sheet & Tin Plate Company”; that later on the same day the Jackes Co. inclosed said draft, together with a letter, in an envelope addressed to the Tin Plate Co. at Pittsburgh and mailed the same; that said draft and letter “were stolen from the mails in St. Louis by a person who has since been identified as Andrew H. Manning”; that at some time between January 4 and January 9, Manning, by use of chemicals, eradicated the name of the Tin Plate Co., as payee of said draft, and fraudulently substituted therefor the name of “Andrew H. Manning”; that on January 9, 1915, Manning, theretofore unknown to Barnett, appeared at the latter’s jewelry store in Chicago, introduced himself as Andrew H. Manning, and selected and agreed to purchase certain jewelry for the agreed price of $600; that in payment therefor he tendered to Barnett said draft, altered as aforesaid; that Barnett inquired if he might take said draft to the plaintiff bank for the purpose of having the same certified by it, as drawee, and Manning assented; that thereupon Manning, in Barnett’s presence, indorsed the draft in blank by writing at the top on the reverse side the name “Andrew H. Manning,” and Barnett took the draft and personally presented it for certification to the plaintiff bank; that thereupon said bank, by its paying teller, certified the draft by writing across its face the words “Accepted, payable through Chicago Clearing House, 55055, Jan. 9, ’15,” and the draft so certified was returned to Barnett; that at the time of said certification the plaintiff bank made certain memoranda in writing, on a so-called “certification debit,” to the effect that said draft No. 5584, of the St. Louis bank on it, to the order of Manning, had been certified and the amount thereof charged to the account of the St. Louis bank; that at this time Manning’s said alteration of the draft was unknown to and was not in the exercise of ordinary care by inspection discoverable by either Barnett or the plaintiff bank; that Barnett returned to his place of business and delivered the jewelry and $29.80 in currency to Manning and retained said draft, so indorsed and certified; that thereafter Barnett, below Manning’s indorsement, indorsed the draft “Barnett Bros., Pay to the order of National Bank of the Republic, P. Barnett,” and deposited it on Monday, January 11, in the defendant bank, of which he was a customer, to the credit of his account; that the defendant bank indorsed the draft and presented it for payment to the plaintiff bank on January 12, through the medium of the Chicago Clearing House, and the plaintiff bank on that day paid to the defendant bank the amount of the draft; that up to this time Manning’s said alteration of the draft was unknown to plaintiff bank, defendant bank or Barnett, and none of them was negligent in failing to know that fa&t; that thereafter on February 4, 1915, according to usual practice, the plaintiff bank returned the draft as a canceled voucher, together with other canceled vouchers, to the St. Louis bank; that on February 5 the St. Louis bank wrote the plaintiff bank, returning said draft, saying that it originally had been made payable to the Tin Plate Co. and that the name of the payee had been altered, and asking that its account with the plaintiff bank be credited to the amount of the draft; that on February 6, the plaintiff bank, by letter, notified the defendant bank of said alteration and asked to be reimbursed; that on February 8 the defendant bank by letter notified Barnett that the plaintiff bank had requested reimbursement and that-defendant bank looked to Barnett for protection; that onT^ruury-ll-th-e-'defendant bank wrote the plaintiff bank to the effect that its indorser, Barnett, upon advice of counsel, had refused to pay back the amount received on the draft, and that defendant bank also refused; and .that on February 27 the plaintiff bank paid to the St. Louis bank the sum of $629.80, in satisfaction of the latter’s claim that the plaintiff bank “had not paid draft, No. 5584, to the order of the American Sheet & Tin Plate Company, the payee originally designated in said draft,” and subsequently the present action was commenced.

In First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296, 311, it is said:

“When appellant indorsed the nine checks, and collected from appellee the sums of money called for by them, it warranted the genuineness of all the preceding signatures indorsed on the respective checks, including the indorsements on the checks of the names of the respective payees named in such checks. (2 Parsons on Notes and Bills 588; Williams v. Tishomingo Sav. Inst., 57 Miss. 633; Story on Bills of Exchange, sec. 225.) f And where a drawee on a bank pays a bill of exchange or a bank check to an indorser who derives title J through a prior forged indorsement, he may recover A back the money so paid, on discovery of the forgery, j provided he makes demand for repayment within a reasonable time after the discovery of such forgery. (2 Daniel on Neg. Inst. secs. 1364, 1372; Canal Bank v. Bank of Albany, 1 Hill [N. Y.] 287; Williams v. Tishomingo Sav. Inst., supra.) The evidence shows that appellee accepted two of the checks, ‘payable through Chicago Clearing House, ’ prior to the time that they were transferred to Chapin & Gore. This makes no difference. An acceptor is bound to look only at the face of the bill or check, and an acceptance never proves an indorsement; and even if the supposed indorsements of the payees of said two checks were on them at the times when they were respectively accepted, yet such acceptances did not admit the handwriting of the indorsers. (Smith v. Chester, 1 Term Rep. 654; Robinson v. Yarrow, 7 Taunton 455; 2 Eng. Com. Law 445.) In this case, the acceptance or certification of the two checks simply warranted the genuinenejsg of the.jfignatures fifTEe 'drawer Ymfi Gia.t it had funds^suffiment to meetTEémpañd' engaged that those funds should not be withdrawn from the bank by the drawer, and that the bank would pay through the agency of the Chicago Clearing House the amount, if any, actually due on the check, to the person legally entitled to receive it. The acceptance or certification did not warrant the genuineness of the bodies of the checks, either as to the payees or the amounts, or warrant the genuineness of the indorsements on the checks. (Marine Nat. Bank v. National City Bank, 59 N. Y. 67; Security Bank v. National Bank of Republic, 67 N. Y. 458.)”

In Metropolitan Nat. Bank v. Merchants’ Nat. Bank, 182 Ill. 367, 372, it is said:

“Where a check or draft drawn upon a bank has been fraudulently raised or altered after it was drawn, the rule is well settled that money which has been paid by a bank upon such a fraudulently raised or altered check may be recovered back from the party to whom it was paid, in an action for money had and received, on the ground that the payment was without consideration and made by mistake’. The fact that the bank on which it was drawn has certified the check after the change has been made is not conclusive against such bank, nor does it preclude it from showing the fact of such alteration, nor prevent a recovery from the party who received the check on the faith and credit of the certification alone.”

In Beattie v. National Bank of Illinois, 174 Ill. 571, 575, it is said:

“Nothing is better settled than that a forged indorsement does not pass title to commercial paper negotiable only by indorsement, and does not justify the payment of such paper.”

In the present case, when Manning, after obtainin<>; possession of the instrument by theft, eradicated the name of the Tin Plate Co., the original payee thereon, and fraudulently substituted his own name as payee, and, before the certification of the draft by the plaintiff bank, indorsed his own name on the back of the draft and subsequently obtained jewelry and money on it as aforesaid, he committed a forgery, and which, we think, amounted in practical effect to a forged (indorsement of the name of the Tin Plate Co., the real payee.

Some of the provisions of the present Negotiable Instruments Law of this State in force July 1, 1907 (Hurd’s Rev. St. ch. 98, J. & A. fifí 7700, 7701, 7771), are as follows:

Engagements of drawer.] Sec. 61. “The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse, and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor; * *

Engagements of acceptor.] Sec. 62. “The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance, and admits:

“1. The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and
“2. The existence of the payee and his then capacity to indorse.”

Acceptance—Must be in writing and unconditional.] Sec. 131. “The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It mnst not express that the drawee will perform his promise by any other means than the payment of money.”

The decisions of our Supreme Court above mentioned were all made prior to the passage of said law. Counsel for defendant bank admit that said decisions support the conclusion reached by the trial court in the present case,, but counsel contend that, because of the provisions of section 62 of said law, these decisions are no longer controlling, and that because of said provisions the judgment should be reversed.

