author: Wall, P. J.

text:
    James C. Ware v. Lazarus Hirsch.
    1. Sale to creditors. — A debtor, becoming embarrassed, sold his entire stock of goods to certain of his creditors, and gave them a bill of sale, and the creditors, by a written appointment, authorized appellee, a creditor, to conduct the business. Possession of the store was given to appellee, who opened a new set of books, took down the debtor’s sign but did not put up another, employed the former clerks, paid the rent, etc. Replevin was brought by a creditor not participating in this arrangement, and this suit is for damages for the goods seized by the sheriff under such writ. Ho question was made as to the good faith of the sale, but the question at issue whether the sale by the debtor was followed by such a transfer of possession as to vest the title to the property in the appellee, is decided in favor of appellee.
    2. Damages. — Appellee would be entitled to recover full damages for the goods seized.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 25, 1886.

      Mr. Thos. J. Smith, for appellant.
    Mr. J. L. Ray, for appellee.
   Wall, P. J.

The appellee brought an action of trespass, de bonis asportatis, against the appellant, and upon a trial by the court "without a jury, recovered a judgment for §130, from which an appeal is prosecuted to this court. It appears that one J. W. Jefferson, a resident of Indiana, was the owner of a stock of general merchandise at Ludlow, in Champaign county, which was conducted in his name by his clerks.

Becoming embarrassed he sold the entire stock of goods to certain of his creditors, eight in number, and gave them a bill of sale, whereupon these creditors, by a written appointment, authorized the appellee, who was also a creditor, to take possession of the store, employ clerks, purchase necessary goods to be added to the stock, pay bills and expenses, and divide the proceeds pro rata according to the amount invested by each, making reports when required and subject to removal, etc.

The possession was given by Jefferson to appellee on the following day.

Appellee retained the former clerks, opened a new set of books, and thereafter conducted the business in pursuance of the authority so conferred.

A firm of creditors who did not participate in this arrangement sued out a writ of replevin against Jefferson, to recover the possession of certain goods previously sold to Jefferson and by him placed in the store, and which were a part of the stock so sold to the other creditors and taken in possession by appellee. This writ of replevin at the suit of said creditor and against said Jefferson was placed in the hands .of appellant, who was sheriff, and by him, through a deputy, executed by taking the goods out of the store and delivering to the plaintiff in replevin. The present action is to recover damages for seizing the goods of the appellee under said writ.

The most important question in the case is whether the sale by Jefferson was followed by such a transfer of possession as to vest the title to the property in the appellee.

It is very earnestly contended by counsel there was no such change of possession. We have read all the evidence from the record, and are satisfied with the conclusion reached by the' circuit court. There seems to be no question as to the bona fides of the transaction. That is not attacked.

The transfer was evidently not a sham to cover up the property, nor for any other illegal purpose. As to the facts relied upon to provei^pssession, there is no conflict in the testimony. Appellee, accompanied by Jefferson, went to Ludlow, inspected the stock, verified the invoice, received the key, was forliially put in possession, employed the clerks formerly there, opened a new set of books, paid the rent to the owner of the building thereafter, ordered new goods, had them sent there in his name, paid for them, and conducted the business generally as would have been expected under the circumstances of one who did not live in the town. There had previously been a sign in the name of Jefferson, but it was not up when this transfer was made, nor afterward. The appellee ordered a new sign, which was not finished when those goods were replevied. Conceding the sale was fair, as we must — it seems there can be no reasonable question — the possession was sufficiently changed to vest a perfect title in the appellee.

It does not occur to us that he was required to do anything more. It may be that a casual observer would hot be aware of any change in the situation, but it is not easy to see what else there was to do except to put up a sign, or, perhaps, advertise in some way. These acts could not have been performed immediately, and we do not understand that they were essential, nor was it necessary that the goods should have been removed to another building.

If it were a disputed question whether the sale was in good faith and whether the transfer was merely colorable, these facts relating to the change of possession might be more narrowly viewed, and possibly another conclusion might have been reached as to the legal effect of the entire transaction; but assuming that all was honest, we feel constrained to say it was legally sufficient. It does not appear upon what ground the vendor could maintain replevin, as it is not shown there was anything to justify him in rescinding the sale and resuming possession of the goods.

It is urged that" appellee was not entitled to recover full damages, and that in any event he could only recover according to the interest he had in the goods.

He was in actual possession and had a special ownership — a qualified property — in the goods. He was accountable for the entire stock, and could maintain any appropriate action, such as trover, replevin or trespass, to protect himself in such possession. 1 Chitty, Pleading, 151, 152, 168 and 170; 6 Wait’s Actions and Defenses, 101-105: 1 Hilliard on Torts, Ch. 18; Miller v. Kirby, 74 Ill. 242.

A judgment in his favor for damages in full would bar another action in that behalf. Freeman on Judgments, See. 166. The authorities cited by the appellant do not, as we understand them, sustain the position for which they are quoted.

It is objected, also, that there was a variance between the declaration and the proof — the latter showing only a qualified interest in the property, while the declaration averred generally that the goods were “of the plaintiff.” The ownership was laid properly and the averment was good, the facts being stated according to their legal effect. 1 Chitty on Pleading, 380 (marg. page). But if there had been anything in the objection it should have been made in the trial court.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James C. Ware v. Lazarus Hirsch.
    1. Sale to creditors. — The facts in this case as to the sale being the same as the preceding, it is affirmed for the same reason.
    2. Practice — Recalmmu <tury. — Where, after the jury had retired, the court upon its own motion caused the jury to he recalled and allowed the appellee to put a question to a witness which had been proposed while the witness was on the stand before the evidence was closed, but the court had then declined to permit the question to be asked, held, that the recalling of the jury was a matter resting in the sound discretion of the court.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. Thos. J. Smith, for appellant.
    Mr. J. L. Ray, for appellee.
   Wall, P. J.

This was an action of replevin to recover certain goods levied upon by appellant as sheriff by virtue of a writ of attachment in his hands in favor of Toule, Carl & Co., against J. W. Jefferson.

There was a verdict and judgment in favor of appellee.

The goods in controversy were a part of the stock referred to in the preceding case, Ware v. Hirsch, and the title of the appellee rests upon the facts disclosed by the record in that case.

Substantially the same questions are presented as to the validity of the possession relied upon by appellee. For the reasons given in that case we are of opinion the appellee was entitled to recover and it is unnecessary to repeat what was there said.

Another point is urged here. After the jury had retired the court upon its own motion caused the jury to be recalled and allowed the appellee to put a question to the witness Jefferson, which had been proposed while the witness was on the stand before the evidence was closed, but the court then declined to permit the question to be asked.

This action of the court, in recalling the jury for this purpose, was objected to by appellant and is now assigned as error. It was a matter resting in the sound discretion of the court.

If upon reflection the court was of opinion that it had improperly excluded the' evidence, it had the power to take this course for the purpose of correcting the mistake, and unless it appears that the rights of the party objecting have been unduly prejudiced thereby such action will not be deemed error.

It is objected further that the evidence elicited was incompetent and should have been excluded for that reason.

The question put to the witness was whether he had notified the attaching creditors that he would settle with them, and. in reply he stated that he wrote to them notifying them that he had sold the Ludlow store to the other parties and requesting them to meet him that he might settle with them, and that he got a letter from them in reply.

It is urged by appellant that this evidence was incompetent because it was blit a statement of the contents of a writing. Appellee insists that the letter was a mere notice, and that the fact of sending it and that a reply was received showing that the notice had not miscarried, is no violation of the familiar rule which prohibits parol proof of the contents of a disputed and material writing in existence, citing Williams v. G. M. I. Co., 68 Ill. 887. Appellant does not object to proving notice, but to proving it in this way. Assuming, without deciding, that the rule referred to is applicable here, we think the error is not of such importance as to justify a reversal. The statement made by the witness was general and he did not assume to give the precise contents of the letter. The effect of the testimony was more in the fact that the letter was really sent and received than in what was its exact purport.

But it is not apparent why the verdict should not have been the same without this evidence. Indeed we think the admission or rejection of it should have made no difference.

The verdict is right in our opinion, regardless of this evidence. The Supreme Court has repeatedly held that where it can see the verdict is a just one it will not reverse for an error in admitting evidence which did not probably affect the result.

We think that rule should prevail in the present instance.

Finding no error prejudicial to the appellant the judgment will be affirmed..

Affirmed.


text:
    Henry Dawson, Sr., et al. v. Chester L. Bridges.
    Defendants not served. — Where there were several defendants, some served and some not, and the clerk in entering np an order used the word “ defendants,” such term would include only those who by their own act or the act of the law had been made the subjects of jurisdiction.
    Appeal from the Circuit Court of Sangamon county; the Hon. W. B. Welch, Judge, presiding.
    Opinion filed February 25, 1886
    Messrs. Patton & Hamilton, for appellants.
    Mr. E. L. Chapin, Mr. W. F. Herndon, and Messrs. Bradley & Bradley, for appellee.
   Wall, P. J.

This was an action on the case to recover damages occasioned to plaintiff’s property by means of noxious gases and vapors generated in the tile kilns of defendants. A verdict was found for the plaintiff and his damages assessed at four hundred dollars, which the circuit court declined to set aside.

