text:
    William Bihler v. Amos Gockley.
    1. Slander.—In a case of’slander it is not necessary that the allegéd crime be stated with such precision as would be required in an indictment. If'the language may fairly impute the crime, it is sufficient.
    2. Same—Demurrer.—The court is of opinion that the words in this case while not prima fade defamatory, were reasonably susceptible of the meaning attached to them. It was therefore error to sustain the demurrer to the declaration.
    Error to the Superior Court of Cook county ; the Hon. Hollín S. Williamson* Judge, presiding.
    Opinion filed April 28, 1886.

      Plaintiff in error brought an action for slander in the court below. Declaration sets forth as follows :
    At the time of the grievances hereinafter mentioned, plaintiff was a person of good repute, etc., and was engaged to be married to one Fredricka Lieb, and belonged to a church known as the Evangelical Association, and was a member of a congregation of said church, of which defendant was, and now is, the pastor, and of which plaintiff was then a trustee. On December 25, 1883, the said Fredricka Lieb, “ confiding in plaintiff’s honesty and in his affection for her, and perhaps, because she anticipated the affliction which afterward overtook her, and therefore, feared she would thereby become incapable of properly caring for herself and her property, delivered and intrusted to the plaintiff for safe-keeping the sum of forty-three dollars, to her belonging.” Within a few days thereafter, the said Fredricka was, after due proceedings had in the County Court of Cook county, Illinois, adjudged an insane person, but not a pauper, and was by said court committed for treatment to the Cook County Insane Asylum. The costs of such proceedings amounting to at least twelve dollars, were paid out of said forty-three dollars.
    During said Frcdricka’s stay at the asylum, plaintiff paid thirty-two dollars for her board; and also paid on her account various other necessary expenses, so that the total of said expenses exceeded forty-three dollars. About 1881 she was discharged from the asylum, and was then taken by defendant to defendant’s home, and there continued under defendant’s influence. As soon as plaintiff learned of her discharge, he at once sought her out and gave her a full and true statement of the various expenditures by him made for her during her illness, and also restored to her such articles of personal property as had been delivered to his keeping.
    She thereupon a expressed herself as fully satisfied with the said expenditures, and did not then claim that plaintiff owed her aught, and did not demand, and has never demanded, of plaintiff any of the money which she had so as aforesaid intrusted to him.” Afterward, and after the speaking by the defendant of the words herein charged as slanderous, and in consequence thereof, there was held among the members of said congregation a trial or investigation, wherein the truth of the charges so by defendant made against the plaintiff, was examined by a committee appointed from the members of said congregation.
    After said trial (“at which defendant was present and took an active part against the plaintiff, although his office and duties should have made him a mediator, rather than prosecutor”) the committee adjudged and declared said charges to be unfounded in fact, and declared plaintiff innocent.
    1st. Additional count: And afterward, to wit, on the day and year aforesaid, in a certain other discourse which the said defendant then and there had of and concerning the plaintiff and of and concerning the matters and things aforesaid, in the presence and hearing of one E. B. Esher, who then and there understood the German language, the defendant spoke and published of and concerning the plaintiff and of and concerning the matters and things aforesaid, the false, scandalous, malicious and defamatory words following in the English language, viz., English translation: “He” (meaning plaintiff) “'has cheated her” (meaning said Fredricka Lieb) “ out of her money.” “He” (meaning plaintiff) “says he paid out twenty-six dollars for her” (meaning said Fredricka) “at the insane asylum, but I” (meaning defendant) “have found out he” (meaning the plaintiff) “ only paid twenty dollars.” “He” (meaning plaintiff) “let her” (meaning said Fredricka) “remain at the insane asylum four or five weeks after she” (meaning Fredricka) “had recovered.” “I” (meaning defendant) “and brother Alberding were there” (meaning at said asylum) “and informed ourselves, and there were only twenty dollars entered there in the book” (meaning the records of said asylum); “and you” (meaning the plaintiff) “say you paid twenty-six dollars.” “ It is rumored in the congregation that you ” (meaning plaintiff) “had cheated the girl” (meaning said Fredricka) “out of her money.” “He” (meaning plaintiff) “put her” (meaning said Fredricka) “money in his” (meaning plaintiff) “pocket, and paid it out as he” (meaning plaintiff) “ wished, and does not give it back to her” (meaning to said Fredricka), “and refuses to tell her” (meaning said Fredricka) “for what he” (meaning plaintiff) “has given it out” (meaning that the plaintiff was guilty of the crime of larceny by bailee).
    2d. Additional count: And afterward, to wit, on the day and year aforesaid, in a certain other discourse which the defendant had of and concerning the matters and things aforesaid, in the presence and hearing of E. B. Esher and others, who then and there understood the German language, the defendant spoke and published of and concerning the plaintiff and of and concerning the matters and things aforesaid, the false, scandalous, malicious and defamatory words following in the English language, viz., English translation: “He” (meaning plaintiff) “cheated her” (meaning Fredricka Lieb) “out of her money.” “He” (meaning plaintiff) “says he” (meaning plaintiff) “has paid twenty-six dollars for her” (meaning said Fredricka) “at the insane asylum; but I” (meaning defendant) “have found out he” (meaning plaintiff) “has paid only twenty. The young girl” (meaning said Fredricka) “says she” (meaning Fredricka) “ demanded her money, and the young man” (meaning plaintiff) “refused to give it to her” (meaning thereby that plaintiff was guilty of the crime of larceny as bailee).
    Mr. William Ritchie, for plaintiff in error.
    Messrs. 0. H. & C. B. Wood, for defendant in error.
   Moran, J.

In the view we take of this case we deem it necessary to consider only the propriety of sustaining the demurrer to the two additional counts set forth in full in the statement of facts.

In an action for slander, on demurrer to the declaration, the question for the court is whether the words set out are capable of the meaning ascribed to them. In determining that question the court is to regard the matter of inducement and colloquium set out in the declaration as true, and if in connection with the circumstances so set out the words charged are capable of bearing the inuendo, then the demurrer must be overruled, however improbable it may appear that they were in fact so understood. If the words are capable of the meaning ascribed to them, then it must be left to the jury to say upon proof of all the facts, whether such is the true meaning or the sense in which they were understood by those who heard them, and knew the circumstances stated in the inducement. Odgers on Slander, 101; Goodrich v. Hooper, 97 Mass. 5; Taylor v. Short,--; Hayes v. Mather, 15 Bradwell, 30, and cases cited in opinion of McAllister, P. J.

The language used must be read and interpreted as it would ordinarily be understood, when heard by the person who knew the circumstances set out. In this case the declaration shows that the girl Fredricka had delivered and intrusted to plaintiff her money, that she was incapable of taking care of or paying it out herself, being out of her mind. That after her recovery he accounted with her and she declared herself satisfied. The defamatory words set out in the two counts taken in connection with the inducement seem to us to be capable of the meaning attached to them by the inuendo. The receipt of the money, the false account, the refusal to state how the balance was paid out, the refusal to pay it to the girl on demand, would justify the inference that he converted her money to his own use, and on an indictment it would be a question for the jury whether from proof of such facts the felonious intent necessary to sustain a verdict of guilty of larceny as bailee, could be inferred. It is not necessary that the alleged crime be stated with such precision as would be required in an indictment. If the language may fairly impute the crime, it is sufficient. Proctor v. Owens, 18 Ind. 2 Odger, 121, and cases cited; Chace v. Sherman, 119 Mass. 387.

The words are not prima facie defamatory, but being in our opinion reasonably susceptible of the meaning attached to them, it follows that it should be left to the jury to determine whether under all the circumstances the by-standers understood them in such sense. The defendant may deny that the words conveyed the meaning alleged, and the jury will decide on the evidence.

The demurrer to the counts should have been overruled, and for the error in sustaining it the case must be reversed and remanded.