Counsel’s argument, as we understand it, is in substance as follows: That when Barnett presented the draft to the plaintiff bank for certification on January 9, 1915, the name of the payee thereon was “Andrew H. Manning” and said Manning’s name was on the back of the draft as an indorser; that the plaintiff bank certified the draft by writing across its face the words, “Accepted, payable through Chicago Clearing House ”; that the plaintiff bank by said act engaged that it would pay the draft “according to the tenor of its acceptance” (viz., unconditionally, through the Chicago Clearing House), and admitted, according to the provisions of said section 62, the existence of Manning, the payee, and his then capacity to indorse; that subsequently the plaintiff bank paid the draft upon presentation through said clearing house; and that, therefore, the plaintiff bank, because of said provisions contained in said section 62, should stand the loss rather than Barnett or the defendant bank, notwithstanding the fact that when the plaintiff bank accepted the draft, and when it paid it, it did not know, and in the exercise of ordinary care by inspection could not know, that the draft had been altered by forgery and that Manning was not the payee thereof as originally drawn.

We do not think that the provisions of said section 62, when read in connection with other sections of the same act, have changed the law of this State as enunciated by the decisions of our Supreme Court above mentioned. By section 61 it is provided that the drawer “admits the existence of the payee and his then capacity to indorse.” It seems clear to us that, under this provision, the drawer can only be held to admit the existence and such capacity of the original payee, whose name has been written on the instrument by the drawer, and not the existence and such capacity of another person whose name has been fraudulently substituted as payee by some one after the instrument has left the hands of the drawer. And we think that under the similar provision of section 62 the acceptor likewise should only be held to admit the existence and . such capacity of the original and true payee. By the provisions of section 131 the drawee’s acceptance of the bill is the signification of Ms assent “to the order of the drawer.” In the present case the order of the drawer was that the plaintiff bank should pay the amount of the draft “to the order of the American Sheet & Tin Plate Company,” and not to the order of ‘ ‘ Andrew H. Manning. ’ ’

For the reasons indicated the judgment of the circuit court is affirmed.

Affirmed.

Barnes, P. J. and Matohett, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Edward R. Bacon, Appellee, v. Bank of Montreal, Appellant.
    Gen. No. 25,389.
    1. Removal of causes, § 11

      —when removal is improperly denied. Removal of a case to the federal court was improperly denied on the ground that the petition came too late, where the declaration had been filed 10 days before the first day of the March term of the circuit court, and the summons was returnable to the first day of that term, which was on the 20th, and under the rules the defendant was required to plead before the opening of court on the morning of the 22nd, and on the 21st an order was entered extending the time to plead to the 31st, followed by other orders extending the time to plead to April 25, and on that day the motion to file the petition which had been filed on March 28 was denied.
    2. Removal of causes, § 11*—when petition for removal is in apt time. Under the Federal Judicial Code, ch. 3, sec. 29, providing for the filing of a petition for the removal of a cause from the State court at or before the time the defendant is required by the State laws or the rule of the State court to plead, and section 44 of the Illinois Practice Act (J. & A. U 8581), providing that on the appearance of the defendant, the court may allow such time to plead as may be deemed reasonable or necessary, and circuit court rule 1, requiring defendant to plead before the opening of court on the morning of the third day of the term for which the process was served, and that defendant may be defaulted unless the party has obtained an extension, the defendant’s plea was not due until the expiration of the time fixed by the order extending the time to plead; and the petition for removal in question, which was filed ■ after the third day from the first day of the term, but before the expiration of the time granted by the extension order, was in apt time.
    3. Removal of causes, § 10*—where petition may he amended as to formal defects. Amendment to cure formal defects in a petition for removal to the federal court, where upon the face, of the petition and of the whole record sufficient grounds for removal are shown, may be made either in the State or the federal court.
    4. Removal of causes, § 7*—how right to remove is determined. In reaching a decision on the question whether removal of a case to the federal court was proper or not, the Appellate Court must consider not only the early federal statute, hut the laws of Illinois and the rules of the circuit court.
    5. Banks and banking, § 146

      —what must 6e proved to recover on forged cheeks. In an action by a depositor against a bank to recover the amount of twenty-two checks claimed to have been forged by plaintiff’s manager, and paid by the bank, where the signature on two of the checks was admitted to have been forged, it was error to enter judgment for the total of all the checks, where the other twenty were not produced, and could therefore not be compared with other genuine signatures of such manager.
    6. Banks and banking, § 146*—when forgery is question for jury. In an action by a depositor against a bank to recover the amount of twenty-two checks, claimed to have been forged by plaintiff’s manager and paid by the bank, where the signature to two of the checks was admitted, the court erred in directing a verdict for the plaintiff for the total of all the checks, as under the facts and circumstances the issue whether the twenty checks bore the genuine or forged signature of plaintiff should have been submitted to the jury.
    Appeal from .the Circuit Court ,of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed October 13, 1920.
    Fisher, Boyden, Kales & Bell, for appellant; Albert M. Kales, J. F. Dammann, Jr. and J. Ralph Tascher, of counsel.
    Moses, Rosenthal & Kennedy, for appellee; Walter Bachraoh and Henry Jackson Darby, of counsel.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment for $30,054.10 rendered May 6, 1919, by the circuit court of Cook county against the defendant, Bank of Montreal, on the second trial of the cause. At the conclusion of the hearing, the court instructed the jury to find the issues for the plaintiff, Edward R. Bacon, and to assess plaintiff’s damages at said amount, and they accordingly returned such a verdict. On the first trial in July, 1918, a verdict was returned for the plaintiff in the sum of $640, but a new trial was granted. On said second trial the entire evidence heard on the first trial, no more and no less, was introduced under a stipulation, hereinafter more particularly mentioned.'

By the action, which is in assumpsit, plaintiff sought to recover for sums of money paid out by the defendant bank and charged to plaintiff’s account with the bank, in which he was a depositor, on twenty-two checks: It was claimed that plaintiff’s signature thereon was forged. The defendant admitted that plaintiff’s signature on the last two checks for $320 each, dated respectively April 6, 1912 and April 13, 1912, was forged by Otto Reichelt; plaintiff’s confidential clerk and office manager, by means of a rubber or steel facsimile of said signature. One of the issues of fact in the case was whether the other and remaining twenty checks bore plaintiff’s genuine or forged signature. The amount of the verdict of the jury in the first trial is the aggregate sum of said last two checks. Plaintiff was engaged in the cash grain business and was a member of the Chicago Board of Trade, and his account with the defendant' bank was an active one extending over a period of several years. He was a citizen of Illinois. The defendant was a Canadian corporation, with a branch bank' in Chicago. Before the defendant pleaded to the action it moved for the removal of the cause to the District Court of the United States for the Northern District of Illinois, Eastern Division, but the application was refused.

The stipulation under which the second trial was had, after providing for the making up of a transcript of the evidence taken at the first trial, together with the objections there made and the rulings of the court thereon, and after providing that this transcript should be received as the sole evidence upon the new trial, provides inter alia:

“In case the court shall upon the new trial * * * before a jury direct a verdict for the plaintiff as to all the items of the plaintiff’s claim and a judgment be entered thereon, then if said judgment be taken by appeal by the defendant to the Appellate Court for the First District and
“ (A) said judgment be there reversed and the cause remanded for a new trial because any one or more of the following'issues of fact should have been left by the court to the jury, namely:
“(1) Whether the checks in question (except the last two) bore the genuine or forged signature of the plaintiff,
“(2) Whether the plaintiff, as claimed by the defendant, left checks signed in blank, and if so whether such act constituted want of due care, or
“(3) Whether the plaintiff failed to use due care, as is claimed by the defendant, in supervising the duties of his agent Reichelt in receiving and checking the checks and statements returned by the defendant and whether such negligence (if any) was the proximate cause of the loss resulting from the honoring of checks subsequent to May 30,1910, or
“(B) if said judgment be reversed and the cause remanded with directions to remove it to the United States Court for trial pursuant to the motion made therefor on behalf of the defendant, then it is agreed and stipulated by and between the parties hereto that the Appellate Court shall, * * * thereupon enter a judgment in that court for the defendant on all the items of the plaintiff’s claim except the last two for $320 each, with interest, and shall thereupon enter judgment in the Appellate Court for the plaintiff for $640 and interest; or if the Appellate Court should hold'that it had no jurisdiction or power, or if it for any other reason refused to enter such judgment in that court pursuant to this stipulation, then the trial court upon the remanding of this cause to the Circuit Court shall enter a judgment in that court for the defendant on all the items of the plaintiff’s claim except the last two for $320 each, with interest and costs, and shall thereupon enter judgment in that court for the plaintiff for $640 with interest and costs, and the plaintiff in the event set out hereby in consideration of the entering’ into this stipulation releases and agrees to release the defendant -from all liability arising from the cause or causes of action herein in question except the liability for the sum of $640 with interests and costs.”