Judgment was rendered accordingly, and the record is brought here by appeal. The testimony offered by plaintiff strongly tended to prove the case alleged in his decoration and was sufficient to justify the verdict. It proved not only that his shrubbery and grass were destroyed, but that the gas and vapor produced a measure of discomfort to himself and family so serious and substantial as to make it clearly actionable. On the other hand the evidence introduced by defendants tended to show that the loss of trees, etc., was not unusual in extent; that what there ' was might well be attributed to natural causes and that the amount of gas and vapor generated was too insignificant for complaint.

The jury were called upon to weigh this testimony. They reached a conclusion, not unwarranted, and the trial court, whose duty it was to supervise their finding, saw no occasion to grant a new trial. There is nothing in the state of the evidence to justify this court in reversing' the judgment on that ground. The law applicable was fairly and plainly stated in the instructions, and the jury were advised that no recovery could be had for slight or fanciful injuries, but that to sustain his claim the plaintiff must show that he had suffered real and substantial damages. We think there is no just occasion to object in this respect.

Attention is called to the condition of the record on another point. The suit was brought against five defendants: Henry Dawson, Sr., Charles M. Poley, Henry Dawson, Jr., Benj. F. Poley and James K. Beider.

The two latter were not served with process, nor was their appearance entered. The pleas were filed in the names of those served, and so was the motion for new trial, care being taken in each ease to name the defendants pleading, viz. : Henry Dawson, Sr., Charles W. Poley and Henry Dawson, Jr.

In the orders of court the ’cause was entitled “ Chester L. Bridges v. Henry Dawson, Sr., et al.,” and in the body of the order the expression “ the defendants ” was used.

It is suggested that judgment was rendered against all the defendants, those not served as well as those served.

An appeal bond was filed by all the defendants, and they now assign error upon the judgment for this cause.

If it can be held by a fair construction of the record that there is a judgment against all the defendants, the error is well assigned; but if the judgment is really against those only who were served and pleaded, the action being ex delicto, there is no error. If it were necessary to show a judgment in favor of the appellee against Benj. F. Poley and Jas. 3L Beider, could it be done by this rec ;rd ?

By the use of “ et al.” might of course be included any number of persons. It signifies that there are other coparties indefinite in number, one or more, as the case may be, and with a pleading so styled, if there is nothing to indicate a limitation, it might well be said that all the parties named in the writ would be included in the term “ defendants.”

This because the pleading is the conscious voluntary act of those who are presumed to know what they are doing and the consequences. In the case before us however, as already stated, care was taken to prevent this result in the plea and in the motion for new trial, by expressly naming the three defendants who were served. It is certain, therefore, the defendants not served did not enter them appearance, and unless the act of the clerk in using the term defendants ” can have some injurious effect upon them they are not included in the judgment. In Gardner v. Hall, 29 Ill. 277, it was held that where there were several defendants, some served and some not, and the clerk in entering up an order used the word defendants ” it would be taken to mean only the defendants served.

Applying this rule of construction to the present record, it could not be said there is a judgment against the two defendants, Benj. F. Poley and Jas. 1L Beider, who were not in the court by service or by entry of appearance.

It would be unjust and unsafe to attach such serious results to a ministerial entry which is uncertain and ambiguous as to the number of persons affected.

The safe rule would be to say that it included only those who by their own act or the act of the law had been made the subjects of jurisdiction.

See also Clemson v. State Bank, 1 Scam. 45; Frazier v. Resor, 23 Ill. 88, and Pardon v. Dwire, 23 Ill. 572.

We hold, therefore, that there is no judgment against the two defendants not served, and that the objection urged is not well taken.

The judgment of the circuit court will be affirmed.

Affirmed.


text:
    J. W. Dougherty et al. v. J. L. Knowlton.
    1. Statement oe account — Evidence.—Where a statement of accounts admitted by the defendants to be in the handwriting of the deceased is offered in evidence by the plaintiff without objection by the defendant, and part of such statement was favorable to plaintiff and part to defendant, the jury were justified in taking the whole statement as it read. It was not absolutely incumbent on plaintiff to prove in addition that there was such an account.
    2. Ñotice to produce writing. — Where it is desired to offer secondary proof of the contents of a writing in possession of an adverse party, notice may be given to produce the writing, and if it is not so produced the court will in a proper case permit secondary evidence of what the writing contains, but it is error to read such notice to the jury.
    Appeal from the Circuit Court .of Tazewell county ; the Hon. N. W. Greene, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. B. S. Prettyman and Mr. J. W. Dougherty, for appellants.
    Messrs. Starr & Starr and Mr. W. B. Curran, for appellee.
   Wall, P. J.

This was assumpsit by the appellee as administratrix of Jesse L. Knowlton, deceased, against the appellants. The declaration contained a special count on a promissory note given by the defendants to the deceased, and common counts for money lent, etc., goods sold, etc.

There were pleas of non-assumpsit, payment and the Statute of Limitations, upon which issue was joined and tin. re was a trial by jury.

The plaintiff first offered the note described in the special count on which there were no credits indorsed, and then read to the jury a statement admitted by defendants to be in the handwriting of the deceased as follows:

Mr. J. W. Dougherty in account with J. L. Knowlton:

1869 — Sept. 10, to bill of goods.'... ..$164.17 Oct. 14, “ “ “ ____ .. 88.70 $252.87 Mote and interest................ .. 508.00 - $760.87 1869 — Sept. 10, by cash.......... ..$100.00 Oct. 14, cash.......... .. 200.00 By interest..................... .. 2.00 $302.00 $452.87 1870 — Aug. 22, to 10 months and 6 days int...................... 38.45 $497.32 Aug. 22, by cash............ 100.00 $397.32
Indorsed: J. W. Dougherty, note and account.

This statement went to the jury without objection by defendants. The plaintiff then rested.

Thereupon counsel for defendants inquired of counsel for plaintiff whether he had bought the books of said Knowlton, pursuant to notice, to which it was replied that said books had been destroyed by fire. Then defendants proposed ¡to give in evidence a receipt for $200 paid by J. W. Dougherty to said Knowlton, Oct. 14, 1869, which was allowed. Then defendants offered to introduce in evidence a notice to produce the books of^said Knowlton, from which the said statement had been taken, which notice appeared to have been served on one of the plaintiff’s attorneys. This was objected to and the court excluded it. The defendants also proposed to prove that defendant Bupert had been a resident of the county, and financially responsible during the whole period intervening the maturity of the note and the bringing of the present suit, which was excluded.

The jury were then instructed and afterward found the issues for plaintiff, and assessed the damages at $858.92. A motion for new trial having been overruled, judgment was rendered on the verdict, from which an appeal is prosecuted to this court.

It is urged that the verdict is against the evidence. The argument is based in part upon the theory that the sum of $200 mentioned in the written receipt should be credited upon the note in addition to the sums mentioned in the statement. It will be seen that this receipt is identical in date and amount with the second item of credit mentioned in the statement and the jury no doubt considered it the same credit. They were warranted in so treating it.

It is also objected that the jury should have credited upon the note all the items of money received and contained in the statement, and should have disregarded the charges for merchandise, amounting to $252.87. The defendants might perhaps have excluded the entire statement from the jury, but did not seek to do so, for the reason that they wished to avail themselves of the admissions therein, showing payments aggregating four hundred dollars. They were willing to take the benefit of the statement so far as it was in their favor, but wanted the jury to ignore so much as operated against them.

The jury were justified in taking the whole statement as it read, and in so doing they acted on a plain principle of frequent application, in support of which no citation is necessary.

It was not absolutely incumbent on the plaintiff to prove in addition that there was such an account. The statement was to be treated as any other declaration of a party admitted in evidence, and the plaintiff might properly ask the jury to consider it all, as well the portion favorable to the plaintiff as that favorable to defendants, giving each part such weight as it might seem to deserve. The jury were properly instructed by the court upon this ¡mint, and we find no reason to complain of their conclusion.

The case of Craig v. Miller, 103 Ill. 605, cited by appellants, is not in point, if for no other reason, plainly because the “statement” was admitted without objection and apparently with the full consent of appellants, while in the case cited, the evidence under consideration was admitted against the objection of defendant.

If Knowlton had an open account against Dougherty and a note on which Eupert was surety, he had a right to apply the payment made by Dougherty in satisfaction of the account first, and the residue on the note, unless otherwise directed by the debtor. No evidence of such direction appearing, it would be presumed the payment was properly applied.

There was no error in excluding the notice from the jury. It was not competent as evidence. Where it is desired to offer secondary proof of the contents of a writing in possession of an adverse party, notice may be given to produce the writ, ing, and if it is not so produced, the court will in a proper case permit secondary evidence of what the writing contains, but we know of no principle on which the notice can be read to the jury. The defendants might have taken a subpoena duces teeum for the person in possession of the boobs, or perhaps might have obtained a rule to that effect upon the plaintiff, and in this way could have procured them if in existence. There was no error in refusing to permit the defendants to prove the residence and pecuniary condition of defendant Eupert.

Such testimony did not tend to prove any issue on trial, and was therefore irrelevant.

No error appearing in the record, the judgment of the circuit court will be affirmed.

