text:
    S. J. Freeman, Appellant, v. H. L. Barnes, Appellee.
    1. Trespass—what essential to recover m action of. In an action of trespass de 6oms asportatis the plaintiff in order -to recover must show a right of property in himself, either absolute or qualified, together with the actual or immediate right to possession of the chattels involved.
    2. Trover—what essential to recovery in action of. To support an action in trover the plaintiff must at the time of the conversion have had the actual possession or the right to the immediate possession of the property involved.

      3. Covenant—when action of lies. An action of covenant lies for the breach of a covenant of a lease providing for the manner in which the demised premises shall be used.
    Tort. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Rehearing denied May 26, 1911.
    Livingston & Bach, for appellant.
    Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On October 30, 1907, the plaintiff leased to the defendant for pasture, a tract of land containing 82 acres for the term of one year beginning March 1, 1908, for an agreed rental of $320. The lease contained among others the following provisions: “It is hereby agreed that the said second party shall use said described lands as pasture only, and that no hay or other crop shall be harvested from it.” Thereafter, by mutual agreement, the defendant was permitted to cut the crop of hay growing on the land during the year of his tenancy upon condition that he should not haul any of said hay off of said land, but should stack and feed the same upon the land. Upon the termination of the lease to the defendant, the plaintiff leased the land to one Keefer, who took possession of the same on March 31, 1909. The defendant cut and stacked the hay upon the land but did not feed the same thereon, and after March 1, 1909, and before March 31, following, while he was still in possession of the land he hauled away said hay, selling a portion of the same and feeding the remainder to his cattle elsewhere. The plaintiff thereupon instituted this action in tort against the defendant.

The first and second counts of the declaration are in trespass de bonis asportaiis charging that the defendant with force and arms seized, took and carried away certain goods and chattels, to-wit: Sixty tons of hay of the plaintiff of the value of $1,000, and converted and disposed of the same to his own use. The third count is in trover, and the fourth count is in trespass to real estate and seizing the hay thereon. By his notice of special matter in defense the defendant pleaded that the hay at the time and place of the talcing was the property of himself and not of the plaintiff. Upon the close of the evidence for the plaintiff .whereby proof was made of the facts heretofore stated, together with proof of the fair cash market value of the hay at the time and place of taking, the trial court upon the motion of the defendant instructed the jury to find him not guilty and upon the verdict so returned judgment was entered against the plaintiff in bar of her action and for costs. To reverse said judgment the plaintiff prosecutes this appeal.

It is conceded that the action of the trial court in giving the peremptory instruction to the jury was predicated upon the holding that the hay in question was not the property of the plaintiff. The essence of the provision requiring the defendant to feed the hay upon the land was that the land might be fertilized and thus benefited thereby. For such use and purpose the hay when severed was the property of the defendant and the plaintiff had no claim in rem thereto. The measure of damages resulting from the failure of the defendant to feed the hay upon the. land, was obviously not the value of the hay but the benefit which would have accrued to the land if the hay had been fed thereon.

It is elementary that in an action in trespass de bonis asportatis the plaintiff in order to recover must show a right of property in himself, either absolute or qualified, together with the actual or immediate right to possession of the chattels involved. Chitty on Pleading, Vol. I, 168. These elements necessary to support an action in trespass de bonis asportatis are lacking in this case.

It is also elementary that to support an action in trover the plaintiff must at the time of the conversion have had the actual possession or the right to the immediate possession of the property involved. Chitty on Pleading, Vol. I, 152. It is not pretended that the plaintiff in the case at bar was in the actual possession of the hay and as the land upon which the hay was stacked was in the constructive possession of his lessee, Keefer, the plaintiff did not have the right to immediate possession of the hay.

Furthermore, there is no evidence in the record of the amount of damage accruing to the plaintiff by reason of the breach of the covenant by defendant to feed the hay upon the land under the proper rule for the admeasurement of damages for such breach. A full discussion of the questions here involved will be found in Munier v. Zachary, 138 Iowa, 219. The remedy of the plaintiff is in an action in covenant or in assumpsit and not in the forms of action here sought to be invoked.

The court below did not err in giving the peremptory instruction and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    The People, ex rel., Appellant, v. F. M. Alexander et al., Appellees.
    1. Quo Warranto—when order granting leave to file information may be set aside. At any time during the term of entry the court granting leave to fil.'. an information has discretionary power to set it aside.
    2. Quo warranto—when proceeding does not lie. Quo warranto does not lie to establish and determine merely private rights and interests.

      Quo warranto. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Rehearing denied and opinion slightly modified June 16, 1911.
    John H. Lewman, Ralph B. Holmes and Rearick & Meeks, for appellant.
    George G. Mabin and W. B. Morris, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

At the January term 1909, of the circuit court of Vermilion county, the state’s attorney of said county upon the relation of T. Wes. Blakney, petitioned the court for leave to file an information in the nature of a quo warranto in the matter of The People of the State of Illinois v. F. M. Alexander, Frank Downing, L. L. Ellsworth, James P. Cook and J. T. O’fSTeal. The petition alleges in substance that the Church of Christ of Brooks Point was organized and became incorporated in 1876; that a church building was erected by-said organization on a parcel of land deeded to it by the relator and his wife, and that religious services were regularly held by said organization in said building for many years; that the relator served as a trustee of said organization until its abandonment and dissolution by nonuser in November 1902; that by a condition in the deed to said premises the same reverted to the relator who after a period of many months re-entered thereon and sold the same to the trustees of schools of town 18, north, ranges 10 and 11 west in Vermilion county; that on April 20, 1908, certain persons, including the respondents, representing themselves to be members of said organization elected trustees and in the name of said organization instituted a suit in ejectment against said school trustees to recover possession of said premises; that the respondents are not legal trustees of said organization and that their action in the premises is wholly void. Upon the filing of said petition the court entered an order granting leave to file an information in the nature of quo warranto and directed that summons be issued. Information was filed in pursuance of the leave so granted and thereafter at the same term the respondents entered their motion to vacate the order theretofore entered granting leave to file said information and for the issuance of summons, upon the grounds among others, that the court was under misapprehension of material facts when said order was entered; that said order was improvidently entered; that the proceeding therefor was ex farte; that the proceedings sought to be affected are still in fieri; that the proceeding is wholly designed to serve a private end and that the process of the court has been and is being abused in the prosecution. Upon a consideration of said motion and of the affidavits filed in support thereof and in opposition thereto it was ordered by the court that leave to file said information be set aside and vacated, and judgment was thereupon entered that the respondents go hence without day and that the relator pay the costs of the proceeding’. This appeal is prosecuted to reverse said judgment.

Counsel for appellant state that the question involved upon this appeal is whether or not after leave had once been given to file the information, and after summons had been issued and returned, the trial court was justified in refusing summarily to proceed further, and upon motion, under the showing made by affidavits, to set aside and vacate the leave to file said information.

The rule is well established that the court has the discretionary power at any time during the term at which an order has been entered, whether it be interlocutory or final, to vacate or set aside the same for the reason that it was inadvertently or improvidently entered, or that it was entered upon a misapprehension of the facts, or for any cause which may be necessary to promote justice. C. & A. R. R. Co. v. Harrington, 192 Ill. 9 ; Weinberg v. Noonan, 193 Ill. 165; Kreiger v. Kreiger, 221 Ill. 479; Heimberger v. Chamberlin, 135 Ill. App. 615.

It is insisted on behalf of appellant that when in the case at bar the court had allowed the information to be filed and ordered the summons to be issued its discretionary powers were exhausted and the issues of fact and of law presented by the pleadings must then have been tried and determined in accordance with the rules of law, in the same manner and with the same degree of strictness; as in ordinary cases, and the case of The People v. Golden Rule, 114 Ill. 34, is cited in support of such insistence. The case cited in substance so states the rule, but it is further there said: “It is not denied that if the order to issue summons had been made under a misapprehension of some fact material to be known by the court before making such order, and but for which it would not have been made, it would have been competent for the court to vacate the order at any time during the term.” We have no doubt that where the material facts which move the court to grant leave to file an information in the nature of quo warranto are in dispute the court is bound to proceed to a hearing and final determination, as was held in Attorney General v. C. & E. R. R. Co., 112 Ill. 520, hut where material facts are not in dispute, and are insufficient to authorize the granting of a petition to proceed by way of information in the nature of quo warranto, and the leave to file such information is entered inadvertently, or improvidently, or upon a misapprehension of the facts, we think the court, at the same term at which such leave was granted, has the discretionary power to set aside and vacate the order granting such leave. People v. L. E. R. R. Co., 54 Ill. App. 348; People v. Drainage Commissioners, 31 Ill. App. 219; People v. Hamilton, 24 Ill. App. 609.

In the case at bar it is undisputed by the relator that he forcibly barred the entrance to the church building for the purpose of preventing the respondents and others from worshiping in the church building, and that in furtherance of that purpose he conveyed the premises to the trustees, of schools to be used for school purposes. It is well established that proceedings in quo warranto will not lie to establish and determine merely private rights and interests. It is clear from the uncontroverted facts in this case that this proceeding is instituted for the sole purpose of determining whether or not the premises conveyed by the relator for church purposes had reverted to him by the term of his deed, and as the proceeding only involves the private" and personal rights of the relator in that particular, the court was fully justified in setting aside and vacating the order in question, and its judgment entered in said proceeding should be and is affirmed.

