text:
    Cora Gullett et al. v. Floyd Otey, use, etc.
    1. Declarations. — In a case of replevin, where two parties claimed the horse in question, it was error to permit them to introduce in evidence the declarations of their respective vendors, made to third persons, and in the absence of the other. But the declarations of the respective vendors, made before either had parted with his alleged title, and when both were present, would be competent to be shown by either party.
    2. Suit on replevin bond.- — When suit is instituted upon a replevin bond, and the appellant seeks to defeat a recovery upon the ground that the merits of the controversy were not tried, the burden as to the right of property rests upon him, the same as in the replevin suit.
    3. Jurisdiction. — Where it was urged by appellant that the court erred in permitting the summons to be amended by attaching the seal, held, that after submitting to the jurisdiction of the court by filing his pleas, the appellant can not be heard upon this question.
    Appeal from the County Court of Greene county; the Hon. L. E. Lanin, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. James R. Ward, for appellants.
    Mr. John G. Henderson, for appellees.
   Conger, J.

The facts necessary to an understanding of this case are briefly as follows : W. 1). Gullett and his son, B. T. Gullett, resided-together, and had upon the farm where they lived a certain mare, of-which both at different times claimed to he the owner, and which both are shown to have used.

B. T., the son, died in August, 1884, and W. D., the father, upon the 28th of the following March. Mrs. Market, the appellee, claimed the mare in question, by virtue of an alleged transfer to her by W. L>., in consideration of having waited upon him during a severe sickness, while Cora Gullett, one of the appellants, insisted that the mare had been the property of her husband, B. T., and that he, during his lifetime, had given the same to her. It appears from the evidence that the mare was delivered to Mrs. Market by W. D., about three months before his death, and it remained in her possession until the 11th of May, 1885, when appellees brought an action of replevin before a justice for its recovery, and gave the bond upon which the present suit is founded.

The replevin suit having been dismissed without a trial upon the merits, Mrs. Market brings this action upon the bond, and the principal question is the ownership of the property.

Upon the trial below both parties were allowed to prove the declarations of their respective grantors, not in disparagement, but in affirmation of their respective titles.

This was error. The declarations and admissions of a vendor in reference to the ownership of the property sold, made before the sale, and in disparagement of his own title, are admissible on an issue of ownership when the vendee is a party. Such declarations bind parties and privies, and the vendee is a privy. But they are clearly inadmissible if made after the sale, unless vendee is present at the time and either expressly or tacitly assents to their truth. Greenleaf on Ev., Sec. 190. Randegger v. Ehrhardt et al., 51 Ill. 101.

But the declarations of a vendor can not be offered in evidence by his own vendee. When admissible it is upon the ground that such declaration's are those of parties to the record, or their privies, and as such can be offered only by the adverse party. The parties in this case could no more introduce the declarations of their respective vendors made to third persons, and in the absence of the other, than they could their own.

The evidence of both parties as to what their respective vendors said and did at the time of and in reference to the alleged gift or sale to them, would be proper as part of the • res gestee.

So, too, the declarations of both father and son made before either had parted with his alleged title, and when both were present, would be competent to be shown by either party.

Both appellant and appellee asked and obtained instructions, asserting that where one who is the owner of property is present when another is claiming to be the owner, it is the-duty of such person to speak out and publicly make claim to such property and contradict the claims of such other person--

These instructions are erroneous and misleading. "Under' certain circumstances the doctrine announced by them is-doubtless true, under other’s, it would not be.

It is a question of fact for the jury to determine whether the circumstances surrounding the parties in this case made it their duty to speak, and whether their silence should be construed as an admission of right in the adverse claimant or not. Appellant’s fourth instruction was also erroneous in informing the jury that the burden of proof as to the ownership of the property rested upon Mrs. Market.

The latter was in the possession of the property, and appellant sought by the "replevin suit to transfer such possession to herself, and to succeed in so doing would be compelled to establish her right by a preponderance of the evidence. "When suit is instituted upon the bond, and appellant seeks to defeat a recovery upon the ground that the merits of such controversy were not tried, she stands in the same position, and the burthen as to the right of property rests upon her, the same as in the replevin suit.

Appellant insists that the court erred in permitting the summons to be. amended by attaching the seal. It is only necessary to observe that after submitting to the jurisdiction of the court by filing her pleas, she can not be heard upon this question.

Bor the error in admitting the improper testimony we are compelled to reverse the judgment, as we can not know how the jury might have found had this evidence been excluded-

¡Reversed and remanded.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    James Pierce, use, etc. v. Richard Wade.
    1. Certiorari. — Where the petition for certiorari stated that the petitioner was summoned to appear before a police magistrate and was required to answer as garnishee touching his indebtedness to the judgment debtor, that he appeared and made full answer denying any such indebtedness, which was true, and was then informed by the magistrate that he might go, and that the magistrate had no further use for him, by which he understood that he was discharged, that he had no knowledge that a judgment was rendered against him until it was too late for an appeal, held, that this was a proper case for a writ of certiorari.
    2. Garnishment — Writ improviDentiy issued. — A garnishee may inquire into the legality and regularity of the previous proceedings against the judgment debtor, and it is the duty of the court whenever it appears that the writ of garnishment was improvidently issued to dismiss the proceedings.
    3. Execution. — Where the garnishee process was issued Sept. 21,1883, upon a judgment rendered by a justice of the peace February 19, 1873, and the only execution ever issued on said judgment was returned nulla lona April 8, 1873, held, that by reason of the lapse of time no execution could have issued upon the judgment in this case, and its vitality was thereby so impaired that it could not be made the foundation for proceedings in garnishment.
    Appeal from the Circuit Court of Pike county; the Hon. S. P. Shops, Judge, presiding.
    Opinion filed January 6, 1886.
    Mr. Edward Doooy, for appellant; that a writ of execution issued on a dormant judgment is not void, but is only voidable and the defendant in execution may take steps to have the writ set aside, but others can not do so for him, cited Freeman on Executions, § 29, p. 29; Mariner v. Coon, 16 Wis. 468; Lelsby v. Redlow, 19 Wis. 17; Jones v. Davis, 22 Wis. 421; Pierce v. Alsop, 3 Barbour (Chancery), 184; Boggers v. Howard, 40 Texas, 153; Woodcock v. Bennett, 1 Cow. 711.
    Executions issued on dormant judgments have the same effect as executions prematurely issued : Freeman on Executions, § 25, p. 25; Bacon v. Cropsey, 7 N. Y. 199; Blaine v. Ship Carter, 4 Cranch, 333; Jones v. Porter, 6 How. 286; Clute v. Clute, 4 Denio, 241.
    Mr. J. S. Irwin, for appellee;
    cited, Scammon v. Swartwout, 35 Ill. 326; Hay v. Hayes, 56 Ill. 342.
    As to garnishee inquiring into the legality and regularity of the previous proceedings against the defendant in attachment: Pierce v. Carleton, 12 Ill. 358; Chanute v. Martin, 25 Ill. 63; Cariker v. Anderson, 27 Ill. 358; C. & A. R. R. Co. v. Eagland, 84 Ill. 375; C. R. & P. R. R. Co. v. Mason, 11 Bradwell, 525.
   Wall, P. J.

A writ of certiorari under the statute was awarded to remove into the circuit court a suit in garnishment before a justice of the peace.

In the circuit court there was a motion to quash the garnishee proceedings, and .a counter motion to quash the writ of certiorari. The former motion was allowed, and the latter denied. It is now urged that in thus disposing of these motions the court erred. The petition for certiorari stated that the petitioner, Bichard Wade, was summoned to appear before a police magistrate, and was required to answer as garnishee "touching his indebtedness to James Pierce, the judgment debtor; that he appeared and made full answer denying any such indebtedness, and was then informed by the magistrate that he might go, and that the magistrate had no further use for him, by which he understood that he was discharged, and that he had no knowledge or suspicion that a judgment had been rendered against him until it was too late to take an appeal in the ordinary way, when he learned that a judgment was rendered against him for §200 on day of the trial. The petition further stated that said answer was true and that the judgment was therefore unjust.

. We are inclined to hold that sufficient ground is disclosed by this petition. Hpon the facts therein set forth it would seem clear that the petitioner used such diligence and prudence as should ordinarily be required under such circumstances.

Having made full answer and being entitled thereby to a discharge, he very naturally understood the language of the magistrate to signify that he was so discharged. Such was its import, and such "would have been the meaning ordinarily attached to it. It would be a gross fraud to permit the magistrate there to deceive him, and he was not negligent in relying upon the reasonable belief that he avers he entertained. He was not bound to suspect the officer would commit a fraud, upon him.

The rule involved is not doubtful, and the only difficulty is to determine whether the facts of the particular case bring it within the statute. In our judgment the case here made is clearly within the statute, and the court properly refused to quash the writ of certiorari.

In support of the ruling on the motion to quash the proceedings in garnishment several points are urged by counsel for appellee, but in the view we take it is necessary to consider only one of them.

It is well settled that a garnishee may inquire into the legality and regularity of the previous proceedings against the judgment debtor, and that it is the duty of the court, whenever it appears that the writ of garnishment was improvidently issued, to dismiss the proceedings. Pierce v. Carleton, 12 Ill. 358; Chanute v. Martin, 25 Ill. 63.

It appears that the garnishee process in this case was issued September 21, 1883, upon a judgment rendered by a justice of the peace February 19, 1873, and that the only executioi ever issued on said judgment was returned nulla Iona April 8, 1873.'

This judgment had been rendered more than ten years before the summons in garnishment was issued and the question arises whether, notwithstanding this lapse of time, it retained such vitality as to render it efficient for the present purpose.