Beversed and remanded.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
       William Hoge et al. v. The First National Bank.
    ObTATNING MONEY UNDER FALSE PRETENSES—INDORSEMENT OF DRAFT. —Where a William Robins, living temporarily at Chebanse, entered into negotiations for a loan and produced an abstract of title in which the property was shown to belong to William Robins (but this William Robins was another person living at Loekport and of whose existence the party making the loan did not know), and the money was loaned on such representations, and Robins executed the note and mortgage which formed the consideration for the draft in question, which Robins indorsed and which upon presentation the bank paid. Held, that Robins of Chebanse did not commit forgery but obtained money under false pretenses, and as the draft was paid upon the indorsement of the precise person who was in the conception and present to the mind of the drawer and sender of it, there is no question of negligence on the part of the defendant hank.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed April 28, 1886.
    In June, 1875, Edward Sanford, a lawyer, and engaged in negotiating loans on real estate at Morris, Grundy county, Illinois, received a letter from Chebanse, Iroquois county, Illinois, applying for a loan of §1,500, on eighty acres of land situated in Will county, about four miles from Loekport. The letter was in the handwriting of J. P. H. Trescott and on one of his letter-heads, and was signed “William Bobins.”
    With the letter came a loan application made out. on one of Sanford’s blanks, which were distributed to different offices in the county, and also an abstract of-title.
    The application was filled out in the handwriting of Trescott, who was well known to Sanford, giving a description of the land and stating that it was in possession of John Griffin, was cultivated, that the applicant had a perfect title, that the land was worth 40 dollars per acre and improvements worth $800; that the applicant was worth over all indebtedness $4,000.
    The application which is in the form of an affidavit is signed
    hl'S
    William >xj Robins, and is sworn to before J. P. H. Treseott,
    mark
    notary public.
    The abstract showed a good title to the land in “William Robins, Jr.”
    Sanford sent a copy of the application to A. J. Mathewson, a surveyor, who lived at Lockport, and had an office in Joliet, asking him if the facts stated in the application were true, and Mathewson replied that they were true; that there was no one living on the land, but that it was cultivated by Griffin, a tenant.
    Sanford applied to Hoge for the loan, and he consented to make it, and thereupon an application to Hoge for the loan and a note and mortgage were drawn up by Sanford and sent to William Robins, care of Treseott, at Ohebanse, to be executed;
    The papers were returned executed, and after the abstract had been brought down so as to show the mortgage recorded, Sanford having been requested by Robins to send money by draft, obtained a draft drawn by the Grundy Oounty National Bank on the First National Bank of Chicago for $1,438, payable to the order of William Robins, and sent the same to William Robins, addressed in the same manner as the previous letters to him. All the business was done by coi-respondence. Sanford saw neither Robins nor Treseott in the matter, and Hoge had no commúneiation with them about the loan, he leaving the entire matter to be transacted by Sanford.
    The draft was cashed _by the cashier of the Commercial Bank of Kankakee, on the indorsement of William Bobins, who must have been, as the cashier swears, identified or known to him as William Bobins, or the money would not have been paid. The Kankakee bank sent the draft to its Chicago correspondent, who presented it to the defendant, the First Bational Bank, by whom it was paid. Interest was paid on the note given to Hoge for some two years, when default was made. After some delay, the interest remaining unpaid, several letters were written by Sanford at Hoge’s request, but no answer being received, a messenger was sent to the land, when it was found that though the land was owned by a mm named William Bobins, he had never negotiated for the loan, nor executed the note or mortgage, nor received the draft or money. He resided in the town of Lockport, not far from the land, spells his name “Bobbins” and can write. He brought suit against Hoge and had the mortgage removed from his land.
    One Theodore Babcock, who kept a hotel at Chebanse, had as a guest at his hotel, for a few weeks in the summer of 1875, a man who went by the name of William Bobins,
    Ti eECott, who did the writing, knew nothing about the man for whom he did it, and knew him as William Bobins only, as he represented himself to him by that name. The correspondence was carried on and the transaction of the loan completed between June 16th and July 9th, 1875. In December, 1878, it was discovered by Hoge and Sanford that they had been defrauded; that the Chebanse Bobins, if any such Bobins there was, was not the owner of the Lockport land.
    In Maich, 1879, demand was made on the First ¡National Bank for the amount of the draft, on the ground that it had been paid on a forged indorsement.
    Suit was brought and the court below entered judgment for the defendant, and the case comes here by appeal.
    Mr. Julius Staeeett, for appellants ;
    that the indorsement of the payee’s name on the draft was a forgery, cited State v. Lane, 80 N. C. 407; Cochran v. Atchison, 27 Kas. 728; Stevens v. Stebbins, 3 Scam. 25; Elberson v. Richards, 13 Vroom (N. J.), 69; Mead v. Young, 4 Tenn. Reports, 28 ; Barfield v. State, 29 Ga. 127; People v. Cowen, 6 Cowen, 72; Rogers v. Ware, 2 Neb. 29 ; Rex v. Dunn, 1 Leach, 57; People v. Sharp, 53 Mich. 523 ; Palm v. Watt, 7 Hun (N. Y.), 317 ; Kohn v. Watkins, 26 Kas. 691.
    Mr. Orville Peckham, for appellee.

      The case of Grundy National Bank, use,etc,, v. The First National Bank, involves the same questions as the above and is affirmed for same reason.

   Moran, J.

The contention of the appellant is, that the indorsement of the name William Robins on the draft, was a forgery, and a largo number of cases are cited to us by counsel, many of them similar, in some of their features, to this case, in which courts have held indorsements to be forgeries-Of those cited, Dodge v. The National Exchange Bank, 30 Ohio St. 1; Palm v. Walt, 7 Hun, 317; Kohn v. Watkins, 2 Kansas, 691, and the Agricultural Investment Company v. The Federal Bank, 45 Upper Canada, Queen’s Bench, 214, seem to be nearest in support of counsel’s contention. In the Ohio case one Frederick B. Dodge was the holder of a certificate of indebtedness, which he indorsed in blank and inclosed in a letter and sent by mail. The letter was stolen from the mail and the certificate presented to the paymaster, by one who falsely represented himself to be the Frederick B. Dodge. The paymaster gave a check payable to Frederick B. Dodge, and took up the certificate. The personator of Dodge indorsed the check with the name of Dodge and it was paid.

The court held the check was payable to the owner of the certificate, was made to his order and not paid to him, but to a stranger who forged the indorsement of his name.

The case in 7 Hun, was that one Raleigh assumed the name of John M. Gillespie, while temporarily staying in Texas, and under such name wrote letters to the mother of the true John M. Gillespie, representing himself to be that person, who had been unheard of for several years, and asking assistance to enable him to return. The mother inclosed a check payable to the order of John M. Gillespie, San Saba, Texas. The letter was taken out of the post-office by Raleigh, and he indorsed the check with the name of John M. Gillespie, and was paid the money on it by one Ward. The indorsement was held a forgery, and Ward could not recover on the check.

In 26 Kan. 691, one McLain represented that one Becker, a person in esse and a former resident of the county, desired a loan on premises purporting to be situated in the county, and forged the name of Becker to an application. The loan was accepted, and a mortgage and note sent McLain, to be executed by Becker, accompanied by a draft payable to Becker for the amount. McLain forged the name of Becker on the draft and indorsed his own name thereon, and obtained the money from an innocent party.

Held, the name Becker was forged, and the purchaser of the draft on such indorsement could not recover.

The case in 45 Upper Canada was that one Stobbs represented to the agent of a loaning company that two brothers named Bee wanted a loan. The agent filled a blank application, upon Stobbs’ statements, and gave it to him to have it signed. Stobbs returned it, signed John T. Bee and Isaac Boes P. O. Wheatley, and containing a description of their property. The loan was taken and checks sent payable to Isaac Bee and John T. Bee, which were obtained by Stobbs, and he indorsed them with the names of the payees and also with his own, and obtained the money. The Bee brothers knew nothing whatever of the transaction.

The indorsements were held forgeries, and the holder could not recover against the loan company.

In all these cases, it will be readily seen, the real person to whom the drafts or checks were made payable was present to the mind of the drawer when the draft or check was made. The making of the drafts may have been induced by fraud or false statements, their mailing or delivering induced by some trick, but the real person to whom the money was to be paid was always in the intentions of the drawer, and some one not that person, by some trick or fraud, got possession and improperly forged the name of the real person who was in the mind of the drawer.

These cases do not rule the one under consideration, nor do any of the other cases cited by counsel. Each ease must be governed by its own facts. The record shows that there was, at the time the fraud in] this case was perpetrated, a man at Chebanse, who was known in that place, so far as he was known at all, by the name of William Eobins. There is nothing to show that such was not his true name, no evidence that he was ever known anywhere by any other name. He, by correspondence, made himself known to Sanford and Hoge, by that name, giving his address as at Chebanse, and throughout, the negotiation was carried on with the man at -Chebanse, known as William Eobins. ¡Neither Sanford or Hoge, so far as appears, overheard of William Eobbins of Lockport, and he was at no time within their mental cognizance. William Eobins of Chebanse, represented that he himself wanted to make the loan, that he was worth four thousand dollars, and that he had the title to the land described, and produced an abstract which showed title to the land in William Eobins. He, in the name by which he was known to Sanford and Hoge executed the note and mo rtgage which formed the cohsideration for the draft, and there is not the slightest doubt that they intended the draft should be paid to the identical individual with whom they had corres2Donded, and who executed the note and mortgage for which it was given. He committed a crime, it is true, but his crime was not forgery, but obtaining money by false pretenses. He represented that he owned the land, and the 2U’oduction of the abstract aided the 23retense that he had a title to it, and led Sanford and Hoge to rely ujoon his statement and deal with him in the belief that he had the title to the pro]3erty. Owing to the identity of name, the true abstract was used to lend sup2>ort to the false 2oreten£e, but tile peipetrator of the fraud never 2U'etended to be any other than the 2jei'son living for the time at Chebanse, and known as William Eobins.

The draft then was paid upon the indorsement of the precise 2)erson who was in the conception and present to the mind of the drawer and sender of it. Robertson v. Coleman, 4 N. E. Reporter, 619.

There is, under the circumstances of this case, no question of negligence, on the 2>art of the defendant bank, to be considered. The case presents a question of fact only. The draft was paid to the exact party to whom it was made payable, and the judgment of the court below must be affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    Elizabeth Scrafield v. Henry Sheeler.
    1. Officer’s return.—While the officer’s return can not he contradicted so as to defeat jurisdiction, it may be done to excuse a default.
    2. Affidavits.—Where affidavits in support of a motion to set aside a default show a defense to the action upon the merits with all the certainty practicable in such a proceeding, the hearing of counter-affidavits is a vicious practice, and in such case such counter-affidavits will not ordinarily affect the question of abuse of discretion on the part of the court.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed April 28, 1886.
    Mr. D. L. Carmichael, for appellant.
    Mr. John D. Gill, for appellee.
   McAllister, J.

At the September term, 1885, of the court below, the appellee, Sheeler, took a judgment by default against the appellant, Scrafield, for the sum of three hundred sixty-three dollars and fifty cents, which the defendant at the same term moved the court to set aside.

The motion was supported by affidavits excusing the default by showing that, in point of fact, the defendant had not been served with summons. She stated positively in her affidavit that she was not served; that she was not at home when the deputy sheriff came there, and was corroborated by a disinterested witness, who saw the officer go to her house, fail to get in, and go away without seeing the defendant or any member of the family. A clear case was made of want of service of notice. We hold that while the officer’s return can not be contradicted so as to defeat jurisdiction, yet it may be done to excuse a default. The prevention of fraud and promotion of justice require us to so hold.