Affirmed.


text:
    A. J. Williford, Appellant, v. Mary J. Williford, Appellee.
    1. Divorce—appropriate procedure where cross-hill seeking separate maintenance is interposed. It is proper to set down for hearing and submit to the same jury the issues made upon an original bill for divorce and a cross-bill for separate maintenance, and this certain method of procedure is none the less correct even though a finding of the jury upon one bill would have the force and effect of a verdict at law and the finding of the jury upon the other bill would be merely advisory.
    2. Separate maintenance—when allowance of alimony not disturbed. An allowance of alimony is largely discretionary with the chancellor and the exercise of such discretion will not be interfered with on appeal unless it clearly appears that such discretion has been abused to the prejudice of the complaining party.
    3. Appeals and errors—when appeal does not lie. A party cannot appeal from an order with which he has complied.
    Appeal from the Circuit Court of Montgomery county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed in part and reversed in part.
    Opinion filed May 26, 1911.
    Rehearing denied and opinion slightly modified June 16, 1911.
    D. R. Kindi i and Lane & Cooper, for appellant.
    Hill & Bullington and Hogan & Wallace, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On January Y, 1909, appellant filed his bill for divorce against appellee alleging desertion. Appellee answered the bill denying its allegations and filed her cross-bill against appellant for separate maintenance and also her petition for the allowance of temporary alimony and for solicitor’s fees. Appellant answered the cross-bill denying its allegations, and also filed an amendment to his original bill, charging appellee with extreme and repeated cruelty, to which amendment appellee filed her answer denying its allegations. At the January term, 1909, the chancellor ordered appellant to pay to appellee on February 1st, $185, and $60 per month thereafter, the sum of $125 out of the first payment of $185 to be paid by the clerk to appellee’s solicitors. At the April term, 1909, upon her supplemental petition for an additional allowance of alimony and solicitors’ fees, appellant was ordered to pay appellee $100 per month for alimony and to pay to her solicitors the further sum of $Y5. Appellant has fully paid the said several amounts as ordered. At the ¡November term, 1909, upon motion of appellee the chancellor directed the issue upon the original bill and amendment thereto together with the issue under the cross-bill, to be submitted to a jury, the interrogatories to the jury upon said issues being formulated, as follows:

“1. Was the defendant, Mary J. Williford, guilty of wilful desertion for a period of more than 2 years prior to January 7th, 1909 ?
“2. Was the defendant in the original bill, Mary J. Williford, guilty of extreme and repeated cruelty towards her husband, the complainant?
“3. Was the complainant in the cross bill, Mary J. Williford, living separate and apart from the defendant in the cross bill, Andrew J. Williford, without fault on her part ?”

Upon the trial the jury answered the first and second interrogatories in the negative and the third interrogatory in the affirmative, and thereupon the chancellor entered a decree dismissing the original bill and amendment thereto for want of equity and finding the issues under the cross-bill in favor of the appellee and that she was entitled to separate maintenance; that appellant pay to appellee $60 per month for the support of herself and her two minor children; that appellee be permitted to occupy the homestead with the household goods, furniture and fixtures therein belonging to the family and that appellant pay all the taxes levied thereon from year to year; that appellant pay the costs and also pay to appellee an additional sum of $400 for her solicitors’ fees.

Appellant and appellee were married in 1883, and prior to the commencement of these proceedings had seven children of whom four survive. At the time of the trial Kathleen, a married daughter, resided in Ohio, and Bessie aged 24, Allen aged 17 and Louis aged 16 resided with appellee in the family homestead in Uolcomis. From 1907 to January, 1909, appellant and appellee permanently occupied separate rooms in their home, and have not since cohabited as man and wife; and on the latter date appellant left his home and has since resided elsewhere in FTokomis. Whether the separation in the house was brought about át the instigation of appellant or of appellee is controverted in the evidence, but we are disposed to believe that appellant was primarily responsible therefor. The charge of extreme and repeated cruelty in appellant’s amended hill finds its sole support in the testimony of appellant who says that on the night of December 13, 1907, appellee kicked him violently on his right leg below the knee, and that on the Sunday following she struck him twice violently. These incidents are denied by appellee and her denial is corroborated by the testimony of Bessie and Allen Williford. Heither the charge of desertion as alleged in the original bill nor the charge of extreme and repeated cruelty as alleged in the amended bill is sustained by the proof and the jury were fully warranted in so finding.

That appellee is a woman of nervous temperament and jealous disposition we have no doubt, and there is evidence tending to show that her treatment of appellant has not always been marked by kindness and wifely affection, but there is nothing in the evidence which in law justifies the conduct of appellant in leaving appellee, his children and his home.

Appellant charges that appellee has embittered and prejudiced their children against him without any justification, and that they are wholly under her influence and control. Such charges would have more semblance of truth if the children were of tender years and had been removed from personal contact with appellant, but it is almost incredible that a daughter of the age of 24 years and two sons of the ages, respectively, of 16 and 17 years, coming into daily personal contact with their father, should be so influenced against him without cause. The daughter Bessie testifies that upon one occasion after her father and mother had been engaged in a quarrel or controversy, she said to him, “Why don’t you tell' the truth and say you are trying to treat mother mean so you will drive her to get a divorce ?” and he replied, “I am frank to admit it.” The sons Allen and Louis testify to substantially the same conversation between Bessie and their father.

It is uncontroverted that prior to the commencement of these proceedings, appellant submitted to appellee certain written propositions in substance, as follows: First, that she should go away and not- return to any place within a distance of less than 75 miles of Rokomis, and receive $30 per month alimony; second, that she should go to Oklahoma, establish a residence there and obtain a divorce on the ground of desertion, he not to contest the suit and she to receive all of his personal property except household goods; third, that she should make what defense she could to his suit for divorce. We are fully persuaded that the evidence warranted a finding that appellee was living separate and apart from appellant without her fault.

It is urged that the chancellor improperly submitted the issues under the original and amended bills and the cross-bill to the same jury, and that appellant was prejudiced thereby. A separate hearing upon the original and amended bills would have necessarily involved a consideration of substantially the same facts and circumstances involved in the issues under the cross-bill, and there was no impropriety in submitting all the issues to the same jury. The same procedure was adopted in Reifschneider v. Reifschneider, 241 Ill. 92. True, the submission to a jury of the issues involved under the original bill for divorce and the amendment thereto was a matter of right upon the application of either party and the finding of a jury upon such issues had the same force and effect as a verdict in an action at law, while the submission to a jury of the issue under the cross-bill was wholly discretionary with the chancellor, and the finding of the jury upon such issue was advisory only, but these considerations do not preclude the adoption of the procedure followed in this case.

It is insisted that the allowance to appellee of alimony pendente lite, and of solicitors’ fees amounting to $200, was unauthorized and improper. The record discloses that appellant had fully paid the several amounts so allowed and it is elementary that he cannot appeal from an order with which he has complied.

It is also insisted that the alimony awarded to appellee for the support of herself and two minor children, of $60 per month, and the possession and use of the homestead and most of the household furniture, with the requirement that appellant shall pay the taxes on the homestead and household furniture, is excessive. It has been, repeatedly held that the allowance of alimony is largely discretionary with the chancellor and that the exercise of such discretion will not be interfered with on appeal unless it clearly appears that such discretion has been abused to the prejudice of the complaining party. Johnson v. Johnson 125 Ill. 510; Aurand v. Aurand, 157 Ill. 321; Harding v. Harding, 180 Ill. 481; Reifschneider v. Reifschneider, 241 Ill. 92.

The evidence discloses that appellant receives a salary of $2,500 per annum as cashier of the ¡¡STokomis ¡National Bank; that he owns ten shares of the capital stock of the hank, worth about $2,000, and that he owns the homestead property and household furniture valued at $4,000 free from encumbrance. We think that the discretion exercised by the chancellor was not unwarranted and that the alimony awarded to appellee in her present situation is not excessive.

It is also urged that the final allowance to appellee of $400 for her solicitors’ fees, making a total of $600 which appellant is required to pay for appellee’s solicitors’ fees, is excessive. The trial of the case in court occupied two days and presented no complicated or unusual questions. While the amount to be allowed for solicitors’ fees is within the discretion of' the chancellor and the exercise of such discretion should not be disregarded unless it clearly appears that it has been abused, we are of the opinion that the additional allowance to appellee of $400 for solicitors’ fees was unwarranted and excessive.

The decree will he affirmed in all respects except the allowance to appellee of $400 for her solicitors’ fees, and in that inspect the decree will be reversed. Three-fourths of the costs in this court will he taxed against appellant and one' fourth against appellee.