The statute does not expressly impose a limitation upon proceedings to enforce the judgment of a justice of the peace, but the Supreme Court in Hay v. Hayes, 56 Ill. 342, held that when an execution is not issued upon such a judgment within one year no execution can afterward be issued.

The reason given is that such is the rule of the statute in reference to judgments in a court of record, and that no greater effect should be allowed the judgment of a justice of the peace than is given to the judgment of a court of record.

By the statute in reference to judgment, etc., Ch. 77, See. 6, an execution can not issue upon a judgment of a court of record after the expiration of seven years from its rendition or revival. It will not he presumed that such a judgment is still vital and enforceable unless revived. ■

By analogy to the principle announced in Hay v. Hayes, supra, we hold that by reason of the lapse of time no execution could have issued upon the judgment in this case, and that its vitality was thereby so impaired that it could not be made the foundation for proceedings in garnishment. If the judgment could not have been enforced in its then condition against the defendant therein by execution, it should not he used for the purpose of taking from, him a demand against the garnishee, by a proceeding to which he is not a party, and of which he has no notice. Such proceedings are in the nature of an execution and enable the creditor to reach a species of property not usually subject to levy on the ordinary process of execution. It is not necessary to determine the point suggested, that no suit could have been sustained upon the judgment, after the lapse of five years, under the authority of Bemis v. Stanley, 93 Ill. 230.

• The judgment of the circuit court is affirmed.

Affirmed.


author: Conger, J.

text:
    Charles D. Hauk v. Wm. J. Brownell et al.
    Fraudulent representation as to price paid. — While a misstatement to the vendee by the vendor of the price paid for the article proposed to be sold may not afford a ground for recovery, yet where a fiduciary relation exists between the parties and it has been agreed between them that the property should be purchased for their joint benefit, a fraudulent misrepresentation by. the vendor as to the price paid by him will give the vendee a right of action for such fraud.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Herrick, Lucas & Spencer, for appellant;
    cited Banta v. Palmer, 47 Ill. 99; Nœtling v. Wright, 72 Ill. 390; Tuck v. Downing, 76 Ill. 71; Plummer v. Rigdon, 78 Ill. 222.
    Mr. James S. Ewing and Messrs. Fifer & Phillips, for appellees ;
    cited Van Epps v. Harrison, 5 Hill, 67; Sanford v. Handy, 23 Wend. 259; Ives v. Carter, 24 Conn. 392 ; Somers v. Richards, 46 Vt. 170; McFadden v. Robinson, 35 Ind. 24.
   Conger, J.

Charles D. Hauk, interested with Mast, Foos & Co. in the gas business, and secretary of the Bloomington Gas Company, about Sept. 13, 1883, commenced negotiations with appellee Pollock, the effect of which was to interest him, appellee Brownell, and one Samuel Jones, in the enterprise of building gas ivorks at Springfield, Illinois; the gas to be manufactured by the “ Lowe Patent Gas Process.”

After talking the matter up for some time, visiting Springfield and interesting Jones in the matter, it was agreed that these gentlemen, with others, would undertake to build gas works at Springfield, and would purchase the necessary license. In January, 1884, Hauk notified appellees, together with the others interested in the scheme, that it would he necessary to purchase a license to manufacture the gas at Springfield under this patent process; that it was held by one Stevens, of Chicago, and that he could and would buy it for $7,000-Hauk went to Chicago, returned and represented to them that he had bought the license, and paid therefor $7,000; and thereupon appellees purchased a one-fifth interest in the Lowe Process Gas Patent, for Springfield, and in all the rights and privileges that had been, or might thereafter be, secured for the benefit of the new gas company that was to be organized, - paying to Hauk therefor the sum of $1,400, and receiving from him the following instrument:

“ Eeceived of John E. Pollock and W. J. Brownell, the sum of fourteen hundred dollars, ($1,400,) in full for one-fifth interest in the Lowe Process Gas Patent, for the city of Spring, field, Blinois, and also in full payment for one-fifth interest in all the rights and privileges that have been, or may hereafter be, secured for the benefit of the new gas company that is sought to be. organized. I further personally covenant and agree that I have paid for the said patents the sum of seven thousand dollars.

January 24, 1884. Chas. D. Hauk.”

The company was never formed and the enterprise failed.

Hauk did not pay $7,000 for the license for Springfield, as he represented to appellees both verbally and by his receipt given for the money. It appears that he bought a license for Springfield and Peoria together, paying therefor $2,500 in cash, and $7,500 in the stock of the Bloomington Gas Company, worth about seventy-five cents on the dollar.

This suit was brought by appellees to recover the money so paid to Hauk, and they obtained a judgment for $1,542.10, being the amount paid and interest thereon. It is contended by appellant’s counsel that even if Hauk deceived appellees as to the price he had paid for the license to manufacture gas at Springfield it would affor 1 no ground of recovery, as it would be merely a misstatement to the vendee by the vendor of the price paid for the article proposed to be sold, and cite Banta v. Palmer, 47 Ill. 99, and Menim v. Arbuckle, 81 Ill. 501, to sustain the position.

In the Palmer case, supra,, a vendee sued to recover back part of the sum paid the vendor for the price of certain landsi upon the ground that the vendor had fraudulently misrepresented the price he had paid for them ; and the court say: “If no fiduciary relation existed between the parties, however wrong, morally, it may have been in the defendant to misrepresent to the plaintiff the price he had paid for the land, the misrepresentation does not entitle the plaintiff to recover.” And again the court in the same case say: “ The case turns upon the question whether, before the land was purchased by the defendants, it had been agreed between him and the plaintiff that it should be purchased for their joint benefit.”

In the present case we think both the elements held necessary in the case cited to warrant a recovery exist. While no company had been formally organized, one was in contemplation and it was agreed between appellees and appellant that the former were to go into the enterprise on an equality with himself as to outlays in organizing; or as it is expressed by a witness, appellees were to be let in on the “ ground floor,” and the purchase of this license was made for the joint benefit of all those working up the scheme, as much as the machinery necessary for carrying on the business. Had appellant gone to Chicago and purchased an engine to run the works of the proposed company, falsely represented the price paid for it, and in consequence of such false representations procured appellees to pay him a greater sum than their true proportion ,ef its real price, would any one doubt for a moment that such fraud would support an action ? There was a relation of trust and confidence existing between them which required fair dealing and forbade falsehood and chicanery.

In the Menim case, supra, the court say: “ To render a representation fraudulent it must be false, and not only so, but the party making it must know it to be false. To recover in an action for deceit, the statement must be untrue, the party making it must know that it is false, and the person seeking to recover must have relied on the statement as true and have been induced to act on the statement, and the statement, to authorize a recovery, must have been in relation to a matter material to the transaction.”

The statement made by appellant to appellees, that he had paid §7,000 for the license, was false, and appellant knew it, and that it was a statement material to the transaction is apparent, not only from the testimony of Pollock, but from the language of the written receipt, in which Pollock required appellant to personally covenant and agree that he had paid for the said patents the sum of §7,000; and Pollock in his testimony says: “ I supposed he had paid it in cash, and I relied upon his representations when I put my money into it.”

We think here are all the elements necessary to bring the case within the rule quoted and give the appellees a right to recover back the money.

To the objection made by appellant, that appellees ought not to be allowed to rescind the contract and recover the money paid without re-conveying the thing purchased, it is enough to say that appellees obtained nothing except a right in the license for Springfield, from claiming which, this suit effectually estops them, and We do not see that appellant could require anything more.

Objection is made to the ruling of the court upon the admission and rejection of certain questions, but we do not think they could have affected the result or worked harm to ajjpellant and therefore we do not notice them further.

We think justice has been done in the judgment of the circuit court, and it will therefore be affirmed.

Affirmed.


text:
    Oscar A. De Leuw v. Lizzie Carrigan.
    1. Practice — Appeal.—An appeal may be dismissed for want of prosecution where the appellant is present and signifies that he will not prosecute the appeal further.
    2. Bill op exceptions — Presumption.—When the bill of exceptions states that the appeal was dismissed for want of prosecution, it is fair to presume that the appellant in some way indicated to the court that he would not press bis appeal. The mere fact that he excepted to the action of the court is not sufficient to rebut such presumption. The matter relied upon as a reason why the appeal was improperly dismissed should be expressly shown.
    Appeal from the Circuit Court of Morgan county; the Hon. C. Epleb, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. Oscar A. De Leuw, for appellant.
   Wall, P. J.

The appellee sued the appellant before a justice of the peace upon a promissory note. The appellant did not appear before the justice and a judgment was entered; against him for the amount due on the note. From this judgment an appeal was prosecuted by appellant by filing an appeal bond in the office of the clerk of the circuit court. Supersedeas and summons for appellee were issued and returned served, and a transcript from the docket of the justice was duly filed in the circuit court more than ten days before the first day of the next term.

The bill of exceptions recites that in the circuit court, “ on the call of the case on the calendar, the court dismissed the appeal herein for want of prosecution and awarded procedendo,” to which action of the court defendant then and there excepted, and prayed an appeal to the appellate court which was allowed, etc. The point is now made that this is such an irregularity as requires us to reverse the judgment. When an appeal is taken from a justice of the peace to the circuit court the case is to be tried de novo, and strictly speaking the regular course ordinarily, when the case is called for trial, is for the plaintiff to proceed as though there had been no trial below and as though it were an original suit in the circuit court. But as the plaintiff has a judgment from which the defendant' has appealed, the latter may, if' he chooses, dismiss his appeal, and so prevent another trial which might result in an increase of the judgment.

The appellant having this right, it is not unusual in practice to expect some intimati m from him as to what course he will take. If he signifies that he docs not wish to proceed further with his appeal it may on motion of the plaintiff be dismissed, and thus the delay and expense of a trial may be saved.