Affirmed.


text:
    William Scully v. George Hamilton.
    1. Reasonable time. — 'Where no time is mentioned'in a contract for the performance of its conditions and it can not be gathered from the language employed what was the intention in this respect, the law will imply a reasonable time, and what is a reasonable time will depend upon the peculiar circumstances of the case.
    2. Construction on contract. — Where a contract for the sal© of a tract of land contained the provision that if the parties saw fit to survey the land for the purpose of ascertaining the amount of acres contained therein, which by preceding clauses had been provisionally determined, and if such survey should show more acres than shown by the government- survey, the vendee should pay the difference, and if less the amount should be deducted from the purchase money, and the land was sold and the money paid, and seven years after, a survey was made by the vendors and an excess of land over the amount shown by the government survey was found and this action was brought for theadditional payment. Held, that upon a construction of the contract and the undisputed facts in the case no right of action exists.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Bliku & Hoblit, for appellant;
    that it is a cardinal principle in construing contracts that they must have a reasonable interpretation according to the intention of the parties executing them, if the intention can be gathered from the language used, cited Wilson v. Marlow, 66 Ill. 385; Nichols v. Mercer, 44 Ill. 250; Tracey v. Chicago, 24 Ill. 500; Walker v. Douglas, 70 Ill. 448; 1st Chitty on Contracts (4 Am. edition), 104-5; Broadwell v. Broadwell, 1 Gilman, 612.
    In giving construction to a contract the question is, what, by a fair and reasonable interpretation of the words and acts of the parties, was the bargain between them: Nichols v. Mercer, 44 Ill. 250; Fitch v. Priest, 46 Ill. 441; Hartford Fire Ins. Co. v. Olcott, 97 Ill. 440.
    Where no time is mentioned in an agreement for the performance of any of its conditions, a reasonable time is to be understood. What is a reasonable time depends upon the circumstances of each case: Chitty on Contracts, part 3, 730; Cacker v. Franklin Hemp & Flax Mfg. Co., 3 Sumner, 530; Atwood v. Cobb, 16 Pickering, 251; Roberts v. Beatty, 2 Penn. 63; Phillips v. Morrison, 3 Bibb, 105; Sawyer v. Hammond, 3 Shipley, 40; Howe v. Huntington, 3 Shipley, 350; Atkinson v. Brown, 20 Me. 67; Nudd v. Wills, 11 Wis. 436; Waterman v. Dutton, 6 Wis. 264; Driver v. Ford, 90 Ill. 598.
    Messrs. Stuart, Edwards & Brown, for appellee;
    as to reasonable time, cited 2 Parsons on Contracts, 5th Ed. 661.
   Wall, P. J.

James 0. and George Hamilton, being the owners of a large body of land in Sangamon county, entered into a written agreement for the sale thereof to William Scully. The contract bore date of April 17,1877, and was executed in the names of the respective parties, those of the vendors being signed by the said George Hamilton and that oE the vendee by Koelmle & Scully, his agents. It recites that the Hamiltons agreed to sell to Scully and he agreed to buy at the rate of $50 per acre and ten thousand dollars in addition, certain lands described, containing in the aggregate 3,807.42 acres according to the government survey, and at the rate of $45 per acre certain other lands described, containing, according to government survey, 353.92 acres, deducting 20 acres estimated to be occupied by the T. W. & W. P. E. The sum of $15,000 was paid in cash on the execution of the agreement, when possession was given to the purchaser. $85,000 was to he paid on the execution of a warranty deed by the vendors on the 10th of May following, with six per cent, interest, and the balance of the purchase money, amounting to $115,297.40, was to he paid on or before March 1, 1878, with interest, etc. The deed was to be delivered at the First Hat. Bank, Springfield, where the purchase money was to he paid. The purchaser was to execute his note and mortgage for the balance with certain conditions not necessary to mention, and the vendors were to procure by June 1,1877, a proper release of a certain deed of trust held by Parsons & Scudder for the benefit of a bank in St. Louis. Then occurs the following provision.

“ And the said Messrs. James C. and George Hamilton, or William Scully, agree at their own expense, respectively, to survey the said land, if they see fit, for the purpose of ascertaining the amount of acres contained therein; said survey to he made by the county surveyor or some other competent surveyor; and it is hereby agreed that if on actual survey the said land shall be shown to contain more acres than is shown by the government survey, the said William Scully shall pay the difference ; and if, upon such survey, the said land shall be shown to contain a less amount of acres than is shown by the government survey, the amount thereof shall be deducted from said purchase money, and the said William Scully allowed a credit of said amount of his said note and mortgage.”

It was further provided that the vendors should, at their own expense, execute a general warranty deed, and also furnish to the vendee a certain contract referred to, executed in 1845, by persons named; also a copy of a certain decree rendered in Kentucky in 1859, and certain proofs as to the title, which proofs were to be so furnished by said May 10th, failure in which was to work a cancellation of the contract. Then followed a stipulation in regard to taxes, and a reservation as 1o crops, etc. The terms of this contract were carried out as to the execution of the papers, the delivery of proofs, possession of the land and payment of the purchase money, all of whicn was done to the satisfaction of the parties interested, by the first of April, 1878. The present controversy grows out of a demand on the part of the vendors for an additional paymen for an excess of land over the amount shown by the government survey, resting upon surveys made at the instance of vendors under the provision of the contract above set forth.

In -January or February, 1885, the vendee, Scully, wasnotific d that a survey, so made at the instance of the vendors, showed an excess of some 68 acres (as appears from the evidence) for which compensation was demanded, upon refusal to pay which the present suit was brought. The case was tried by the court, a jury being waived, and the issues were found for the plaintiff, and judgment was rendered accordingly for §3,505.54, from which an appeal is prosecuted to this court. There is no conflict in the testimony, and the point for decision is as to the proper construction of the contract. The survey made by the vendors was not completed till January, 1884, though it appears something was done in the matter in 1881 and 1883, but notice was not given the vendee, as already stated, till 1885. It is stipulated that the survey could be conveniently made in two weeks. It will be observed that in the provision already quoted no time is expressly fixed when the survey shall be made, and the solution of the question presented bv this omission must determine the rights of the parties. Nearly seven years elapsed after full performance of the contract had been completed by the payment of the balance of the purchase money, before this proceeding was instituted or notice given of the demand; and it seems to be the view of counsel for plaintiff that nothing short of the period of ten years, fixed by the Statute of Limitations in regard to actions on written contracts, would bar this suit. That limitation does not begin to run until the cause of action accrues. The cause of action would not accrue, manifestly, in this case, until a survey had determined the real number of acres, and perhaps not until notice had been given. So that according to the view suggested the survey might be delayed indefinitely and the Statute of Limitations would afford no aid in solving the difficulty. Other considerations must be invoked.

In construing contracts it is a settled rule and a guid'ng principle that the various provisions shall have a fair and reasonable interpretation according to the intention of the parties, and the question is what, according to such interpretation, was the bargain. It is competent to consider this in the light of surrounding circumstances, so that the court may, as far as possible, occupy the standpoint of the parties when the contract was entered into. When no time is men. tioned in a contract for the performance of its conditions, and it can not be gathered from the language employed what was the intention in this respect, the law will imply a reasonable time; and what is a reasonable time will depend upon the peculiar circumstances of the case. The contract in this case involves an important transaction and was evidently drawn with care. Its provisions are reasonable and fair and seem to have been readily understood and promptly performed aside from the clause under consideration. It was executed on the 17th of April, 1877, and was to be fully carried out by the 1st of March, 1878. The clause referred to is found in the body of the writing immediately following the provision in regard to the final payment and the release of an existing incumbrance. The substance of it is that the respective parties reserved the right, if they saw fit, to survey the land for the purpose of ascertaining the amount of acres therein contained, which, by preceding clauses, had been provisionally determined; and if such survey should show more acres than are shown by the government survey the vendee should pay the difference, and if it should show less acres the amount thereof should be deducted from the purchase money, and the vendee should be allowed a credit therefor on his note and mortgage. So far as the vendee is concerned it seems to be perfectly clear that if he wished to avail himself of the right thus conferred, it would be necessary to act in time to obtain the credit on his note. He could have a deduction from the purchase money, but it was not provided nor intended that after the purchase money was all paid; and the note and mortgage thereby fully discharged, he could make the survey and then recover back a part of the money. The language employed would certainly preclude such a demand by the vendee. The time when a thing is to be done, or within which a right may arise, is generally deemed essential, and where parties make It so the provision will be enforced, as a rule, in courts of law. It is usually important to a man that he shall know when the time has passed within which another may exercise a contract right at his expense, and he may properly stipulate in this respect. When he does not so stipulate, and even when he is in default for the non-performance of his obligation, statutes of limitation operating upon grounds of public policy interpose and fix a limit within which relief must be sought in the courts. Assuming, as we think properly, that the vendee was required to make his claim within the time fixed for the performance of the contract, what limitations, if any, may be imposed upon the vendor ? The principle of mutuality is of general if not of universal application. Its equity commands consent, and courts will reluctantly adopt a construction placing parties on an unequal footing in respect to the same right, giving to one a privilege not enjoyed by the other. It will not readily be presumed that such was the understanding. Looking at the contract as an entirety, reading all its provisions together in view of the subject-matter and the situation in general, we can not suppose it was intended that there should be any want of mutuality in regard to the point involved in this, clause. We think it was intended that if before final payment was made it should appear that the number of acres was more or less than indicated by the government survey, which in absence of proof to the contrary, is usually deemed conclusive, the error might be corrected, and that the aggregate price to be paid might thereby be increased or diminished, but that either party, in order to avail himself of the clause, should take the necessary steps before the completion of the contract by final payment. If this view is not adopted then it must be held that the rule of a reasonable time or the Statute of Limitations must be applied. If a reasonable time is to be considered then we should say without hesitation that the delay for nearly seven years is fatal. If the Statute of Limitations ten years is to be applied, then the trouble heretofore suggested will arise, that is, the statute began to run only from the time the cause of action accrues, which in this case can not be until a survey has been made, and this would render possible a delay never contemplated. Loring v. City of Boston, 7 Mete. 409. We are of opinion that upon a proper construction of the contract and the undisputed facts in the case the plaintiff below disclosed no right of action and the judgment of the circuit court is therefore reversed.

