text:
    Anthony W. Woodward et al. v. Josiah D. Brooks et al.
    1. Yoltjntaby ASSIGNMENT.—A voluntary assignment valid by the laws of the State in which it is made is valid everywhere.
    2. Assignment—Notice to debtobs beeobe .judgment by attachment cbeditobs.—In the absence of any adjudication by the Supreme Court of this State, this court is inclined to adopt- the rule that an equitable assignment will secure the property against- attachment for the debt of the assignor though no notice be given prior to the attachment, to the person holding the property, if it be given in time to enable him to bring it to the attention of the court before judgment is rendered against him as garnishee.
    3. Same—Ceeditobs stand in assignob’s shoes.—Attachment creditors with knowledge of the assignment stand in no better position than the assignor; the neglect to give notice to the debtors (garnishees) has not misled them, and plaintiff’s conduct in attaching a debt under such circumstances is not in good faith and presents no claims or equities which can destroy the effect of the assignment as it existed between the parties.
    Appeal from the Superior Court of Cook county;
    the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed January 6, 1886.
    Appellants sued out a writ of attachment against appellee, Brooks, October 9, 1884, and on the same day the writ was served on Benjamin B. De Young and John Farnon, as garnishees. The garnishees answered that they held in their hands $1,258.88, balance of proceeds of sale of certain lands belonging to Brooks and the heirs of one Hiller, previously made by them as the agent for the owners. That September 4, 1884, at Philadelphia, Pa., Brooks made a general voluntary assignment of his property to Edward S. Harlan, for the benefit of his creditors; that they believe that one half of the money in their hands belongs to said Harlan, and the other half to heirs of said Hiller.
    Brooks was defaulted.
    The plaintiffs filed a replication to the answer of the garnishees, denying the validity of the assignment to Harlan, and claiming one half of the fund in the hands of the garnishees.
    Harlan interpleaded, setting up the assignment of Brooks to him, alleges that the same was duly accepted by him, and vest, ed in him all the property of Brooks, including one half the money in the hands of the garnishees, etc. To this plea plaintiffs replied denying that the assignment was valid, or that plaintiffs had notice of the assignment as alleged in Harlan’s plea. The right of the Hiller heirs to one half the funds is not contested.
    The court, to whom the case was submitted without a jury,

      found the issues against the plaintiffs and for the interpleaders, and the plaintiffs appealed to this court.
    Messrs. Smith & Burgett, for appellants;
    as to notice, cited Loomis v. Loomis, 26 Vt. 199, 203; Ward v. Morrison, 25 Vt. 593; Spain v. Hamilton, 1 Wall. 604, 623; Woodbridge v. Perkins, 3 Day (Conn.) 364; Judah v. Fudd, 5 Day, 534, 536-8 ; Clodfelter v. Cox, 1 Sneed (Tenn.) 330 ; Lambreth v. Clark, 10 Heisk. 32 ; Flickey v. Loney, 4 Baxt. 169 ; Miller v. O’Bannon, 4 Lea, 403; Penniman v. Smith, 5 Lea, 130, 134-5; Gardner v. Smith, 5 Heisk. 256, 258; Dews v. Olwill, 3 Baxt. 432, 437-8; Hobson v. Stevenson, 1 Tenn. Ch. 203; Martin v. Potter, 34 Vt. 87; Weed v. Boutelle, 56 Vt. 571, 577 ; Warren v. Coplin, 4 Metc. 594; Lovely v. Caldwell, 4 Ala. 684, 687; Moore v. Gravelot, 3 Bradwell, 442; Ward v. Morrison, 25 Vt. 593; Rice v. Courtis, 32 Vt. 460, 469 ; Martin v. Potter, 34 Vt. 87; Flickey v. Loney, 4 Baxt. (Tenn.) 169; Meeker v. Wilson, 1 Gall. C. C. 419; Ramsey v. Stevenson, 5 Mart. O. S. (La.) 23, 75-8; Irwin v. Keen, 3 Whart. (Pa) 347, 355.
    Messrs. Hutchinson & Luff, for appellees;
    that the assignment, being valid by the laws of Pennsylvania, was sufficient to vest the debt in the assignee, cited Bentley v. Whittemore, 19 N. J. Eq., 462; Hoag v. Hunt, 21 N. H. 106 ; Smith v. Brown, 43 N. H. 44; Atwood v. Protection Ins. Co., 14 Conn. 555; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 583; Clark v. Conn. Peat Co., 35 Conn. 303; Speed v. May, 17 Pa. St. 91; Moore v. Bonnell, 31 N. J. Law, 90; Einer v. Best, 32 Mo. 240 ; Whipple v. Thayer, 16 Pick. 25; Daniels v. Willard, 16 Pick. 36; Burlock v. Taylor, 16 Pick. 335.
    Appellants having notice of the assignment, it was not necessary, in order to vest the debt in the assignee, to notify the debtor. Notice pendente lite is sufficient: Story on Conflict of Laws, §§ 396, 7, 8; Wood v. Partridge, 11 Mass. 488 ; Foster v. Sinkler, 4 Mass. 450; Dix v. Cobb, 4 Mass. 508; Muir v. Schenk, 3 Hill, 228 ; Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 583 ; Bishop v. Holcomb, 10 Conn. 444.
   Wilson, J.