If the appellant does not wish to prosecute his appeal there is no good reason why the time of the court should be occupied with a trial when this may be avoided by dismissing the appeal, a practice which has very generally prevailed.

If, however, he says nothing, or stands by his appeal, manifesting a desire to prosecute it,'he may require the plaintiff to make out his case.

The statute, Sec. 71, Cli. 79, distinctly" indicates that an appeal by a defendant from a judgment against him may be dismissed for want of prosecution, and the practice has been' recognized as a proper one. Nispel v. Wolff, 74 Ill. 303; Reed v. Driscoll, 84 Ill. 96. And Langenham v. Stickney, 90 Ill. 361, and Eichelberger v. Garvin, 7 Bradwell, 129, are cited as holding that in all cases there must he a trial, and plaintiff must be required to pro ve his demand. In the case in 90 Ill. it appears that. when it was called for trial the defendant (appellant) moved for a continuance, which was denied, and then, because the defendant was not ready for the trial, the court dismissed the appeal for want of prosecution. The Supreme Court held this was error and said that the defendant had not abandoned his appeal, but was prosecuting it as well as he could in his own way, and that because “he was not ready for trial,” was no reason for dismissing the appeal.

In the case in 7 Bradwell, the appellant’s attorney asked for a continuance until the afternoon, and presented an affidavit . showing that his client, who was then absent, would arrive by that time, that he had a good defense, and that his presence was necessary to a proper trial of the case; but the court, on denying this motion, dismissed the appeal.

These cases do not hold that an appeal may not be dismissed for want of prosecution, where the appellant is present and signifies that he will not prosecute the appeal further.

From the bill of exceptions in the present case we learn that the case was called in regular course, the parties being present, and the court dismissed the appeal for want of prosecution.

It is not stated upon what ground the court concluded the appellant did not wish to prosecute the appeal, but all reasonable presumptions will be indulged in favor of the regularity of the proceedings of a court of superior general jurisdiction, as is the circuit court; and when it is stated that a thing was done which in a certain state of case it was proper to do, it will be intended that such a state of case existed, unless the contrary appears.

The bill of exceptions was presented by appellant, and it may be assumed that if there had been any facts in his favor and against the action of the court, he would have set them out.

It is fair to presume then, when it is said, without more, that the appeal was dismissed for want of prosecution, that the appellant did, in some way, indicate to the court that he would not press his appeal, and therefore the court dismissed it. The fact that he excepted to the action of the court is not enough. The exception does not contradict the presumption that he had abandoned the appeal, but it should expressly show the matters relied upon as a reason why the appeal was improperly dismissed. It would have been very easy to show by the bill of exceptions, if it was true, that the defendant had not abandoned his appeal and that he wished to try the case.

But we have here a statement which clearly involves the idea that the appeal was abandoned, in which case the action of the court can not be complained of by the appellant, who by his own course induced the result

It is urged also, that the service of summons on the appellee was not good, and therefore the court could not proceed. The return was that the sheriff had “ duly served the within by reading the same this,” etc., but not saying it was read to the appellee.

The record shows both parties were in court, the plaintiff asking for a trial, and the defendant doing something which the court construed as an abandonment of his appeal, and when it was dismissed accordingly, excepting and praying an appeal to this court. Had appellant deemed the return not sufficient, he might have had it- amended; but if the appellee was really served, and appeared without objection, the defective -return was not important. The return was made ujdou a writ sued out by appellant, and it devolved upon him to see there was proper service. He can not complain, not having done so, of an objection more properly coming from the other side when it is affirmatively shown that both parties appeared, disregarding the objection and treating the service as sufficient.

Whatever defect there was has been cured by the subsequent pi’oceedings. The judgment of the circuit court will be affirmed.

Affirmed.


text:
    David S. Ware v. People, use, etc.
    1. Refublication of will, effect of. — The re-execution of the testator’s will and codicils will have no other effect than a republication, and therefore will not revive legacies which have been advanced or satisfied.
    2. Evidence — Dischabge of lebacy. — Under the evidence in this case, the court is of opinion that it was the clear purpose of the testator in making the payments in question to plaintiff to discharge the legacy, and that it was so understood by plaintiff.
    Appeal from the Circuit Court of Montgomery county; the Hon. W. L. Gross, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. W. T. Coale and Mr. J. M. Truitt, for appellant;
    as to re-publication of will, cited 1 Redfield on Wills, 291, 375; Langdon v. Astor’s Ex’rs, 16 N. Y. 9.
    Messrs. Miller & McDavid, for appellee;
    that the execution of a codicil with due formalities is a re-publication of the will and has the effect to make the will itself speak as if published at the time of the publication of the codicil, cited Brown v. Clark, 77 N. Y. 369; Brimmer v. Sohier, 1 Cush 118; Haven v. Foster, 14 Pick, 534; 1 Jarman on Wills, 364; 1 Redfield on Wills, 371.
   Wall, P. J.

It appears from the record in this case that Obadiah Ware published his last will on the 16th of September, 1871, whereby among other provisions he directed that there should be paid to each of his grandchildren who should be of lawful age at his death, the sum of one thousand dollars-The testator died on the 24th of September, 1876, having executed a codicil to this will some ten months before.

The codicil does not affect the provision referred to and is not important in this connection except so far as it may be treated as a re-publication of the will. There was probate of the will and codicil and letters testamentary were duly issued to the appellant as executor. On the 24th of December, 1878, the executor made report to the county court' showing a partial settlement, and an order was entered requiring him to pay the legacies mentioned in the will. On the 11th of February, 1879, Sylvester H. Schever, who is a grandchild of the testator, and who was of lawful age at-the death of the latter presented bis petition to the county court asking for a citation to compel the executor to pay the legacy apparently due him under the will.

The executor appeared and there was a hearing on evidence submitted by the parties to the court, resulting in a judgment that the petition be dismissed at the cost of the said Schever. The record does not disclose what was the point in issue at said hearing and on the trial of the present canse the circuit: court declined to hear evidence offered by appellant to show what that issue was.

On the 9th of April, 1879, the executor sued a notice upon said Schever that he would, on a day named, apply to the county court for a modification of the order of December, 1878, vacating the same so far as the legacy to said Schever was concerned. To this no attention was paid by said Schever and an order was obtained declaring the legacy claimed by Schever to have been advanced during the lifetime of the testator. On the 25th of March, 1882, the executor made a final settlement o E the estate, and was ordered by the court, among other things, to pay said Schever the sum of §32.07 as the balance due him, as distributee, and on the same day he paid this sum to Schever, who signed a receipt accordingly. On the 17th of February, 1885, Schever sued the execu - tor on his official bond to recover the amount of the legacy. A trial was had by the court, a jury being waived, the issues were found for the plaintiff and judgment was rendered for the penalty of the bond, $72,000 as the debt, the amount of the legacy and interest, $1,270 as the damages, and costs, to be discharged on payment of the damages and costs.

The executor brings the case here by appeal and presents for our decision the points urged by him as defenses in the circuit court, viz.: 1st, that the legacy sued for was advanced in the lifetime of the testator ; 2d, that there was an adjudication to this effect by the county court on the hearing of the citation to compel the payment of the legacy supported by the subsequent order declaring the legacy advanced; and 3d, that the plaintiff was barred by the order of final settlement in the county court and the receipt by him of the balance found due him by that order.

Upon the first point the appellant proved that the testator paid the plaintiff, July 3,1872, one hundred dollars, for which the following receipt was given.

“ Butler, July 3, 1872. Eeceived of Obadiah Ware one hundred dollars toward my dowry,” signed by the plaintiff. On the 22d of December, 1873, he gave a similar receipt for §350, which was termed “ toward my dowry.” On the 30th of April, 1874, he gave a receipt for §26, which was described as “of my dowry” and on the 5th of October, 1874, he gave a receipt for §50, which was said to be “ on my dowry from his estate.”

These sums, aggregating §526, were paid at the dates mentioned in the respective receipts by the testator to the plaintiff. In March, 1875, the plaintiff wrote from Missouri to the testator informing him of his purpose to buy a farm, saying: “I can come in §126 of paying for the place. * * * I want to borrow §126 of you ; besides you owe on my dowry §474; ” and asks that he send him the aggregate of the two sums, §600.

In another letter he repeats the request and again refers to “§474, yon owe me on my dowry,” and in a third letter which hears date July 22,1875, he says “My dowry is §474. I want to borrow §156 more” and proposes to pay interest on the §156.

It seems the request was complied with and the money sent about Aug. 9, 1875, and according to the testimony of the executor a receipt for §475 was given similar in its terms to the others. He states he saw this receipt in the handwriting of the testator and in his possession during his lifetime, signed by the plaintiff, and that not being able' to find it among the papers of the testator he wrrote out another and presented it to plaintiff, requesting him to sign it, which was done.

The plaintiff- admits signing this last paper at the request of the executor, hut does not admit that he had ever given such a receipt to the testator, and says when he signed this he supposed the executor was going to pay him some more money. He further says that the other receipts given by him were written by his grandfather, who frequently furnished him with money while he was away at school, for which no receipts were taken.

He admits that he did receive the §475 about the 9th of August, 1875, and at the same time also he received the §126 asked for in his first letter from Missouri, for which last sum he gave his note with security. He also says that about a year before his death the testator told him he had given him all he intended to during his lifetime. This expression is ambiguous and it does not appear from the record what meaning it should bear.

It is conceded by counsel for Schever that if it was the intention of the testator that these various payments should be received upon the legacy, then it is discharged, and such is the law. Redfield on Wilis, Part II, Chap. 13, section 13.