¡Reversed.


text:
    John Alsop v. Ohio & Mississippi Railway Co.
    1. Killing stock — Fences.—Where stock get upon the track through a defective fence, where the railroad company are by law required to fence,! and stray upon the track, but the injury is inflicted at a point where a fence is not required, the company is liable without proof of negligence in the management of the train.
    2. Frac tice. — This court is required to examine the evidence in order to say whether there is sufficient to sustain the verdict. It is not precluded from so doing because no written propositions were submitted to the trial court, and if it appears that, applying the law to the undisputed facts, the judgment is clearly wrong, the judgment must be reversed.

      Appeal from the Circuit Court of Shelby county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. Howland J. Hamlin, for appellant.
    Messrs. Moulton, Chapee & Headen, for appellee.
   Wall, P. J.

This was a suit before a justice of the peace to recover the value of damages for a cow injured by the engine of defendant’s railroad company.

The case was removed by appeal to the circuit court where a trial by the court, a jury being waived, resulted in a finding and judgment for defendant, from which an appeal is prosecuted here by the plaintiff below. Suggestion is made that no question of law can arise here because no written propositions were submitted to be held or refused.

The citations made in support of this relate to the practice in the Supreme Court in those cases where that court is not authorized to examine questions of fact, and are not in point here. This court is required to examine the evidence in order to say whether there is sufficient, according to the test of well settled rules, to sustain the verdict. It is not precluded from so doing because nó written propositions were presented to the trial court, and if it appears that, applying the law to the undisputed facts, the judgment is clearly wrong, the judgment must be reversed. Where no propositions are presented it would be presumed the court held the law correctly; and if the judgment is manifestly erroneous, the conclusion would necessarily be that the court misconceived the facts. Hence the same weight being given to the finding of-the court as would be given the verdict of a jury, it must clearly appear that the result is against the great weight of the evidence before this court would be at liberty to interfere.

It appears from the proof in this case that the animal came on the right of way at a point where the company was by law required to fence, and that there was no sufficient fence at that place. It is a necessary inference from the evidence that it got on the road at that point by reason of the deficient fence. It ran along in front of the train a short distance, crossing a cattle guard which was also insufficient, and was overtaken and injured by the engine at a point some fifty yards north of the cattle guard.

No negligence is shown in the management of the train, and the point where the animal was actually overtaken and injured was within the corporate limits, of a town where no fence was required. It is assumed the animal was at large contrary to law, but there is no proof whatever that the owner was at fault in this respect, except so far as may he inferred from the fact of the animal being so at large.

These facts thus briefly stated arc not in doubt. It may he said there is no controversy as to the facts, and the question is whether the plaintiff is entitled to recover. There are no written pleadings, and the right of recovery must depend wholly upon the case as made by the proof. The statute provides that railroad companies shall, except at certain specified points, erect and maintain fences on both sides of the road, suitable and sufficient to prevent stock from getting on such road, and failing to do so. shall be liable for all damages done on such road to stock getting thereon, by the agents, engines, or cars of the corporation.

It is not necessary to show negligence in the management of the train. The ground of recovery is the failure to fence. No other fault need be shown. Nor is it a sufficient defense to prove that the owner permitted the stock to be at large in violation of law; but it must also appear that he did so under such circumstances that the natural and probable consequence of doing so was that the stock would go upon the track and be injured. Ewing v. C. & A. R. R. Co., 72 Ill. 25; C. & St. L. R. R. Co. v. Murray, 82 Ill. 76; C. & St. L. R. R. Co. v. Woosley, 85 Ill. 370.

In this case if the animal had been struck before reaching the. cattle guard, and while inside of the line where a fence was required, there would be no doubt of liability; but it is urged, and this is the real point at issue, that as the injury was actually inflicted at a point where a fence was not necessary, there can be no liability without proof of negligence in the management of the train. We think this an erroneous view of the law.

To repeat what the statute provides: The company must erect and maintain a fence sufficient to prevent stock from getting on the road, and, omitting to do this, must pay for the damages done to such stock thereon by the engines, etc., of the company.

In the case of G. W. R. R. Co. v. Hanks, 36 Ill. 281, the Supreme Court said : “It is objected that the declaration does not show the steer was not killed in one of the places excepted by the statute, but only that it got on the road at a place without the limits of town, etc. It is urged that it is not important where it got on the track but where it was killed. On the contrary the place where it got on is the precise thing to be considered. It was to prevent animals from straying on the track that the company was required to build the fences. Whether, after once getting upon the track through the negligence of the company, they wandered to a road crossing before being struck by the locomotive, is wholly immaterial.”

This being the rule of law applieab1e, the plaintiff was entitled to recover upon the undisputed facts in the case.

The judgment will be reversed and the cause remanded.

Eeverscd and remanded.


text:
    In the Matter of the Conservatorship of Henry P. Hall.
    1. Services of conservator. — The court is of opinion that, the conservator was in no position to ask for an allowance for his services from 1863 to 1876, inasmuch as he not only had not made the annual reports and settlements required by law, but had utterly failed to keep accounts of his acts, and that the allowance of $25 a year, from 1876 until the time of his removal, was reasonable.
    2. Allowance to ward’s child. — The amount given by the conservator to his ward’s daughter, who was of age, but weak in body and mind, and without resources, should be allowed the conservator.

      Appeal from the Circuit Court of DeWitt county; the Hon. Geo. W. Heedman, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. A. E. DeMange and Mr. R. A. Lemon, for appellant.
    Messrs. Fuller, Monson & Ingham, for appellee.
   Wall, P. J.

The present controversy relates to the accounts of A. L. Barnett as conservator of Henry P. Hall, an insane person.

The conservator was appointed in 1863, and made his first report in L876. In that report it appeared that the affairs of the ward had been managed in a very loose and careless way, the brothers of the insane person having divided the trouble with the conservator. Ho accounts of receipts and disbursements were kept, and the report conceded that it was impossible to make anything like an accurate statement of the transactions embraced in that period of thirteen years.

That report, showing a balance of $26.55 on hand, was approved by the county court. In answer to a citation another report was presented at the December term, 1883, which was not approved; and the county court restating the account, found there was a balance of $1,055.50 in the hands of the conservator. At the February term, 1884, the conservator was removed, and at a later term- he sought to set aside the statement of account l >v the court 1 ast mentioned. The court declined to grant this relief, and he appealed to the circuit court, where he obtained an order of reversal, and the matter coming up again in the county court, his accounts were passed upon and stated, from which last order he again appealed to the circuit court. On this appeal the circuit court, after hearing all the evidence, disallowed certain items of credit claimed in the report, and restating the account, found there was a balance of $612.28, which the appellant was ordered to pay over to his successor. From this order an appeal is prosecuted to this court. Specific objections are urged to the statement made by the circuit court, which will now be noticed. It is urged, first, that the court erred in refusing to allow a charge made for services from 1863 to 1876, the period covered by the first report, amounting to $390. In this we find no error. The proper time to ask for such an allowance was when that report was made; but it is apparent from the conceded irregularity and the confessed negligence which marked the whole of that period, the conservator was then conscious that he was not, in any proper view of the case, entitled to compensation. Indeed, he was grossly in default, and while it was not shown that he ever misappropriated the funds, he was in no position to ask for an allowance for his services. He not only had not made the annual reports and settlements required by law, but he had utterly failed to keep accounts of his acts and doings. To allow compensation under such circumstances would be to offer a premium for official negligence. It is next urged that the court should have allowed 850 per annum for the services of the conservator from 1876 to the end of his term. The court allowed $25 per annum.

The statute provides (Sec. 36, Ch. 86): “ Conservators on settlement shall be allowed such fees and compensation as shall seem reasonable and just to the court.” The record discloses a considerable mass of proof heard by the court upon the value of the services rendered. After reading that testimony in full, we are not able to say the conclusion reached is erroneous.

There was conflict as to the amount as well as the value, and it is probable that the allowance is about what it should be; we see no occasion to interfere with it.

We next notice an item of credit claimed for §100 paid for attorney’s fees in contesting the order of the county court, made at the December term, 1883. The court disallowed this charge and, as we think, properly. From what appears it seems reasonable to say that had the conservator given the subject such attention as was due, this expense would have been unnecessary. In this instance, as in others, he was so careless and apparently indifferent that he ought to bear the consequences. It would be unjust to impose this burden upon the estate.

A more difficult question is presented by the next item, which is for §117.11, expended at various times for the benefit of Mary E. Hall, daughter of the insane ward. This girl seems to be the only child, and, her mother being dead, is the only person directly interested in the estate of the ward.

It appears that she reached the age of eighteen years in 1871, but that she is sadly afflicted both in body and mind. She lived with her maternal grandparents for a number of years, and has been suffered to stay at various places among her relations, evidently not especially welcome anywhere, and is now with Harrison Meacham, who is her conservator. By the will of her grandfather, who died in 1876, she inherited §100, which, however, did not come to the hands of her conservator till September, 1881, after the death of her grandmother. It appears that while she is able to work more or less at times, yet she has frequently needed aid, probably more than she has received, and that at the dates mentioned down to 1883 the money in question was expended for her benefit.