The affidavits in support of the motion show a defense to the action upon the merits, with all the certainty practicable in such a proceeding. The court heard affidavits in opposition to the' motion, and it is now urged that there was no such abuse of discretion in overruling it as would justify the interference of this court. The hearing counter-affidavits in such cases is a vicious practice: Kalkaska Co. v. Thomas, 17 Bradwell, 235; and where allowed, if the affidavits of the applicant excuse the default and show merits, with distinctness, such counter-affidavits will not ordinarily affect the question of abuse of discretion on the part of the court.

The order appealed from will be reversed and the cause remanded to the court below, with directions to set aside the judgment and give the defendant leave to plead to the action.

Judgment reversed.


text:
    Henry Jackson v. The People, etc.
    1. False pretenses—Warranty given.—If false pretenses are made with intent to cheat and defraud in the gale of a horse, and they are an inducing cause of the purchase, the fact that there is a warranty, on which a civil remedy may be based, will not screen the person making them from the consequences attaching to the act of obtaining money or property by false pretenses.
    2. Same.'—But all eases where false statements are made in the sale of property, and a warranty given, are not within the statute against false pretenses. Where reliance is placed upon the promise or warranty and not upon the representations the case is clearly not within the statute.

      3. Evidence of similar dealings.—Where the circumstances of the case are such that guilty knowledge on the part of the accused must be shown, then whether he had such knowledge, is an issue in the case and prior similar dealings, within reasonable limits, may tend to show such guilty knowledge; but where the charge is of false statements of facts within the knowledge of the accused, and where, from proof that they were false, the inevitable inference is that they were made for a fraudulent purpose, evidence of the perpetration of other like offenses is not admissible.
    4. Same.—In an indictment for obtaining money under false pretenses made in the sale of a horse, evidence of similar pretenses in other sales by the accused is inadmissible.
    5. Allusion to accused not testifying.—The allusion by counsel to the tact that the accused does not testify is unprofessional and in direct violation of the statute.
    Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed April 28, 1886.
    Plaintiff was tried in the Criminal Court of Cook county, on an indictment for obtaining money under false pretenses. The false pretenses were alleged to have been made in the sale of a certain horse to the prosecuting witnesses. On the trial in his opening statement to the jury, the assistant state’s attorney, among other things, said:
    “This ease is important, not so much because of the amount involved, hut because it will appear in the proof of this case, that there are certain prescribed methods of men who conduct business in the manner of Mr. Jackson.” Exception.
    “ I said you would find this charge and this case a case of some importance, not so much for the penalty or the amount, but important because of the methods used and the manner of the defendant; and not only the manner of the defendant in this case, and not only the methods in this case, but I expect to prove the method of this man in obtaining money and property by false pretenses. It will become important to you to know who the defendant is in this cáse. It not only becomes important on account of whom the defendant is, hut on account of the methods used in this community to perpetrate the offense as charged.” Exception.
    “ Ono of the expectations of proof in this case, is who the defendant on trial is, and it will become necessary in this to show who the defendant is, in order to show, as you will see before we get through, the guilty intent and knowledge of this defendant, the guilty intent and knowledge of this defendant being the very gist of the crime, and who the man is becomes an important factor in the case.” Exception.
    “ 1 state that we expect to prove, in the line of guilty intent and under the law, the knowledge of this man by other cases.” Exception.
    Detective Shea was called by the prosecution, and among other things the following colloquy occured in the presence of the jury : Q. “How many times, Mr. Shea, have you known of Henry Jackson being implicated and arrested for obtaining money under false pretenses upon the sales of horses? How many times do you know of his having been charged with that ? ” Objected to.
    The Court, to assistant state’s attorney: “If there is any authority upon that, I will hear you.”
    Mr. Thompson, for plaintiff in error : “ If there is to be any argument on this, I ask that the jury be withdrawn.”
    The Court: “I will not order that the jury withdraw.”
    3. The assistant state’s attorney then cited section 53, Whart. Cr. Ev., and proceeding, said: “ The Supreme Court of the State of Ohio, upon this very proposition, in a case entitled Tarbox v. The State, and also in the case entitled Henry Jackson v. The State, decides this very proposition. It is laid down in the 38th Ohio as follows : The plaintiff in error, the court says, who seeks to file his petition in error in this court, was convicted in the Common Pleas Court of Cuyahoga county, upon an indictment charging that he, jointly with Henry Jackson, Thomas Allen and Charles Smith— and we propose to prove tha,t this is the same Henry Jackson who is the defendant in this case.” Exception.
    The Court: “It is competent in a case of false pretenses to show that about the same time a party made representations of a similar character. How, if this party has made false representations of a similar character in the sale of a horse, similar to these and similar to what he made in this case, as you claim, then it would be competent.”
    Questions were then put to the witness, seeking to draw out evidence that Jackson had admitted to witness that he had made false representations in the sale of certain other horses to persons other than the prosecuting witness Cohn, some time prior to the Cohn sale. The court said to the witness: “ If he made a statement in regard to a given transaction, I will allow you now to state what was. said.”
    Witness: “ Do you mean to say when there was a warrant?”
    The Court: “ No. Were you present on any such occasion, when there was a conversation between yourself, a third party and Hr. Jackson, in regard to a horse ? ”
    A. “ Yes.”
    Q. “ What took place? ” Exception.
    A. “Well, these people had made a complaint to me; they were outsiders. I can’t remember, now, where they were from. There were two or three of them.”
    Q. “ From outside of the city? ”
    A. “ Yes; and it was about a very bad horse they had bought from a man that looked very much like Jackson, and I asked them where he lived. They told me in the neighborhood. I sent for Hr. Jackson, and had a talk with him, and he says, ‘ By God! I will sell a horse to any man I can sell him to.’ And I said, ‘ If you come back here and sell bad horses again, Mr. Jackson, we will make it very hot for you. These people do not live in Chicago, and we have had too many of these kind of cases, and the best thing you can do—5 Objection.
    The Court. “ I shall have to exclude that unless he made a direct admission himself in regard to that.”
    A. “ He admitted he had sold these people a particular horse they were talking about, but said its qualities were a great deal better than the other people thought.”
    The Court. il That will hardly do ; I shall have to exclude all this testimony of Shea’s.”
    Detective James Morgan was permitted against the objection of defendant to testify that he knew defendant dealt in “ dummies ” and “ bulls,” that is, as he explained, wind-broken, sunstruck and crazy horses.
    The evidence of prosecuting witness and others tended to show that Jackson advertised the horse for sale; that Cohn, seeing the advertisement, went to see the horse; that Jackson made representations as to the horse that turned out to be false and were known by Jackson to be false when he made them. A written warranty was given by Jackson to Cohn at the time of the sale.
    Plaintiff in error did not take the witness stand at the trial, and the special counsel who aided in the prosec.ntion said:
    “ Gentlemen, the law prohibits our commenting upon the fact that the defendant did not take the stand.” Objection being made, he went on: “ I say the law forbids our commenting upon the fact that the defendant did not take the stand in this case,
    I say, I have no right to say anything about that.” There was a verdict of guilty, judgment, and the case comes here on error.
    Messrs. Thomson & Felsenthal, for plaintiff in error.
    Mr. Julius S. Grinnell and F. W. Walker, for defendant in error;
    that evidence of the previous sales was admissible to prove guilty knowledge, cited Tarbox v. State, 38 Ohio, 581; Jackson v. State, 38 Ohio, 585; Wharton on Criminal Ev. §§ 44, 45 ; Hall v. Naylor, 18 N. Y. 588.
   Moran, J.

If false pretenses are made with intent to cheat and defraud in the sale of a horse and they are an inducing cause of the purchase, the fact that there is a warranty, on which a civil remedy may be based, will not screen the person making them from the consequences attaching ^ to the act of obtaining money or property by false pretenses.

The promise in the written warranty, to take back the horse and refund the money, may, it is true, have an influence and operate on the mind of the purchaser, but, if the false representation of matters of fact contained in the writing or in'the colloquy, which precedes the execution of the writing, in fact constitute the main inducement to the purchase, there may be a conviction, notwithstanding the fact that the promise of the warranty operated upon the purchaser.

The fact that a promise is combined with a false pretense does not take away the criminal character of the act. “ If the pretense and promise blend together and jointly act upon the defrauded person, ivhereby he is induced to give faith to the pretense, the case is within the statute. State v. Dowe, 27 Iowa, 273.

It is no defense to a false pretense that it is backed up by a written warranty as to the future. Watson v. The People, 87 N. Y. 561.

All cases where false statements are made in the sale of property, and a warranty given, are not, however, within the statute against false pretenses. When reliance is placed upon the promise or warranty, and not upon the representations, the case is clearly not within the statute, else every case of breach of warranty would be the basis of a criminal prosecution. Rex v. Codington, 1 Car. & P. 661.

It is always a question of fact for the jury in each case, to ascertain from the proper evidence, whether the representation made was in its nature calculated to deceive; whether the prosecutor relied upon the representation as the main inducing clause of the purchase ; whether the representation was false and known to be so to the person making it, and whether the prosecutor was deceived by the representation and induced to ¡Dart thereby with his money or property.

This inquiry, as the question of guilt or innocence in all trials, must be answered by the jury from a consideration of legally competent evidence only.

This brings us to determine whether the rulings of the court, at the trial, were such as to exclude from the jury im. 2)roper and in-elevant testimony injurious to plaintiff in error, and whether the statements made in the presence of the jury by the assistant prosecutor and s2oecial counsel, were calculated to deprive plaintiff in error of the fair trial which the law secures to every person charged with a criminal offense.