The will was executed in September, 1871. The plaintiff knew the provision contained therein relating to himself, and seems to have had the impression that he had a fixed and vested right to the- sum named. He did not hesitate to ask for it, and in his letters he refers to the balance which he had not received, as so much owing to him. Counsel say, the word dowry is inapt and its use is not significant. True, the term, in a strict legal sense, was not applicable, but in its larger and more general sense it is just the term that would naturally occur to one having the view which seems to have been entertained by the plaintiff. In popular use the word is often employed as descr bing anything by way of a portion derived by one person from the estate of another, and was so used and understood here. Carefully weighing all the evidence we are convinced that it was the clear purpose of the testator in making these payments to discharge the legacy, and that it was so understood by the plaintiff.

His long acquiescence in the adverse ruling of the county court, and his delay for nearly three years after the final settlement and his acceptance of the same, then allowed him, to bring the present suit, strongly support this conclusion, which we think is irresistible when all the circumstances of the case are considered.

It is suggested that the execution of the codicil should be regarded as a repetition of the will, and as the payments referred to had already been made, the theory of ademption is untenable.

The codicil made no reference to this legacy and can on]y be regarded as a re-publication, but will not have the effect contended for. The doctrine on this subject is stated in Redfield on Wills, Pt. I, Ch. 13, *374: “The re-execution of the testator’s will and codicils will have no other effect than a re-publication. Hence itwill not have theeffect to revive legacies which have been advanced or satisfied.”

It follows that upon the merits of the case the finding of the circuit court is, in our opinion, erroneous, and it is therefore unnecessary to discuss the legal effect of the various proceedings in the county court which are relied upon by appellant as a bar to the present demand. The judgment of the circuit court will be reversed, but the cause will not be remanded.

Reversed.


text:
    Citizens Gaslight and Heating Co. v. A. O. Granger.
    1. Declarations of agent. — The declaration of an agent of a corporation is admissible in evidence against the company only when it forms a part of the res gestae of some business transacted by him for his principal within the scope of his authority.
    2. Objection too late. — The objection that assumpsit will not lie upon the case made by plaintiffs, comes too late in this court.
    Appeal from the Circuit Court of McLean c unity; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Kerrick, Lucas & Spencer, for appellant.
    Mr. A. E. DeMange and Mr. J. E. Pollock, for appellee.
   Wall, P. J.

This was assumpsit for the value of- certain machinery and apparatus and the expense of placing the same, brought by appellees against the appellant. There was a trial by jury, verdict for plaintiff for $1,215.18 and judgment accordingly, a motion for new trial having been overruled.

There is no dispute that the machinery was furnished and the work done by appellees and that the benefit thereof was received and appropriated by appellant, but the question was whether the former was entitled to compensation therefor. The appellant is a corporation manufacturing gas, and the appellees, who are engaged in the business of making the apparatus used in the manufacture of gas by appellant, had furnished a set of apparatus consisting of generator, condenser, pipes, etc-A fire occurred destroying the works and the machinery now involved was furnished to replace that so destroyed. The appellees insist that upon the representation of appellant through C. D. Hank, its secretary, that the fire was caused by the bursting of the pipe from the small oil tank to the generator, they agreed to replace the machinery without charge; but that they learned afterward that the pipe did not burst, and that the fire was not so caused. Appellant insists that no such representations were made and that the appellees can not recover. But two points are presented by the brief of appellant, first, that the court erred in permitting proof of the statements of Parrott, superintendent of the works of appellant; second, that assumpsit will not lie upon the case made by plain tills.

As to the first: The court allowed proof that Parrott admitted that the pipe did not burst. The statement was made to Lowell, who was an agent of appellees, when he was about putting in the new machinery and when he and Parrott were together examining the condition of the old works, and it was afterward made in Boston to one of the appelleesBoth statements were made after the fire, and while, perhaps’ the former might be held admissible because made in the course of a transaction pertaining to his duties, yet it is not clearly so, and the latter statement would seem to be incompetent. The well settled rule is that the declaration of an agent of a corporation is admissible in evidence against the company only when it forms a part of the res gestee of some business transacted by him for his principal within the scope of his authority: Angell & Ames on Corporations, See. 309; 1 Gr. on Ev., Secs. 113, 114; G. & M. R. R. Co. v. Burns, 92 Ill. 302; L. C. M. Co. v. McNally, 15 Bradwell, 181.

When the statement is a part of the res gestae, it is in the nature of original evidence and not of hearsay, the representation being in such cases the ultimate fact to be proved and not an admission of some other fact. But when made after the happening of the fact, and not in the transaction of any business of the principal involved by the issue on trial, it is mere hearsay and incompetent.

It is important then to inquire whether the error in admitting this testimmy worked any substantial injury to appellant. The admission was that the pipe did not burst. From a careful reading of the testimony we are satisfied that had this admission been excluded the result would have been the same. It is not contended seriously, indeed we may say it is not contended at all, that the pipe did burst. Parrott, who testified contradicting Granger flatly, and Lowell partially, as to what he told them, does not say so, and it is a necessary inference from his evidence, that it did not. Leaving out of consideration entirely ail that Granger and Lowell say as to Parrott’s admission, the conclusion is perfectly plain that the fire did not occur from that cause. If this be so the evidence did no harm and the error in allowing it should not work a reversal. Teutonia L. I. Co. v. Beck, 74 Ill. 165; Trogden v. Murphy, 85 Ill. 119; P. & D. R. R. Co. v. Henderson, 89 Ill. 86; C. & I. R. R. Co. v. Russell, 91 Ill. 298; Albin v. Kinney, 96 Ill. 214; Kirby v. Wilson, 98 Ill. 240.

As to the second point: tTio case was tried without objection in this respect. No suggestion was made anywhere through the trial that the form of action was misconceived. Evidence was offered on both sides and instructions asked and given on both sides just as though the action was properly conceived. If appellant thought it was not, objection should have been interposed, and under See. 24 of the Practice Act, any necessary amendment could have been made, and the objection obviated.

According to numerous decisions it is too late to make the point now. Parker v. Tiffany, 52 Ill. 286; K. & I. R. R. Co., v. Chester, 62 Ill. 235 ; R. R. I. & St. L. R. R. Co. v. Beckemeir, 72 Ill. 267; Brannan v. Strauss, 75 Ill. 234.

Ho other objection being urged the judgment is affirmed.

Affirmed.


author: Pleasants, J.

text:
    Stephen C. Toof v. City of Decatur.
    1. Public highway by prescription — Presumption.—To establish a highway by prescription it must he shown that the use of it as such has been public for twenty years, adverse or under claim of right, uninterrupted, with the acquiescence and yet without agreement of the owner of the land made within that period. As a rule, the public use of it' for that period as a highway, unexplained, will raise a presumption of the other conditions stated and shift the burden of proof as to them.
    2. Same — Exceptions.—An exception to the above rule is recognized in the case of wild and uninclosed land and where an open way in a town or village is affirmatively shown to have been so made or left by the owner for his private use though the public also may have used it without objection by him, and where this object and purpose are manifested from the way itself or its especial relation to his other premises.
    3. Interruption to defeat right. — The interruption to defeat the right by prescription must he an interruption of the right and not simply of the use or possession.
    4. Levy of taxes. — The levy and collection of taxes on the land by the city against the owner is not conclusive against the claim that it is a public highway.
    5. Chancery .jurisdiction. — Defendant city was, and for twenty-six years had been, in actual peaceable possession of land for public use, claiming it as part of a legal highway within the city and therefore under its control. Complainant erected a fence thereon and filed a bill in equity for an injunction to restrain the city officials from removing the fence. Held, that the bill is without equity.
    Appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed February 25, 1886.

      Messrs. Outten & Vail, for appellant;
    that in order to acquire a right by prescription the use must be adverse, under a claim of right, exclusive, continuous and uninterrupted, cited Washburn on Easements, 124, § 26 (2d Ed.); Sargent v. Ballard, 9 Pick. 251, 255; Warren v. The President, 15 Ill. 241, 242; Kile v. Town of Logan, 87 Ill. 64; Ill. Ins. Co. v. Littlefield, 67 Ill. 368; Harper v. Town of Dodds, 3 Bradwell, 331; Fox v. Virgin, 5 Bradwell, 515; Fox v. Virgin, 11 Bradwell, 514; Gentleman v. Soule, 32 Ill. 271; Herhold v. Chicago, 108 Ill. 467; Peyton v. Shaw, 15 Bradwell, 192; Bryan v. City of East St. Louis, 12 Bradwell, 390; Irwin v. Dixon, 9 How. (U. S.) 10.
    Messrs. Mills Brothers, for appellee ;
    that, with the exception of wild or uninclosed land, where the public has been permitted to use for public travel the locus in quo, for a term of twenty years, a public highway is thereby created,_ cited R. S., Ch. 121, 1878, 1883, § 1; Green v. Oakes, 17 Ill. 249; Alvord v. Ashley, 17 Ill. 363; Daniels v. People, 21 Ill. 438; Town of Lewiston v. Proctor, 27 Ill. 414; City of Chicago v. Wright, 69 Ill. 318; Stager’s Road and Bridge Law, 13, Hanson v. Taylor, 23 Wis. 547; Ellsworth v. Grand Rapids, 27 Mich. 250; Washburn on Easements, p. 129, Sec. 31 (2d Ed.).
   Pleasants, J.

Bandy’s addition to the town of Decatur, consisting of four and a half blocks from north to south, was laid out in 1836. Along the west side of it was left a strip thirty feet in width, intended to be the east half of a street if the owners of the land adjoining it on the west should contribute the other half. This not being done, in 1852 the proprietors took measures to vacate said strip and make partition of the whole addition. By the decree it was divided into lots and numbered as of the blocks adjoining them respectively, of which each of the parties received one or more. Those lying north of Main street were soon inclosed by their owners, but the two adjoining block four (4), which is the south block of the addition, between Main and • Wood streets, though fenced in 1853 on the sides, except on • the east at the alley running east and west through said block, were left open at the ends on said streets and thus formed a continuous passway between them.