, The bills are mainly for clothing and medical attention, and as to these items it seems that they were really necessary for her comfort and were actually furnished as charged.

The question is whether this was a proper appropriation of the funds in the hands of the conservator. The statute provides,- See. 17, Ch. 86, that the income and profit of the estate shall be applied as far as necessary “ to the comfort and support of the ward and his family and the education of his children.”

It is contended that the ward had no family and that as this daughter was of age, her father was under no legal obligation to support her, and therefore the expenditure was unauthorized. True, the family was broken up, but such must always be the case where the mother is dead and the father insane; . yet we presume the law would not be construed to deny support for this reason. True, the daughter was of age, yet by reason of her inherited misfortune she was a charge upon her father to the extent of her necessity and his ability.

• The statute, Oh. 107, See. 1, provides that every poor person who shall be unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brother or sister of such poor person, if they or either of them be of sufficient ability, and by section 10 the order of liability is fixed, the parents being liable where the poor person has no children of sufficient ability.

In this case the person in question had an expectancy from the death of her grandfather in 1876, but nothing could be realized, and in effect the provision was wholly contingent and unavailable until September, 1881, after the death of the grandmother, and while, during all that period she had a conservator, yet there was no money which he could reach or apply for her use, so that until the date last mentioned she was in fact within the statutory definition of a poor person. •We think, therefore, upon a reasonable construction of the statute and the rights of the parties thereunder, the conservator was justified in the expenditures for the benefit of the daughter, Mary J. Hall, until September, 1881. As wre estimate the items thus designated they amount to §95.61, for which sum the conservator should have been allowed! The judgment of the circuit court will therefore be reversed and the cause remanded,with directions to allow a credit of $95.61 for expenditures referred" to, leaving a balance of §576.67 to be accounted for by appellant to his successor in office, with six per cent, interest from the date of the judgment appealed from; the costs in the circuit court to be apportioned in such manner as may seem just and reasonable to that court. The appellant will recover his costs in this court.

Reversed and remanded.


text:
    John Jones et al. v. The People, etc.
    1. Breach of sheriff’s bond — Levy.—The levy by a sheriff upon the property of B, by virtue of a writ against A, is a breach of his bond.
    2. Action on sheriff’s bond — Judgment on trial of right of property. — Where a party whose goods the sheriff had levied upon by virtue of a writ against another person chose the remedy of a trial of the right of property which was appealed^ several times but found in the claimant’s favor brought an action of debt on the official bond of the sheriff, and on the trial of such action the record of the proceedings in the trial of the right of property was introduced in evidence against defendant’s objection, and the court instructed the jury that the judgment therein was conclusive of the right of plaintiff in this case, held, that this was error.
    3. Damages. — In such case it was error to instruct the jury that they should allow the plaintiff as damages the expenses incurred by her in the trial of the right of property, including attorney’s fees, traveling and hotel expenses, and all costs, including the expense of printing briefs, etc., in the appellate court.
    4. Same. — As a general rule the value of the property and interest will furnish the true measure of damages. Items like the above are not ordinarily allowable even in actions inform ex delicto unless there is an admixture of fraud, malice, or other such sinister motive as would furnish ground for vindictive or punitory damages.
    Appeal from the Circuit Court of Creen county ; the Hon. C. W. Herdman, judge, presiding.
    Opinion filed February 25, 1886.
    Mr. James R. Ward, for appellants;
    that plaintiff, by her election, has waived all other remedies, cited Karr v. Barstow, 24 Ill. 581; Kreuchi v. Dehler, 50 Ill. 177; Harrison v. Singleton, 2 Scam. 22; Derickson v. Krause, 4 Bradwell, 507; Merricks v. Davis, 65 Ill. 319.
    As to measure of damages; Sutherland on Damages, Vol. I, 117, Vol. II, 32; Lawrence v. Hagerman, 56 Ill. 76; Daviss v. Crow, 7 Blackf. 129; Bates v. Courtwright, 36 Ill. 518.
    Plaintiff had no right of action upon the sheriff’s bond: State v. Conover, 4 Dutcher, 224; South v. Maryland, 18 How. (U. S.) 396; State v. Long, 8 Iredell, 416; State v. Brown, 11 Iredell, 141; Gerber v. Ackely, 32 Wis. 233; McElhaney v. Gilleland, 30 Ala. 183; Brown v. Mosely, 11 S. & M. 354; Jenkins v. Lomonds, 29 Ind. 294; Carey v. States, 34 Ind. 105.
    Mr. Mark Meyerstein, for appellees;
    that plaintiff had a remedy on the sheriff’s official bond, cited Horan v. People, 10 Bradwell, 21; People v. Robinson, 89 Ill. 159; Walsh v. People, 6 Bradwell, 204; 2 Sutherland on Damages, 31.
    As to damages: Sutherland on Damages, Vol. I, 106, 142; Vol. II, 61.
   Wall, P. J.

This was an action of debt on the official bond of a sheriff. The breach complained of was that the sheriff, having a writ of attachment at the suit of Geisekc, Mysenburg & Co., against the property of one James W. Israel, levied upon the property of Elizabeth Israel, for whoso use this suit is brought.

A trial by jury resulted in a verdict for the plaintiff, the damages being assessed at §622.05.

A motion for a new trial was overruled, and judgment was entered upon the verdict.

It is objected, first, that the cause of action here set up can not be maintained upon the official bond of the sheriff and his sureties. There is some conflict of authority on the ques. tion, but we are inclined to think the weight of authority, as well as sound reason, will support the view that the levy by a sheriff upon the property of B, by virtue of a writ against A, is a breach of his bond. Walsh v. The People, etc., 6 Bradwell, 204; Horan v. The People, etc., 10 Bradwell, 21.

The record shows that after the levy had been made, notice was given the sheriff by said Elizabeth Israel that she claimed the property, and the sheriff thereupon notified the county judge, and the necessary steps having all been taken, there was a trial of the right of property in which the j ury found for the claimant, from which an appeal was taken by the attachment creditors to the circuit court, where the case was again tried, resulting the same way, and an appeal was then taken to this court, when the judgment of the circuit court was affirmed.

Pending these trials the property remained in the custody of the sheriff, and until the affirmance in this court, when it was restored to the claimant.

On the trial of the present case the record of the proceedings in the trial of the right of property was introduced in evidence against the objection of the defendant, a.nd the court instructed the jury that the judgment therein was conclusive of the right of the plaintiff in this case. This was error. The sheriff was not a party in a legal sense to that proceeding, and while he would have been protected in selling the property by a decision adverse to the claimant, yet he is not bound by a decision the other way. This point was so ruled expressly in Whitaker v. Wheeler, 44 Ill. 440, where the judgment was reversed -for the error of the circuit court in admitting the record of such a proceeding in evidence, in an action of trover against the sheriff. See, also, Foltz v. Stevens, 54 Ill. 180 and Hubbard v. Thrasher, 65 Ill. 479, where it was said that notwithstanding the verdict for claimant the officer may, at his peril, retain and sell the property if he chooses to do so.

These decisions were under a former statute where the trial was before the sheriff and a jury, but we think the change in the law whereby the trial is to be had before the county judge and a jury has not changed the rule stated.

The plaintiff Avas permitted in this case to prove, and the jury were instructed that they should allow to the plaintiff as damages, the expenses incurred by her in the trial of the right of property, including attorney’s fees, traveling and hotel expenses, and all costs, including the expense of printing briefs, etc., in the appellate court.

It is a general rule that the true measure of damages is compensation for the direct injury sustained, remote and consequential damages not being allowed.

In an action on a contract the successful party recovers only such costs as are taxable under the statute. He can not usually have an allowance for his loss of time and expense in prosecuting the demand or making the defense as the case may be, and the expense for service of attorneys stands upon the same ground as the other personal expenses of the party not embraced in the list of taxable cost.

Legal relief is at best imperfect; it is not usually designed to furnish complete and perfect indemnity, and it may well be doubted whether a sound public policy would be subserved if absolute indemnity were given since thereby a great and even dangerous stimulant would be furnished to litigation.

A defendant should have the same hope of indemnity in this respect as the plaintiff. In certain exceptional cases the law provides for such indemnity by requiring bond and security, but we think it may be stated as a general rule that such items are not ordinarily allowable even in actions in form ea; delicto unless there is an admixture of fraud, malice or other such sinister motive as would furnish ground for vindictive or punitory damages.

In the present instance the owner of the property might have replevied, and in that proceeding could have recovered damages for the detention of the goods, or she might have brought trover or trespass against the sheriff, but in neither of these actions could she have been allowed for counsel fees or personal expenses without showing such a case as would warrant vindictive damages. The law will not sustain her in accomplishing such a result in the indirect way here attempted. Harris v. Eldred, 42 Vt. 39.

She had the legal right to resort to the remedy of a trial of the right of property. The sheriff could not prevent the parties in that proceeding from taking the case by appeal from one court to another, but his liability ought not thereby to be enhanced.

Had he sold the property and been sued in trespass he would have been liable, ordinarily, for only the value of the property and interest from the time it was taken. In this case, having returned the property, he would be liable for the damages sustained to the same while in his possession and interest on the property while the plaintiff was deprived of the use of it.