Affirmed in part and reversed in part.


text:
    Laura Walker, Appellant, v. American Order of Foresters, Appellee.
    1. Fraternal benefit societies—status of subordinate lodge. A subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council and such subordinate lodge or council may waive a forfeiture of benefit certificates or the suspension of members thereof for a failure to pay assessments promptly.
    2. Fraternal benefit societies—when forfeiture waived. The uniform conduct of a subordinate lodge in accepting payment of assessments after the same became due without requiring the insured to present certificates of good health, operates as a general waiver by the society of a compliance by the insured with the provisions of the by-laws with reference to reinstatement.
    3. Fraternal benefit societies—when employment by insured in prohibited occupation no defense. If the society at the time it issued its certificate knew that the insured was engaged in an extrahazardous and prohibited occupation, it cannot at his death allege such fact as a defense to an action by the beneficiary under the certificate.
    Assumpsit. Appeal from the City Court of Canton; the Hon. Jesse Black, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    A. E. Taff, for appellant.
    Chiperfield & Chipereield, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellant, named as beneficiary in a benefit certificate for $1,000 issued by appellee on December 10, 1906, to John Walker, the husband of appellant, to recover the amount of such certificate. To the declaration in the usual form appellee pleaded the general issue, except as to the sum of $24.45 tendered to appellant by an appropriate plea, and appellee also filed its special pleas where* in it-alleged a forfeiture of the benefit certificate by reason of the failure of the insured to pay monthly assessments in advance, as 'required by the terms of the certificate, also by reason of the fact that the insured at the time of his death was engaged in the extra hazardous and prohibited occupation of a coal miner, and also by reason of the untruthful statement made by the insured in his application for the benefit certificate, that his occupation was that of a carpenter, which statement by the terms of the benefit certificate and of the application which was expressly made a part of said benefit certificate, was warranted by the insured to be true. To the special pleas alleging a forfeiture of the benefit certificate appellant replied denying the truth of the facts alleged in said pleas, and alleging facts relied upon by appellant as constituting an estoppel, and a waiver by appellee, of its right to declare a forfeiture.

Upon the trial in the city court of Canton, the court, at the close of the evidence for appellant, instructed the jury to return a verdict finding the issues for appellee, and upon such verdict so returned judgment ivas entered against appellant for costs.

The evidence discloses that John Walker died of pneumonia May 24, 1908, and that the monthly assessment of $1.05 for the month of May, which according to the constitution and laws of the appellee order should have been paid April 30, 1908, was not paid until May 20, 1908. Section 60 of the constitution and laws of the appellee order provides that failure to pay the assessment due before the first of the month shall work a suspension from beneficiary membership, without any action of the order, and that during such suspension the benefit certificate shall remain null and Aoid. Section 64 provides, in part, that Avhere a member has been suspended from beneficiary membership for non-payment of assessments, he may be reinstated by paying all arrears, provided he is not. erigaged in a hazardous occupation and shall secure a certificate of present good health on a form prescribed by the Supreme Board of Directors of the order. Appellant offered in evidence eighteen receipts for monthly payments of assessments by the insured during his lifetime and it appears therefrom that in fifteen instances assessments were paid by the insured and receÍAe-'l by the local financial secretary of the appellee order after the same Avere due by the terms of the benefit certificate, and it further appears that in no instance was the insured required to secure and furnish a certificate of good health.

It is well settled in this state that the subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council, and that such subordinate lodge or council may waive the forfeiture of benefit certificates, or the suspension of members thereunder for a failure to pay assessments promptly. Jones v. Knights of Honor, 236 Ill. 113. As regards the right of the appellee order to insist upon a forfeiture of the benefit certificate in question, and of the suspension of the insured for a failure to pay the assessment for Hay, 1908, promptly, the uniform conduct of the appellee order in accepting the payment of assessments after the same became due, without requiring the insured to present certificates of good health, must be held to have operated as a general waiver by it of a compliance by the insured with the provisions of sections 60 and 64 above referred to. United States Life Ins. Co. v. Ross, 159 Ill. 416.

As relating to the other ground of forfeiture relied upon by appellee, viz.: that the insured in his application for the benefit certificate stated his occupation to be that of a carpenter, when in truth and in fact his occupation was that of a coal miner or mine worker, appellant, in anticipation of the defense by the appellee order of a forfeiture of the benefit certificate upon that ground, offered evidence in chief for the purpose of showing that the appellee order was estopped from interposing .such defense. The evidence so offered and introduced by appellant tends to show that the insured’s application for the benefit certificate in question was procured by one James K. Liggett, and that A. L. Wrieth, who solicited members for the local council of the appellee order, was present when Liggett wrote said application and when the insured signed the same; that the insured then told Liggett that he was a carpenter working down in the mine. Appellant was unable to show what official relation Liggett sustained to the appellee order, but the fact that the appellee order issued the benefit certificate in question upon an application procured and written by Liggett excludes the inference that Liggett was a stranger to appellee. The evidence so introduced by appellant further tends to show that all of the principal officers of the local council of the appellee order, including the Financial Secretary who collected assessments and. dues from the insured, knew at the time that the benefit certificate in question was issued to the insured and from thenceforth until his death that he was a coal miner. Appellee cannot insist upon the forfeiture of the benefit certificate in question for a cause of which it had knowledge when it issued the certificate. Security Trust Co. v. Tarpey, 182 Ill. 52; Coverdale v. Royal Arcanum, 193 Ill. 91; Farrenkoph v. Holm, 237 Ill. 94; Peterson v. Manhattan Life Ins. Co., 244 Ill. 329; United States Health & Accident Ins. Co. v. Krueger, 135 Ill. App. 432.

We conclude that the evidence introduced on behalf of appellant required the submission of the case to the jury and that the peremptory instruction was improperly given.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Baume

text:
    Mary E. Lamm, Appellee, v. Gilbert Miller, Jr., et al., Appellants.

      Dram-shops—when sale to minor not wilful. If it does not appear that the defendants knew that the person to whom liquor was sold was a minor, the sale cannot be held as wilful or wanton so as to justify exemplary damages where it appears that the minor in question was between 20 and 21 years of age and appeared much older.
    Action in case. Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Thomas F. Ferns, Marvin T. Robison, Rufus M. Potts, W. H. Helms and Alfred Adams, for appellants.
    Clarence W. Heyl, for appellee; M. P. Rice, of counsel.
   Me. Justice Baume

delivered the opinion of the court.

This is a suit instituted by appellee, against the appellants, Gilbert Miller, Jr., and Tony Ferro, together with certain other persons named as co-defendants with appellants, to recover damages for injury to her means of support alleged to have been occasioned in consequence of the intoxication of her minor son caused in whole or in part by the defendants. Upon the trial of the cause in the circuit court of Fulton county the jury returned a verdict as follows:

“We, the jury, find Gilbert Miller, Jr., Tony Ferro, Tony Blazino and Tony Goliek, guilty, and fix the plaintiff’s damages at eleven hundred fifty dollars ($1,150.00), and of this amount we fix the actual damages at one hundred fifty dollars ($150.00).”

After verdict and before judgment appellee -dismissed her suit as to the defendants, Tony Blazino and Tony Goliek, and judgment was entered against appellants for the amount of the verdict.

As the judgment must be reversed and the cause remanded for error in an instruction given at the instance of appellee, and because the amount awarded by the- jury to appellee for exemplary damages is grossly excessive, we deem it unnecessary to advert to the evidence further than to say that it was sufficient to require the submission of the case to the jury for determination upon the merits.

The tenth instruction given at the request of appellee is as follows:

' “The court instructs the jury as a matter of law that under the statute of this state the sale or gift by a keeper of a dram-shop of intoxicating liquors to a male person under the age of twenty-one years, or to an intoxicated person of any age, is a violation of the law relating to the sale of intoxicating liquors. And in this case, if you believe from the evidence that Bertie Lamm was under the age of twenty-one years, or was intoxicated when the defendants or any of them or his or their agents or servants sold or gave. him intoxicating liquors, then such sale (if any) was wilful and wanton, and in that state of the proof your verdict may include exemplary damages in addition to the actual damages, if any is shown by the evidence.”

At the time appellants are alleged to have caused the intoxication of appellee’s son, he was between 20 and 21 years of age, while in fact he appeared to be 26 or 27 years of age. There is no evidence whatever tending to show that the appellants knew that he was a minor. In this case the sale of intoxicating liquor by appellants cannot be held as a matter of law to have been wilful and wanton, so as to justify an award of exemplary damages, merely because appellee’s son was a minor.

The judgment is reversed and the.cause remanded.

Reversed and remanded.


text:
    Scott McGlasson, Appellee, v. Judson Harmon, Receiver, Appellant.

      Instructions—when inaccuracy mil not reverse. An inaccurate instruction is not ground for reversal if no prejudice appears to have resulted.
    Action in case for personal injuries, etc. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Outten, Roby, Ewing & McCullough, for appellant.
    Chester Allen Smith and LeForgee, Vail & Miller, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant tó recover damages for personal injuries and for the destruction of certain personal property, alleged to have been occasioned by the negligence of the servants of appellant. A trial by jury resulted in a verdict and judgment against appellant for $800.

On Febrnary 11, 1909, as appellee with a wagon and team of horses was crossing the railroad track of the Cincinnati, Hamilton & Dayton Railway Company on Jasper street in the City of Decatur, a passenger train, consisting óf three coaches and a locomotive, then running backwards on said track, collided with said wagon and team. The negligent acts charged in the declaration are the failure to ring a bell or blow a whistle; the running of the train backward without having some one stationed on the rear platform of the coach to warn persons at said crossing of the approach of the train; that the flagman stationed at said crossing signalled appellee to drive across the same at a time when said train was approaching; and that said train was exceeding the speed limit fixed by the city ordinance.