The action was commenced on February 16, 1916, on which day a summons was issued^ by the clerk returnable on the third Monday of March, 1916, being March 20. The summons was served on the defendant on February 18, 1916. Plaintiff’s declaration, consisting of the common counts, was filed on March 10,1916, ten days before the return day. On Tuesday, March 21, defendant filed its appearance by an attorney, and on the same day, on motion of the attorney for defendant, the court ordered that the time within which defendant should plead or demur be extended to and including March 31. On March 28, before the expiration of said time to plead or demur as so extended, and in pursuance to due notice served on plaintiff’s attorney on March 27, the defendant’s attorney appeared and by leave of court filed the petition and bond of the defendant for removal of the cause to said United States court, setting up the diverse citizenship of the parties, • and the court entered defendant’s motion for said removal and continued the same to March 31, on which last mentioned day both parties by their respective attorneys again appeared and, on motion of defendant’s attorney, the court further extended defendant’s time to plead or demur to April 17, and gave defendant leave to amend its said petition and bond for removal “by attaching thereto certificate of magistracy and certificate of the secretary of corporation, defendant. ’ ’ On April 17, on motion of defendant’s attorney, the court further extended defendant’s time to plead or demur to April 25. On April 22, after argument, the defendant’s motion to remove the cause was denied and defendant excepted and in due time filed its bill of exceptions. On April 25, after refusal of said motion, defendant filed pleas of the general issue and statute of limitations. On May 22, by leave of court, defendant filed two special pleas setting up an election by Bacon to ratify the acts of Beichelt in securing money from defendant bank on the checks in question and to hold Beichelt liable to Bacon in two suits prosecuted by Bacon against Beichelt in the circuit court of Cook county. These two special pleas were subsequently withdrawn by agreement and defendant was given leave to make any defenses indicated by said pleas under the plea of the general issue.

First. It is contended by counsel for defendant that the trial court erred in refusing to allow the removal of the cause to the United States court.

If the trial court so erred, the point, under the provisions of the stipulation above mentioned, is decisive of the case. And, as the point is duly saved upon the present record, it can be reviewed in this Appellate Court; and were it not for the stipulation could be reviewed in the Supreme Courts of this State and of the United States. (Stone v. South Carolina, 117 U. S. 430, 432; Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 102.) And defendant, by filing pleas to the merits and making a defense after the denial of its motion for removal, did not lose or impair its right to have the point reviewed in this Appellate Court. (Powers v. Chesapeake & O. Ry. Co., supra; Removal Cases, 100 U. S. 457, 475.)

The Federal Judicial Code, ch. 3, sec. 29, provides that the party-desiring to remove the suit from a State court to the District Court of the United States, may make and file a petition, duly verified, in such suit in such State court “at the time, or any time before the defendant is required by the laws of the Stite or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, * * Section 44 of the Illinois Practice Act (J. & A. If 8581) provides: “On the appearance of the defendant, or defendants, the court may allow such time to plead as may be deemed reasonable and necessary.” As disclosed from the special bill of exceptions in the present record, rule 1 of the circuit court of Cook county, as to time to plead, is as follows: “In all suits at law made returnable to any term of the court where process has been duly served and declaration filed ten days before the first day of the term, the defendant shall plead or demur before the opening of the court on the morning of the third day, and the plaintiff shall be entitled to judgment by default in all suits where the plea or demurrer is not so filed, unless the party has obtained an extension of the rule so as to plead or demur. * *

In commenting on said section 29 of the Federal Judicial Code, the Supreme Court of the United States (Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 303) has said: “The statute is imperative that the application to remove must be made when the plea is due,” unaffected by any inaction on the part of the plaintiff.

The question is: When, by the laws of the State of Illinois or by the provisions of rule 1 of the circuit court of Cook county was the defendant in the present case required to plead to plaintiff’s declaration? In other words, when was its plea due? The summons was made returnable to the March term, 1916, of the circuit court, the first day of which term was March 20. The defendant had been duly served, and plaintiff’s declaration had been filed, 10 days before March 20. Under said rule .1, the defendant should plead before the opening of court on the morning of Wednesday, March 22, unless it had obtained an extension of the rule to plead. Prior to March 22, to wit, on March 21, the defendant filed its appearance and on its motion obtained snch an extension, viz., to March 31. Such procedure was in accordance with said section 44 of the Illinois Practice Act as well as in accordance with said rule 1 of said circuit court. Prior to March 31, to wit, on March 28, defendant made and filed its petition and bond and moved the court for a removal of the cause to said United States court, and the court entered the motion and continued it for hearing to a future day. Was defendant required to plead to plaintiff’s declaration on March 22 or on March 31, the day to which the time was extended by order of the court?

Counsel for defendant argue that, by virtue of the provisions of said rule 1, the time for a defendant to plead does not arrive absolutely and finally on the third day of the term, but only arrives on that day if no motion is made and no order entered to extend the time to plead, and that, where before the third day of the term such defendant enters his appearance and makes a motion for an extension of the time to plead and an order is entered, the time to plead does not arrive until the time mentioned in said order. Counsel for plaintiff argue to the contrary, and urge that the phrase “or the rule of the State court,” contained in said section 29 of the Federal Judicial Code, manifestly refers to a standing or. fixed rule of court, applicable to all cases, and not to a special case where an order of extension of time to plead is obtained.

The statements of the textbook writers and the decisions of the United States district and circuit courts on the question are not in harmony. We are not aware of, and our attention has hot been called to, any case in the Supreme Court of this State or of the United States where the precise question has been decided. In 2 Foster’s Federal Practice (5th Ed.), sec. 543, page 1817, it is said:

“The preponderance of authority supports the proposition: that if the defendant’s time to plead or answer has been, before its expiration, extended by an order of the State court, or by a stipulation authorized by a State statute or court rule, his time to remove is likewise extended.”

In Black’s Dillon on Removal of Causes (Ed. 1898), sec. 156, it is said:

“In respect to the effect on the right of removal of an extension of the time allowed the defendant to plead or answer, the authorities are in much apparent conflict. It is possible, however, to extract some general rules which may be said to be fairly well established by a preponderance of authority. In the first place, an extension of the time to answer by mere consent of the parties out of court, that is, by a stipulation or agreement or understanding not having the sanction of an order of court, will not extend the time for filing a petition for removal of the case. * * * But on the other hand, if the laws of the State and the established practice of its courts require that the defendant shall plead or answer within a certain limited time, ‘unless such time shall be extended by order of court’ (or words to that effect), then it seems that an extension of time for answering, granted by an order of the court, will correspondingly lengthen the time within which a petition for removal may be filed. Yet there are some authorities which do not admit this; they hold that such an order of court is not a ‘rule’ of the State court, within the meaning of the removal act,”

In 23 Ruling Case Law, sec. 124, page 742, the author seemingly disagrees with Foster and Judge Dillon, when he says:

“And a majority of the courts also hold that the reference in the federal statute to the rule of the State court as to time to answer or plead relates, not to special orders granted upon application or stipulations of partiés in any given case, but rather to a general rule fixing the date at which all defendants are required to appear in order to avoid being held in default. A leading purpose of the Judiciary Act óf 1887-1888, and of Judicial Code, sec. 29, was to contract the jurisdiction of federal trial courts, both original and by removal, and to relieve those courts of part of their excessive burden.”