It is perfectly apparent from the record, that the jury ]earned from the testimony of Shea, that Jackson had been charged with making false representations in the sale of other horses; that he had been arrested on other charges of false pretenses, and that the police were after him. From the statement of the assistant prosecutor, made while reading the Ohio report, the jury learned that the man then on trial was the same Henry Jackson who had been convicted in Ohio of false representations in the sale of a horse.

The theory of the trial court was that it was competent to prove that defendant had defrauded other persons than the prosecuting witness by false representations in the .sale of horses.

The general rule limits the trial to the immediate act for which the defendant is indicted.

“ This rule (says Greenleaf in his work on Evidence, Sec. 52) excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute.”

There are cases in which, it being material to prove the knowledge or intent of the party, evidence of collateral facts has been admitted, as in an indictment for knowingly uttering a forged document or counterfeit bank note, proof of the possession or of the'-previous or subsequent utterance of other, false documents or notes, though of a different description, is admitted as material to the question of guilty knowledge or intent. 1 Greenleaf Ev., Sec. 53.

In some indictments for false pretenses, when the pretense was that a false document was a true one, or that a false diamond ring was genuine, the question of the knowledge of the accused that the false article was such, being identically the same as in the case of uttering false coin, proof that the accused had defrauded with other similar false documents and snide jewelry was received to establish guilty knowledge.

Thus in the case of Commonwealth v. Coe, 115 Mass. 481, on the trial of an indictment for cheating by falsely pretending that a forged certificate of stock was genuine, evidence of the possession and use by the defendant of other forged certificates of stock, about the same time, whether before or afterward, was held admissible, on the question of guilty knowledge. So in Reg v. Francis, 12 Cox C. C. 112, when the indictment was for falsely representing a diamond ring to be genuine, to show guilty knowledge, evidence that the accused had offered other false jewelry to others was received.

There are general statements in some of tne works on criminal law, and one or two decisions by courts, which seem to give support to the proposition that in a prosecution for obtaining money by false pretenses it is competent to prove that the accused had made similar false pretenses, and thereby defrauded others. An examination of the cases to be found upon the subject leads us to the conclusion that such proof can be received only in the class of cases of which Commonwealth v. Coe and Reg v. Francis, above cited, are illustrations.

Where the circumstances of the case are such that guilty knowledge on the part of the accused must be shown, then whether he had such knowledge is an issue in the case, and prior similar dealings, within reasonable limits, may tend to show such guilty knowledge; but where the charge is of false statements of facts within the knowledge of the accused, and where, from proof that they were false, the inevitable inference is that they were made for a fraudulent purpose, evidence of the perpetration of other like offenses is not admissible.

The case of Tarbox v. The State, 38 Ohio, 581, is relied on as an authority in support of the admissibility of such evidence. The indictment in that case was for a conspiracy to defraud by false pretenses, and proof was admitted that Tar-box and those jointly indicted with him had, shortly before, perpetrated a like offense in Detroit. It is said in the opinion that the evidence was competent for the purpose of showing a conspiracy between the defendants, and also to show knowledge of the falsity of the representations at the time when made. The cases cited by the court do not sustain the latter portion of the proposition, and we find no reasoning in the opinion which would incline us to follow it as authority. In the case of Strong v. State, 86 Ind. 208, the Supreme Court of Indiana considered this question. The indictment was for falsely representing that the defendant was a member of a certain Masonic lodge located in Ohio, that he was in distress, etc., thereby defrauding a certain Masonic lodge in Indiana. Evidence was admitted that defendant had made similar false representations to the officers of another lodge and obtained money thereby, and for the error in admitting such evidence the pase was reversed, and a dissenting opinion by a member of the court shows that Tarbox v. The State was called to the attention of the court.

In the case of the Commonwealth v. Henry Jackson, 132 Mass. 16, the exact question being considered was decided, and what we consider the true rule announced, and supported by a well considered bpinion. The indictment was for false pretenses in the sale of a horse, the statements and circumstances being very similar to those proved in this case. The transaction occurred May 10, 1880, and evidence of the circumstances and details of three other sales, made respectively March 29, April 6 and April 26, of the same year, was admitted. In all these instances, the evidence tended to show that the parties were induced to enter into negotiations with defendant by means of advertisments in a Boston newspaper of the different horses which afterward became the subject of the sales. The representations made by the defendant, both by advertisement and orally, were proved, and the parties to such sales were allowed to testify that the statements made by the defendant as to the soundness of the horses, and in other respects, were false. The evidence was admitted by the trial judge, “solely for the purpose of showing the intent with which the defendant made the sale of the horse as charged in the indictment.” The instructions limited the evidence to that purpose.

The court after examining and distinguishing a number of authorities, says tliat the evidence admitted did not come within the exceptions to the general rule. “ Ho instrument was used, like the base coin or false plate which might have been innocently uttered, and of which a guilty knowledge was important to he shown. The other statements made by the defendant, at other times as to other animals, might have been false while these were not. The transactions formed no part of a single scheme or plan, any more than the various robberies of a thief. They were entered upon as from time to time he might succeed in entrapping credulous or unwary persons. Even if they were transactions of the same general character, they differed in all their details, and defendant was compelled to defend himself against three distinct charges in addition to that one, for which alone he was indicted. Evidence of the commission of other crimes by a defendant may deeply prejudice him with the jury while it does not legally bear upon his case. * * *

Such evidence compels the defendant to meet charges of which the indictment gives hirn no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before them, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him.

Now, what was the statement made by the prosecution in this case, thit the defendant would be proven to be the same man who was convicted in Ohio, and the testimony of Lieut. Shea given under oath to the jury, but an attack on the cha; - acter of the defendant, tending strongly to prejudice him, and to produce the belief that he was a bad mini Showing that he had been convicted in Ohio, and that he had sold other horses by false representation and been arrested for it, did not tend to prove any scheme or plan of which the sale in the case formed a part. It tended to show simply that he had committed other crimes, or that he was in the habit of selling horses by false representations whenever he got the opportunity. It is unlike the evidence of Morgan that the plaintiff in error dealt in broken-winded and heavy horses, which was not an attack on defendant’s character, and which was competent as showing that he should be like'y to know whether a horse was in that condition, that he was an expert, by reason of dealings in such horses, and not likely to innocently suppose that a horse thus diseased was sound. It is not competent to show a tendency on the part of the accused to commit the crime of which he is charged, by showing his former conviction of a similar offense. As has been admirably stated by the Supreme Court of Hew Hampshire, “ It is not permitted the prosecution to attack the character of the prisoner, unless he first puts that in issue, by offering evidence of his good character. It is not permitted to show the defendant’s bad character b • showing particular acts. It is not permitted to show in the defendant a tendency or disposition to commit the crime with whch he is charged. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.” State v. Le Page, 57 N. H. 215. But it is suggested that the testimony of Shea was stricken out by the court. We are inclined to think that the remark of the court can not be interpreted as an order striking out the testimony. “ That will hardly do. I will have to exclude all this testimony of Shea’s.” That is rather a declaration of the court’s conclusion to strike out than an actual striking out.

The statement is equivocal. The jury might expect some farther act on the part of the court, if the testimony was finally to be taken from them. It is impossible to say that the jury did not give full weight to that testimony in considering the case. The evidence was allowed over the objection of the defendant, and being improper, the most unequivocal direction to the jury could not cure the error in admitting it. In L. B. & M. R. R. Co. v. Winslow, 66 Ill. 233, when improper testimony was admitted the Supreme Court reversed the case, and said: “ It is true the court, in a proper instruction to the jury, directed them to disregard all testimony of that character, but the wrong was done, and it is not always easy to remove from the minds of a jury impressions produced by testimony which the court has admitted against objections. It is of the utmost importance in trials by jury that the testimony given to them should be free from all exceptions. To effect this purpose, rules framed with great skill, and which have received the approval of all courts, have existed for years, and which we are not at liberty, did we so desire, to disregard.” Dencer v. Parsons, 8 Bradwell, 625; Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402; Hutchins v. Hutchins, 98 N. Y. 60.

The statement of the prosecutor-, that defendant was con. victed in Ohio, made with the book containing a report of the case in his hand, was of a character to make a deep impression on the jury; no attempt whatever was made to relieve the accused from the effect of such statement, and it is probable that any effort to do so would have been futile.

The allusion of the special counsel who assisted the proseen - tion in this case, to the fact that the defendant did not testify, was covert, unprofessional, and in direct violation of the statute, and deserving of the severest condemnation.

Such violation of the defendant’s rights is not an error of the court, and works a mischief which the court is powerless to cure. The Supreme Court have allowed no judgment in a case, when it appears from the report that attention has been called to a violation of the statute in this regard, to stand. In Austin v. The People, 102 Ill. 261, it was said: “It may be that if the cause had been properly submitted to the jury, we might not feel compelled to disturb the conviction on merely a consideration of the evidence, but the record shows what we regard as a manifest error, which may have seriously affected the result of the trial.”

The court then shows that reference was made to the fact that accused did not take the stand in his own behalf, and say: “We do not see that this statute can well be completely enforced, unless it be adopted as a rule of practice that si'.cli improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial, in all cases when the proofs of guilt are not so clear and conclusive that the court can say affirmatively that the accused could not have been harmed from that cause.” Also Angelo v. People, 96 Ill. 213. If, now, there was no other error in this case, we should feel bound to reverse for the plain violation of the stab ute by the special counsel. It is the observation of the writer, that the able prosecuting attorney of Cook county, and his zealous assistants, scrupulously observe this provision of the law in their conduct of trials, audit can not he permitted that special counsel, who not infrequently appear in prosecutions as the representatives of private malice, shall infringe the law for the gratification of their private client.