At the place of the collision Jasper street is also crossed by the track of the Wabash Railroad Company, and the distance between the two tracks is 39 feet.

Appellee testified that as he approached the crossing from the south the flagman signalled him to proceed; that in obedience to said signal he continued to do so; that after giving him the signal to proceed the flagman went into his shanty; that as he crossed the Wabash track and approached the Cincinnati, Hamilton & Dayton track he looked west and saw no train approaching and heard no signal of a train coming from that direction; that he then looked east, as it was about time for the arrival of a passenger train from that direction; that while he was so looking east, «the train in question, coming from the west, collided with his wagon. It is admitted by the flagman that he signalled appellee to approach, but he further testifies that when appellee had crossed the Wabash track he directed him to stop in the space between the two tracks, until the train in question had cleared the crossing; that appellee did stop, but immediately thereafter concluded he could cross in safety and started to do so against the protest of the witness. Appellee denies that the flagman directed him to stop after having signaled him to proceed, or that he did stop on the crossing between the two tracks. The questions of fact thus presented were properly submitted to the jury for their determination and we think their finding thereon against appellant was warranted. The statement by appellant’s flagman that he merely signalled appellee to proceed across the Wabash track and expected him to stop with his team and wagon in the 39 foot space between the two tracks until the train in question had cleared the crossing taxes our credulity as it doubtless did of the jury. As hearing upon the question of appellee’s due care for his own safety, the evidence discloses that a view of the track upon which the cars were approaching from the west was somewhat obscured by standing cars on the Wabash track. While the record discloses that a car inspector was stationed on the rear platform of the passenger coach for the purpose of controlling the air brake on the train and signalling its approach by a compressed air whistle such as is customarily used for that purpose on a coach platform, it further appears that such whistle was primarily sounded for the purpose of warning the flagman and that the car inspector did not see appellee until the latter was upon the track where he was struck.

The first instruction given at the instance of appellee was inaccurate, but it did not assume to direct a verdict, and was as applicable to the witnesses who testified for appellee as to those who testified for appellant and could not have misled the jury to the prejudice of appellant.

There is no reversible error in the record and the judgment is affirmed.

Affirmed.


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    T. C. Kearney et al., Appellees, v. Thomas M. Davin, Appellant.
    1. Statute op limitations—when new cause of action conceded as not set up. A motion to strike counts from the files because they allege the same and no other cause of action than that alleged in the original counts, concedes the identity of the causes of action and precludes the subsequent successful interposition of pleas relying upon the Statute of Limitations,

      2. Deceit—what evidence competent in action for. Where the declaration in an action for deceit alleges a conspiracy not as the gravamen of the action but in aggravation of the wrong, evidence of facts and circumstances tending to show such conspiracy is properly admitted.
    3. Deceit—how belief and reliance upon representations established. In an action of deceit it is competent to permit the plaintiffs to testify that they believed and relied upon the alleged false and fraudulent representations made to them by the defendant.
    4. Deceit—propriety of exemplary damages. Held, in this case, that the evidence justified the authorization to the jury to allow exemplary damages.
    5. Variance—when objection for .comes too late. An objection of variance first made on appeal comes too late and will not be considered.
    6. Instructions—when undue emphasis will not reverse. Undue emphasis of a particular element in issue in the cause while improper will not reverse in the absence of prejudice appearing.
    Appeal from the Circuit Court of Moultrie county; the Hon. Granville W. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    James W. & Edward C. Craig, F. J. Thompson and W. H. Whitaker, for appellant.
    E. J. Miller and A. W. Lux, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit brought by the appellees, T. C. Kearney and R. E., W. L. and J. H. Bailey against the appellant, Thomas M. Davin, to recover damages for the alleged fraud and deceit of said appellant, conspiring with H. A. Six, W. E. Moore, W. W. Shelley and the Marine Bank of Springfield, whereby said appellees, using the name of T. C. Kearney, were induced to sign three certain notes, two for $833 each and one for $834 all bearing date April 29, 1903, and payable to said Moore, who claims to have endorsed the same to said Marine Bank before maturity. Upon two of said notes judgment was entered against appellees with the fraudulent connivance of said Shelley, an attorney employed by appellees, acting with said co-conspirators, upon which judgment an execution was issued and appellees were compelled to pay thereunder the sum of $834, and. necessarily incurred other costs and expenses in that behalf. The trial of the case by a jury resulted in a verdict and judgment against appellant for $1,500, from which judgment he prosecutes this appeal. The case was submitted to the jury upon the first amended count of the declaration filed October 1, 1908, the first additional count filed March 6, 1909, and a count in trover, upon which latter count the jury under the direction of the court found the issues for the appellant. To these several counts appellant pleaded the general issue, the Statute of Limitations, and a plea denying appellees’ co-partnership. Demurrers interposed to the pleas of the Statute of Limitations to the first amended and additional counts were sustained by the court, and the demurrer to the count in trover was overruled. The original counts of the declaration were filed September 18, 1908, and two amended counts were filed September 28, 1908.

There is no ground for appellant’s contention that the court erred in sustaining the demurrers to the pleas of the Statute of Limitations to the first amended and additional counts of the declaration. Appellant’s motion to strike said counts from the files because they alleged the same and no other cause of action as was alleged in the original counts necessarily conceded the identity of the causes of action as alleged in all of said counts. Furthermore, the allegation in the counts last filed that said notes were signed by appellees upon the representation of appellant that certain other persons “had agreed to and would sign” the same did not state a different cause of .action from that stated in the original counts, wherein it was alleged that said notes were signed by appellees upon the representation by appellant that certain other persons “had agreed to sign” the same.

The evidence, fairly considered, supports the material allegations of the first amended and the additional counts of the declaration, and discloses substantially the following state of facts: Appellant was in the employ of one Moore who was engaged in the business of selling stallions. On or about March 30, 1903, appellant sought to sell to various persons residing in Moultrie county, a German Coach Stallion called “Garf” for $2,500 represented by twelve and onchalf shares at $200 per share. The signatures of the several persons subscribing for such shares were written on one page of a memorandum book, which signatures were followed by a designation of the number of shares subscribed for. There is evidence tending to show that the page upon which the signatures appeared was folded in the center and held in the book by a rubber band so that the portion of the page which was folded back and upon which the agreement was printed, or partly printed and partly written, was not exposed to view, and that appellant then verbally represented to appellees that all of the subscribers thereto would sign joint and several notes for the purchase price of the stallion. The agreement preceding the signatures of the subscribers was, as follows:

“Wm. Eaton Moore, Springfield, Ill.
Lovington, Ill., March 30, 1903.
We, the undersigned, agree to pay to the Wm. Eaton Moore the sum of $2,500.00 for the German Coach Stallion, Garf, German Mo. 5095; American Mo......... Capital Stock $2,500.00, Mo. of Shares 12¿ at $200.00 per share. Payments to be made by cash or joint notes drawing 6 per cent interest from date. Three payments to be made—one, two and three years.”

Preceding the name of T. C. Kearney, signed by one of the appellees for all, as subscribing for one share, there appeared among others the signatures of Louis Englebreath, O. T. Atchison and J. H. Dawson.

When appellant presented the three notes to appellees for the signature of T. C. Kearney, appellee, K. E. Bailey, objected to signing the same because they had not then been signed by all other subscribers for shares in the horse, including Englebreath, Atchison and Dawson. Appellant then stated to appellees, It. E. and W. L. Bailey, that said persons had agreed to and would sign said notes as joint and several makers thereof; that he would procure their signatures to gaid notes before delivering the same to the payee, Moore, and that in the event that said persons did not sign said notes the same would be null and void. Appellee, K. E. Bailey, relying on the said representation of appellant, then signed the name of T. O. Kearney to said notes. Within two or three days thereafter appellee, K. E. Bailey, having ascertained that Englebreath, Atchison and Dawson had not signed said notes, and that they had no intention of signing the same, caused appellant to be arrested for fraudulently obtaining the signature of T. C. Kearney thereto and the bail required by appellant was furnished by one Hostetler, at the instance and request of the Marine Bank of Springfield. Upon the hearing before a justice of the peace the notes were produced by appellant and were ordered by the justice to be impounded until the final determination of the proceedings. One W. W. Shelley, claiming to be an attorney practicing his profession at Springfield, appeared for appellant at said hearing and having secured possession of the notes for the avowed purpose of examining appellant as a witness with reference thereto, handed the same to appellant, who put them in his pocket and refused to again produce them, and for his conduct in that regard was adjudged by the justice to be in contempt of court and for such contempt was fined $25. Moore, who was named as payee in said notes, resided in Sangamon county and all of the makers of said notes were residents of Moultrie county. After said notes matured and before suits were brought to recover thereon, Moore and the appellant induced H. A. Six, one of the makers of said notes, to remove to Sangamon county, they paying his moving expenses and promising him employment as a salesman of stallions. Shortly thereafter suits were brought on said notes in the circuit court of Sangamon county by the Marine Bank of Springfield, as the owner of said notes or as holding the same as collateral foi a debt of Moore, against all of the makers including the appellee, T. O. Kearney. While said suits were pending, Shelley, claiming that he had severed his connection with appellant and Moore, induced appellees to retain him to defend said suits, and appellees paid him a retainer fee for his services and also gave him $100 to be paid by him to R. H. Patton, a reputable attorney practicing his profession at Springfield, with directions to employ him to assist in defending the suits. Shelley failed to retain Patton but retained the $100. When the suits upon the first two notes were called for trial, Shelley failed to appear in court in behalf of appellees, claiming illness as an excuse for his' nonappearance, and judgment was rendered against appellee, Kearney, and others for the amount of said notes. Subsequently appellees retained Mr. Patton to apply for an order vacating or opening up said judgment and for leave to plead, but owing to lapse of time the application in that behalf was unavailing. Por his services- in securing persons to subscribe for shares in the stallion appellant was to be paid a commission of from twenty to twenty-five per cent on the amount realized from such subscribers.