The portion north of the alley was known as lot 18 of said block and that south of it as lot 17. In the partition referred to said lot 18 was set off to R. J. Oglesby, who by deed of March 1, 1853,"conveyed an undivided half of it, together with lots 8, 7 and 6, adjoining consecutively on the east, to Daniel Barnes, and about the same time the other undivided half to Jonathan Stamper, who owned the land on the west. Barnes and Stamper then made a parol partition of it by which Barnes took the east and Stamper the west half. There was never any exchange of releases or other deed between them or their grantees, but the right of each as thus agreed on was recognized by the other and taxes have from that time been assessed, levied and collected accordingly.

In June, 1857, Barnes conveyed the. premises described in his deed from G-ov. Oglesby, and by the same description, to E. M. Thorpe, and he conveyed the same in October following to John L. Adams, who, in 1869, conveyed the same to appellant.

On the first day of June, 1879, appellant inclosed the east ha’f of said lot 18, and upon the council’s ordering the street supervisor to remove the fence, filed the bill herein', praying that upon final hearing the city be enjoined from interfering with him in the peaceable and quiet possession of said premises, and for1 a preliminary inj unction, without notice, to restrain said city, its officers and servants, from-removing said fence or interfering with said premises ” until a hearing could be had thereon.

The city answered, denying that the measures taken, as alleged, to vacate the street or alley of which the premises in question formed a part were effectual, and claiming the right of saicl city and the public to the use óf the same as a highway, by pre.cription or dedication ; to which answer a replication was filed, and on final hearing upon the pleadings and proofs, the circuit court dissolved the injunction and dismissed the bill for want of equity. Complainant brings the record here by appeal.

The evidence is all in do niments and deposition, and the only errors assigned are the dismissal of the bill and the refusal of the relief sought.

To establish a highway by prescription it must be shown that the use of it as such has been public for twenty years, adverse or under claim of right, uninterrupted, with the acquiescence and yet without agreement of the owner of the land made within that period. Washburn on Easements (2d Ed.), p. 124 § 26 ; 2 Greenl, on Ev., § 539-539a; Gentleman v. Soule, 32 Ill. 279; Daniels v. The People, 21 Id. 438.

As a rule, however, the public use of it for that period, as a highway, unexplained, will raise a presumption of the other conditions stated and shift the burden of proof as to them. Washb. on Ease. p. 129, § 31; Steffey v. Carpenter, 37 Pa. St. 41; Daniels v. The People, supra; Town of Lewiston v. Proctor, 27 Ill. 417; City of Chicago v. Wright, 69 Id. 327; Peyton v. Shaw, 15 Bradwell, 192. Such use is in its nature exclusive of and therefore presumably adverse to any private wairn, which is also exclusive.

An exception to this rule is recognized in the case of wild and uninclosed land. Warren v. Pres., etc., of Town of Jacksonville, 15 Ill. 241; Kile v. Town of Logan, 87 Id. 64; Fox v. Virgin, 5 Bradwell, 515.

Nor does it apply to an open way in a town or village, affirmatively shown to have been so made or left by the owner for his private use, though the public also may have used it without objection by him. Ill. Ins. Co. v. Littlefield, 67 Ill. 368, and cases there cited. Nor where this object and purpose are manifest from the way itself or its especial relation to his other premises. Washb. on Ease. p. 182.

The evidence does not clearly bring this case within either of these exceptions. Here the land was part of an addition to an incorporated town, and the adjoining lots and lands were inclosed twenty-six years before appella.it fenced it up in June, 1879. As a way it had no especial relation to his other premises except that it adjoined one lot, but served equally and in like manner the proprietors of other lots in the same block and the public at large as a passage between two principal streets. The other proof claimed, to show it was intended for private use, is not entirely satisfactory. Adams carried on the business of butchering for a short time from his purchase in the fall of 1857, and as he had occasion, having no barn until 1860, piled wood, lumber, hay and other articles upon it. His wagon stood there. He rendered tallow there. At one time he had an ash-hopper on it, and also inclosed a part for a calf pen, which Mrs. Adams thinks was built in 1858 and remained about two years, but she was testifying long after the events and was not certain as to the time.

It is a matter of common knowledge that such uses of recognized alleys in our cities, towns and villages, are often made by tenants of abutting lots, and tolerated without remonstrance by the authorities unless the obstruction amounts to a serious inconvenience to others. Such acts of occasional and temporary appropriation are not understood to be in denial of the public right. Here the alley way claimed was unusually wide, so that portions of it might be so used without impairing its beneficial enjoyment by the public. The evidence in the record shows little or nothing of such obstructions except by Adams, and by him for only a short time immediately following his purchase, when the public need was much less than afterward, by the increase of population and business in that vicinity, it came to be. It is not denied that there was always room enough left for the convenient passage of persons and teams, and we understand that the interruption to defeat tire right by prescription must be an interruption of the right and not simply of the use or possession. 2 Greenl. Ev. § 545.

We therefore find in these appropriations of portions of the lot for his private uses no such distinct and positive assertion of exclusive right in himself as would necessarily, if made within twenty years before the first day of June, 1879, interrupt the public uses and so defeat the claim by prescription, nor is it conclusively shown that they were made within that period.

So, the levy and collection of taxes on the land by the city against the owners is not conclusive against this claim. City of Chicago v. Wright, 69 Ill. 328; Lemon v. Hayden, 13 Wis. 159; Wyman v. The State, Ibid. 663. Indeed it would seem to be of little weight where the city makes no claim to the fee in the land, as is presumed, from the fact of his appeal to this court, appellant understands to be the case here.'

On the part of appellee much evidence was produced clearly tending to establish its alleged right. The land in question was originally intended for a highway. While the owners of the other portion of this strip early fenced it up this was left open. It was where a highway ought to be, bounding on one side a full platted block. It opened on two principal streets and was a needed and suitable passway between them. It had every appearance of a public street or alley. Its location and limits were precisely defined by fences on its sides. It was known, at least to some extent, as South Union street.

Such was its condition as far back as 1853 and such it continued to be, without material change, until appellant fenced it up in June, 1879. A dozen witnesses testify that during all that time it was continuously used, in all respects, as a public highway, by all who had occasion. They did not pretend to know it was in fact or generally considered to be a street or alley of the city, nor stop to inquire whether, notwithstanding its appearance and use, it yet might not be, but from their observation took it to be such and so treated it, just as they would and did other like ways, without que.tion or hesitation. It is not claimed that this use was in any instance forbidden or expressly permitted by or on behalf of the land owners or any or either of them. They simply acquiesced in it with full knowledge of it. Nor does it appear that any qoerson attempting or desiring so to use it was ever hindered, delayed or in any manner inconvenienced by any of the obstructions mentioned.

In respect to work upon it the evidence' is that very little was needed and very little done. When the sidewalk on Main street in front of it was graded down, some time about 1863, it 'eft an abrupt descent from the lot that was a serious hinderance to loaded teams, which the owners removed by grading it down also. This is all they did. The city, too, did Something, not upon the land itself, but with reference to its use as an alley way, about the approaches to it.

Unless this work and the obstructions mentioned amounted to an assertion of exclusive private right in the east half of paid lot 18, or a legal interruption of the uses required to establish the public right, the latter is established by what, according to any rational test, is a clear preponderance of the evidence, nothing to the contrary remaining except the fact of the assessment and payment of taxes, which under the circumstances is regarded as of little moment.

We are not advised upon what ground the circuit court dismissed the bill. It does not appear that it was upon a view of the law at all different from that presented above or by the counsel for complainant. The only question discussed in the briefs here filed is whether this half lot is part of a highway by prescription or by dedication. We have thought it unnecessary to consider the question of dedication distinctly, because it is substantially involved in the other, there being no evidence of an intention to dedicate, which must be shown, except the knowledge of and acquiescence in the public user.

Whether the right has been acquired by prescription depends upon the facts in relation to the work done upon the lot by the owners and their appropriation of portions of it at different- times for private purposes in the manner shown by the testimony, and the legal significance of those facts, that is, their legal effect upon the user shown.

And if the circuit court found them to be insufficient to defeat the claim by prescription, we are not prepared to say the finding was against the law or the evidence. How that question ought to he decided upon this evidence is not clear. In this particular, as in others, the case is much like that of The City of Chicago v. Wright, 69 Ill. 318, which suggests that behind this doubtful question lies another, not presented by counsel, hut worthy of consideration.

In this ease, as.in that, when complainant erected his fence, defendant was and for years had been, in actual, peaceable possession of .the land for public use, claiming it as part of a legal Ivghway w'tlvn the city, and therefore under its control. This was all the posssssion of which it was capable. In such case, even where the adjoining proprietor retains the fee,” the courts regard the right to the possession, user and control or the property by the municipality as a legal and not a mere equitable right.” Appellant, being out of possession, might have tried the validity of the city’s claim by an action of ejectment. His forcible entry upon its possession was a trespass, even if the land were not a part of a legal highway. If it was, it was not a trespass, but a duty on the part of the city to remove the fence. The right being legal in character, in dispute and undetermined at law, he wrongfully invaded this actual and peaceable possession, and asks a court of equity to protect him in the enjoyment of what he thus obtained. Will equity, in such a case, take jurisdiction ?

It is true that in McIntyre v. Storey, 80 Ill. 121, the Supreme Court sustained a bill to restrain the opening through complainant’s premises, by removal of his fences, of what defendants claimed, and he denied, to be a highway by dedication. But there the circumstances were the reverse of those here shown. Complainant was confessedly in actual, peaceable possession, and claiming the legal right. Defendants had previously torn down his fence, and he had rebuilt it. Suits were pending, on one side for obstructing a highway and on the other for trespass, and were likely to be multiplied. And there was danger of irreparable injury. Under such circumstances no doubt of the jurisdiction is entertained. We see no conflict between the- opinion in that case and that of Mr. Justice McAllister in the 69th Ill. upon the authority and reasoning of which we incline to think this bill can not be maintained upon the facts here in evidence.