Whatever the business or the character of the plaintiff in error,.he is entitled to a fair trial, and enough has been said to show that such was not given him in the court below.

The ease must be reversed and remanded.


author: Bailey, P. J.

text:
    Charles J. Gorham v. John Farson et al.
    1. Lien — Op judgment — Conditional sale.— Where a judgment debtor is a holder of a mere equitable estate in laud under a contract of sale from the owners, and the latter hold the legal title as security for the payment of the purchase money, a judgment creditor’s lien is subject to such legal title and to all such rights in the land as were secured to the owners by the contract; and the interest of such owners in the land under these circumstances is not that of a vendor’s lien.
    2. Practice—During appeal prom special order.—It was not improper for the trial court to proceed with the hearing o? the cause while an appeal from an order therein awarding possession of the mortgaged premises pendente Ute was pending in the Appellate and Supreme Courts, so long as the question of possession of the premises pendente lite was in no way material to a final hearing of the cause and the entry of a decree of foreclosure and sale.
    Appeal from the*Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed April 28, 1886.
    On the first day of May, 1881, Preston, Kean & Co., by their agent, James Payne, entered into a contract in writing with '"Gilbert A. Colby, whereby they demised to him block four in Hubbard, Crocker & Stone’s subdivision, etc., in Cook county, on which were situated certain smelting works, for the term of three years, reserving as rent the sum of $100 per month during the term; and in and by said contract said Preston, Kean & Co. agreed to sell, and said Colby to purchase said premises within said three years, for $15,000, of which sum $5,000 was to be paid down, $5,000 in one year and $5,000 in two years, with interest at the rate of six per cent, per annum on the deferred payments, said payments to be secured by a mortgage or deed of trust on the premises; and it was provided, that on the payment by Colby of $5,000, the rent under the agreement was to cease, but in case of his failure or refusal to make the purchase, the agreement might be enforced against him, and Preston, Kean & Co. might retain, as liquidated damages for the breach of the contract, all the machinery and improvements prat on said premises by him. By the same instrument Preston, Kean & Co. also agreed to sell, and said Colby to purchase lots six, seven and eight, in block four, in Day’s subdivision, etc., in said county, for $1,300 and interest from the date of the contract at the rate of six per cent, per annum, such payment to be made within one year from that date.
    After the execution of the contract Colby formed a co-partnership with his son and one Gardner, under the firm name of Colby, Gardner & Co., for the purpose of manufacturing plows, and said firm thereupon took possession of said property under said contract, and placed upon it a considerable amount of machinery and other improvements. On the 31st day of May, 1881, said firm borrowed of Preston, Kean & Co. the sum of $3,000 for ninety days, and gave their promissory note therefor, and on or about the 1st day of October, 1881, the firm failed, being then indebted to Preston, Kean & Co. for the full amount of said loan and for the further sum of $200 rent for said premises then in arrears. It being impossible at that time, as it seems, for Colby or his firm to pay said indebtedness or any portion of the purchase money of said premises, it was arranged between him and Preston, Kean & Co. that the latter should at once convey said premises to Colby and take back from him a deed of trust securing the entire purchase money, and also the indebtedness for borrowed money and for rent. This arrangement was carried out, both instruments being dated October 1, 1881. The deed of trust, which run to John Farson, as trustee, secured four promissory notes of even date therewith, executed by Colby, payab*e to his own order and by him duly indorsed, all drawing interest at the rate of seven per cent, per annum, payable annually, one being for §4,500 due six months after date, and the other three for §5,000 each and maturing respectively on the 1st day of May, in the years 1884, 1885 and 1886. It was further provided in the deed of trust, that in case of default in the payment of the principal or interest, or any part thereof, the whole of the notes should, at the election of the holder, become due and payable.
    At the time of executing the deed of trust, the firm of Colby, Gardner & Co. sold, assigned and transferred to Preston, Kean & Co. all their stock, materials, machinery and personal property then on said premises, it being agreed that the same should be sold and the proceeds applied to the pay. ment of the note for §4,500, in which was embraced the indebtedness for borrowed money and for rent. Preston Kean & Co. afterward took possession of said personal property and sold a portion of it, realizing §436.15. Gardner thereupon filed his bill for a dissolution and settlement of the partnership, making Preston, Kean & Co. parties, and a receiver being appointed in that suit, Preston, Kean & Co. turned over to him the residue of the personal property in their hands, and he afterward sold it under an order of the court for §311.45. The receiver also sold the interest of the firm in said real estate for §345, said sale taking place April 1, 1882, Allen Breed being the purchaser, and said sale was afterward confirmed by the court. Breed then entered into possession of said real estate and held possession thereof by himself and tenants until after the commencement of the present suit.
    The .present bill was filed by John Farson, the trustee, to foreclose said deed of trust. The bill alleges that said Colby, on executing and indorsing said notes, delix^ered them to Preston, Kean & Co., and that they indorsed and delivered the same to Frederick W. Hayes, and that he xvas then the owner and holder thereof, and that neither of said notes nor any part thereof, had been paid, and that said Hayes, by virtue of the terms of the deed of trust, had elected to declare all of said notes due and payable. It appears, however, that prior to the decree, said notes had become the property of Preston, Kean & Co. The bill further alleged that said Colby was wholly insolvent, and had departed from this State, and that said premises were insufficient security for the money due on said notes.
    Charles T. Gorham, the appellant, was made a defendant, under an allegation that he had or claimed some interest in the mortgaged premises or some part thereof, as purchaser, mortgagee, or otherwise, but that such interest was subsequent to the lien of said deed of trust and subject thereto. A receiver was appointed shortly after the filing of the bill, at the instance of the complainant, who rented the mortgaged premises by order of the court to one Lamb, who went into possession thereof and paid rent therefor. Gorham afterward appeared and answered, alleging that on the 10th day of October, 1879, he recovered a judgment in the Superior Court of Cook county, against said Colby, for 85,500 and costs, and immediately caused execution to be issued thereon; that upon the purchase of said mortgaged premises by Colby, said judgment became a lien thereon, and that said Gorham, on the 14th day of February, 1883, caused said premises to be sold under said judgment, and became the purchaser and received a sheriff’s certificate of purchase therefor, and that on the 20th day of May, 1884, said premises not having been redeemed from said sale, said Gorham received a sheriff’s deed therefor.
    Gorham subsequently moved that the receiver be discharged and the possession of said premises be turned over to him, and an order was entered on said motion, providing that on Gorham’s entering into a bond to the complainant in the sum of 85,000, conditioned to account to the. court for all moneys derived from the use of said premises, and also conditioned that said Gorham should ratify the lease to Lamb, or else that the obligors should be liable for the rent of the premises at the same rate as reserved in said lease, the receiver should surrender the possession of said property to Gorham. In compliance with this order, Gorham filed his bond which was approved. The order discharging the receiver and awarding possession of the premises to Gorham was brought to this court by writ of error, and by order of this court said writ was made a supersedeas. The writ of error was afterward dismissed by this court, and such order of dismissal was thereupon taken to the Supreme Court by writ of error which writ was in like manner made a supersedeas by that court, and was pending at the time of the final hearing and decree in this case in the court below.
    By the decree, the deed of trust was declared to be a lien, as against the title of Gorham, derived through his judgment and execution sale, on lots six, seven and eight, in block four, in Day’s subdivision, etc., only to the extent of $1,300, and interest thereon at the rate of six per cent, per annum, from May 1, 1881, making $1,642.35, and on block four, in Hubbard, Crocker & Stone’s subdivision, etc., only to the extent of $15,000, and interest thereon at the rate of six per cent, per annum from October 1, 1881, making $18,825, and it was ordered that said Gorham might redeem said premises within thirty days from the date of the decree by the payment of said sums and six per cent, interest thereon, from that date, and that in default of such redemption, said premises should be sold by the master, and the proceeds applied to the payment of costs and expenses of sale and the satisfaction of said first liens, created by said deed of trust, and the surplus brought into court. By a subsequent order modifying said decree, it was provided that if any other person than Preston, Kean & Co., the holders of the lien under the trust deed, should become the purchaser, all the proceeds of the sale, after paying costs, disbursements, etc., should be brought into court' to await its further order. From this decree Gorham has appealed to this court.
    Messrs. Abbott & Johnson and Mr. E. A. Obane, for appellant;
    that it makes no difference with Gorham’s lien, whether the contract was recorded or not, and it attaches to rights under the land contract as soon as it is made, cited Rogers v. Brent, 5 Gilm. 573 ; Tenney v. Walston, 41 Ill. 215; Niantic Bk. v. Dennis, 37 Ill. 381; Ryhemer v. Frank, 105 Ill. 327; Walsh v. Richards, 41 Mich. 593; Markoe v. Andras, 67 Ill. 34; Freeman on Judgments, 2d Ed., § 356.
    Mr. Morton Culver, for appellees.
   Bailey, P. J.

A large number of errors are assigned in this case, most of which we do not deem it necessary to discuss further than to say that we have examined the record with attention, and are of the opinion that the decree should be in all respects affirmed. It does not appear to be questioned that the judgment recovered, by Gorham, the appellant, against Colby, became a lien upon Colby’s interest in the premises covered by the deed of trust, the instant such interest was acquired by Colby, under the contract with Preston, Kean & Co., of May 1, 1881, and his lien having thus accrued, it is not claimed that it could be changed or extinguished without his consent, by any subsequent transaction or agreement between Colby and Preston, Kean & Co. This seems to have been the view taken by the court below, and it was manifestly upon this theory that the decree was rendered. Although the deed of trust in some respects changed the rights and obligations of Colby in relation' to said land, by providing for the payment of a higher rate of interest, by securing on the land an indebtedness for borrowed money, etc., the decree, so far as Gorham was concerned, remitted the parties to their rights as they existed under the contract, and relieved Gorham from all the additional burdens imposed upon the land by the stipulations contained in the deed of trust.