Among the many eases cited by counsel for plaintiff to support their contention that defendant’s application for a removal of the cause to the United States court came too late may be mentioned: Kaitel v. Wylie, 38 Fed. 865; Rock Island Nat. Bank v. J. S. Keator Lumber Co., 52 Fed. 897; Velie v. Manufacturers’ Acc. Indemnity Co., 40 Fed. 545; and Daugherty v. Western Union Tel. Co., 61 Fed. 138. All of these cases were decided by judges of the United States courts in the Seventh Judicial Circuit—the first two by Judge Blodgett of Illinois, the Velie case by Judge Jenkins of Wisconsin and the Daugherty case bv Judge Baker of Indiana. We think they are all to be distinguished from the present case. In the Wylie, Keator Lumber Co. and Daugherty cases the time to plead had gone by before either there was an order entered extending the time to plead or the petition for removal was filed. In the Velie case, before an answer was due, the defendant obtained a stipulation from the plaintiff extending’ the time to plead, but no order was entered upon it and under the practice of Wisconsin the stipulation did not operate as an order to extend the time to plead, and subsequently but before the expiration of the time to plead, as per the stipulation, the petition for removal was filed and it was held that it was" filed too late.

Among the many cases similar to the present case, cited by counsel for defendant to support their contention are: Rycroft v. Green (Cir. Ct., S. Dist. N. Y.), 49 Fed. 177; Lord v. Lehigh Val. R. Co. (Cir. Ct., E. Dist. N. Y.), 104 Fed. 929; Avent v. Deep River Lumber Co. (Cir. Ct., E. Dist. N. C.), 174 Fed. 298; and Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. (Cir. Ct., Dist. S. C.), 60 Fed. 929. In the Rycroft case, Circuit Judge Lacombe states it to be the law and practice of the Second U. S. Judicial Circuit “that an extension of time to answer by order of court, whether made on stipulation or not, extends the time for removal.” He adds: “This was settled practice here before the decisions in other circuits, * * * and, in view of what an extension of time to answer’ is under Code rules and practice of the courts of this State, seems conformable alike to the letter and spirit of the removal act.” In the Lord case, supra, the proceedings to remove the action from a court of the State of New York to the federal court were instituted after the granting of an order extending the time to answer, and, upon a motion made in the federal court to remand, it was urged that the petition for removal must be filed at or before the defendant is required to plead by the “rule” of the State court, and that an order extending the time to answer was not such a “rule,” but the motion to remand was denied, the court saying that such decision was in accord, not only with the settled practice of the U. S. courts of the Second Circuit, but also in accord with decisions made by U. S. courts sitting in the States of South Carolina, Tennessee and Nevada. In the Avent case, supra, it appears that under the Code of Civil Procedure of the State of North Carolina, a defendant is required to answer or demur to plaintiff’s complaint on or before the last day of the term to which the summons is resumed, “unless the time therefor be extended by the judge.”’ July 30, 1909, was the last day of the July term, 1909, of the superior court of Lee county, in said State, to which term of court the defendant had been summoned to appear. On said July 30, the court entered an order of record giving the defendant 40 days to file an answer. On August 10, within said 40 days’ extension, the defendant filed his petition and bond for removal of the cause to the United States District Court, on account of diverse citizenship of the parties, but the State court refused the petition. On September 6, the defendant procured an order" from said United States court directing the removal of the cause. On November 1, the plaintiff made a motion in said United States court to remand the cause to the State court on the ground that defendant’s original petition for removal had not been filed within the time prescribed by section 29 of the Federal Judicial Code. The motion to remand was denied, the court holding that the petition, being filed before the expiration of the time to answer as extended by the judge, was filed in time.

Counsel for defendant also cite several cases, decided by United States courts in different judicial circuits, where it appeared that, before the original time to plead had arrived, the defendant or his attorney secured a stipulation from plaintiff’s attorney for an extension of time in which to plead, and where it also appeared that under the statutes and the practice of the State courts, in which the actions were commenced, such a stipulation was as effective as an order of court to give the defendant such extension of time. In these cases it was held that the petition for removal, filed after the original time to plead had expired but before the time as extended had expired, was not filed too late. Some of the cases cited, and others, are: People’s Bank v. Aetna Ins. Co. (Cir. Ct., Dist. S. C.), 53 Fed. 161; Chiatovich v. Hanchett (Cir. Ct., Dist. Nev.), 78 Fed. 193; Tevis v. Palatine Ins. Co. (Cir. Ct., N. Dist. Cal.), 149 Fed. 560; Citizens’ Trust & Savings Bank v. Hobbs (Dist. Ct., So. Dist. Cal.), 253 Fed. 479; Hansford v. Stone-Ordean-Wells Co. (Dist. Ct., Mont.), 201 Fed. 185. In the case last cited it appears that on September 28, 1912, a summons from a State court of Montana was served on the defendant; that on October 17, one day before defendant was required to plead to the complaint, the parties by counsel stipulated and agreed in writing, that day filed in the State court, that' defendant could have’ to and including October 28 within which to appear and plead; that on October 26 the defendant filed a petition and bond for the removal of the cause, and on October 28 the State court ordered its removal; and that the plaintiff subsequently moved the United States court to ■remand the cause to the State- court on the ground that the removal was not timely, which motion was denied. The court says (p. 186):

‘ ‘ The laws of Montana and the rule of the said State court authorize stipulations for extension of time like unto that herein. No order of court is necessary to vitalize them. They operate proprio vigore. Their effect is that the defendant is not ‘required’ to answer or plead to the complaint until at the time when the stipulated time is on the point of expiration, and such is the effect of the stipulation in this case." No default could have been entered against the defendant until after that time. ‘Required’ in the removal act has reference to the time when the defendant to avoid any default must necessarily answer or plead to the complaint. Until that time comes and a,t it, whether fixed by statute, by rule, or by agreement between the parties, whether it is the time originally limited or that time extended, the right of removal continues, and can be exercised. * * * The federal law and the State law must be read together. The former prescribes a litintation; the latter the extent of it. From the language of the removal act, all this would seem a necessary conclusion. And it accomplishes the object of the limitation, viz., that all defendant’s pleas may necessarily be determined in the federal court. * * * It will be remembered the time for removal is not jurisdictional, but is a rule of limitation, and, like most limitations, may be subject to waiver and estoppel, express or implied. Martin v. Railway Co., 151 U. S. 673, 688, and cases cited.”

In Hughes on Federal Procedure (1904), see. 130, page 334, the author says:

“The question whether an extension of time within which the defendant shall answer extends the time for filing the petition is one in which the decisions are in great conflict. * * * The decisions in the different districts on this point are necessarily largely governed by the practice of the States in which the decisions are rendered. The case of Martm v. Railway Co., 151 U. S. 673, seems to establish that the petition must be filed before any judgment or default, even conditional in its nature, is entered against the defendant. Hence on principle, the proper doctrine appears to be that if, at the time the extension is granted, no judgment by default has been entered against the defendant, and if the effect of the extension is that no judgment by default can be entered until the period of extension expires, then the defendant can file his petition during such extension.”

Counsel for plaintiff make the point that defendant’s petition was properly denied for the reason that it was not complete when originally filed; that the trial court, on March 31, 1916, on defendant’s motion, gave it leave to amend the petition and bond by attaching thereto certain certificates to cure formal defects; and that because of said motion defendant invoked the jurisdiction of the State court and submitted itself thereto. We do not think that the point is well taken. Amendments to cure formal defects, where upon the face of the petition and of the whole record sufficient grounds for removal are shown, may be made either in the State court or in the federal court. (Chase v. Erhardt, 198 Fed. 305, 307; Deford, Hinkle & Co. v. Mehaffy, 13 Fed. 481, 486; Overman, Wheel Co. v. Pope Mfg. Co., 46 Fed. 577, 580; Powers v. Chesapeake & O. Ry. Co., 169 U. S. 92, 101.)

Counsel for plaintiff argue that the cases, above referred to, of the federal courts of the Seventh Judicial Circuit should be followed by this Appellate Court in the present case. But, as above mentioned, those cases are to be distinguished from the present case. Furthermore, in reaching a decision of the question here involved, we must consider not only the federal statute, but the laws of Illinois and said rule 1. As said in Hansford v. Stone-Ordean-Wells Co., supra: “The federal law and the State law must be read together. The former prescribes a limitation; the latter the extent of it.” Under the facts of the present case, and in the light of the decisions of the federal courts (in Judicial Circuits other than the Seventh), and construing the provisions of rule 1 of the circuit court of Cook county, we are of the opinion that defendant’s petition for removal was timely and that the trial court erred in not granting it.