At the time of the trial of the case at bar the suit on the third note given for the purchase price of the stallion was still pending and undetermined. The stallion mentioned in the contract was never delivered to the shareholders, but was sold by appellant to a stranger.

A consideration and discussion of all the errors assigned and argued by appellant would unduly extend this opinion. We have carefully considered all such errors and shall only advert to those we deem of sufficient importance to merit discussion. The declaration alleges a conspiracy, not as the gravamen of the action but in aggravation of the wrong, and for this purpose evidence of facts and circumstances tending to show such conspiracy was not improperly admitted. London Guarantee Co. v. Horn, 101 Ill. App. 355, affirmed in 206 Ill. 493.

The evidence showing that appellant was arrested upon complaint of appellee, R. E. Bailey, and that upon the hearing before the justice appellant was held to be in contempt of court and fined therefor was admitted generally without objection. Appellant concedes that the evidence was competent under the count in trover and we are of opinion it was' also competent as tending to show participation by W. W. Shelley in the proceedings before the justice, and that he was a co-conspirator with appellant. The third note was shown to have been executed at the same time and under the like circumstances attending the execution of the first two notes that were merged in a judgment which appellees were required to pay, and proof that a suit was pending in 'Sangamon county to enforce the payment of the third note was competent as tending to show the disposition and effort of appellant to compel the payment by appellees of an unrighteous claim and also as affecting the question of damages arising out of the cost and expense which appellees would incur in defending said suit. The question of a variance between the allegations of the declaration and the proofs relating to the fraudulent conduct of appellant in securing the signatures of Atchison, Englebreath and Dawson for shares in the stallion was not raised in the court below by mere general objections and objections upon the ground of variance cannot be availed of here for the first time. Objection to other evidence admitted is not tenable, because it tended to establish the conspiracy alleged in the declaration. In this character of action it was competent for appellees to testify that they believed and relied upon the alleged false and fraudulent representations made to them by appellant. Haldeman v. Schuh, 109 Ill. App. 259.

The second, third and fifth instructions given at the instance of appellees unduly emphasize the charge of conspiracy alleged in the declaration, but neither of said instructions directs a verdict and when considered in connection with the other instructions given in the case could not have operated to the prejudice of appellant.

The sixth instruction given at the request of appellees does not as is insisted by appellant assume the existence of any facts in controversy, nor does it omit the element in the representations alleged to be false, that Atchison, Englebreath and Dawson had agreed to and would sign the notes in question as joint makers thereof. There is some evidence in the case tending to show that the Marine Bank of Springfield was not a tona fide bolder of said notes for value before maturity but that said notes belonged to the original payee, Moore, when suits were instituted to collect the same. We perceive no substantial error in the instruction as given.

It is urged on behalf of appellant that the true measure of damages, if any, to be awarded appellees was the proportionate share of the two notes which appellees were compelled to pay by reason of the failure -of Atchison, Englebreath and Dawson to sign said notes, and that the court erred in refusing to so instruct the jury.

The false and fraudulent representations made by appellant relieved appellees of any liability whatever upon the notes and the measure of damages insisted upon by appellant is not applicable to the case. The case made by appellees warranted the jury in assessing exemplary damages against appellant and the seventh instruction announced the rule relative to exemplary damages with substantial accuracy. The eighteenth instruction tendered by appellant and given to the jury as modified by the court was improper as tendered and the modification by the court did not render it less so. The instruction should have been refused as offered but the modification by the court should not in this case operate to reverse the judgment. Other- instructions tendered by appellant and refused by the court are so palpably erroneous as not to merit discussion.

The evidence considered as a whole warranted the jury in finding that appellant wilfully and wantonly perpetrated a gross fraud upon appellees and we are not disposed to hold that the damages awarded, although high, are so excessive in view of the liability of appellant for exemplary damages that the judgment should be disturbed upon the ground alone that it is excessive.

While the record is not free from error the judgment stands for substantial justice between the parties upon the merits of the case and will be affirmed.

Affirmed.


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    Oliver J. Sprinkle, Administrator, Appellee, v. John H. Forrester, Appellant.
    1. Executors and administrators—liability for counsel fees. When an executor or administrator deems it advisable or necessary to secure the services of an attorney to enable him to properly discharge the duties of his office, or to represent him in any litigation in which the estate may be involved, he unquestionably has the right to retain counsel for such purposes, but the claim of such counsel for fees for services so performed is strictly speaking enforceable against such executor or administrator in his individual capacity and not against the estate.
    2. Executors and administrators—right to recover fees paid counsel. If an executor retain the services of counsel with respect to the estate in his charge and paid him fees only a portion of which are allowed by the court to be charged against the estate, any right to recover the excess amount is by himself in his individual rather than in his executive capacity.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed May 26, 1911.
    J. A. Merry, for appellant.
    McQuigg & Dowell, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The estate of appellee’s intestate, Hannah O. Sprinkle, consisted of personalty of the value of about $6,000 and of real estate of the value of about $20,000. Hannah O. Sprinkle left surviving as her only heirs at law four sons and one daughter, who were all of age. After the death of their mother it was agreed among the four children that Oliver J. Sprinkle should he appointed and should act as administrator of her estate; that he should receive for his services as such administrator three per cent on the proceeds of the sale of the real and personal estate, and that the proceeds of the sale of the real estate should he received and accounted for by appellee as such administrator, and should be embodied in his financial report to the county court. Appellee employed appellant, an attorney at law, to prepare the necessary papers to effect his appointment as administrator, and to render such legal services as might be necessary in the administration and settlement of the estate. Purchasers were procured for the real estate, the heirs joining in conveyances to said purchasers, and. the purchase money was paid to appellee. The personal estate was disposed of by appellee, who paid all claims against the estate of his intestate, and held the balance, together with the proceeds of the sale of the real estate, for distribution among the heirs.

At the March term, 1909, of the county court of Christian county appellee filed what purported to be his final report as administrator wherein he charged himself with all the personal estate coming into his hands, and also with the proceeds of the sale of the real estate, and wherein among other items he asked to be allowed $938 for his compensation as administrator, and $250 paid to appellant as attorney’s fees for legal services. This report was accompanied by a writing signed by all of the heirs, except the administrator, wherein they represented that they had examined the said report and found the same to be correct and asked that the same be approved and appellee be discharged. Thereafter the county court upon examination of said report, refused to approve the same, and ordered appellee to reform said report by eliminating therefrom any accounting for the proceeds of sale of real estate, by limiting the amount of compensation to be allowed appellee as administrator to six per cent of the personal estate handled by him, and by limiting the amount of attorney’s fees to appellant to $125. Appellee then filed in the county court his final report as administrator, in compliance with the order of said court, which report was approved. Thereafter, appellee demanded of appellant that he refund to appellee as administrator $125, being the excess paid to appellant above the amount allowed to him by the county court for his attorney’s fees, and upon his refusal so to do, appellee, in his representative capacity, brought suit against appellant before a justice of the peace to recover the same. Upon appellant’s appeal to the circuit court from a judgment against him in the justice’s court, a trial by jury resulted in a verdict and judgment against him for $125, and he prosecutes this further appeal to reverse such judgment. At the close of the evidence for appellee and again at the close of all the evidence peremptory instructions tendered by appellant directing the jury to find the issues for him were refused by the court.

When an executor or administrator deems it advisable or necessary to secure the services of an attorney to enable him to properly discharge the duties of his office, or to represent him in any litigation in which the estate may be involved, he unquestionably has the right to retain counsel for such purpose, but the claim of such counsel for fees for services so performed is strictly speaking enforceable against such executor or administrator in his individual capacity and not against the estate. Barker v. Kunkel, 10 Ill. App. 407; Johnson v. Leman, 131 Ill. 609; Griger v. Bishop, 231 Ill. 472. The right of the county court to allow to an executor or administrator credit in his account for reasonable attorney’s fees paid to an attorney at law for services in enabling such executor or administrator to properly and efficiently perform the duties of his office is undoubted, but the .amount so paid for attorney’s fees is to be determined by the court in the exercise of a judicial discretion. When items for which an executor or administrator asks credit in his report are disallowed in whole or in part by the court, such executor or administrator becomes personally liable to the estate for the amount of such items, and the proper practice in such case is for the court to require the executor or administrator to surcharge himself with the items so disallowed. In the case at bar the action of the county court in refusing to approve the first report filed, and in requiring appellee to file the substituted report in pursuance to the directions of the court, operated to require appellee to surcharge himself with the excess amount paid to appellant. The approval by the county court of the substituted final report filed by appellee settled the estate of his intestate and any claim which he might thereafter have against appellant for the attorney’s fees here involved he can recover only in his individual capacity and not as administrator. The trial court should have given to the jury the peremptory instruction requested by appellant at the close of the evidence for appellee, and for the refusal of the court so to do the judgment must be reversed.