Counsel for the appellant are clearly in error in the view taken by them, and which seems to lie at the foundation of their argument, that the interest of Preston, Kean & Co. in said premises, prior to the conveyance to Colby and the execution by him of the deed of trust, was merely that of a vendor’s lien. Their interest was not a vendor’s lien nor anything of that nature. Colby was a holder of a mere equitable estate in the land under a contract of sale, and Preston, Kean & Co. held the legal title as security for the payment of the purchase money. Hansbrough v. Peck, 5 Wallace, 506. Gorham’s lien was subject to such legal title, and to all such rights in the land as were secured to Preston, Kean & Co. by the contract.

It is claimed that, by including other indebtedness in the deed of trust, and stipulating for a higher rate of interest, Preston, Kean & Go. must be deemed to have waived and abandoned their security so far as Gorham is concerned, so as^, to postpone their lien to his. Whatever may be the rulo applicable to vendor’s liens, we can not see that such consequences should follow in this case from such changes in the form or terms of the security. The execution of a deed of trust to secure the deferred payments of purchase money was contemplated and stipulated for in the contract, and all the additional burdens placed upon the land by the deed of trust are easily separable from those imposed by the contract. The decree enforced the deed of trust to the extent of Preston, Kean & Co.’s prior lien as it existed by virtue of the original contract, and we see no equitable ground of complaint on Gorham’s part, nor are we aware of any rule, either equitable or technical, which forbids its enforcement to that extent. .The numerous authorities cited by the counsel do not seem to us to have any application.

The point is made that no steps should have been taken in the case during the pendency in this court, and in the Supreme Court, of the writ of error bringing up for review the order of the court discharging the receiver and awarding possession of the mortgaged premises pendente lite to Gorham. The writ in each court having been made a supersedeas, it was clearly improper for the court below, during the pendency of such writ, to proceed with the execution of the order thus brought up for review. But the effect of the supersedeas was only to stay the execution of that particular order and had no effect, as far as we can see, upon any other proceeding in the case. It does not appear that any steps were taken to enforce the order by turning possession of the property over to Gorliam, or that the court has not in all respects obeyed the supersedeas. The question -of possession of the mortgaged premises pendente lite was in no way material to a final hearing of the bill and the entry of a decree of foreclosure and sale. We see no reason why it was not proper for the court to proceed with the hearing as it has done, reserving the question of the disposition of the assets in the hands of the receiver until the writ of error is finally disposed of.

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

Decree affirmed.


text:
    Merick A. Richardson v. Thomas Beldam.
    Entering- oe judgment—Time.—Where a court in regular term time adjourned on Saturday to ten o’clock of the succeeding Monday, but on Monday morning opened the court by proclamation and entered judgment in regular form upon cognovit and other proper papers on file. Held, that such judgment should not be regarded as void or so irregular as to be subject to be set aside because the precise time of ten o’clock had not arrived when the entry was made.
    Error to the Circuit Court of Cook county; the Hon. John G. Bogers, Judge, presiding.
    Opinion filed April 28, 1886.
    The record proper sent up by the clerk contains a plaeita or convening order of the court at a term beginning September 21, 1885, being the third Monday of that month ; it recites that October 5,1885, there was filed in said court a certain judgment note, narr. and cognovit, which are set out in words and figures. The judgment note purports to have been made by Bichardson, bears date October 2, 1885, by which the maker promised to pay Thomas Beldam thirteen thousand five hundred twenty-two and .66-100 dollars, with interest, on demand. To that note a warrant of attorney was annexed in the usual form, authorizing any attorney of any court of record to appear for the maker in such court, in term or vacation, at any time thereafter, and confess judgment without process in favor of the holder thereof. The declaration was upon said note by the payee, Beldam, as plaintiff. The cognovit was regular and proper in all respects. The record then recites: “And thereupon on the same day, to wit, the 5th day of October, 1885, the following among other proceedings were had and entered of record in said court, to wit, court opened by proclamation and it then recites the entry of judgment and issuing of execution as of that date.
    Richardson, the defendant in the judgment, having, subsequently to the entry thereof, made a voluntary assignment for the benefit of his creditors to Roche, the latter came in and entered a motion October 16, 1885, to set aside the judgment and execution. In support of the motion the record of the proceedings was adduced in evidence, and the affidavit of a deputy clerk was also read, which stated that on Saturday, the third day of October, 1885, the court duly adjourned to Monday, the 5th day of October, 1885, at the hour of ten o’clock, in the forenoon thereof, and that on said Monday, the fifth day of October aforesaid, the circuit court duly convened at the hour of ten o’clock in the forenoon, and not before. Then there were affidavits read in support of the motion to the effect that the said judgment was in fact entered before the hour of ten o’clock in the forenoon of that day.
    Such being the only ground upon which the court was asked to set aside the judgment, it was deemed insufficient, and the motion denied. Upon that ruling, Roche, who was no party to the original proceedings, brings error to this court.
    Mr. Frederic Ullmann, Mr. R. S. Thompson and Messrs. Tenney, Basheord & Tenney, for plaintiff in error.
    Messrs. H. T. & L. Helm, for defendant in error.
   McAllister, J.

There was no claim made in the court below, nor is there any here, that the judgment, which the assignee of Richardson sought to have set aside, was void on the ground of fraud, either for want of a bona fide debt or as having been obtained for any false or unlawful purpose. The only ground relied on was a supposed irregularity in entering the judgment before the hour of ten o’clock had arrived, on the morning of October 5th, that being the hour to which the court adjourned on the previous Saturday. The judgment was entered in term time, by a court of superior jurisdiction; having complete jurisdiction of the person of the defendant, and of the subject-matter. The debt was due and the warrant of attorney strictly pursued. The record, when tried by itself, is complete, disclosing no irregularity whatever. It shows that the court was opened by proclamation before the judgment was entered.

Mo application to the court below was made to correct the record as respects its statement that the court had been opened by proclamation that morning when the judgment was entered. But an attempt was made to show by the ex parte affidavit of one of the clerk’s deputies, to contradict the record in effect. The affidavit, however, does not say that the court had not been opened by proclamation, but merely that it had not duly convened. Whether or not it had duly convened is a conclusion of law. So that, if the record were subject to explanation or contradiction by parol evidence, the statement of the deputy would not suffice for that purpose. But the record imports absolute verity, when brought in question by such a proceeding as that below, and could be impeached by the parol testimony of neither the clerk nor the judge of the court, Koren v. Roemheld, 7 Bradwell, 646, and authorities there cited.

In Read v. Sutton, 2 Cush. 115, such an attempt was made? and in giving the opinion of the court, Shaw, Ch. J., said: Every entry is a statement of the act of the court, and must be presumed to be made by its direction, either by a particular order for that entry, or by a general and recognized usage and practice which presupposes such order. We must, therefore, presume that the several entries on the docket under this action were made by the clerk by proper authority. Hor is this presumption controlled by the testimony of the clerk or the judge.” That doctrine applies not only to the entry as to opening the court, but to the judgment itself.

In Willard v. Whitney, 49 Maine, 235, the court states what is familiar law to every good lawyer, that “ The records of the court show the proceedings in relation to a suit from its entry to its final termination. The statements therein contained must be regarded as true. They are not subject to explanation or contradiction db extra. * * When the record is once made up, it is conclusive upon all parties until altered or set aside by a court óf competent jurisdiction.”

To the same effect in Herrington v. McCulIum,, 73 Ill. 482, Scholfield, J., said:

“ The evidence to impeach the record showing a dismissal was not properly admitted. The record imports verity, and can not be contradicted by parol. If the order was improperly entered, application should have been made to the court to correct its record, and when properly corrected it would have been conclusive evidence of what had been done by the court.” So here, before plaintiff in error could take the position that the court below had not been opened as a court when the judgment was entered, he should have applied to the court to correct the record which showed that the court had been opened when such entry of judgment was made. Hot having done so, he is precluded by the record from showing or contending that the court was not so open when the judgment was entered. From this view the whole matter is narrowed to the question whether, when the court in regular term time adjourns on Saturday to ten o’clock of the morning of the succeeding Monday, but on that Monday morning opens the court by proclamation and enters judgment in regular form upon cognovit and other proper papers on file, such judgment should be regarded as void, or so irregular as to be subject to beset aside because the precise time of ten o’clock had not arrived when the entry was made.

We think that reason, justice and the law all combine in requiring ns to hold the negative of that question. Of course, if a party to a suit is taken by surprise and prejudiced by the action of the court in opening and doing an act in a cause at a point of time substantially sooner than that to which the court adjourned, there would he a proper foundation for relief; hut such is not the case here. The defendant had no right to intervene; a warrant of attorney creates a power with an interest. It is irrevocable if fairly obtained. So that the question is one merely of power in the court. To hold that the powers of the court were absolutely suspended until the precise time to which it adjourned, would be the recognition of a doctrine fraught with inconvenience and dangerous consequences. In addition to a standard city and a standard railroad time, it would he necessary to have a standard court time, because the other two vary from each other. If the principle be ¿recognized, five minutes too soon would be as fatal as forty or sixty minutes too soon. This case illustrates the wisdom of the old common law rule, that the term of a court, as fixed by law, though running through weeks and even months, is to be regarded as one day, and that the law takes no cognizance of parts of a day.