Where a stock of goods is wrongfully taken, thereby stopping the business of the owner, it would seem that something in addition should be allowed for the direct loss produced; but this would not include loss of profit which is too speculative though it might include immediate loss in rent of property not occupied, though necessarily paid for, and possibly other like items depending on the special facts of the case. As a general rule, however, the value of the property and interest will furnish the true measure of damages. In support of the views here stated reference may be had to' Sedgwick on the Measures of Damages, Chap. III, and the authorities cited in the text and notes. See also Pacific Insurance Co. v. Conard, 1 Baldwin, 138, quoted at length in Sedgwick, marg. p. 532. See also Field on the Law of Damages, Secs. 768 and 792. Counsel call attention to an expression in Sutherland on Damages, seeming to sustain the position of plaintiff here.

The statement of the rule by that author, if it refers to cases where the defendant is lia^e for punitive damages, agrees with the view we have taken following the doctrine as ‘laid down in Sedgwick. The Illinois cases cited in the note are cases of that sort.

We are at a loss to see upon what ground of principle the sheriff could be held for damages beyond the measure allowable in trover or trespass, unless he has been guilty of malice or fraud, or some oppressive act for which exemplary damages should be assessed; and in this action, where it is sought to hold his sureties also, they may perhaps insist that in no event should they be so held, certainly not upon the facts appearing in the record now before us. We deem it unnecessary to notice in detail all the points presented in the brief. For the errors above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William B. Farrow v. Sylvester A. Vedder.
    Illegal sale. — Where a substantial part of the demand upon which a Judgment was based was for the price of certain intoxicating liquors sold at retail and in violation of law, the vendor having no license therefor, held, that the vendor had no cause of action as to the liquors sold in violation of law.
    Appeal from the County Court of Greene county; the Hon. L. R. Lakes', Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. James R. Ward, for appellant;
    that the law will not furnish the plaintiff a remedy to enforce the payment of a demand which grows out of an illegal or immoral transaction, cited Nash v. Monheimer, 20 Ill. 215; Munsell v. Temple, 3 Gilm. 94; Liness v. Hesing, 44 Ill. 113; Arter v. Byington, 44 Ill. 468; Cin. Mut. H. A. Co. v. Rosenthal, 55 Ill. 91; Neustadt v. Hall, 58 Ill. 173; Henderson v. Palmer, 71 Ill. 583.
    Mr. Edwin A. Doolittle, for appellee.
   Wall, P. J.

A substantial part of the demand upon which this judgment is based is for the price of certain intoxicating liquors sold at retail and in violation of law, the vendor having no license therefor. The trial court disregarded the defense thus suggested, and the question is whether, as to this item, the recovery can he sustained. The exact point has not, so far as we are advised, been determined in this State, hut the principle involved is well settled.

The illegality of a contract is in general a perfect defense. When the law forbids a thing to be- done it will not ■ enforce a contract depending for its consideration upon the thing so forbidden. As one writer has said, “It is clear no right of action can spring out of an illegal contract; that no action will lie upon a contract made in violation of the statute, or of a principle of the common law;” and to quote from another, There can be no civil right where there can be no legal remedy, and there can he no legal remedy for that which is itself illegal.” Penn v. Bornman, 102 Ill. 523, and authorities there cited; Workingmen’s Banking Co. v. Rautenberg, 103 Ill. 460.

The precise question was so determined in Gloss v. Alt, 17 Kansas, 445; Dolson v. Hope, 7 Kansas, 161. See also Sedgwick on Stat. and Const. Law, 2 Ed. 69 and 70. Wheeler v. Russell, 17 Mass. 258.

A similar question arose in Woods v. Armstrong, 54 Ala. 150, and in a very elaborate note to this case in 25 Am. Rep. 674, will be found an interesting and valuable review of decisions in England and the Hnited States.

We think upon principle and the great weight of authority the plaintiff had no cause of action as to the liquors sold in violation of law. The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: "Wall, P. J.

text:
    Jacob Miller v. William Ridgely.
    1. Practice. — Where the ruling complained of in this court was not one of the grounds on which a new trial was asked, the point can not now be urged.
    2. Landlord and tenant. — Where the old lease expires, but the tenant holds over, and the landlord receives the rent, it is presumed, as a matter of law, that the terms of the old agreement are continued, except so far as it appears they are modified.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. A. Creighton, Judge, presiding.
    Opinion filed Febuary 25, 1886.

      Messrs. Gunn & Lunger, and Messrs. McCartney & Casey, for appellant.
    Mr. Clinton L. Conkling, for appellee.
   "Wall, P. J.

It appears from the record in this case that Eidgcly & Miller executed an instrument under seal, whereby the former leased to the latter certain premises, situate in the city of Springfield. The term was for three years from April 1, 1879, and the rate §60 per month. The lessee covenanted that the premises were in good condition, and that at his own expense he would so keep and return the same at the end of his term. It was further agreed that the lessee would not sublet or assign without the written consent of the lessor. When the term had nearly expired the lessor notified the lessee that if he desired to continue he would be expected to pay at the rate of §1,000 per year — §83.33 per month. The lessee, after a short delay, informed the lessor that he would remain, and the lessor sent him a written lease, similar to the first, with the rate increased, to be executed by him, but it was never signed. The rent was paid at the rate of §83.33 per month with regularity until the latter part of 1883. The premises were vacated in January, 1884, leaving three months’ rent unpaid, for which Eidgely issued a distress warrant, which was levied upon the personal property of Miller. The defense set up to the proceeding was in the nature of recoupment, it being claimed by the defendant that he had suffered heavy losses by reason of the failure of the plaintiff to keep the roof in repair, and that by reason of the failure of the plaintiff to put water in the building the defendant had been unable to rent the upper floor, whereby he had been damaged, etc. The case was tried by jury, and there was a verdict for the plaintiff for §200, upon which, a motion for new trial being overruled, judgment was rendered. On the trial the defendant offered to prove that during the period covered by the original lease the lessor consented to certain modifications by which he was to keep up repairs, was to allow subletting, put water in the upper floor, and whitewash certain rooms. The court, on the objection of plaintiff, excluded this evidence on the ground that there was no new consideration, and therefore the agreement to so modify was not binding. This ruling of the court is now assigned as error. The motion for new trial was in writing, and stated distinctly the reasons therefor. Those reasons were that, first, the court admitted improper evidence offered by plaintiff, viz., the testimony of one Odiorne upon another point; second, that the court improperly instructed the jury for the plaintiff; and third, the verdict was contrary to law and the evidence. It will be seen that the ruling now complained of was not one of the grounds on which a new trial was asked, "and upon the authority of O. O. & F. R. R. Co. v. McMath, 91 Ill. 111, we are disposed.to hold that the point can not be now urged. It is proper to say, however, that were this question of practice out of the way, we should be inclined to agree with the holding of the trial court. An executory agreement of that sort, without a new consideration, would be a mere nudum, pactum, and not binding. Loach v. Farnum, 90 Ill. 368; Wood on Landlord and Tenant, Sec. 382. From all the evidence in the case, it is impossible to conclude that the landlord, by making certain repairs and concessions with regard to subletting, intended to bind himself (or should be so regarded) to make any other repairs or concessions. Besides, as this lease was under seal, it could not be modified or varied by parol. Loach v. Farnum, supra, and cases there cited. It is urged that the court erred in instructing the jury that if the tenant under a lease for a year or years holds over without a new agreement except as to the amount of the rent, which is higher, and pays the rent, the tenant’s liability will continue under the terms of the original lease, so far as applicable, and the renting will become a tenancy from year to year, subject to the terms of the original lease, the same as if expressly agreed by the parties to be continued between them. This proposition is supported by authority. Taylor on Landlord and Tenant, Sec, 58; Prickett v. Ritter, 16 Ill. 96; McKinney v. Peck, 28 Ill. 174. Counsel seem to concede that this is the general rule, but the argument is apparently that it can not he appli d to a lease under seal, because such a lease can not be modified by parol.

The authorities do not recognize such a distinction, and when it is remembered that leases have usually been under seal it is not probable that it would have escaped notice. The true view is, that the holding over under the circumstances is to be regarded as in effect a new contract upon the terms of the ol d one, except so far as expressly modified.

The old lease has expired, but when the tenant holds over and the landlord receives the rent it is presumed as a matter of law that the terms of the old agreement are continued, unless so far as it appears they are modified. The objections taken to the other instructions, in which this proposition is substantially repeated, we think not well made, and we find no error in that respect for which the case should be reversed. The court permitted the defendant to show that there were other modifications than that in regard te the rate made applicable to the second letting, if it may be so termed.

There was evidence tending to show that the landlord was to make repairs and put in water and that because of his failure in these matters the tenant suffered loss during the second term. There was also evidence tending to show that there was no particular understanding as to these repairs and improvements, but that they were made from time to time upon the request of the tenant though not all of these requests were complied with; and there was evidence tending to show that the leaks were caused by the reckless conduct of such tenants who were in the habit of splitting wood and breaking coal on the roof.

The jury heard all this evidence, were instructed upon the subject at the instance of defendant, and made an allowance of 850 to the defendant.