Reversed.


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    B. C. Sprague, Appellant, v. Lucy J. Barnett, Appellee.
    1. Pleading—when action of court in overruling demurrer harmless error. Even though a demurrer to a special plea be improperly overruled the error is harmless if no evidence was admitted in support of such plea and no issue thereof submitted to the jury.
    2. Vh.:.)icts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    Trover. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Coohran, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    John Fuller, L. E. Stowe and E. B. Mitchell, for appellant.
    E. J. Sweeney and Herrick & Herrick, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On April 30, 1904, W. A. Barnett, the husband of the appellee, Lucy J. Barnett, executed and delivered to appellant a chattel mortgage upon certain property described as follows: “All tools and machinery, including all boilers and engine; all office desks and furniture, including the safe used in and about the shop of W. A. Barnett in Clinton, Illinois, situated on Lot 2 in Block 4 in the original town, now city of Clinton, Illinois,” which said chattel mortgage was given to secure the payment of one certain promissory note for the sum of $1,500, payable April 30, 1906, executed by said W. A. Barnett and the appellee, Lucy J. Barnett. The parties were then all residents of the city of Clinton, Illinois, where W. A. Barnett conducted a general machine shop and constructed iron bridges on the premises described in the chattel mortgage. W. A. Barnett died intestate October 16, 1904, and appellee was duly appointed and qualified as administratrix of his estate. During ¡November and December, 1904, and for several months following in 1905, the machine shop was kept in operation as far as possible and from time to time during that period appellee sold to various parties all of the property covered by the chattel mortgage except a few articles of office furniture of little value. On October 29, 1909, appellant instituted this suit in trover against appellee to recover the value of the mortgaged property so alleged to have been wrongfully converted by appellee. A trial by jury in the circuit court of DeWitt county resulted in a verdict in favor of appellee and judgment against appellant for costs.

Complaint is made of the action of the court in overruling appellant’s demurrer to the third special plea filed by appellee, but in view of the fact that no evidence was admitted in support of such plea, and the issue made by said plea was not submitted to the jury, no harm resulted to appellant by the action of the court in that particular.

The main issue of fact submitted to the jury upon the trial was whether or not the property in question had been sold by appellee with the knowledge and consent of appellant, and upon this issue we are of opinion that the verdict of the jury is abundantly supported by the evidence. This suit was not instituted by appellant until more than four years had elapsed, as he testifies, after he ascertained that the property in question had been sold. True, the action was not then barred by lapse of time, but in view of the fact that appellant was surety on the bond of appellee, as administratrix, it is almost incredible that he would have delayed proceedings so long, if he expected, in good faith, to assert a right to the property. The rulings of the court in excluding evidence which was properly applicable to this phase of the case were much more favorable to appellant than was warranted.

The record is not wholly free from error, but as such error was not prejudicial to appellant upon the merits of the case the judgment will be affirmed.

Affirmed.


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    Collie Clavin, Appellant, v. Bruno Froelich, Appellee.
    Slander and libel-—what words not actionable per se. Held, that to say of the cashier of a hank that he was “an Irish' bull head” etc., was not to utter words slanderous per se, and that in the absence of an allegation of special damage the action of slander could not be maintained.
    Action in case for slander. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    L. M. Harlan, for appellant; Edward C. Knotts and Peebles & Peebles, of counsel.
    Bell & Burton, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

To appellant’s declaration in an action in case for slander, appellee interposed a general and special demurrer which was sustained by the court, and appellant electing to abide his declaration judgment was entered against him in bar of his action and for costs.

The declaration which consists of two counts, alleges in substance, that at the time of the committing by appellee of the several grievances mentioned appellant was and since has been cashier of the First Hational Bank at Mt. Olive, and had always conducted his business in said bank and performed his duties as cashier with fidelity and industry, and was deservedly held in great esteem by his neighbors and by those with whom he had dealings as the cashier of said bank; that because of such services as cashier he daily acquired compensation for the support of himself and his family; that appellee contriving and wrongfully and maliciously intending to injure and destroy the good name, reputation and credit of appellant in his said business, and to cause the said bank to discharge him from his position as cashier on April 21, 1908, in a certain discourse which appellee then and there had in the presence and hearing of divers persons, falsely and maliciously spoke and published of and concerning appellant, and of his business and employment in said bank, the false, malicious, slanderous and defamatory words: “Clavin is an Irish bullhead and was run out of Marine (meaning the village of Marine, in Madison county, Illinois). He (meaning appellant) thinks because he tried to run Marine (meaning said village of Marine) that he can run this town (meaning the village of Mt. Olive). You had better put him out of the bank or you will lose business.” (Meaning that the retaining by the First National Bank of Mt. Olive of appellant as cashier of said bank would lose business and patronage for said bank). The declaration further alleges that by means thereof appellant had been greatly injured and damaged in his good name, credit, reputation and business; that divers'patrons of said bank had refused to have dealings with him as such cashier and because of such fact, and the malicious words so uttered by appellee, the directors of said bank investigated the truth of the said statements made of and concerning appellant; that by the speaking of the said words by appellee appellant was greatly damaged, injured and hindered in his dealings 'as cashier of said bank and was also thereby deprived of gains, profits and compensation which otherwise would have accrued to him, etc.

It is insisted on behalf of appellant that the words spoken by appellee were slanderous per se and actionable without allegation and proof of special damage, and in support of such insistence appellant relies upon Clifford v. Cochrane, 10 Ill. App. 570, where it is said: “The general rule in relation to the speaking (or writing) of words of one in a particular calling may be stated as follows: Any words spoken of such person in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud, or indirect dealings, or with incapacity, and that tend to injure him in his trade, profession or business are actionable without proof of special damage.” Giving to the words spoken by appellee their commonly accepted meaning they are not referable to the business of appellant as a banker, or to his position as cashier of the bank, by imputing to him, as such banker or cashier, any want of credit, or fraud, or indirect dealing, or want of business capacity, but they merely impute to appellant certain temperamental characteristics unmixed with any element of moral obliquity which may or may not tend to injure and damage him in his business and occupation. The words are not slanderous per se and in the absence of any allegation of special damage accruing to appellant by reason of the words spoken the declaration is faulty and the demurrer thereto was properly sustained.

The judgment of the circuit court will be affirmed.

Affirmed.


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    John Kirchner, Appellee, v. Shoal Creek Coal Company, Appellant.
    Miners and miners—what not defense to action charging wilful violation. Contributory negligence on the part of a miner is not a defense to an action under the Mines and Miners Act charging wilful violation of the provisions thereof.
    Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    W. B. McBride, for appellant; Amos Miller and Mastin & Sherlook, of counsel.
    Hill & Burlington, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries alleged to have been occasioned by the negligence of appellant and also by the alleged wilful failure of appellant to comply with certain provisions of the act entitled “Mines and Miners.” A trial by jury in the circuit court of Montgomery county resulted in a verdict and judgment against appellant for $700.

The declaration contains two counts. The first count charges common law negligence of appellant in its failure to exercise reasonable care to furnish appellee with a reasonably safe place in which to work, in that the rails of the track in appellant’s coal mine were so separated and out of alignment that the flange of the wheels of a car running on said track would strike the end of one of the rails thereby causing the car to stop and become derailed. The second count charged that appellant wilfully failed to have its mine examiner visit and inspect the mine and mark the said track as a dangerous place, and did not prevent appellee from entering to work in said mine until all conditions had been made safe; that appellant wilfully failed to have its mine manager see to it that all dangerous places were properly marked and that danger signals were displayed thereat and that appellant wilfully permitted appellee to enter said mine to work therein, not under the direction of the mine manager, before all conditions had been made safe.

Appellee testified that on December 27, 1909, he Avas working as a mule driver in appellant’s mine and had been there employed in that capacity for two or three years; that on the morning of that day while he was Avorking on his run in the first cast entry off of the main south entry he Avas directed by the boss driver to run some emergency trips in the second south entry off of the said first east entry; that he had not done any work in said last named entry for about two months; that he went as directed and made one trip to the bottom with a loaded car and was returning with an empty car, which, when it reached a point on the track near room three became derailed, and so occasioned the injury complained of; that the track at that place was somewhat sunken and the end of one rail was about two inches out of alignment with the end of the other rail; that the flange of the car wheel was on the inside of the rail; that at the time of his injury he was riding on the car and driving the mule in the usual and customary manner. The witness Stewart testified that the rails of the track at the place in question were three or four inches apart and formed a high joint so that a car jolted when it went over it; that an incoming-empty car was liable to become derailed by the flange of the wheel striking the inside rail; that the track had then been in that condition six weeks. A like condition of the track at the place in question was testified to by the witnesses Cassi and ISToe. The witnesses for appellee further testified that there were no marks or danger signals at or near the alleged defect in the track. One witness, McCracken, appellant’s boss driver, testified that a condition of the track as described by appellee’s witnesses did not exist, but that the track at the place in question turned slightly to the left. Appellant’s mine examiner, McVey, testified that he examined the entire mine between midnight and four o’clock in the morning, and that such examination involved the necessity of walking through twenty entries, each of the length of about 1000 feet, and the inspection of about 100 rooms, some of which had been worked a distance of 200 feet, and that he made a report of his examination, wherein he certified that he had found all the conditions' in the entry in question to be safe.