Various objections are urged to the validity of the assignment upon its face, none of which are deemed tenal/e, These objections are, that by the statutes of Pennsylvania the wages of mechanics, etc., shall be preferred ; that Brooks & Jenks are referred to as “ said grantors that the assignment simply says the assignors are indebted unto divers persons in different sums of money, without saying they are unab’e to pay their debts in full, or are insolvent; that no schedules were filed with the attachment, etc. It is enough to say that the assignment is in substantial conformity with the laws df Pennsylvania where it was made, and of which State all the parties were citizens ; and the rule is that a voluntary assignment valid by the laws of the State in which it is made, is valid everywhere. It is not cUimsd that there was any actual fraud in the assignment, and the proof shows that it was made in good faith for the benefit of Brooks’ creditors.

The more serious question arises upon the objection of alleged want of notice to the garnishees of the assignment at or before the time of the service of process upon them, it being contended that the title of an assignee of a chose in action., or simple contract debt, is not complete as against attaching creditors or Iona fide purchasers, until notice of the transfer has been given to the debtor.

It must be confessed that there is a want of harmony, and some confusion, in the decisions on this subject, and it is not easy to deduce from them any rule of very general application. Thus in Loomis & Jackson v. Loomis, 26 Vt. 198, it is said, “ It is regarded as a settled rule that the title of an assignee to a chose in action is not complete, except as against the assignor, until notice of the transfer has been given to the debtor. Such notice is required to perfect the title of the assignee, and is necessary for all purposes, and for the same reason that a change of possession is required on the sale of personal property. Until notice has been given, the assignee holds the claim subject to such defense or dealing as may exist or arise between the original parties,” citing numerous authorities.

On the other hand in Drake on Attachment, 5th Ed., Sec* 527, it is said, “An equitable assignment will secure the property against attachment for the debt of the assignor, though no notice be given prior to the attachment, to the person holding the property, if it be given in time to enable him to bring it to the attention of the court before judgment is rendered against him as garnishee,” citing many cases from various' States.

In the absence of any adjudication on the subject by the Supreme Court of this State, and without feeling called upon to review the conflicting authorities bearing upon the question, we are inclined to adopt the rule as stated in Drake on Attachment, supra.