Second. While we think that the trial court erred in refusing to allow the removal of the cause to the United States court, and that that error, under the stipulation above referred to, is decisive of the case, we nevertheless have considered another contention of counsel for defendant, urged as a ground for .reversal, viz., that the trial court erred in not submitting to the jury the issue whether the twenty checks (of the twenty-two in question) bore the genuine or forged signature of the plaintiff. The defendant admitted that plaintiff’s signature on the last two checks for $320 each, dated respectively April 6 and April 13, 1912, was forged by Otto Beichelt, plaintiff’s confidential clerk and office manager, by means of a rubbér or steel facsimile, but defendant denied the plaintiff’s signature on the other twenty checks was forged.

The twenty checks were not produced and plaintiff’s signature on each, therefore, could not be compared with other genuine signatures of his. The evidence of the alleged forgeries was largely circumstantial. It appears that at various times between May 5, 1910 and March 29, 1912, inclusive, Beichelt made certain false entries in plaintiff’s books and check stubs; that certain bank checks not appearing in order on the stubs went through the bánk, and that Reichelt received the money on some of the checks and converted it to his own use. Of the twenty checks seven, aggregating $17,890.76, were certified by the bank and on five of these at least Reichelt received the money; and twelve, aggregating $4,149.84, were paid in cash over the bank’s counter, but evidence was lacking that Reichelt converted the proceeds of these checks to his own use or that the proceeds were not used in plaintiff’s business. Plaintiff testified that he did not sign any one of the twenty checks, but there are circumstances in evidence tending to the conclusion that this statement was merely his opinion, based upon facts disclosed to him by an auditor who made an examination of plaintiff’s books after the forgery of the last two checks was discovered. The bank tellers, on the other hand, who had paid the cashed checks or who had certified the certified checks, testified from memoranda made at the time said checks were cashed or certified that they had then examined said checks and were of the opinion that the same, bore the genuine signature of plaintiff. It further appears that plaintiff was out of town for periods varying from one week to two weeks during the months of May, 1910, February, 1911, June, 1911, August, 1911, November, 1911, and February, 1912. While away his business went on as usual. His trades on the Board of Trade were settled by checks signed by Lamson Brothers, Board of Trade bankers. At the end of each day, or at the end of the second day, Lamson Brothers received a check, signed by plaintiff and drawn on the defendant bank, for the total of the checks issued by them to cover said trade, or in some instances a check for a considerable amount on account. This method was accomplished by plaintiff signing a number of checks before he left town, payable to the order of Lamson Brothers but with the amount of the check left blank. Reichelt, who had written the name of the (payee on said checks, after-wards and before delivering any check to Lamson Brothers also wrote in the amount. There was evidence tending to show that plaintiff, prior to going out of town, sometimes signed more checks with the amount left blank than were used during his absence and also that plaintiff sometimes signed some checks with .both the payee and the amount left blank. The unused checks were supposed to be destroyed on plaintiff’s return, but there was evidence tending to show that sometimes they were not. The evidence also tended to show that the defendant was not guilty of any. negligence in paying the twenty checks claimed to have been forged, and that plaintiff failed to use due care in supervising the acts of Beichelt in receiving and cheeking over the returned checks and bank statements. It was the custom for the bank, on the 1st and 15th of each month during the period in question, to render a statement of account to plaintiff and to return to him all checks which had been paid and debited to his account. Plaintiff had authorized Beichelt, as'his agent, to receive and receipt for said canceled checks and statements, and during the period in question Beichelt did so. Plaintiff did not himself examine any of said canceled cheeks and statements until after Beichelt had confessed to the forgery of the last two checks, aggregating $640 and paid in April, 1912.

Under all the facts and circumstances in evidence we have reached the conclusion, as to said second point, that the court erred in directing a verdict for the plaintiff, and in not submitting to the jury the issue whether .the twenty checks in question bore the genuine or forged signature of the plaintiff. Other points, relied upon as grounds for a reversal, are made by counsel for defendant, but in view of our holding as above it is not necessary to consider them.

For the reasons indicated the judgment of the circuit court is reversed and the cause is remanded for further proceedings in accordance with the provisions of the above-mentioned stipulation of the parties.

Reversed and remanded.

Barnes, P. J. and Hatchett, J., concur.


text:
    Margaret M. McCarthy, Plaintiff in Error, v. William J. McCarthy, Defendant in Error.
    Gen. No. 25,407.
    1. Appeal and error, § 1395

      —when findings of chancellor are conclusive. It is the rule that the finding and decree of a chancellor in a separate maintenance suit, where he had the opportunity of seeing the witnesses and hearing them testify, should not he disturbed on appeal, except where the evidence clearly preponderates against such finding and decree.
    2. Appeal and error, § 1395?—when findings of chancellor will he reversed. Evidence reviewed in a separate maintenance proceeding and decree dismissing the bill for want of equity reversed.
    3. Husband and wife, § 216*—when wife is entitled to separate maintenance. A complainant may be entitled to separate maintenance notwithstanding she may not have been wholly blameless or as patient under provocation as some women would have been, and where her conduct was not such as would have entitled her husband to a divorce, and she did.not voluntarily consent to the separation nor desert her husband.
    4. Husband and wife, § 218*—when wife is not required to return. After a separation between husband and wife, the latter is not bound to return, where,' although the husband stated that he was willing to have her return, he made no promise of future kindness or better treatment.
    Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 13, 1920.