Our attention is called to numerous instances in which it is claimed the trial court erred in admitting incompetent evidence and in excluding evidence proper to be considered by the jury. The objections in this regard are not of sufficient significance to merit discussion. The record is exceptionally free from any error in that respect which could in any manner have operated to the prejudice of appellant.

The first instruction given at the instance of appellee is an accurate statement of the law and has been repeatedly approved. The fifth instruction merely informs the jury that contributory negligence, if any, on the part of appellee could not be availed of by appellant as a defense under the second count of the declaration which alleges a wilful violation by appellant of certain provisions of the act entitled “Mines and Miners.” The objection to the instruction seems to be predicated upon some not well defined claim that the second count of the declaration is faulty. Appellant pleaded the general issue to each count of the declaration, after demurrer overruled, and as both counts of the declaration are good after verdict the instruction is not subject to the criticism urged. In several instructions given to the jury at the instance of appellant the sufficiency of the declaration to support a verdict is impliedly conceded.

The objection which appellant urges to the seventh instruction given at the request of appellee is identical with the objection urged by the appellant in Mertens v. Southern Coal Co., 235 Ill. 540, to the first instruction given at the instance of appellee and the instruction was there held not to be erroneous.

The second count of the declaration charges the wilful failure of appellant in other respects than a failure to place a conspicuous mark at the place in question, and for this reason, if no other, the court did not err in refusing the first and second instructions tendered by appellant.

The evidence is sufficient to warrant a recovery under the first count of the declaration, and the judgment of the circuit court will be affirmed.

Affirmed.


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    Edwin L. Hay et al., Administrators, v. Minnie P. Boling et al., Appellees.
    1. Descent—section 11 of act construed. This section was enacted to prevent lapses where a devisee or legatee, being a child or grandchild of the testator, dies before the testator, leaving issue, and no provision is made in the will for such contingency. The purpose of the enactment of said section is that the child or grandchild taking the legacy or devise of his or her parent or grandparent takes the same under and by virtue of the will of the testator or testratrix and not by descent from his or her parent or grandparent, and, therefore, the status of the child or grandchild taking under and by virtue of the provisions of said section is as though such child or grandchild had been specifically designated in the will as a legatee or devisee.
    2. Statute of frauds—section 12 construed. This section is one available to the creditor of the ancestor or devisor leaving lands, tenements or hereditaments or rents or profits out of the same, devised or descending to any devisee or heir and out of which such creditor is entitled to recover the debt due from such ancestor or devisor as against the rights of such heir or devisee.
    Assumpsit. Appeal from the Circuit Court- of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    John E. Pollock, for appellants.
    Jacob P. Lindley, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

The declaration in this suit in assumpsit by appellants, as administrators of the estate of Almeda Hay, deceased, against the appellees, Minnie P., Peter C., and Leslie F. Boling, being the children and only heirs at law of Celia J. Boling, deceased, alleges the execution and delivery by the said Celia J. Boling and John L. Boling, her husband, to Peter G. Hay of their two certain promissory notes, one for the sum of $500, dated May 1,1899, payable 12 months after date, and one for the sum of $1500, dated July 20, 1904, payable 3 years after date; that said Celia J. Boling died February 4, 1905, leaving appellees as her children and only heirs at law; that she left no personal property out of which to pay her debts and that no administration was had upon her estate; that said Celia J. Boling was the daughter of Peter G. Hay, the payee in said notes, who died testate March 1, 1908; that by the first clause of his last will and testament the said testator bequeathed to his wife Almeda Hay all his chattel property, choses in action and personal estate of every kind and description, remaining after the payment of his just debts; that hy the second clause of hi? said will said testator devised to his said wife for and during the term of her natural life the benefit, use, rents, issues and profits of certain described real estate; that by the fifth clause of his said will said testator gave and devised to his daughter, Celia J. Boling, her heirs and assigns, subject to the life estate therein of his said wife, certain described tracts or parcels of land in Tazewell county, Illinois, to have and to hold the same to the said Celia J. Boling, her heirs and assigns forever; that by the twelfth clause of said will said testator directed his executors to divide a certain described tract of timber land into four equal parts, and gave to his daughter Celia J. Boling one of said parts designated as “tract Ho. 2;” that the said real estate so devised to said Celia J. Boling, her heirs and assigns, was of the value of $15,000, and that appellees have or will come into possession of said real estate by reason of said devise to said Celia J. Boling, and that by force of the statute in such case made and provided appellees became liable to pay to appellants the amount of the said notes according to the tenor and effect thereof, etc. General and special demurrers interposed by appellees to said declaration were sustained by the court and appellants electing to abide their declaration judgment was entered against them in bar of their action and for costs.

Appellants predicate their right of recovery in this case upon the provisions of section 11 of the act in regard to the descent of property, and upon the provisions of section 12 of the Statute of Frauds and the several sections of the last named statute which designate the procedure to be adopted.

Section 11 of the act in regard to the descent of property is as follows:

“Whenever a devisee or legatee in any last will and testament, being a child or grandchild of the testator, shall die before such testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed as the devisee or legatee would have done had he survived the testator, and if there be no such issue at the time of the death of §uch testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate.” Rev. Stat. (1909) 845.

Section 12 of the Statute of Frauds is as follows:

“When any lands, tenements or hereditaments, or any rents or profits out of the same, shall descend to any heir, or be devised to any devisee, and the personal estate of the ancestor of such heir or devisor of such devisee shall be insufficient to discharge the just demands against such ancestor or devisor’s estate, such heir or devisee shall be liable to the creditor of their ancestor or devisor to the full amount of the lands, tenements or hereditaments, or rents and profits out of the same, as may descend or be devised to the said heir or devisee; and in all cases where any heir or devisee shall be liable to pay the debts of his executor or devisor, in regard of any lands, tenements or hereditaments, or any rent or profit arising out of the same, descending or being devised to him, and shall sell, alien or make over the same before any action brought, or process sued out against him, such heir at law or devisee shall be answerable for such debts to the value of' the said lands, tenements and hereditaments, rents or profits so by him aliened or made over; and executions may be taken out upon any judgment so obtained against such heir or devisee, to the value of the said lands, tenements and hereditaments, rents and profits, of the same, as if the same were his own proper debts, saving and excepting that the lands and tenements, rents and profits, by him bona fide aliened, before the action brought, shall not be liable to such execution.” Rev. Stat. (1909) 1197.

Section 11 of the act in regard to the descent of property was enacted to prevent "lapses where a devisee or legatee, being a child or grandchild of the testator, dies before the testator, leaving issue, and no provision is made in the will for such contingency. Pirrung v. Pirrung, 228 Ill. 441. It is apparent upon a consideration of the purpose of the enactment of said section 11 that the child or grandchild taking the legacy or devise of his or her parent or grandparent takes such legacy or devise under and by virtue of the will of the testator or testatrix and not by descent from his or her parent or grandparent, and in determining the status of the parties the child or grandchild taking under and by virtue of the provisions of said section 11 must be deemed to take under the will precisely as if such child or grandchild had been specifically designated in the will as a legatee or devisee.

Section 12 of the Statute of Frauds is only available to a creditor of the ancestor or devisor leaving lands, tenements or hereditaments or rents or profits out of the same, devised or descending to any devisee or heir and out of which such creditor is entitled to recover the debt due from such ancestor or devisor as against the rights of such heir or devisee.

In the case at bar the debt sought to be recovered was not the debt of the devisor, Peter G-. Hay, but was the debt of his daughter, Celia J. Boling, the mother of appellees, who died before her father. Celia J. Boling having predeceased her father the estate devised to her did not vest in her and could not, therefore, become liable for the payment of her debts. Piad Celia J. Boling survived her father the estate devised to her would have vested in her, subject, however, to the payment of her father’s debts as provided by section 12 of the Statute of Frauds and this is all that is meant by the expression in section 11 of an act in regard to the descent of property, that “the issue . . .' of such devisee or legatee shall take the estate devised or bequeathed as the devisee or legatee would have done had he survived the testator.”

The demurrer to the declaration was properly sustained and the judgment will be affirmed.

Affirmed.