But there is another aspect of the case which’ in any event) is, we think, fatal to the appellant’s' claim. It is admitted that the plaintiffs had actual notice of the assignment to Harlan at and before the suing out of their writ. Having this knowledge they were not misled by the alleged want of notice to the garnishee of the assignment, and hence the reason of the rule requiring a change of possession of personal property, or of notice to the debtor of the assignment of a chose in action, does not apply. Brooks having assigned the debt to Harlan could not collect it, and the plaintiffs with knowledge of its assignment for the benefit of Brooks’ creditors, stand in no better position than Brooks himself. A case entirely in point is Bishop v. Holcomb, 10 Conn. 444, where the court said, “ The plaintiffs’ knowledge of the assignment and of Buckingham’s claim upon the note, destroys' their pretensions as bona fide claimants ; they come in a mala fide character to defeat rights which they knew existed in another. The neglect to give notice to the debtor has not misled them; what the debtor did not know, they knew ; and their conduct in attaching this debt has not been in good faith, and presents no claims or equities which can destroy the effect of the assignment as it existed between the parties.” See also Dix et al. v. Cobb, 4 Mass. 507. These views seem to us entirely sound, and are conclusive of the present case.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Marshall Field v. Levi Z. Leiter.
    Construction or contract.—Where defendant, who was about to build next to complainant’s building, covenanted to strengthen the party wall and its foundations so far as might be necessary to secure the complainant’s building from injury by additions to be placed on his own land (the east side). Held, that under the contract in this case defendant would have no right to invade complainant’s premises and make additions on the west side, even although it might, be impossible to adequately strengthen the wall without making additions on both sides.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Opinion filed January 6, 1886.
    This was a bill in chancery, brought by Levi Z. Leiter against Marshall Field, to restrain the defendant from encroaching upon premises of the complainant, in constructing the foundations of a party wall between said premises and the adjoining premises of the defendant.
    The bill alleges that some time prior to April 28, 1884, the complainant, being the owner of the west half of lot 3, block 96, ¡School Section addition to Chicago, erected thereon a brick and stone building five stories high, fronting on Monroe street; that in erecting said building, the complainant, with the knowledge and consent of the Connecticut Mutual Life Insurance Company, the owner of the east half of said lot, constructed the east wall so that it stood partly on his own lot, and partly on the adjoining lot of said insurance company, said wall extending from Monroe street south along said division line one hundred feet ; that after the erection of said wall, the defendant purchased the east half of said lot from said insurance com- | any, having notice at the time that the complainant’s wall rested partly thereon; that the defendant afterward advised the complainant that he desired to erect on his land a brick and stone building of great height, and desired to make arrangements for the use of the wall of the complainant’s building in the construction thereof, and also for the erection of a wall to extend from the south end of the complainant’s wall to the south line of the lots; that after negotiation, a contract between the complainant and defendant was agreed upon and reduced to writing, as follows:
    “ This agreement, made this twenty-eighth day of April, AD. 1884, by and between Levi Z. Leiter, of the city of Chicago, county of Cook and State of Illinois, party of the first part, and Marshall Field of the same place, party of the second part, witnesseth.
    “ Whereas, said party of the first part is the owner of the west half of lot three, in block ninety-six, in School Section addition to Chicago;
    “And whereas, said party of the second part is the owner of the east half of said lot three;
    “And whereas, said party of the first part has heretofore erected upon said west half of said lot, a brick building, the east wall of which, running back one hundred feet, more or less, from the north line of said lot, stands partly upon the east half and partly upon the west half of said lot;
    “And whereas, said party of the second part is about to erect upon the east half of said lot a brick and stone building of about ten stories in height, and is desirous of using a part of said wall of the building owned by said first party, in the construction of his said building, and of erecting so much of the west wall of his building as shall extend south of said east wall, so that the center line thereof shall coincide with the dividing line between the east and the west halves of said lot.
    “Mow, therefore, in consideration of the premises, it is hereby covenanted and agreed between said parties, that the said party of the second part, in constructing his said building upon the east half of said lot three, may use for that purpose as a party wall (with the right to add to the height thereof), so much of the east wall of said Leiter’s building as he may desire, said party of the second part hereby agreeing to strengthen said wall, and the foundations thereof, by making such additions thereto upon the east side thereof as may be required, to prevent any and all injury or damage to said Lciter’s building, by reason of the use of said Avail by said Field.
    “ It is further agreed by said parties, that the said party of the second ¡'art may build and erect a party Avail, the center of AA-hicli shall be along the dividing line betAveen the east half and the Avest half of said lot three, from the south end of the east Avail of said Leiter’s building to the south line of said lot, Avhieh said Avail so to be built shall constitute and be a division or party Avail between the properties hereinbefore described, and shall not in any portion be of less dimension and strength than the north portion of the existing party Avail.