The judgment should he affirmed.

Affirmed.


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    John L. Derickson et al. v. The Chicago South Branch Dock Co.
    1. Vendor and vendee—Deeaurt in payment—Cancellation on contract.—Where in a sale of land a vendor is by contract vested with the right and power, upon default on the part of the vendee many payment of interest or principal, to declare the contract void and ended, and with it to terminate the vendee’s equitable estate and change the latter’s relation of purchaser and equitable owner to that of mere tenant at will of the vendor, and default having been made in the payment of interest, the vendor exercises said power and puts an end to the equitable estate of the vendee, the only decree to which the vendor is entitled is one for the cancellation of the contract or strict foreclosure. It was therefore error for the purpose of gaming a deficiency decree against the property of the heirs of the deceased vendee to decree the sale of such equitable estate as if it were still subsisting.
    2. Construction op contract.—Under the contract in question the court is of opinion that none of the principal became due until May 1, 1886, and that the vendor had no right to declare the principal due upon default of payment of interest.
    Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed April 28, 1886.
    April 10, 1880, the Chicago South Branch Dock Company, as party of the first part, entered into articles executed in duplicates, with Richard P. Derickson, as party of the second part, whereby the former agreed to sell and convey to the latter upon certain terms and conditions, real estate, consisting of five lots situate in Chicago, and particularly described in said articles. The party of the second part covenanted to -pay to the party of the first part for such real estate, the sum of $56,250, as follows: $28,125, May 1, 1886; $28,125, May 1, 1887, with interest at rate of six per cent, per annum, from April 10, 1880, until May 1, 1885, to be paid annually, on the first day of May in each year; after that to pay interest at eight per cent, per annum, payable on the first day of May in each year on the whole sum remaining from time to time unpaid. *
    The duplicate of the contract which the party of the first part held, contained the following provisions:
    “And it is mutually covenanted and agreed by and between the parties hereto, that in case default shall be made in any of the payments of principal or interest, at the time, or any of the times above specified for the payment thereof, and for sixty days thereafter, this agreement and all preceding provisions thereof shall be null and void, and no longer binding, at the option of the said party of the first part, its successors or assigns, and all the payments which shall then have been made hereon, or in pursuance hereof, are absolutely and forever forfeited to the said party of the first part, its successors and assigns. The covenants and liability of the said party of the second part shall continue and remain obligatory upon the party of the second part, and may be enforced, and the said consideration money and every part thereof, with the annual interest as above specified, be collected by proper proceedings, in law or equity, from the said party of the second part, his heirs, executors, administrators or assigns.
    “ And it is further mutually covenanted and agreed by and between the parties hereto, that in case of default in payment, stipulated to be made by the said party of the second part, or any part thereof, and the election of the party of the first part, its successors or assigns, to consider the foregoing contract of sale at an end and prior payments forfeited, the said party of the second part, his heirs, representatives or assigns, who may have possession or the right of possession of said premises at the time of such default, or at any time thereafter, shall be considered and are hereby agreed, and declared to be in law and equity, the tenant and tenants at will of the said party of the first part, its successors or assigns, on a rent equal to an interest of j eight per cent per annum, as the whole amount of the purchase money above specified, payable quarter yearly from the day of such default in payment of principal or interest. And after such default in payment and election to consider the above contract of sale void, the said party of the first part, its successors and assigns shall and may have and exercise all the powers, rights and remedies provided by the law or equity to collect such rent, or to remove such tenant or tenants, the same as if the relation of landlord and tenant hereby declared, were éreated by an original, absolute lease for that purpose, on a specified rent, payable quarterly on a tenure at will, and that in such case the said tenant or tenants shall and will pay, or cause to be paid, all taxes and assessments ordinary and extraordinary, which may be levied or assessed on such premises, or any part thereof, during the continuance of such tenancy, and will not commit or suffer any waste or damage to said premises and appurtenances in as good order and repair (ordinary wear and decay and unavoidable injury by the elements excepted), as they were in at the commencement of such tenancy. This agreement shall be binding upon the respective heirs, executors, administrators, successors and assigns of the parties hereto.”
    The vendee, Derickson, went into possession of the bargained premises under said contract, but departed this life May 5, 1883, leaving a will, in which his two sons were appointed executors. Interest to May 1, 1883, amounting to §10,125 was paid, but default made as to that due May 1, 1884. August 5, 1884, the vendor brought this bill in chancery against the widow and,heirs of the vendee, deceased, setting up the articles of agreement and containing these allegations :
    “ And your orator further shows that default has been made in the payment of the interest due under the provisions of said articles of agreement on the first day of May, A. D. 1884-And said default has continued for sixty days after said first day of May, and still continues, and that by reason of such default, your orator, as it lawfully might, has elected to declare, and does declare said contract to be forfeited, and the provisions thereof to be null and void, and no longer binding as to your orator, as in said articles of agreement provided, and that the whole of said principal of fifty-six thousand, two hundred and fifty dollars ($56,250), with interest from the tenth day of April, A. D. 1883, has become and is now due and payable to your orator.
    “And your orator further shows that it was provided in and by said articles of agreement, that in case of such default as aforesaid, and the election of your orator to declare said contract of sale and prior payments forfeited, that Diehard P. Derickson, his heirs, representatives or assigns, who, might have possession or the right of possession of said premises at the time of such default, should be considered'to be the tenant of your orator, and that your orator, its successors and assigns, should and might have and exercise all the powers, rights and remedies provided by law or equity to collect the rent of such premises from such tenant.”
    The bill prayed for an accounting and the ascertainment of the rights of the plaintiff, the amount due, and that if not paid that the premises be sold, all parties foreclosed and the payment from the proceeds of the indebtedness to plaintiff with interest and costs. The minor defendants appeared and answered by guardian ad litem,; all the adult defendants were defaulted.
    The case was referred to a master who found the amount due the complainant, under the contract for principal and interest, to be §61,743.75, upon which the ordinary decree in cases of foreclosure of mortgage was entered, directing that unless some of the defendants pay said sum in two days, the premises be sold by said master. A sale was made, which was reported, with a deficiency of §12,538.59, and the report confirmed. Upon that decree the defendants bring error to this court,
    Mr. E. A. Childs and Mr. Geo. W. Smith, for plaintiffs in error
    ; that after the contract was rescinded and forfeited it could neither be continued nor revived for any purpose, cited Barhydt v. Clark, 12 Bradwell, 646 ; Harzfeld v. Converse, 105 Ill. 534; Livingston v. Short, 77 Ill. 587 ; Huey v. Grinnell, 50 Ill. 179; Graham v. Holloway, 44 Ill. 385; Moore v. Smith, 24 Ill. 513; Chrisman v. Miller, 21 Ill. 226; Jennings v. Gage, 13 Ill. 610.
    Messrs. Mason Bros, and Mr. E. G. Mason, for defendant in error;
    that the contract expressly provided that in case of forfeiture the covenants and liability of the party of the second part should continue, and such a contract may be foreclosed in equity, cited Holman v. Patterson, 29 Ark. 363 ; Martin v. O’Bannon, 35 Ark. 68 ; Harden v. Boyd, 113 U. S. Sup. Ct. 765; Hansbrough v. Peck, 5 Wall. 506.
    Heirs are directly liable upon ancestor’s specialty debts to! amount of assets received: Ryan v. Jones, 15 Ill. 1; Hoffman v. Wilding, 85 Ill. 455 ; Truett v. Cummons, 6 Bradwell, 75; Hull v. Martin, 46 N. H. 337 ; Thomas v. Adams, 30 Ill. 42.
   McAllister, J.

The remedies open to a vendor in case of default in the payments by the vendee, are comprehensively stated by Hr. Justice Nelson in the case of Hansbrough v. Peck, 5 Wallace, 506: He may sue on the contract and recover judgment for the purchase money, and take out execution against the property of the defendant, and, among other property, the land sold; or he may bring ejectment and recover back the possession; but in that case the purchaser, by going into a court of equity within a reasonable time and offering payment of the purchase money together with costs, is entitled to a performance of the contract; or the vendor may go in the first instance into a court of equity, as in the present case, and call on the purchaser to come forward and pay the money due, or be forever after foreclosed from setting up any claim against the estate. In these contracts for the sale of real estate, the vendor holds the legal title as security for the payment of the purchase money, and in case of a persistent default his better remedy, and under some circumstances his only safe remedy, is to institute proceedings in the proper court to foreclose the equity of the purchaser where partial payments or valuable improvements have been made. The court will usually give him (the vendee) a day if he desire it to raise the money, longer or shorter, depending on the particular circumstances of the case, and to perform his part of the agreement.”

The decree in such a case as that just mentioned would be what the English courts call a decree for the cancellation of the contract. Lysaght v. Edwards, L. R. 2 Ch. Div. 510.

Without stopping to analyze the bill in this present case, it is manifest that the decree is of a wholly different character from one for the cancellation of .the contract or strict foreclosure. Instead of being one for the cancellation of the contract, the decree entered went upon the theory of enforcing a lien or charge in favor of the vendor for the purchase money, upon an equitable estate of the vendee or his heirs, by subjecting the same to judicial sale. That an equitable estate in the vendee and lien or charge thereon in favor of the vendor, resulted from entering into the contract in question, is a proposition not open to controversy. Vail v. Drexel, 9 Bradwell, 439, and authorities cited. 1 Pom. Eq. Jur. § 368; 3 Id. §§ 1261, 1262.

But by the express provisions of that contract, the vendor was vested with the right and power, upon default on the part of the vendee in any payment of interest or principal, to declare the contract void and ended, and with it to terminate the vendee’s equitable estate and change the relations of the latter from those of purchaser and equitable owner to those of a mere tenant at will of the vendor.