But whether that be so or not we can not say the finding of the court below, that here was a highway by prescription, if it did so find, was unsupported by the proof.

Decree affirmed.


text:
    Lamar Insurance Co. et al. v. William A. Pennell et al.
    1. Lawyer’s fee. — What is a reasonable fee in a given case is a question of fact, to be determined, like others, by the weight of the evidence. The court is of opinion that $6,000 was a reasonable fee in this case.
    2. Estoppel by judgment.- — -Property which was insured was destroyed by fire communicated by a spark from an engine. The insurance companies paid in full except the appellant company, which, having failed, paid only a dividend of fifty-two per cent. An action was brought by the insured against the railroad company, notice of which was given to all the companies except the appellant. A verdict was returned for the insured for the value of the property as found on the trial. The railroad company filed an interpleader. All the parties were brought in and an interlocutory-decree was made in accordance with the prayer of the bill. The final decree was satisfactory to all except the appellant company, and the question at issue is whether in this suit the adjudication as to the value of the property in the railroad case is conclusive between the appellant company and the insured. Held, that the judgment is not conclusive between them.
    3. Estoppel must be mutual. — It is essential to an estoppel that it be mutual between the parties to the proceeding in which it is claimed.
    4. Notice. — The court is of opinion that the notice to the president of the suspended company was not due notice to the company or the receiver.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Williams & Capen, for appellant-;
    that where a suit is brought and prosecuted for the benefit of another the latter has the right to avail himself of the judgment, that the judgment fixes the right of all the parties, cited Conger v. Chilcote, 42 Ia. 18 (24); Stoddard v. Thompson, 31 Id. 80; McNamee v. Moreland, 26 Id. 97; Finn v. W. R. R. Co., 112 Mass. 524; I. C. R. R. Co. v. Cobb, 64. Ill. 132; Green v. Clark, 12 N. Y. 343; Calkins v. Allerton, 3 Barb. 171; Bigelow on Estoppel, 77-8, 61, 63, 47; Tate v. Hunter, 3 Strob. Eq. 136; Kent. v. H. R. R. Co., 22 Barb. 278; 1 Greenl. Ev., § 535; White v. Bascom, 28 Vt. 263; Smith’s Leading Cases, II, 435; Kitchen v. Campbell, 3 Wils. 304; Crow v. Bowlby, 68 Ill. 23; Miller v. L. M. T. Co., U. S. C. C. Mo., Chi. Leg. News, Oct. 1, 1881, p. 18.
    Mr. W. E. Hughes, for appellant;
    cited Pentz v. Receivers, 9 Paige, 568.
   Pleasants, J.

In February, 1872, the Mormal Hotel and contents, the property of William A. Pennell, were destroyed by fire. He had insurance thereon in five different companies amounting in the aggregate to §14,500, including §2,500 in the Lamar. All of these paid promptly and in full, except the latter, which, having suspended shortly after and in consequence of the great Chicago fire of Oct. 1871, paid only a dividend of fifty-two per cent, with interest to the 23d of Juno, 1875, being about §1,380.

Pennell then brought an action against the C. & A. R. R. Co. for the burning of said property, alleging that the fire was communicated from a locomotive engine of the defendant through its negligonce, and in 1877 recovered j udgment therein for §15,000, which was reversed by the Supreme Court at the January term, 1880. See 94 Ill. 448.

Being unable from any resources of his own then in hand to further prosecute the suit, he made an arrangement with Wm. E. Hughes, his attorney, by which the latter undertook to proceed, with the risk of reimbursement for his expenses and reasonable compensation for his services out of the judgment, if any should be finally obtained.

. Appellant Chandler had been appointed receiver of the Lamar Ins. Co. in Movember, 1872. Leonard Swett had been its president, but took no part in the conduct of its affairs thereafter.

In 1881 Pennell, through his attorney, gave notice to the other companies, and to Mr. Swett for the Lamar, that he had brought the suit mentioned; that the judgment had been reversed ; that a large amount of costs had been taxed against him; that he had incurred considerable expense, and that he desired their assistance in its further prosecution.

The Hartford and fiEina companies alone, in compliance with this request, did contribute money and employ counsel for that purpose. Chandler testified that he received no such notice, and had no knowledge of the pendency of the suit. Mr. Hughes, who prepared the notices and directed their service, testified that he did not know a receiver had been appointed for the Lamar; but it was shown that Pennell did, for he had prosecuted his claim on its policy against Mr. Chandler as such.

The second trial, which took place in 1882, resulted in a verdict and judgment for the plaintiff for $18,000, which was successively affirmed by the Appellate and Supreme Courts, and a rehearing denied by the latter in July, 1884.

Upon the rendition of this judgment in the circuit court Pennell assigned it to Hughes and Haynie in trust for the purposes therein stated, of which it is unnecessary to say more than that it provided, in pursuance of a preceding agreement to that effect, for the reimbursement to the two companies that had aided in the prosecution the amount they had paid him on their policies, being $5,000.

The railroad company, upon the denial of its petition for rehe'aring, filed the bill herein, setting - forth that it had been notified by different parties that they claimed the money due on said judgment or some portion thereof, respectively, and it did not know to whom to make payment, and praying that it be allowed to pay it into court and be discharged from further liability thereon, and that said parties therein named defendants be required to interplead. These parties being all brought in, an interlocutory decree was made in accordance with the prayer of the bill, the money was paid into court, and the railroad company discharged.

The claims of the North British and Mercantile Insurance Company and the Insurance Company of North America, which companies had paid in full, were waived by disclaimers filed, and all of those urged were disposed of by final decree, upon the pleadings and proofs, to the satisfaction of the holders respectively, except that of the Lamar company for reimbursement of the amount paid by its receiver, set up by cross-bill, which was dismissed.

Appellant, as we understand, concedes the priority of all the other claims, but insists, in respect to two of them, that the amount was too large, whereby the fund was exhausted before its own was reached.

That fund was composed of the amount of insurance paid, §13,088, and of the judgment recovered against the railroad company, §18,000, which were together confessedly more than the full value of the property insured and destroyed. The railroad company being primarily liable for that value, the excess, remaining after deducting the reasonable cost of its recovery, ought to be returned to the insurance companies that paid it, in proportion to the amounts they paid, respectively, unless some equities as between them, or other legally sufficient reason, called for a different distribution.

■ The disclaimer of the two companies that disclaimed was a sufficient legal reason for ignoring them entirely. Appellant conceded the propriety of giving priority over its own to those of the two that assisted in the prosecution of the suit against the railroad'company, and therefore we express no opinion upon that point.

It also concedes that the miscellaneous claims for fees, costs and disbursements in the suit, aggregating §1,836.41, were properly allowed. According to its view, then, Pennell should be charged with §31,088,-and credited with said items — §1,836.41> the amount to the Hartford and EEtna as agreed on — §5,000, and the full value of the property destroyed, which it insists was conclusively fixed by the judgment at §18,000 — §24,836 .41, leaving a balance of §6,251.59, which it claims was sufficient to pay Mr. "Hughes for his services and reimburse appellant. But the court directed the payment to the Hartford and ACtna companies, for interest on their claim at the rate of six per cent, per annum from the date of the judgment until the money was paid into court, of the further sum of §725, and to Pennell, for his property destroyed, in addition to the amount of the judgment and upon evidence dehors the judgment, which was received against objection by appellant, the further sum of §3,000=3,725, thus reducing said balance to §2,526.59, and allowed to Mr. Hughes, as a reasonable compensation for his services throughout the litigation, the sum of $3,000, which said reduced balance was insufficient to pay; so that, no thing was left to apply on the claim of appellant.

Complaint is here made of so much of said decree as allows to Pennell for his property more than was found by the verdict and judgment against the railroad company,» and to Mr. Hughes so large a sum for his services.

What is a reasonable fee in a given case is a question of fact, to be determined, like others, by the weight of the evidence; and though the amount here allowed of itself seems large, its reasonableness was abundantly attested. The suit was for a large claim. ■ It was costly to prosecute — in money, time and. labor — and the plaintiff was insolvent. It involved, directly, two trials in the circuit court and three on appeal, and indirectly another suit, tried in the circuit and in the appellate courts. It was defended to the utmost, by very able and distinguished counsel.. It lasted nine years. The testimony .of each of fifteen lawyers, representing, as is said, every office in the city of Bloomington excepting that of the opposing counsel, substantially supports the finding. The average of their judgments, arrived at in different ways, is fairly represented by it, and the extremes are but little apart, while only one witness, being one of the opposing counsel, was called on the. other side. The subject being in its nature matter of opinion, whatever might be our own, independently of that of others given under oath and cross-examination, it would be unreasonable, arbitrary and against well-settled precedent, to reverse the decree for this finding upon the evidence.-

And so as to the value of the property, unless the verdict and •judgment in the other suit are conclusive as between appellant and Pennell, the finding of the court below appears to be fully iustified. On behalf of Pennell seven witnesses testified as. v to the buildings, of whom, five also testified as to the furniture. Their average judgment of the value of the buildings at the time of the fire was over $19,000, with a difference of $2,510 between extremes, and of the furniture, $5,500, with a difference of $1,500 between extremes. On the other side were three. One was the builder, \yho stated no more than that the contract price for the material and work in the main buildings was 815,000. The others rented it in 1870 and 1871, paying from $75 to $100 per month, being twenty per cent, of the gross earnings, and in their opinion the furniture was worth, when new, between four and five thousand dollars, and six months after they left (about the time of the fire), three thousand.