Upon reading the testimony we are unable to say that any injustice has been wrought by this verdict. Although the tenant was frequently making complaint and asking for improvements and repairs, he paid the rent with promptness as a rule, and as late as the 18th of January, 1884, he wrote to the landlord saying that he expected to go out at the end of the month, as he did, and that he would send the money and settle as soon as possible. He then owed rent from the 1st of November only, and the statement made by him that the landlord really owed him twice as much as the rent then due on account of the matters already mentioned, is quite inconsistent with the tenor of the note. So also was his conduct in the latter part of 1883 in requiring the landlord to repair a broken window in front and refusing to pay his monthly rent unless the item was allowed, which, being finally agreed to by the landlord, he paid the balance. Taking the evidence as a whole we think the appellant has no just occasion to complain. The point in the motion for new trial that the court improperly admitted the evidence of Odiorne as to the injuries to the roof by the subtenants, is not pressed in the brief, and we assume it is abandoned. However we perceive no valid objection to the proof.

The judgment is affirmed.

Affirmed.


text:
    Richard Dunnigan v. Eli F. Stevens, Adm’r, etc.
    Administration of estates — Claims not due. — Sec. 67, Chap. 3, R. S., providing for presenting claims not due for allowance, is to be construed as applying only to cases where the liability is absolute, and not where it is merely contingent, like the liability of an indorser of a promissory note not yet due.
    Error to the Circuit Court of Edgar county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 23, 1886.
    Mr. R. L. McKinlay, Mr. Hugh D. Roquet and Messrs Whitehead & Jones, for plaintiff in error.
    Mr. T. J. Golden, for defendant.
   Wall, P. J.

It appears from the record that one Kisner made and delivered to 0. R. Stevens, now deceased, his promissory notes, eleven in number, amounting in the aggregate to §7,500, and to secure the payment thereof executed a mortgage upon certain lands in Sullivan county, Indiana.

These notes were all dated January 1, 1881, the last falling due January 1, 1891, and wore payable to said Stevens in bank. Stevens indorsed to Dunnigan, plaintiff in error, the notes numbered 5, 7, 8, 9,10 and 11, and the others were afterward, by the administrator of Stevens, indorsed to John J. Brake.

Stevens having died intestate in Olark county, Illinois, Dunnigan filed a claim in the county court against his estate for the amount of the principal and interest accrued upon said notes so indorsed to the claimant. The county court disallowed the claim, from which order an appeal was taken to the circuit court, where an allowance was made in favor of the claimant for §560, the amount of the interest then due, the interest on all the notes being payable annually, and because the claim was not presented until after the term fixed by the administrator for adjustment, the claimant was taxed with the cost. The case is now brought here by writ of error, and the question is, whether the claimant was entitled to the amount of the principal of said notes, none of them having matured by their terms when the claim was filed in the county court.

The indorsement was made in the State of Indiana, and the contract is to be construed according to the law of that State-The notes were payable in bank and contained a provision by which the indorsers waived presentment for payment, protest and notice of protest and non-payment. By the statutes of Indiana, if anote is payable in bank it is negotiable, as are inland bills of exchange, and the payees and indorsees may recover, as in the case of such bills. Hence the indorser is bound, according to the rule of the law merchant, to pay the amount of the notes if the maker fails to do so when they become due, demand for payment, protest and notice being waived; but the indorser can not be called upon till the notes fall due respectively. It is, however, insisted that by virtue of certain legal proceedings the time of payment has been accelerated. As shown by the record, a suit was commenced in the Circuit Court of Sullivan county, Indiana, by said Brake against said Kisner and Dunnigan, to enforce the rights of Brake in reference to the. notes held by him, and the mortgage given to. secure them. In that suit a judgment was rendered in favor of Brake, against Kisner, for the amount due on the notes held by Brake, and upon a cross-complaint filed by said Dunnigan, he recovered a judgment for the full amount of all the notes he'd by him, though none of them were due.

The court adjusted the priorities between Brake and Dunnigan as to their respective liens upon tk'e mortgaged property, and ordered a sale and distribution of the.proceeds accordingly, which order seems to have been duly executed, and the amount realized was sufficient to pay Brake in full, and some $500 to Dunnigan.

An execution was awarded and issued in .favor of Dunnigan against Kisner, but was returned not satisfied. There was nothing in the notes by which these proceedings, resulting in a personal judgment against Kisner before the maturity of the notes, is authorized, and the warrant for it, if any, must be in some provision of law peculiar to the State of Indiana. It may be that such a provision of the local law. would modify the general rule of the law merchant, and that it might be held to enter into and form a part of the contract of indorsement.

This is a question not before us for decision, and upon which opinion need not be expressed. The defendant in error was not a party to that proceeding, and, however proper it may be, he is therefore not affected by it. The judgment in that proceeding can not be held to modify the liability of one whom it does not conclude.

It is, however, urged that under the statute of - Indiana the indorser may be sued jointly with the maker, or jointly and severally with him, and that as the liability of the maker has been established the indorser is also liable. This is but añother.statement of the proposition that the indorser is bound by the judgment, to which we are unable to agree.

It is suggested in behalf of plaintiff in error that the allowanee should, be made under See. 67, Ch. 3, E. S., which provides that any creditor whose debt or claim is not due may nevertheless present the same for allowance and settlement, and the claims shall be allowed by deducting a rebate of interest to be computed from the time of the allowance to the time when the debt would become due, according to the tenor and effect of the contract.

We think this provision, which is in derogation of common law right, is to be construed as applying only to cases where the liability is absolute and not where it is merely contingent. These notes are not yet mature. The time has not yet come when the maker is by the terms of the notes bound to pay, nor when in any event the indorser can be held liable. The contingency may not arise, and we are not inclined to hold that this purely contingent liability constitutes a claim or debt within the meaning of this provision of the statute.

We are of opinion the circuit court properly applied the law and the judgment is therefore affirmed.

Affirmed.


author: Wall P. J.

text:
    Solomon F. Lewis v. John J. McGraw, Adm’r, etc.
    1. Administration — Parties.—In a petition to sell real estate to pay debts, it is not necessary to make those who may be supposed to have claims against the estate not presented for allowance, parties to the petition,* a compliance with the statute is sufficient.
    2. Same — Rights of creditors over purchasers from: heirs or devisees. — All devises .are fraudulent and void as against creditors, and creditors have a lien against the estates of their deceased debtors for the satisfaction of their debts, which they may assert — and enforce through administration — even against purchasers from heirs or devisees.
    3. Same — Homestead exemption. — While the provision of the statute which continues the homestead exemption after the debtor’s death for the benefit of the widow and minor children is established, yet after the exemption ceases the right to sell to pay debts of the testator has been fully recognized.

      Appeal from the Circuit Court of De Witt county ; the Hon. C. Epler, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Moore & Warner, for appellant.
    Mr. P. T. Sweeney and Mr. R. A. Lemon, for appellee.
   Wall P. J.

This is an appeal from an order granted upon the petition of the administrator, with the will annexed, of Isaac Loucks, deceased, for leave to sell real estate to pay debts.

The will devised the property in question to the widow of the testator and was executed in 1874.

The testator died in 1879. The property was his homestead and was worth less than $1,000.

The widow continued to occupy the property for several years, and though the will was admitted to probate in 1882, letters executory were not issued.

Shortly after probating the will, a mortgage was executed by the widow to William Bishop, intending to cover the property, though misdescribing it.

In 1883 she conveyed the property by deed to one Basback, who ait irward conveyed it to the appellant Lewis, and in 1884 she died. There were no minor children. Soon after her death, on the petition of Sweeny, a creditor of Loucks, McGraw was appointed administrator and the claim of Sweeny was duly probated against the estate. There being no personal property, and no other claims having been presented, the petition was filed by the administrator, for leave to sell the property to pay this debt, to which petition said Lewis, Bishop, and one Smith, who was the tenant of Lewis, were made parties defendant. Answers were filed by Lewis and Bishop, and an order was entered for sale according to the petition.

It is objected that the heirs of the deceased and the legal representatives of the widow should have been made parties. The statute provides that the widow, heirs, and devisees of the testator or intestate, the guardians of those who are minors, and the conservators of such as shall have conservators, and the actual occupants of the premises, shall be made parties. The widow being dead and she having been the sole devisee, the statute was complied with when her grantee and the occupant of the premises were made parties. The fact that the widow might have had a claim against the estate on account of her separate award is suggested as a reason why her legal representatives should have been joined. It is not necessary to make those who may be supposed to have claims against the estate not presented for allowance, parties to the petition. The proceeding is statutory, and a compliance with the statute is enough.

It is suggested that the petition is defective in not averring that the debts referred to therein were owing by the decedent at the time of his death. It does not appear that this objection was urged in the court below, though the petition was fully answered by Lewis, the present appellant, and Bishop, denying, among other things, the Aridity of the claim of Sweeney, and from the record we find the claim Avas duly proA-ed to have been a valid subsisting debt against the testator. Having ansAvered the petition, and having permitted this proof to be made without suggesting that there was no sufficient allegation on that point, it is too late to make the objection uoav.

We do not, however, regard the petition as defcctiA’e in this respect. The averment is that the debts and dem;nds alloAved against the estate amount to §501 besides the ost accrued, and that the petitioner ImoAvs of no other just c aim against the estate. We think the objection is not well taken. It is finally urged that as the property was the homestead of the testator, and Avas worth less than §1,000, the widoAV took it clear and free of the debt in question. The debt Avas contracted in' 1869, and it is contended by counsel for appellee, that 'the rights of the creditor are to be considered in the light of the law then existing in relation to homesteads. The law then in force created an exemption merely, Avhile the law in force when the will was made and Avhen it Avas probated, created an estate of homestead. Whether it Avas competent for the legislature to amend the homestead law, and thus affect the remedy as to existing contracts, it is not necessary to consider, as in amending the law care was taken to avoid doing so; nor is it necessary to say whether, if it were otherwise, the change would be important in the view we take of the subject.