      Statement by the Court. Complainant seeks by this writ of error to reverse a decree entered by said superior court on January 6, 1919, dismissing for want of equity her amended bill for separate maintenance.
    The original bill was filed November 15, 1917. Defendant filed an answer thereto as well as to the bill as amended. Complainant alleged, in substance, that the parties were married on September 5, 1.900, and lived together until July 12, 1917, when she was compelled to and did leave him; that two children, Dennis and Gertrude, aged 13 and- 8 years, respectively, are living; that since September, 1911, defendant failed to perform his marital duties, and that by his attentions given to divers women his affection for complainant was alienated; that from September, 1912 until May 28, 1916, he absented himself from his home on two regular nights of each week, under the pretense of necessary business affairs, but that in fact he spent much of said time and other times at divers places in company with various women, particularly with one “Miss X” (in the amended bill the true name is given); that he frequently reproached complainant for attempting to obtain any information regarding his business, his said absences and practices; that on May 25, November 12, November 17, 1916, and July 12, 1917, he angrily commanded complainant to leave their home; that his attitude - towards complainant during the period from September, 1912 to July 12, 1917, was hostile and his conduct wholly unbecoming a father and husband, resulting in making her life miserable and unhappy; that he has been guilty of extreme and repeated cruelty; that on February 19, 1917, he threatened her life, flourished a revolver and stated “its either you or I”; that on July 12, 1917, he flourished his clenched fists in her face, roughly pushed her, and again threatened her life, stating that he would “break her back” unless she would immediately leave the home, and that she did then leave, taking with her the children, and that she has been living separate and apart from defendant ever since; that from March, 1917 up to July 12,1917, she was in fear of bodily harm from defendant, and that because of his said attitude, conduct and threats he is an unfit person with whom to live as husband and father; that complainant receives no income from any source and is unable to support herself and the children; and that defendant is abundantly able to support them, is employed by and is secretary of a large business corporation in Chicago, has considerable means and a large annual income.
    Defendant, in his amended answer, admitted the separation on July 12,1917, and his ability to provide for the proper support of complainant and the children in the family home, and alleged that she left him without any reasonable cause, taking the children with her, and has since refused to return. He denied substantially all the other material allegations of the bill. He further alleged that after July 12, 1917, and prior to August 12, 1917, complainant, without right and without his knowledge, removed from said home many household articles belonging to him, and that on August 12 she came to the home and used violent language towards defendant in the presence of. servants, and attempted to break down certain doors and demeaned herself in an unbecoming manner; that during their married life his conduct towards her had been forbearing, and that the quarrels which arose were in part the result of “unbearable nagging” practiced by her, and in part the result of his protests against her extravagant expenditures for wearing apparel and entertainment; that since July 12,1917, defendant has maintained the family home, at 3521 W. Jackson Boulevard, Chicago, which at all times has been and is now open for complainant and said children and is one suitable for their station in life; that the cause of her leaving him and the home, and her acts and conduct towards him, is not the result of his alleged misconduct, but is the result of an “inordinate desire” on her part “to procure from, this defendarit money to spend upon herself for personal adornment and entertainment,” that she has repeatedly demanded “that he allow her for her own personal use sums in excess of the actual income of this defendant,” and that her desire “to spend money and to be constantly entertained in an extravagant manner has grown upon the complainant from year to year, until such desire now amounts almost to a mania.”
    There was a protracted hearing in open court before the chancellor at which many witnesses testified and certain documentary evidence was introduced. Voluminous printed arguments have been filed and the case has been orally argued by respective counsel. From the abstract of record of 289 pages and from portions of the record, assisted by said arguments, we glean the following:
    The parties were married on September 5, 1900. They ceased having sexual relations, according to her testimony, in 1912; according to his, in the spring of 1916. They quarreled frequently during 1916, and on several of those occasions he, according to her testimony, corroborated by that of a domestic servant, angrily ordered her to leave the home, but she did not. He denies giving such orders. For several years prior to 1916 it appears that he was away from home, rather regularly, on certain nights. Early in 1916, or prior thereto, gossip came to her that he was improperly attentive to other women, and particularly to a stenographer in the office of the corporation where defendant worked, the “Miss X” referred to in the bill. Subsequently, she found in his possession a vest-pocket note book, in which , as she claims, were written down in his handwriting the names, addresses and telephone ■numbers of various women, among which the name, etc., of a woman named Anderson, living in the second flat of an apartment building at 4042 Clarendon avenue, Chicago. She made a copy of these entries. (Upon the trial, the original note book not being produced after notice, the copy was allowed in evidence.) She became suspicious that her husband was unfaithful to her. She acquainted him with her suspicions and on many occasions asked for explanations. But he did not make at any time any explanation which seemed satisfactory to her, and, according to her testimony, frequently refused to discuss the subject, saying that it was “none of your business,” and on these occasions both became angry. Father Quigley, defendant’s witness and pastor of a Catholic church and who had known both parties for over 20 years, testified, in substance, that some time in the fall of 1916, complainant called and sought his advice concerning “the wrongs she believed her husband was doing,” and detailed to him her suspicions and her reasons therefor; and that he said that she might be mistaken in her suspicions, but that he advised her “to employ detectives to watch him for a short while. ’ ’ Complainant testified that during that fall she began making investigations; that she hired a detective who made trips of investigation as to certain names, addresses and telephone numbers found in said note book; and that she did some detective work herself. Defendant testified that he said to her, as to her charges concerning his improper "relations with “Miss X,” that “no explanation was coming to her, * * * that he had no explanation to make,” and as to entries in the note book, “I did not attempt to satisfy her; * * * I did not think I owed any explanation to her; she was doing the investigating herself.” Ernest Stave, janitor of the apartment building at 4042 Clarendon avenue, identified defendant on the trial as being a man whom he had several times seen “around the building” during the summer of 1916. William Jensen, of the real estate firm of Begelin & Jensen, testified that in the spring of 1916, he had charge of the renting of the flats in said building and that one Harry Willard signed a lease for the second flat for a period of several months. On the trial the witness identified defendant as the man who had called at his office two or three times during the spring or summer of 1916, and had personally paid to the witness the rent for said second flat for the months of May and June, and on one occasion the call related to some repairs desired to be made in said flat. George A. Cudmore, sergeant of police, testified, in substance, that an anonymous letter had been received making complaint that the occupants of said second flat were “questionable”; that some time during the month of June, 1916, about 10 o’clock a. m., he called there for the purpose of making an investigation, and found two men and two women; that one of the men was “that man sitting there” (indicating defendant), who then said that his home and business was in Detroit but that he often came to said flat; that the witness also conversed with one of the women, told her of the complaint received and suggested that she had better move out and that she said she would do so. Defendant testified that he never was in said flat, never was in the office of Eegelin & Jensen and never saw Sergeant Cudmore until he testified in court. And defendant called as witnesses Mrs. Eva McEniry and Harry M. Ziv. The former testified, in substance, that she moved into said flat in April, 1916; that the lease was signed by Harry Willard fpr her; that when she moved in she went by the name of Eva Anderson; that she stayed there until some time in August, 1916; that Harry Willard and a Mr. and Mrs. Balmer lived with her there, and that she was the head of the household; that she remembers Sergeant Cudmore calling at the flat in June, 1916, telling her of complaints and saying that he would give her two weeks to get out; that defendant was not there at the time of Cudmore’s call and that she had never met defendant until the day she testified; that the reason she appeared as a witness was that she had seen in a newspaper an item concerning the trial and that defendant’s name had been mentioned in connection with her said flat; and that her curiosity was aroused and that she at once telephoned defendant’s solicitor to explain matters. Harry M. Ziv, engaged in the furniture business on the west side of Chicago, testified, in substance, that he sometimes used the name of Harry Willard; that he signed the lease for said second flat in April, 1916; that he had known Eva Anderson for about 4 years; that although he had a room at the home of his parents on Prairie avenue, he also in the spring of 1916 had an address at 4042 Clarendon avenue; that he was in said flat when a police officer called; that defendant was not there at the time; and that he never met defendant until the day before he (Ziv) testified, when he met him in the office of defendant’s solicitor. The defendant also called as a witness the “Miss X” mentioned in the bill. She denied ever having had any improper relations with defendant.
    As to the happenings on February 19, 1917, complainant testified, in substance, that on that morning the defendant came into her bedroom and over to the bed where she was lying, held a revolver over her head and said “It is either you or I”; that she called their son, Dennis, into the room; that afterwards defendant rushed at her again, still holding the revolver in his hand, and said: “You may have the goods on me, but I will show you I will get it on you”; that shortly thereafter she telephoned to Father Quigley to come to the house and that later he arrived and a long interview took place, during which both she and defendant became much excited and he again flourished the revolver, and she became frightened. In these statements she is corroborated by the testimony of their, son, Dennis McCarthy, 14 years of age. On the trial the defendant admitted that during said interview he held a revolver in his hands, but “not necessarily placed it at her head.” Defendant further testified, in substance, that upon his return home from mass that morning he found three slips of paper, one lying on a table in the back parlor and the others in other parts of the house, on which were written in his wife’s handwriting, as he claims, certain memoranda regarding his alleged “indiscretions and immorality’’; that said slips of paper “rather roiled” him; that he picked up a small, unloaded revolver, and went into his wife’s bedroom; that he told her that he had picked up “these notes,” that he was tired of this “carrying on,” and said: “This has got to stop, you either take this, or I will take it”; that when he made this statement “he did not point the gun at her”; that “he would not say that Mrs. McCarthy was frightened at that time ’ ’; and that although he had made a search for said slips of paper he had been unable to find them. The complainant denied writing and placing said slips of paper. Father Quigley, defendant’s witness, testified, in substance, that in response to a telephone call he arrived at the parties’ home about 8:15 o’clock a. m.; that during the stormy interview which followed complainant repeatedly charged defendant with having had immoral relations with other women; that defendant said he had never been unfaithful to her and “had nothing to change or make right ’ ’; that both became very excited; that finally defendant “walked right up in front of Mrs. McCarthy * * * and held in his hand * * * a revolver”; that the witness “could only see a little part of the tip of the barrel,” and defendant’s “hand was straight in front of her, the revolver being held in his hand, and he said: ‘ This terrible worry must, end; it is either you or I’ ”; that complainant “didn’t move” and the witness “could not tell whether she was really frightened or not”; that during this'“revolver incident” the witness “did not arise” from his seat; that after further conversation defendant went upstairs and the witness asked complainant to make some proposition so that the “affair” might be closed and “peace” made; that complainant replied that she had no proposition to make and that defendant “must make the proposition towards a settlement. ’ ’
    Complainant further testified, in substance, that after said happenings she was much upset and did not know what was best to do; that on the same day she consulted an attorney named O’Donnell; that he suggested a conference with defendant in his (O’Donnell’s) office; that a conference was had there on March 10, 1917, at which O’Donnell, Father Siedenburg, a priest, defendant and herself were present; that she again asked defendant to explain the entries made in said note book but that he again refused; that O’Donnell then said that the “moral questions” should not then be discussed, but rather household affairs and financial matters; that complainant then said that the moral questions were “of greater importance to me than money matters,” and that she did not want to return home without a definite promise from defendant that he would change his way of living, and that without it “our affairs were not going to improve”; that O’Donnell thereupon said that “we both should go back home and try and fix this thing up on account of the children”; and that both she and defendant thereupon agreed to do so and both went home that evening. Father MeNamee, another Catholic priest and called as a witness by complainant testified, in substance, that several months prior to July 12,1917, the day the parties finally separated, defendant called and urged his assistance in bringing about a reconciliation with his wife; that defendant said that he was much worried, that she was a “good woman with an unblemished character,” but “money mad,” and had been “ill-advised”; that the witness said he would do what he could to assist; that on June 21, 1917; the witness, defendant, and Father Siedenburg had a conference at which defendant made certain statements regarding the financial arrangements he would be willing to make if she would become reconciled to him; that defendant said, in substance, that he would continue to support her and maintain the home with some exceptions, that he would not keep up the expense of the automobile-hut she could use taxicabs, that he would put enough money in the bank to meet her reasonable expenses, that he would give her $50 a month as “pin money,” that he would like her to take the children and go on a vacation of a few months and then he would go after them and bring them home; that afterwards on the same evening the witness and Father Siedenburg, at defendant’s request, had an interview with complainant ; that during said interview they urged a reconciliation and defendant’s said proposition was repeated to her; that she said that it was not a question of money and that defendant had failed to keep his promises in the past; and that while complainant did not refuse to accept defendant’s proposition no definite decision was reached, but it was arranged that a further conference should be had.
    This further conference, lasting several hours, was had on the evening of July 12, 1917, at the family home on the second floor. Complainant, defendant and Fathers Siedenburg and McNamee were present and further discussion was had as to money matters and settling the family situation. Complainant testified, in substance, that towards the end of the conference she again asked defendant for explanations as to his past conduct, which he again refused to make; that Father McNamee said that she was entitled to have them; that thereupon defendant became angry, rushed up to her and shook his fist in her face and violently shoved her against the mantelpiece, and said to one of the priests: ‘ ‘ You better take her with you, because if you leave her here I will break her back before morning”; that defendant rushed out of the room and as he was going down stairs said: “I will kill her”; and that shortly thereafter and late at night she left the home, in company with her son, Dennis, and Father Mc-Namee, and went to her mother’s home and has not since lived with defendant. As to these happenings she is corroborated by Father McNamee, who in addition testified that during the early part of the conference defendant seemed anxious to get away and repeatedly asked complainant to let him out of the room, during which times she was either sitting or standing with her back against the door and appeared desirous that he should not leave; that just prior to the time defendant made his threat to “bréale her back” complainant had made some remark concerning defendant’s parents which greatly angered him, that he took hold of her by the shoulders and shook her, but did not strike her; that Mrs. McCarthy seemed frightened and cried out; that the witness “had great fear” that she would be injured; and that after defendant had left the room, complainant appeared afraid to stay in the house that night and said she was going to the home of her mother and shortly thereafter went there. As to defendant making both of said threats complainant is also corroborated by the testimony of the son, Dennis. Father Siedenburg did not testify. While defendant admitted that he “flashed his clenched fist” in complainant’s face, he denied striking or touching her or saying that he would kill. her. . He also admitted making the threat to “break her back,” but stated .that he was “excited and nervous” at the time, and that the remark was called forth by complainant making uncomplimentary remarks about his parents, and that he did not “intend it.”
    Complainant further testified, on examination by defendant’s solicitor, that following said happenings she several times went to the family home, in'defendant’s absence, and got some, but not all, of her clothes and Other personal property belonging to her; that upon a subsequent call she found that the locks on certain doors had been so changed that she could not enter the house or into the bedroom she had formerly occupied, and other rooms, for the purpose of getting her remaining personal effects; that on August 12, 1917, in company with her son, Dennis, she again went to the' home, found the doors on the first floor open, walked inside and telephoned a locksmith to come over immediately for the purpose of having keys made for the new locks;' that to her surprise defendant appeared and asked her for what purpose she was there and she told him; that in the meantime the locksmith came and defendant ordered him away; that she asked defendant for some of her clothing, which request he refused to grant, and later she went upstairs and found the door to her bedroom locked; that she tried to break the door down and get into her bedroom, but was unable to; that she left some marks on the panel of the door; that she was angry and talked loud but cannot remember all that she said; that some of the windows were open, and that it is probable some of the neighbors heard some of her uncomplimentary remarks regarding defendant. The latter, on cross-examination, testified, in substance, that after the separation on July 12, 1917, complainant and her sister had been “snooping around” the home two or three times; that complainant was in the house several times and took a lot of furniture away; that she had never asked him personally for permission to get her belongings or wearing apparel; that after she had come to the house and taken some of the household effects away he g’ave instructions “not to let any body in”; and that he ‘‘ changed the locks on the doors to make certain no one would enter the house.” Defendant also called as witnesses his cook and houseman at the time, and both testified that while complainant was endeavoring to break down the door leading into her bedroom, with a “meat pounder,” she called defendant vile names and struck him once upon the arm with said instrument, but that defendant did not strike her.
    Defendant further testified that after July 12, 1917, he did not “personally say or do any one act or thing to induce” complainant to return to him, with possibly one exception when, in company with his attorney, he called at the office of her attorney and there was talk about a possible financial settlement; that'at this conference defendant asked her attorney “if this thing had simmered down to a commercial proposition” and the latter replied that it had; that defendant further said that he was then “willing to take Mrs. McCarthy back”; that her attorney then asked if defendant would agree to make provision for her ■ separate maintenance and that of the children as evidence of good faith, and that defendant replied that he could not grant the demand.
    Near the end of the hearing, in response to questions asked by the chancellor, defendant stated that he was “ready now to receive back” complainant into his home; and complainant stated that she was now ‘ unwilling' to return to her husband” and would not return.
    The defendant did not sustain the burden of proving the allegations contained in his answer as to complainant’s “inordinate desire” ta spend his money for her personal adornment and entertainment, and as to her money demands upon him in excess of his income, and as to her “mania” to spend money, and as to her removing without right from the family home, after the separation, any of his individual property or chattels. And it sufficiently appears that the complainant is without property or income, and cannot properly support herself according to her station in life.
    McCormick, Kirkland, Patterson & Fleming, for plaintiff in error; Perry S. Patterson and Charles F. Bathbun, of counsel.