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    George W. Montgomery et al., Appellees, v. Florence Fredonia Kirkpatrick, Appellee, and B. W. Richardson, Appellant.
    1. Interpleader—when propriety of procedure cannot he questioned. The failure. to observe the ordinary procedure where a bill of inter-pleader is filed and by decreeing that the defendants interplead and dismissing the complainant put of the cas? with his costs, cannot be complained of by one of the defendants who failed to stand by his demurrer to the bill of interpleader and subsequently made answer, fully setting forth his claims to the fund in controversy.
    2. Agency—effect of ratification. A husband cannot dispute the authority of his wife to act as his agent with respect to a particular transaction where he subsequently recognized her authority.
    3. Statute of frauds—when cannot he invoiced. The Statute of Frauds cannot be invoked to avoid parol contracts which have been carried into execution.
    4. Contracts—when parol evidence competent to affect sealed instrument. While an executory contract under seal cannot be altered or modified in its terms by a parol agreement, it is notwithstanding competent to show that such contract under seal has been abrogated by an executed parol agreement or that such sealed contract as modified by the parol agreement has been fully executed.
    Interpleader. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    C. E. McNemar, for appellant.
    J. L. Stabler, R. E. Vandeventer and Hubbard, Schmiedeskamp & Groves, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On February 11, 1910, George W. Montgomery, together with his co-partners, doing business as the Clayton Exchange Bank, filed their bill of interpleader in the circuit court of Adams county against Florence Fredonia Kirkpatrick, O. Ellsworth Kirkpatrick, M. F. Kichardson, B. W. Kichardson and John Hoirot, praying that said defendants be required to interplead and settle and adjust their respective claims and demands to a fund amounting to $800, then held by complainants, which fund they offered to bring into court to abide the order of the court with reference to its disposition. The defendant, Florence Fredonia Kirkpatrick, filed her answer to said bill wherein she asserted a claim to $410 of the fund held by complainants. General and special demurrers interposed to said bill by B. W.- Kichardson and John Hoirot were overruled by the court, and thereafter the defendant, B, W. Kichardson, filed his answer wherein he assorted a claim to the entire fund. The defendants, M. F. ¡Richardson and John ¡Noirot, also severally answered the bill. The defendant, O. Ellsworth Kirkpatrick, was defaulted. Complainants filed their replication to the answer of the defendant, B. W. Richardson, and upon the issues as thus joined the cause was heard by the chancellor and decree entered. The decree finds that the bill of interpleader was properly filed and requires the defendants to interplead and settle the matters in controversy between themselves. It further finds that said defendants have interpleaded and set up conflicting claims to the fund in controversy, and orders complainants to pay said fund into court and to be dismissed with their costs. The decree further finds that the defendant, Florence Fredonia Kirkpatrick, is entitled to $410 of said fund, and that the defendant, B. W. Richardson, is entitled to $390 of said fund, and the clerk of the court is thereby directed to pay the amount so found to be due to each of said defendants, after deducting from each of their said respective shares one-half of the costsj which costs are so adjudged to be paid by said defendants. To reverse such decree the defendant, B. W. Richardson, prosecutes this appeal.

On May 6, 1904, the appellant entered into a written contract under seal whereby in consideration of the payment to him of $500 to be made as therein provided he agreed to convey to appellee, Florence Fredonia Kirkpatrick, and C. E. Kirkpatrick, her husband, certain property in the village of Clayton, Adams county, Illinois. The contract provides for the payment of the purchase money as follows: For the first year five dollars per month with six per cent interest payable monthly, and the remainder of the principal in annual instalments of not less than $110 with interest payable annually on the whole sum remaining unpaid at the rate of six per cent per annum. The contract further provides that in the event of the failure of the Kirkpatricks to make the payments as therein stipulated said contract should at the option of appellant be forfeited and determined and the Kirkpatricks should forfeit all payments made by them. The evidence tends to show that subsequent to the making of the contract and up to April 3, 1909, the appellee, Mrs. Kirkpatrick, made numerous payments to appellant to he applied upon the purchase price of the real estate, which payments while not made in conformity with the terms of the contract were accepted by appellant without protest, and that appellant did not then or at any subsequent time elect to exercise his option to declare the contract forfeited and determined; that at or about the time of the transactions here involved the appellee, Mrs. Kirkpatrick, and her husband, C. Ellsworth Kirkpatrick, were living separate and apart and that in view of the relation existing between the parties, Mrs. Kirkpatrick being the sister of appellant’s wife, it was considered desirable to avoid the contract in so far as it provided for the conveyance of the property to Mrs. Kirkpatrick' and her husband, and to this end it was proposed by appellant and his wife that the property should be sold by appellant and the proceeds divided between' appellant and Mrs. Kirkpatrick, the former to receive $390 and the latter to receive $410;- that the said proposal was not then accepted by Mrs. Kirkpatrick, and shortly thereafter the wife of appellant went from her home in Peoria to Olayton, for the- purpose of visiting her sister, Mrs. Kirkpatrick, and of inducing the latter to accede to the proposal theretofore made, and that upon that occasion the consent of Mrs. Kirkpatrick to such proposal was obtained by the wife of appellant on his behalf; that the wife of appellant interviewed Isaac L. Teachenor, one of the co-partnership doing business as the Olayton Exchange Bank, relative to procuring a purchaser for the property, and that in pursuance of such interview Teachenor, acting for said bank, procured one McMurray to purchase said property for the sum of $850; that appellant conveyed said property to McMurray and the purchase price less $50, which in accordance with the agreement between the parties was retained by it as commission, was by the Olayton Exchange Bank held and credited upon its books to the wife of appellant; that when the deed for the property was sent by appellant to Teachenor by mail, the latter was directed by letter from appellant to remit the $800 to him; that the day before Teachenor received the money for the property he was notified on behalf of Mrs. Kirkpatrick that she had an intérest in the proceeds of the sale of said property and that he (Teachenor) must not pay the same to appellant; that shortly thereafter appellant by his attorney made a personal demand on the Clayton Exchange Bank for the payment to him of $800 which demand was refused; that shortly thereafter appellant drew his check on said bank for $800 payable to his own order and endorsed the same to John Koirot, and upon the refusal of the bank to pay said check, Koirot instituted suit in the circuit court of Peoria county against appellant and the appellees, co-partners doing business as the Clayton Exchange Bank, to recover the amount of said check.

It is urged that as appellant’s answer to the bill of inter-pleader raised the question of the right of the appellees (complainants) to file said bill, proper equity procedure required that the chancellor should have entered a decree requiring the defendants to interplead and dismissing the complainants with their costs before proceeding to a hearing upon the merits of the controversy between the interpleading defendants. Appellant did not abide his demurrer to the bill, and while in his answer to said bill he raised the question of the right of the complainants therein to maintain the same he also fully set forth all his claims relative to the merits of the controversy involved. If the bill was properly filed we do not think appellant can effectually assign error on the failure of the chancellor to adopt the usual equity procedure in the respect indicated.

Appellant’s contention that his wife was not his agent, authorized to act for him, relative to the parol agreement with Mrs. Kirkpatrick and the sale of the property in conformity with such agreement, does not merit serious consideration in view of the fact that he recognized her agency in respect to securing a 'purchaser for said property by executing a deed therefor, and of the further fact that the proposal first made by him to Mrs. Kirkpatrick was finally accepted by her at the solicitation of her sister, the wife of appellant, who had evidently gone to Clayton for the express purpose of consummating the transaction. Keither is the position assumed by appellant, that the Clayton Exchange Bank had incurred an independent liability to him to account for the entire jiroceeds of the sale to McMurray, tenable.

The evidence discloses that Teachenor was an old acquaintance of both the wife of appellant and of Mrs. Kirkpatrick and that he had knowledge of the possession and occupancy of the property in Clayton by Mrs. Kirkpatrick under a claim of some right or interest therein, and that upon the occasion when the wife of appellant procured the services of Teachenor, acting for the bank, to sell said property, she told him that Mrs. Kirkpatrick owed appellant $390. As bearing upon the relation of the parties to the transactions involved it is not without significance that when Teachenor received the purchase money for the property he deposited the same to the credit of appellant’s wife and not to the credit of appellant.

It is urged on behalf of appellant that as the claim of the appellee, Mrs. Kii'kpatrick, is necessarily predicated upon an alleged parol agreement, such claim is repugnant to the Statute of Frauds, and further that evidence to establish such parol agreement was improperly admitted, because it tended to alter and modify a-theretofore existing written executory contract under seal. The parol agreement relative to the sale of the property must be held to have been executed, and in such case the Statute of Frauds has no application. The Statute of Frauds cannot be invoked to avoid contracts which have been carried into execution. Pearce v. Pearce, 184 Ill. 289. The Statute of Frauds was not enacted to facilitate the perpetration of and to protect fraud, but to prevent it, and the courts will not permit the statute to be used as an engine of fraud. Union Mutual Life Ins. Co. v. White, 106 Ill. 67; Linkemann v. Knepper, 226 Ill. 473. While an ex-ecutory contract under seal cannot be altered or modified in its terms by a parol agreement, it is nevertheless competent to show, that such contract under seal has been abrogated by an executed parol agreement, or that such sealed contract as modified by a parol agreement has been fully executed. Alschuler v. Schiff, 164 Ill. 298; Jones v. Crary, 234 Ill. 26.

The decree of the circuit court finding that the bill of interpleader was properly filed and adjudicating the claims of the interpleading defendants to the fund in question is in substantial consonance with the equities of the case and will be affirmed.

Affirmed.