The testimony is, so far as it touches the point at all, that the buildings were in excellent order and worth more when burned than when built.

It is thus shown that in fixing the value of the property at $21,000 the court was within the limits indicated by a large preponderance of the evidence.

The question then is, whether the verdict and judgment in the case against the railroad company was conclusive on that subject, as between appellant and Pennell.

It seems to be a novel one. No case directly and clearly in point has been found, unless it be that of Pentz et al. v. The Receiver of the Ætna Fire Ins. Co., 9 Paige, 568, which appellant denies. There the plaintiffs’ stores and merchandise, which they claimed to be of the value of $60,884.50, and on which they had insurance of §22,000, were blown up with gunpowder by order of the city authorities, to arrest the great fire in New York, of Dec. 16, 1835. In a proceeding against the city for the value of this property, under the statute, the jury assessed the amount at $39,476.50. Plaintiffs then filed this petition against the receiver of the insurance company for a dividend on its policies issued to them, and the vice-chancellor held the verdict against the city to be conclusive as between these parties. His reasoning was that petitioners there claimed the full amount of their loss, and it was the duty of the jury to give it to them ; that the court must presume it performed that duty, especially since no measures were taken to have the verdict set aside; that if the insurance company should now pay them anything on its policies it would have a remedy over, by subrogation, against the city,- and hence “ if the verdict is not conclusive and the petitioners are still at liberty to c’aim beyond or in addition to it upon the policies of insurance, this consequence is to follow: that the corporation of the city of Hew York, after once paying all the damages that a jury have found against them and which was intended to cover the whole loss, may be liable to pay an additional amount in an action against them in behalf of the insurers.” 3 Edw. Chy. Pl. 341.

With deference we apprehend that the party injured, after receiving full compensation from the city, would have no right or remedy against it to which the insurers could be subrogated, and the consequence stated could not follow. If they had not paid their policies they could interpose this payment by the city as a bar to the claim of the insured against them, or have it applied pro tanto thereon. If th y had, then their remedy to recover it would be not against the city but the insured, as trustee for them of so much money received from the city. Connecticut F. Ins. Co. v. The Erie R’way Co., 73 N. Y. 399; Monmouth County M. and F. Ins. Co. v. Hatchinson et al., 21 N. J. Eq. 107; Hurt et al. v. Western R. R. Corp’n, 13 Metc. 99; Hall and Long v. The R. R. Companies, 13 Wall. (U. S.) 367; May on Insurance, § 454.

The judgment of the vice-chancellor was reversed for another reason given, viz.: that since the city was liable under the statute for only so much of the property destroyed by its order as would not have been inevitably destroyed by the fire, it was not necessarily the duty of the jury, nor was it certainly their intention, to assess it for the whole loss. But the language of the chancellor seems to go still further: “And if the jury, without any fault on the part of the assured, should refuse to give the whole amount of the loss, either because they thought some part of the property would undoubtedly have been destroyed by the fire if the buildings had not been blown up, or for any other cause, there is no principle which can make that decision conclusive as to the actual extent of the loss, as between the insurer and the assured.”

For the reason, however, that the measure of damages and consequently the necessary evidence was not the same against the city and the insurance company, we are not disposed to regard the judgment in that case as authority in this. Here the question, both as to the railroad company in the suit against it and as to the insurance company in the case at bar, is the same, being the actual amount of Pennell’s loss by the fire. In the former it was clearly the duty of the jury, if they found the defendant guilty, to render a verdict for the full amount of that loss; they were so instructed and it must be presumed they intended to do it. All the evidence on that subject offered by either side was admitted.

The verdict and judgment therefore conclusively limit the amount in favor of the railroad company as against Pennell, and consequently as against the world, since he was the sole party directly injured. The property destroyed was his alone, so that whoever else should seek a further recovery therefor against that company must do so claiming under him, and being thus in privity would be estopped by the judgment to which he was party.

But nobody ought to be bound by any settlement of a question affecting their interests, in which, without their fault, they were neither actually nor presumptively represented.

Here the insurance company was also liable for the loss in question, to the extent of its insurance, until compensation was fully made. Its liability, however, was only secondary to that of the railroad company, and by an obligation that was distinct, independent and of a- different nature. There was no privity between them in respect to that of either. The insurance company is not here claiming any estate or interest under the railroad company which in its hands was bound by the judgment. The railroad company had no authority otherwise so to bind it. If it had in good faith confessed a judgment for §26,000, or had made default and the damages been assessed upon a writ of inquiry at that amount, as some of the testimony made them, it would hardly be pretended that the insurance company would be thereby precluded from showing, in a suit against it upon its policy, that the value of the property was far less. The interest of these parties in the determination of this question by the former suit was not the same, that of the one calling for a small judgment and that of the other, since the defendant was able to nay it, a large one. The one, then, could not fairly represent that of the other.

And so we see nothing in their relations in consequence of which ,tlie insurance company should be bound because the railroad company is. Hor anything in those of the former with Pennell which should make it conclusive as between them. There was no privity of estate, for the insurance company had no estate, or ownership whatever in the property destroyed, (Peoria M. & F. Ins. Co. v. Frost, 37 Ill. 333,) and hence none in the particular money received as compensation for its destruction. Her in contract. Its relations to him, changing with the events, were these: At first, simply his insurer against loss by fire; upon the occurrence of such loss, his debtor to the amount of such insurance ; upon its payment of that debt or any part of it, and his receipt, by such insurance and compensation, of anything more than full indemnity for his loss and expenses, his creditor or cestui qiis trust of the amount so paid or its ratable proportion of it, or, if he had not brought suit for such compensation, his indemnitor with right of subrogation to his remedy for it. 73 N. Y. 399, and cases in connection cited, sujprcb. But none of these relations, of themselves, involved privity. Freeman on Judgments, §§ 162, 173, 189,181, Hor were their interests in respect to the judgment necessarily the same. That depended on the accident of the defendant’s ability to pay it. 'in full. They might have been different, as the extent of this ability would affect the probability and extent of reimbursement to the insurers. And lastly, the fact that the suit was for their common benefit was immaterial unless notice and opportunity were given to the insurance company to take part in it. Cole v. Favorite, 69 Ill. 457; Freeman, § 181. Such notice and opportunity might have aided this fact or some of the relations mentioned, as indemnitor, to make the judgment conclusive against it.

The question remains, were these given ? And here the parties seem to have changed places. Appellees, assuming they were, present the refusal or neglect of appellants to act upon them as a sufficient reason in equity for postponing their entire claim to those of the two companies that were reimbursed in full (of which, because of the acquiescence in such postponement, we have not felt called upon to express any opinion). On the other hand the answer and cross-bill of appellants aver that Pennell studiously concealed from them the institution and pendency of the suit and the existence of any claim against the railroad company; and Mr. Chandler testified that he had no recollection of any notice or information of these facts until after the judgment was finally obtained. There is no evidence of any intentional concealment, but there is also no reason to doubt the- statements of Mi’. Chandler. He resided in Chicago, while the suit was in McLean county. As a lawyer he may have read and thinks he did at some time read, as he read other reported decisions of the Supreme Court, the opinion in 94 Ill., but<c without connecting it with this case,” and has no recollection as to the time.- The volume was probably not out until 1881, six years after the company had paid Pennell the dividend on his policy and the suit had been commenced, and no notice was attempted to be given to any of the companies until 1881.

We are of opinion that the notice then served on Mr. Swett was not due notice to the company or the receiver, and it is conceded that the company never directed, advised or consented to the institution of the suit, or had any part in its prosecution. The judgment then cannot on this ground, as on no other, be held conclusive against it.

And if not against it, then also not against Pennell; for it is essential to an estoppel that it be mutual between the parties to the proceeding in which it is claimed. Bigelow on Estoppel, 3rd Ed., p. 59. Ereeman on Judgments, § 159. The evidence objected to was therefore properly received, and the decree will be affirmed.

Decree affirmed.


author: Conger J.

text:
    Chicago & Alton Railroad Co. v. James E. Sebring.
    1. Employe claiming reward. — The mere fact that appellee is an employe of appellant does not conclude him from claiming the offered reward. Keiser y. Cox, 16 Bradwell, 681.
    2. Reward. — “ $500 reward will be paid to any parties who will secure the arrest and conviction of any person who has injured persons or property by throwing stones or other missiles at the trains of the C. & A. R. R. Co.,” construed not to cover a case where an employe or passenger became involved in a personal difficulty with a stranger, and such missile was thrown at him during, and as a part of, a personal contest.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Williams & Capen and Messrs. Fifer & Phillips, for appellant.
    Messrs. Kerrick, Lucas & Spences, for appellee.
   Conger J.

For a full statement of this case see 16 Brad-well, page 181, where the facts are fully set forth.

We fully agree with counsel for appellants that they are concluded by the decision of this court, when the case was here before, upon .the two points: that appellee is not precluded, from the mere fact of his being an employe of appellant, from claiming the offered reward,- and second, that the reward was not limited by its terms to offenses occurring prior to its date. Keiser v. Cox, 16 Bradwell, 621.

In our opinion, the case turns upon the question whether a fair and reasonable construction of the language of the reward will include a case like the present, where the stone was thrown in consequence of a personal difficulty between appellee and a stranger.

The language of the reward is as follows: “ §500 reward will be paid to any parties who will secure the arrest and conviction of any person who has injured persons or property by throwing stones or other missiles at the trains of the Chicago & Alton Railroad Company.”

We think a fair and reasonable construction of the above offer is to detect and bring to punishment those who, through ma'iee toward the company, or its employes in general, or toward one or more of them in particular, or from a wanton and reckless disregard of the lives or safety of those upon the train, throw missiles at it when not incited thereto by or in consequence of a quarrel at the time of such difficulty with those employed or being thereon.