      Montgomery, Hart & Smith, for defendant in error; Louis E, Hart and Irving Herriott, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

In the case of Ross v. Ross, 69 Ill. 569, decided in 1873, our Supreme Court affirmed the decree of the circuit court,'granting separate maintenance. Mr. Justice McAllister in delivering the opinion of the court says (pp. 570-2)

“The husband, by the common law, is bound to provide his wife with necessaries suitable to her situation and his condition in life. As proceeding from this general duty, the common law courts have held that if a husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. * * * Evans v. Fisher, 5 Gilm. 569. * * * These rules were based upon just and humane principles, but from the circumstances of their practical application the relief they were intended to afford was frequently beset with difficulties, and sometimes denied altogether, because the persons who trusted her on her husband’s account must do so at their peril, they being subject to the burden of showing a case where the law gave her the credit of her husband for necessaries suitable to her situation and his condition in life. * * * Now, it was the inadequacy of the common law remedy, and the refusal of courts of equity to take jurisdiction for the enforcement of the husband’s duty to furnish support and maintenance for his wife, that induced the legislature to pass the act of 1867, providing that married women who, without their fault,- are living separate and apart from their husbands may have their remedy in equity, in their own respective names, against their respective husbands, for a reasonable support and maintenance, to be allowed with reference to the condition of the parties in life and the circumstances of the respective cases, * * #> The bill ip this case was filed under that statute by appellee, while living separate and apart from her husband, and the only question presented is, whether she was so living separate and apart from him under such circumstances as would clothe her with the right at common law to obtain support and maintenance upon his credit. To be so, it must be without her fault. If she left his house to live apart from him, either in consequence of improper treatment, or he assented to or acquiesced in her leaving, he is liable for her necessary support, and to that extent she had credit on his account in the community, as was laid down by this court in Evans v. Fisher, above cited. ’ ’

The writer of the opinion then proceeds to analyze the testimony and it is further said (p. 573): “Appellant’s conduct towards appellee had a direct tendency to drive her from the home, and it is a fair inference, from all the evidence, that he so intended it. ’ ’ Then, after setting forth the contents of a letter written by the husband to the wife about three months after she left him, it is said (p. 574): ‘‘ This letter * * * shows appellant’s acquiescence in her living apart from him, and brings the case fairly within the common-law rule of making him liable for her necessary support. ’ ’

In 1877 the legislature re-enacted said separate maintenance statute of 1867, and in 1891 amended it, but the amendment did not materially change the substance of the 1867 statute. (3 Jones & Add. Stat. p. 3346, par. 6159.)