Assuming that the testator might, by a conveyance executed by himself and wife, and acknowledged as the law provided, have sold the property and given a perfect title, it does not follow that he could, by a devise, place it beyond the reach of his creditors, because it was his homestead. Such is not, in our judgment, the letter or spirit of the law.

It is not so provided nor is it to be so inferred from what is provided. All devises are fraudulent and void as against creditors, and creditors have a lien against the estates of their deceased debtors for the satisfaction of their debts which they may assert and enforce through administration, even against purchasers from heirs or devisees. Ch. 159, Sec. 10 R. S.; Vansyckle v. Richardson, 13 Ill. 171; McCoy v. Morrow, 18 Ill. 519; Myer v. McDougal, 47 Ill. 278.

No such limitation, as is supposed appears in the statute authorizing sales of real estate to pay debts. Of course the provision which continues the homestead exemption after the death of the debtor, for the benefit of the widow and minor children, is to be regarded in such proceedings, and there is provision for assigning such exemption (Ch. 41 Sec. 44); and it has been held that the property, when of less value than $1,000, can not be sold while the exemption continues. Hartman v. Schultz, 101 Ill. 437.

The right to sell upon such a petition after the exemption ceases, was recognized in Bursen v. Goodspeed, 60 Ill. 277, and Wolf v. Ogden, 66 Ill. 224. See also, Thompson on Homesteads, Sec. 548.

As a devise is void against creditors it follows that devisees are in the same position as heirs and. that the same rule applies.

We are of opinion that this objection is not well taken and as no other objections are urged against the decree it will be affirmed.

Affirmed.


text:
    James M. Petty v. The People, etc.
    1. Practice — Criminal case — Recognizance.—A recognizance in a criminal case may properly be made returnable to a second term of court when the intervening first term is, by a rule of court, duly entered to be devoted wholly to civil business.
    2. Variance. — The recital in a set. fa. that a forfeited recognizance is signed by “Thomas J. Petty,” when the recognizance itself is signed “T. J. Petty ” is not a variance, if the instrument, otherwise answers the description given.
    3. Recognizance — Retorn.—A recognizance for appearance at a certain term of the “ Criminal Court of Adams county," when the only court of said county which could have jurisdiction of the offense charged was the circuit court, was sufficient under the statute.
    4. Doty op clerk to correct error in file mark. — It is not only the right, but the duty of a clerk of court to correct an inadvertent error in a file mark on its discovery.
    5. Practice. — The issue on a plea of mil Hel record is for the court and not for a jury.
    Appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. J. N. Sprigg and Messrs. Carter & Covert, for appellant.
    Mr. Oscar P. Bonney, for appellee.
   Wall, P. J.

This was a soire fadas'M.pon a forfeited recognizance. There was judgment for the people and the record is brought here on appeal by the surety. The objections urged in the brief will be noticed in their order. It is first urged that the return of the sheriff was bad, because it showed merely that he had not found defendants in his county. Counsel suggest the sheriff had power to serve the writ anywhere in the State.

There is no force in the suggestion. The sheriff could not serve the writ out of his own county, nor conld the writ properly require him to do so.

But if the writ and return were defective, the defendants, by filing pleas, waived the objection.

The next objection relates to the provision of the recognizance which was entered into October 18,1881, for the appearance of the principal at the January term, 1885, when by law another term intervened to be held on the fourth Monday of October, 1881. By a rule of court duly entered, the October term was to be devoted wholly to civil business, and the January term was the first term at which the case could be taken up.

This order was pursuant to authority conferred by Sec. 91, Ch. 37, R. S. Hence the recognizance was properly made returnable to that term. The People, etc., v. O’Brien, 11 Ill. 303.

After the motion to quash the scire facias had been overruled the defendants filed twelve pleas. The court sustained a demurrer to all these pleas except the first, second, fifth and sixth, which were, in effect, pleas of mil tiel recoi'd. To the pleas held good replications were filed and the issue was tried by the court. It is suggested that the third and fourth were good, and that the court erred in sustaining the demurrer thereto. Those pleas alleged that the justice of the peace did not approve and certify the recognizance and deliver the same to the clerk as averred in the scire facias.

The plea of mil tiel record put in issue all the material allegations of the sai. fa. including the making, certifying and filing of the recognizance described, and if such a record was produced its verity could not be questioned. Hence all that could properly be gained by these pleas was secured by the others and if it was intended by them to attack the record .they were insufficient. There is no occasion for complaint here. The People, etc., v. Watkins, 19 Ill. 117; Wilbourn v. The People, 76 Ill. 516; Moony v. The People, 81 Ill. 131; Peacock v. The People, 83 Ill. 331; Compton v. The People, 86 Ill. 176. No argument is presented or any point made in the brief as to the other pleas to which the demurrer was sustained, and we assume the appellant concedes they were defective. When the recognizance was produced on the trial objection was made by defendants that it was variant from that described in the sci. fa. and in support of the objection, which was overruled by the court, several suggestions are now presented for our consideration. First, that the scire facias alleged that the recognizance was conditioned for the appearance of said Thomas J. Petty on the first day of the then next term of the circuit court to be held in the said county of Adams and from day to day of said term, whereas the recognizance provided for his appearance on the first day of the January term, 18S5. This point raises the question as to the validity of the recognizance as already referred to, based upon the fact that it was not returnable to the October term. We do not care to discuss that question further and though it seems to be again presented in another part of the brief we will not again refer to it, being content with what has been said.

If the scire facias had averred that the recognizance was returnable to the January term it would perhaps have been a more accurate statement as it would have been literally the fact; but we do not understand this is the point made. If it is, the objection could have been obviated by amendment and should have been specifically stated in the court below.

This answer may also be made to another objection now presented, that the scire facias alleges that the recognizance was signed by Thomas J. Petty and the record shows the name was abbreviated T. J. Petty.

The averment that Thomas J. Petty signed by the name T. J Petty, would have met the point and could have been inserted if the attention of the court had been called to it on the trial.

It is probable, however, that such an amendment would not be considered necessary. The scire facias does not allege by what name Thomas J. Petty signed, and it might well be said that the production of an instrument, otherwise answering the description given, with the name signed by the initials, would be deemed sufficient. Speer v. Craig, 22 Ill. 433.

It is next urged that the recognizance did not hind the accused to appear before the circuit court of said county as alleged in the scire facias, hut before the “Criminal Court of said county of Adams.”

There is no. court having such a designation, legally speaking, in Adams county. This recognizance recited that said Thomas J. Petty had been examined before the justice of the peace on a charge of larceny of a horse, and had been adjudged to give bond as required by the statute in such case made and provided, for his appearance to answer said charge, and the condition was that if he should “personally be and appear before the Criminal Court of said county of Adams on the first day of the next term thereof, to be holden at the court house in Quincy on the third-Monday in January, 1885,” etc., etc. The only court which could have jurisdiction of the offense in question was the circuit court, which held a term for criminal business at the time specified, so that there can be no reasonable doubt that this was the court intended by the expression “the criminal court,” etc. It is provided by Sec. 361, Ch. 38, R. S., that “every recognizance taken or attempted to be taken in pursuance of this act, shall, by all courts in this State, be held and adjudged to have been entered into voluntarily, and shall not be set aside or adjudged insufficient for want of form, either in the recognizance or in the certificate of the officer taking the same.” Section 370 of the same chapter provides as follows: “Such action shall not be barred or defeated, nor shall judgment be arrested by reason of neglect or omission to note or record the default of ■ any principal or surety at the term when it happens, nor by reason of a defect in the form of the recognizance, if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recognizance.”

It is apparent the legislature intended to guard against the consequences of a too strict construction of such instruments. The provision is just and beneficial, and should be enforced according to the manifest object of the law.

There can be no dispute that “it sufficiently appears from the tenor” of this recognizance “at what court the party was bound to appear.” This objection must be overruled.

It is urged that the recognizance does not appear to have been returned to and filed in the said court, and so became a matter of record before the judgment of forfeiture was taken.

The sci. fa. does not allege on what day it was so filed, but by the indorsement thereon it appears the date was December 19,1834. The defendants called the clerk as a witness against the objection of the State’s attorney and proved that the file mark had been changed by him so as to read 1884 instead of 1885 as formerly.

When a clerk by inadvertence places the wrong date in a file mark, it is not only his right but his duty to correct the error on discovery. It will be presumed, when a sworn officer of the court makes such an alteration, he does so to correct a mistake and not to falsify the record, and when, as in this case, no effort is made to show that the corrected date is not the true one, and there are no suspicious circumstances connected with the transaction, the court will be justified in receiving and acting upon the paper as though the indorsement had been correctly made at first. McFarlan v. The People, 13 Ill. 9.

It is also urged that the court erred in refusing to submit the questions at issue to a jury.

In this the court ruled properly. The only issue was on the pleas of nul tiel record, which is for the court, and not for a jury. 1 Chitty Pl. 557; Brady v. Commonwealth, 1 Bibb, 517; Eppes v. Smith, 4 Murf. 466; Bourcher v. Wilboursen, 1 Dana, 227.

We find no error in the record, and the judgment will be affirmed.

Affirmed.