But it- was never intended to cover a case where an employe or passenger became involved in a personal difficulty with a stranger, and such missile is thrown at him during, and as a part of, a personal contest.

Suppose a passenger train standing at a depot, and two persons become involved in a personal difficulty, with no reference whatever as to which one may be the most in fault, and as a result, when one steps upon the train, the other throws a missile and hits him ; this would come within the literal language of the reward, but certainly not within its spirit and true meaning.

In this case appellee says (in reference to his quarrel with Watson) Recoid, page 55: “ Had told Watson I had a notion to thrash him, and hit him; think I called him a — of a b — -h; didn’t say I was go'ng to spoil his face ; he is a druggist and a small man with a bad eye; I weigh 196 pounds.” Watson says (Record, page 66): “When we got to what is called Martin’s creek he came along and said, “ What are you doing here ? ” Said I was going to Braid wood; offered him my ticket and he said, “ I don’t want your ticket, haven’t you any money ?” and I said, “No sir.” He said, “haven’t you got a quarter?” He then said, “ You little-of a b---h I have a notion to smash your nose. ” I said nothing to him. He said, “ What in h- — 1 did you tell those boys to get on for ? ” ■

We quote these extracts from the testimony, not for the purpose of determining whether appellee was going beyond the line of his duty in this controversy, but to show that the missile that was thrown at him when the train stopped at Braidwood was a part of and the direct result of the quarrel in which appellee had become involved.

Other questions are made in the argument, such as the want of proof of the conviction of the proper parties; but we prefer to place our decision directly upon the ground that the facts and circumstances of this case, as shown "by the evidence, do not bring it within the spirit and true meaning of the offer of the reward, and therefore appellee has no just ground of recovery.

The judgment of the circuit court will therefore be reversed.

¡Reversed.


author: Gonger, J.

text:
    N. W. Benevolent and Mutual Aid Association v. John W. Prim.
    1. Affidavit fob continuance. — An affidavit for continuance must show reasonable diligence in every direction wherein it is claimed the party is unprepared for trial. It is addressed to the discretion of the trial- court whose action in refusing the application can not be assigned for error unless it is apparent that such discretion has been abused.
    2. Same — -Counsel engaged in anotiieb suit. — The affidavit stating that counsel’s presence was necessary in the trial of the suit inasmuch as he alone thoroughly understood the facts of the case, and that he would be engaged in the trial of another suit at that time, was not sufficient to warrant a continuance.
    Appeal from the Circuit Court of Logan county; the Hon. C. Epleb, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. McNulta & Weldon and Mr. Hamilton Spencer, for appellant.

      Messrs. Blinn & Hoblit and Mr. John L. Bevans, for appellee.
   Gonger, J.

This was an action "brought by appellee upon an insurance policy issued upon the life of his wife, Laura L. Prim, and judgment recovered for 83,000.

Appellant has brought the record to this court, and urges as ground for reversal the action of the court below in overruling its motion for a continuance.

The declaration was filed on the 25th day of June, 1885, to the September term, 1885, of the Circuit Court of Logan county, and on the 29th day of June, 1885, the appellant, by its attorney, entered its appearance to the suit. The September term, 1885, of the Circuit Court of Logan county began on the 21st day of that month. Appellant’s pleas to the action were filed on the 23d,.and on that day a motion by appellant was made for a continuance until the next term, based upon the affidavits of John McNulta and Dr. S. H. Lambert.

These affidavits are too long to incorporate entire in this opinion, and we therefore copy the abridgment of them as found in appellant’s brief, believing it gives the substance of both:

“ John McNulta’s affidavit states that he is one of the attorneys for the defendant, and has principal charge of the casein conducting the pleading, taking testimony and getting ready for trial, and is more familiar with the facts than any of his associate counsel; that the McLean County Circuit Court was in session on the 23d of September, on which day an important trial in which he was counsel was set for trial, which was expected to take two days or moro, and that his presence in the trial in McLean was necessary; that Mr. Spencer is associate counsel in each of said cases in McLean and Logan, and that his presence at the trial of each of them was necessary to the protection of the interests of their client; that by reason of those engagements neither Mr. Silencer nor affiant could attend at Lincoln on Friday, the 25th of September, and that no other counsel could he advised of the fact, so as to intelligently conduct the trial before the day on which it was set.”

There was also presented at the same time the affidavit of S. H. Lambert, commencing on page 41 of the record, stating that he is the adjuster of the defendant, charged with the preparation for the trial of causes against it; that the defendant is not ready, and can not safely go into the trial at the then present term of the court for the reason that an agreement and understanding between Mr. Mchfulta, defendant’s attorney, and J. L. Bevan, plaintiff’s attorney, that all evidence should be taken before a stenographer and used upon the trial, had been made, and that testimony under that agreement had been taken at Atlanta on the 26th day of June, 1885, when twelve witnesses named were examined, and he then proceeded to Pickneyville, Ill., to take the testimony of witnesses there; that the plaintiff’s attorney then notified defendant’s attorney that he would not take further evidence in the case until the issues in the case were joined; that the collection of evidence was then suspended, and that by reason of that agreement witnesses on the part of defendant were not subpoenaed, the defendant relying upon the agreement to proceed in taking evidence before a stenographer after the issues were joined; that but for the agreement he would have caused subpoenas to be issued for the witnesses named in time to procure their attendance at the present term of the court.

The affidavit then goes on, commencing on page 45 of the record, to state the names and residences of seven witnesses, all residing in the southern part of the State, by whom facts are set out in detail as to each witness, as were expected to be proved, which facts' were pertinent to the issues, and if established would make a perfect defense to the action. The affidavit also shows that two physicians, one resident at Atlanta, Ga., and the other a resident of Florida, treated Mrs. Prim before her application, and would testify that she was then suffering with incipient consumption.

This motion for continuance the court overruled, but on its own motion continued the case until the 29th day of September, 1885.

It is unnecessary to cite authorities upon the requirements of an affidavit sufficient to warrant a continuance, or the duties of a court when presented, for these questions have heen passed upon by the Supreme Court so frequently as to become elementary.

Such an affidavit must show reasonable diligence in every direction wherein it is claimed the party is unprepared for trial, and is addressed to the discretion of the trial court, whose, action in refusing the application can not be assigned for error unless it is apparent that such discretion has been abused.

The first point relied upon for a continuance was that Mr. McNulta had principal charge of the case, that no other counsel could be advised of the facts involved, so as to intelligently conduct the trial before the day on which it was set, and that liis presence was necessary at the same time at a trial in McLean county.

It is sufficient to say upon this point, that the courtesies existing between members of the bar, and recognized by trial courts, will usually in such cases enable counsel to postpone a cause for a few days in one of the courts so as to enable him to be present at both trials. But this is purely a matter of grace and not of law. The rights of litigants in one court are not to be determined by the condition of the docket in another, nor because an opposing counsel has assumed duties in different courts which may conflict. Why- should appellee be denied a speedy trial of his cause, that a delay, which might be of great injury to him, would enable his opponent’s counsel to carry on a more extensive and lucrative practice; or, upon what theory could a court organized to administer justice speedily and impartially, be justified in aiding such a scheme by granting a continuance for such a cause?

It was the duty of appellant and its counsel to know whether he could be present and try the cause, and if his duties elsewhere would prevent his taking charge of the trial, other counsel should have been employed in time to prepare for the trial. Its failure to do so was negligence, the consequences of which, the court below properly held, ought not to be borne by appellee.

In what we have said we do not mean any application to cases of sickness, or other unavoidable accident, arising at such a late day as to make a continuance both just and necessary.

In this case the court, while properly, as we think, overruling the motion for a continuance for the term, exercised its discretion by postponing the trial to the 29th of the same month, which was more than appellant could rightfully have demanded, and all it could reasonably have expected. The affidavit of Dr. Lambert shows no diligence on the part of appellant.

He was notified on the 28th of June or very shortly afterward by appellee’s attorney, that he would not proceed under the agreement to take testimony until after the issues in the case were made up.

From that time until the time for trial was three months, ample time, as it appears to us, to have had all the absent witnesses, resident in the State, subpoenaed.

There is no pretense that the agreement went to the extent that if such evidence should not be taken that appellee would not demand a trial at the September term of the court. The agreement asset out in the affidavit is in the following words: “ That all evidence required by either party might be taken before a stenographer, and if afterward required, written up from the notes taken by such stenographer, omitting the signatures of all witnesses, and used upon the trial of this cause, as if such depositions had been taken in the manner prescribed by law, and giving to the officers of the defendant an opportunity to pass upon the merits of the claim, so that if it were believed to be a just and meritorious one, that it might be paid without any trial before the court.”

If appellant had never been notified by appellee that he would not proceed under this arrangement until after the issues were formed, it would present a vefy different case; but having three months’ notice, appellant should have filed its pleas, sought to have the issues completed in time to take the needed evidence under the agreement, or prepared for trial by using the process of the law to procure its witnesses.

As to the two physicians in Georgia and Florida, the affidavit is silent as to what effort, if any, had ever been made to ascertain their residence.

The doctor says he only learned of their names and the evidence they would give within the last week. But what efforts he had made, if any, to ascertain these facts before that, he does not say

We think neither of these affidavits show such diligence as to require the court to grant a continuance.

As to the second application for a continuance, made upon the 28th of September, the affidavits then filed were substantially the same, except that the business difficulties and complications surrounding appellant’s counsel seem to have increased and we do not wish to add to what we have already said upon that point.

It was a second application for a continuance at the same term, based upon substantially the same state of facts, and hence was properly refused. Stockley, adm’r, v. Goodwin, 78 Ilk 127.

' The judgment will be affirmed.

Affirmed.