In the case of Johnson v. Johnson, 24 Ill. App. 80, 82, decided in 1887, the Appellate Court for this district, in affirming a decree for separate maintenance, said: “A woman’s life may be made miserable and cohabitation with her husband made unbearable by other means than the inflicting by him of blows upon her person.” The decree was also affirmed by our Supreme Court (Johnson v. Johnson, 125 Ill. 510) and that court, by Mr. Justice Shope, says (p. 515):

“The statute * * * gave the right to the wife to maintain her bill for separate maintenance, but restricted.the right to cases where the living separate and apart from the husband was without her fault. The ‘fault’ here meant and contemplated is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as ‘materially contributes to. a disruption of the marital relation.’ # * * No encouragement can be given to the living apart of husband and wife. The law and the good of society alike forbid it. But a wife who is not herself at fault is npt bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor where the husband pursues a persistent, unjustifiable and wrongful course of conduct toward her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable. * * * If the husband voluntarily does that which compels his wife to leave him, or justifies her in so doing, the inference may be justly drawn that he intended to produce that result, * * *. And if he so intended, her leaving him would, in the case put, be desertion on his part, and not by the wife.” ,

After reviewing the evidence in the case the court further says (pp. 518-19):

“That appellee was not wholly blameless, at all times, in respect of the troubles with her husband, or as patient under provocation as some women would have been, is, we think, apparent, and may be conceded without materially affecting her cause. There were occasional sallies- of passion and the use of harsh language, which, while it cannot be approved, would be no palliation, justification or excuse—if, indeed, anything could be—of the personal violence inflicted by the husband upon the wife, or for the persistent course of condifct toward and treatment of her, pursued by appellant, which would inevitably result, as he foresaw it must result, in estrangement and separation. The j;husband and wife must mutually bear with each other’s tempers' and dispositions. Mere ebullitions of temper, trivial delinquencies of conduct, and the like, cannot-be made the grounds for disrupting the family, nor a pretext for a course of conduct which necessarily produces that result. * * *
“ It is urg*ed that after the filing of the bill, appellant having requested appellee to return and live with him, she was hound to do so, and therefore the decree is erroneous. * * * Although appellant may have deserted appellee, or driven her away from him, it is undoubtedly true that the locus penit entice must be kept open for him; but if he offers to return, or to take her back, it must be in good faith and under circumstances giving reasonable assurance of amendment. On a former occasion she had, in consequence of his cruelty, left him and gone to her mother’s. He went after her and promised her better treatment. * * * She accepted of his repentance as genuine, and, relying on his promise, returned, but there was no amendment in his conduct. On the occasion referred to by counsel there was no repentance, no offer to do better, no promise of kindness, no protestation of respect or confidence,—only, as we have seen, an expression of his wish that she return and live as they had lived, or in separate rooms, if she preferred, and an implied doubt of her purity. She was not bound to return and receive the same treatment at his hands, nor return to his domicile and there live apart from him. It is the actual marriage of the parties—their living together as husband and wife in lawful wedlock—that the law favors, and that each has the right to demand. ’ ’

In Modjeski v. Modjeski, 209 Ill. App. 213, on appeal from a decree dismissing for want of equity the wife’s bill for separate maintenance, this branch of this Appellate Court reversed the decree and remanded the cause -with directions to hear evidence as to appellant’s expenses, solicitor’s fees, and a proper allowance for her support. In referring to the cases, among others, of Wahle v. Wahle, 71 Ill. 510; Johnson v. Johnson, 125 Ill. 510; and Porter v. Porter, 162 Ill. 398, it is said:

“From these cases we gather that a wife may be guilty of such fault as would prevent her from maintaining her suit: First, by conduct on her part which would give the husband just reason for divorce; second, by voluntarily consenting to a separation; third, by desertion although the time has not elapsed which would give the husband cause for divorce on that ground.”

In accordance with said directions the chancellor heard further evidence and entered a decree granting separate maintenance and awarding the wife a certain sum per month and solicitor’s fees and the case again came before this court and this decree was affirmed (Modjeski v. Modjeski, 215 Ill. App. 632, Abst.), and a petition for a writ of certiorari was denied by the Supreme Court.

It is a rule that the finding and decree of a chancellor in a separate maintenance suit, where he had the opportunity, as in the present ease, of seeing the witnesses and hearing them testify, should not be disturbed on appeal, except where the evidence clearly preponderates against such finding and decree (Porter v. Porter, 162 Ill. 398; Johnson v. Johnson, 125 Ill. 510, 514). Yet, after a careful review of the entire evidence in the present case, and in the light of the decisions above mentioned, we have reached the conclusion that the complainant is entitled to a separate maintenance, and that the decree of the learned chancellor, dismissing her bill for want of equity, is clearly against the weight of the evidence and should be reversed.

While it is apparent, as said in the Johnson case, supra, that she was not wholly blameless, or as patient under provocation as some women would have been, still, in our opinion, she was not guilty of any of the faults mentioned in the Modjeski case, supra, which would prevent her from maintaining her bill. Her conduct was not such as would entitle her husband to a divorce. She did not voluntarily consent to the separation, nor did she desert him. On the night the parties finally separated, July 12, 1917, he practically drove her from the family home. He admits that, during the stormy conference then had, he at one time “flashed his clinched fist” in her face, and said he would “break her back.” On a previous occasion, the morning of February 19,1917, he had threatened her life. He admits that he then twice flourished a revolver, though he says “he did not point the gun at her.” These actions on his part were inexcusable and cruel and we think that, from these actions and from some other actions disclosed in the record, the inference may be justly drawn that he intended to bring about a separation. The record further discloses that for at least a year before the final separation the parties did not have any relations as husband and wife; that he was at least indiscreet in his attentions to other women; that, when gossip came to her that perhaps he was unfaithful to her and she demanded explanations, he treated, her harshly, refused to malee any explanations, saying that it was “none of your business”; that after she had discovered certain entries made by him in a note book and had caused certain investigations to be made at the suggestion of a priest from whom she sought advice, resulting in at least a partial confirmation of her suspicions, he repeatedly and angrily refused to make any explanations whatsoever. We think that she was justified in repeatedly insisting that he explain his conduct and said entries; and that in this connection he pursued such a persistent and unjustifiable course of conduct towards her as would necessarily render her life miserable and living with him as his wife unendurable. And the record further discloses that, after the final separation, he said and did things which tend to show that he acquiesced in her leaving. He testified that she and her sister had been “snooping around” the family home several times, and that after complainant had, without his knowledge or consent, taken away some household effects, he “changed the locks on the doors to make certain that no one would enter the house,” He further testified that at a conference with complainant’s attorney, after the separation, he said he was “willing” to take her back, yet with this exception he had not said or done anything, subsequent to the separation, to “induce” her to return to him. Under the circumstances she was not bound to return. He made no promise of future kindness or better treatment. While some of the actions of complainant on August 12, 1917, were improper, it nevertheless appears that on that occasion he refused to let her enter the bedroom which she had formerly occupied.

For the reasons indicated the decree of the superior court is reversed and the cause is remanded with directions to hear evidence as to a proper amount to be allowed complainant for her separate maintenance, for solicitor’s fees and costs, and for other proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Barnes, P. J. and Hatchett, J., concur.