    “ And it is further agreed by and betAveen the parties hereto, that the said party of the first part, his heirs and assigns, shall and may at all times after the construction of said party Avail, to be built as aforesaid by said party of the second part, have full and free liberty and privilege of joining and using-said party wall to be built as aforesaid by said Field, as Avell below as above the surface of the ground, and along the Avliole length thereof.
    “ Said parly of the second part covenants and agrees that he Avill pay to said party of the first part one half the value of so much of the wall, heretofore constructed by him, as said party of the second part shall use at any time.
    “And said party of the first part covenants and agrees that he will pay to said party of the second part one half the value of so much of said wall, to be constructed by said second party, as said first party shall use at any time; the value in each case to be estimated as of the date of the use of said -walls by the parties respectively.
    “And it is further agreed that said first party shall also have the right to use as a party Avail any additional height which shall be added by said party of the second part to the east Avail of said first party’s building, and in such case said first party agrees to pay therefor to said second party such sum as shall be just and ecpiitable. And in each and all cases where a payment shall become due from either party to the other, under the provisions of this contract, if said parties shall be unable to agree upon the amount to be paid, the amount shall be determined as follows: Each of the parties hereto shall select an appraiser, and the two so selected shall choose a third appraiser, and the award of a majority of the three so selected shall be binding upon the parties hereto, and shall determine the amount to be paid in each case.
    “It is further agreed between the parties in the case, that this agreement shall be construed as a covenant running with the land of the respective .parties, and shall extend to and bo binding upon the heirs, executors and assigns,of the respective parties.
    “ In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above .written. ■
    “ L. Z. Leiter, [seal.]
    “ Marshall Field, [seal.]”
    The bill further alleges, in substance, that after the execution of said contract, the defendant commenced laying the foundations of his building; that in doing so his agents gained access to the complainant’s building without his knowledge or consent, and while temporarily supporting the -upper portions of said wall by screws and timbers, removed the foundation and a large part of the basement story wall, and excavated the earth on the complainant’s premises to a great depth, extending into the complainant’s basement about thirteen feet west from said wall, and covered the space so' excavated with a thick foundation layer of cement, and covered such cement-foundation with successive layers of railroad iron, extending many feet west from said wall, and nearly as' far as said cement foundation, and erected thereon stone walls of ponderous mass and thickness, extending into said basement at least six feet at the surface of the ground, and sloping to a somewhat less width at the top of the basement; that the premises so appropriated by the defendant consisted of a large part of the basement of the complainant’s buildingthat the complainant, on learning of the 'defendant’s proceedings, notified him that he, said complainant, would not consent to or permit such invasion of his premises, and notified the defendant’s agents to stop work and remove the stone and other materials-placed thereon; that in consequence of such interference with said premises, the complainant’s tenants have refused to pay rent, or have paid it under protest; that the complainant has endeavored to come to an amicable arrangement with the defendant, but unsuccessfully, the defendant not being willing to ■recognize his rights; that the defendant’s entry upon the complainant’s premises constitutes a substantial and permanent appropriation of so much of the complainant’s land to which .the defendant has no right, and that the complainant has brought a suit in ejectment, against the defendant, to compel the restoration of said premises, which suit is still pending; that on complainant’s demand, the work has been discontinued by the defendant, but the defendant proposes to proceed with the erection of his said building, not in accordance with said contract. The bill prays that the defendant be perpetually enjoined from entering or attempting to enter upon the complainant’s premises for the purpose of proceeding with the construction of the work already commenced.
    The defendant answered, and also filed a cross-bill, admitting the ownership of said lots, the erection of said building by the complainant, and the execution of said contract, as alleged in the bill, but denying that the defendant, when he purchased, had noticed that said wall was partly on his lot, and alleging that he first ascertained it afterward on having the lot surveyed. He further admits, that after the execution of said contract, he entered upon the erection of his building, and enlarging and strengthening of said wall, as he was advised was necessary to make it safe and proper to support his structure, and prevent injury to the complainant’s building; that supports to said wall were placed under the wall and both sides thereof, as must necessarily be done to secure stability; that the entire support of said wall was planned and constructed in the usual and ordinary mode of supporting walls of such size in Chicago, and with more than ordinary effort and expense to avoid possible inconvenience to the complainant; that during the progress of the work the complainant or his agent was present and saw and inspected the same and made no objection and intimated no dissatisfaction ; that the supports of said wall have been completed at great expense, except about twenty feet thereof.