Default having been made in the payment of interest, the vendor, in the most unequivocal manner, exercised, before bringing this suit, said power, thus putting an end to the equitable estate of Diehard P. Derickson, created by said contract, but nevertheless for the purpose of gaining a deficiency decree against the property of the heirs of the deceased vendee, takes a decree for the sale of such equitable estate, as if it were still subsisting. Is such a decree the logical outcome of the facts alleged and proven? We think not.

In a note to § 1261, Vol. 3, Pom. Eq. Jur., that learned author treating of this subject says : “ Another mode seems to be recognized, at least in some of the States, by which the vendee’s equitable estate under the contract is sold in pursuance of a judicial decree. Such a sale would operate as an assignment of the vendee’s rights under the contract, and would not be a cancellation of the contract itself.” The effect thus ascribed to such a sale must necessarily follow, and that shows how utterly inconsistent the decree in this case is, with the irrevocable position which the vendor has taken of terminating the vendee’s equitable estate under the power given by the contract and exercised as above stated.

It is a rule of law based upon sound reason, that a party can not occupy inconsistent positions ; and where one has an election between several inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and of the facts, determines his election and works an estoppel. Bigelow on Estoppel, 578.

The vendor with such knowledge elected to terminate the vendee’s equitaFe estate, and by that election it is bound. The only decree, therefore, to which complainant below was entitled, was one for the cancellation of the contract.

But there is another difficulty. By the terms of the contract none of the principal became due until May 1, 1886, and i contains no provision which, fairly construed, gave the vendor the right to declare the principal due upon default of payment of interest. Counsel for vendor say the right is given by this provision after the words authorizing vendor to declare the contract void for such default. “ The covenants and liability of the said party of the second part shall continue and rein.iLn obligatory upon the party of the second part and may be enforced, and the said consideration money and every part thereof, with the annual interest as above specified, be collected by proper proceedings in law or equity from the party of the second part, his heirs,” etc.

Mow, it has been suggested by counsel for plaintiff in error that in the duplicate which was delivered to the vendee, that clause is expressed as an alternative provision. If there was a material difference between ' the duplicate produced at the hearing by the plaintiff, and that produced by the defendants, we think the court should be governed by that in defendants’ hands. Judd v. Ensign, 6 Barb. 258. But we do not find defendants’ duplicate in the record. However, taking the above danse as it stands, and there is nothing in it which authorized the enforcement of the vendee’s covenants otherwise than according to their terms. By their terms no part of the principal is due even now. The decree below will be reversed and the cause remanded.

Decree reversed. ■


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    First National Bank of Elgin v. William Schween, Ex., etc., et al.
    1. Evidence—“Dividend plan”—Right to proceeds.—The court is of opinion that under the evidence in this case complainants did not sell their milk to K., but delivered it to him to be manufactured inlo b liter and cheese on tbs “ dividend ’’ plan, thus retaining the jroperiy in the product after it was manufactured and a right to the proceeds of the same when sold, and that they therefore were entitled to the proceeds of the butter and cheese taken by them out of the hands of the bank’s agents and converted into money.

      2. Deed of trust—Description of parties.—The court is of opinion that the description of the beneficiaries or parties secured by the deed of tru-t is sufficient.
    Appeal from the Superior Court of Cook county; the lion. George Gardner, Judge, presiding.
    Opinion filed April 28, 1886.
    Mr. John Woodbridge, for appellant.
    Messrs. Sherwood & Jones, for appellees.
   Bailey, P. J.

This was a bill in chancery brought by Ludwig Werner and twenty-five others, against Charles S. Ki'bourne, the First ¡National Bank of Elgin and others, to foreclose a deed of trust executed by said Kilbourne and wife to Alfred Bosworth as trustee, for the benefit of the complainants. The bill alleges, in substance, that the complainants are farmers and dairymen, residing in the town of Barrington^ Cook county, and that said Kilbourne is, and on the 4tlx day of April, 1882, was, the owner of certain lands in said county, on which was located a cheese and butter factory then operated and conducted by him on what is commonly known as the dividend plan,” said Kilbourne receiving milk from the farmers and dairymen, and manufacturing it into butter and cheese at the customary price of two cents per pound for cheese and four cents per pound for butter, and selling such product, and after deducting his charges and the necessary expenses of shipping and selling the same, dividing the net proceeds pro rata among said dairymen; that being desirous of procuring the patronage of the complainants, and in order to induce them to bring milk to his factory, and to secure the payment to them of such dividends as might thereafter be declared, or such indebtedness to the complainants for milk as might thereafter accrue, said Kilbourne, together with his wife, on the 4th day of April, 1882, executed a deed of trust conveying said lands and premises to said Bosworth in trust, to secure the payment to said patrons for said milk or the proceeds arising from the sale thereof, said deed of trust being duly recorded on the 8th day of Hay, 1882; that during the months of August, September, and the first fourteen days of October, 1883, the complainants furnished to Kilbourne, under said arrangement, a large quantity of milk, and that he had failed to pay them for the same or for any portion of the product manufactured therefrom ; that on Sunday, the 14th day of October, 1883, Kilbourne had in said factory a large amount of butter and cheese, which had been manufactured from the milk belonging to the complainants, they being the only persons who had furnished milk to said factory during said time, and said Kilbourne knowing himself to be insolvent, fraudulently confederated with said Bosworth to spirit away said butter and cheese and cheat the complainants out of the same, and that Kilbourne and Bosworth procured wagons and teams and secretly and silently, at the hour of midnight, proceeded to said factory, and loaded on said wagons the entire product of said milk then in said factory and started to draw the same away, when a portion of the complainants pursued and overtook the teamsters in charge and took possession of said butter and cheese by virtue of legal process; that from the sale of said product so rescued from Kilbourne and Bosworth, the complainants have realized the sum of $650, which they are ready and willing to credit on the amount found due them on an accounting with Kilbourne. The bill further alleges that the First National Bank of Elgin and certain other defendants, have or claim some interest in the mortgaged premises as mortgagees, judgment creditors or otherwise, but that such interest is subject to the lien of said deed of trust. The bill prays for an accounting in respect to the moneys due' the complainants from Kilbourne and a foreclosure of the trust deed and a sale of the mortgaged premises to pay the same.

The First National Bank of Elgin, answered and also filed its cross-bill, alleging the invalidity of said deed of trust, alleging that the dealings between the complainants and Kilbourne were in fact sales of said milk by them to him; that being indebted to said bank for money loaned in the sum of §6,700, to secure the payment thereof, said Kilbourne, together with his wife, on the 13th day of October, 1883, executed to said bank a mortgage on said factory and premises; that to further secure said indebtedness, said Kilbourne, being the owner of said butter and cheese then in said factory, assigned and delivered the same to said bank, and that the bank took possession thereof and loaded the same on to wagons and took it away from the factory and thus acquired a right to hold the same as a security for its indebtedness, but that the same was unlawfully seized by the complainants.

The cross-bill prays that said butter and cheese may be decreed to have been the property of Kilbourne at the time it was turned over to the bank, and that the seizure thereof by the complainants was unlawful; that the complainants’ deed of trust may be declared to be void, and the complainants’ mortgage be declared a first lien on the mortgaged premises, and for a decree of foreclosure and sale.

The decree found that the complainants were entitled to retain the avails of the butter and cheese seized and sold by them, and that after deducting that sum from the amount due them from Kilbourne, there remained due them, for principal and interest, the sum of $2,581.23 ; that said deed of trust was a valid and first lien in favor of the complainants on the mortgaged premises for the amount, of said indebtedness and costs, and said deed of trust was accordingly ordered foreclosed and the mortgaged premises sold to satisfy the same.

One of the main points of controversy at the hearing was, as to whether the complainants, in their dealings with Kilbourne, sold to him their milk, or delivered it to him to be manufactured into butter and cheese on the co-operative or dividend plan, thus retaining the property in the product after it was manufactured, and a right to the proceeds of the same when sold. On this point the evidence is very voluminous and quite conflicting, but after such examination as we have been able to give the evidence, we are of the opinion that it sustains the contention of the complainants, and that the court was justified in holding that the manufactured product, after the payment to Kilbourne of his charges, was the property of the complainants, and consequently, that they were entitled as against the bank, which was clearly chargeable with notice of the complainants’ rights, to the proceeds of the butter and cheese taken by them out of the hands of the agents of the bank and converted into money.

It is urged that the deed of trust is invalid for the reason that the beneficiaries or parties secured are not sufficiently described. The language of the instrument is as follows: “Whereas the said Charles S. Kilbourne, grantor, is engaged in a certain cheese factory located on the premises herein described, in the manufacture of cheese from milk furnished by sundry persons or patrons,which said cheese and butter the said Kilbourne sells from time to time, paying said patrons the proceeds of such sales as dividends or as indebtedness for milk delivered to him, and whereas, said Kilbourne will become indebted from time to time to said patrons for the milk so delivered and to be delivered, and the proceeds arising from the sales of the product thereof,” etc. It was accordingly provided, that in case of the failure of Kilbourne to pay said patrons the several amounts becoming due them, the security might be foreclosed for their benefit. We are unable to perceive in this description of the parties any such uncertainty as would render the conveyance inoperative or void. The identity of the persons or patrons with whom Kilbourne was then dealing, and with whom he expected to deal, was a matter capable of being established by proof, thus rendering the description certain, and we think that such proof was made, and that the complainants are sufficiently identified as the ben. eficiaries in whose favor the deed of trust was intended to be executed.

We find no error in the decree and it will be affirmed.

Decree affirmed.