      The defendant claims, that his contract rights, and his rights as co-owner of the party wall, are ample for all entry and work which have occurred; that said contract was intended by both parties as a party wall agreement, and justified the complainant in making the foundations and structures complained of ; that it is impracticable to construct the wall and foundation contemplated by the agreement by merely enlarging and strengthening said foundation on the east side of the Avail, but that such supports must be placed on both sides of said wall, and that according to the true construction of said contract, said supports were to be so placed, and the defendant offers to remove the stone from the basement of the complainant’s building, and increase the amount of iron under the basement floor, so as to confine all construction west of the dividing line of said premises, under the basement floor, so as not to interfere in the least with the complainant’s occupancy of his said building.
    The cross-bill prays that said complainant be enjoined from interfering Avith the construction of said Avail, or with the Avail Avhen constructed, and from prosecuting his said ejectment suit.
    The cause was heard on pleadings and proofs, and a decree entered dismissing the cross-bill and ordering a perpetual injunction in accordance with the prayer of the original bill.
    From this decree the defendant has appealed to this court.
    Mr. Melville W. Fuller and Messrs. Williams & Thompson, for appellant.
    Messrs. Isham & Lincoln, for appellee."
   Bailey, P. J.

It appears, both from the pleadings and the proofs in this case, that the main controversy between the parties arises upon the proper construction to be given to the provisions of the contract of April 28, 188k In the absence of any right or license voluntarily granted to him by the complainant, it is manifest that the defendant would be Avholly without authority to extend any portion of his building, either of- the foundation or superstructure beyond the line of his own lot. As no such right or license is claimed except as given by said contract, we must look to the contract alone for his authority to extend any portion of the substructure or foundation of his building on to the complainant’s premises.

Ho question is made as to the defendant’s right to extend the foundations of that portion of his wall running from the rear of the complainant’s building to the south line of his lot, on to the complainant’s lot, so far as may be reasonably necessary for the erection of the party wall contemplated by the contract, as such right seems to be expressly given by the terms of the contract. But is any right given to excavate beneath the complainant’s building, and strengthen the wall already existing, by making additions to the foundations, and supports of the wall on the west as well as upon the east side ? Such right, if it exists, is given by that part of the contract which, after a preamble reciting, among other things, that the defendant was about to erect on the east half of said lot three, a brick and - stone building of about ten stories in height, and was desirous of using a part of the wall of the complainant’s building in the construction of the defendant’s said building, proceeds as follows:

“ How, therefore, in consideration of the premises, it is hereby covenanted and agreed between said parties, that the said party of the second part (the defendant), in constructing his said building upon the east half of said lot three, may use for that purpose as a party Avail (Avith the right to add to the height thereof), so much of the east wall of said Letter’s building as he may desire, said party of the second part hereby agreeing to strengthen said wall and the foundations thereof, by making such additions thereto upon the east side thereof as may be required, to prevent any and all injury or damage to said Letter’s building, by reason of the use of said Avail by said Field.”

Here the defendant, in consideration of the privilege granted by the contract of using the wall of the complainant’s building as a part of the' wall of his proposed higher and more massive building, covenants to strengthen the wall and its foundations, so far as may be necessary to secure the complainant’s building from injury, by additions to be placed on the east side of the wall.

How the right to invade the complainant’s premises and make additions to the wall or its foundations on the west side can be derived from such covenant we are at a loss to comprehend. It is the defendant’s own covenant, and by it he agrees to adequately strengthen the wall and foundations by structures on his own land. His right to use the wall at all is conditioned upon his ability to give it the requisite strength in this manner and in this manner only. The language of the instrument seems altogether too plain to admit of controversy.

To reach a different result certain modes of interpretation are attempted, which seem to us to be forced and inadmissible. They are based upon the alleged impossibility of adequately and properly strengthening the foundations of the wall without making additions on both sides.

Without following out the argument attempted in its ” details, it seems to us that the plain and unambiguous- language of the contract is inexorably against it. If the defendant has covenanted to do what is impossible, he can abandon the whole undertaking but he can not, by reason of such impossibility, substitute another and different undertaking. The doctrine of cyjp?’es, sometimes applied to devises for charitable uses, or other doctrine of like character, has no place in the law relating to the interpretation of contracts.

The record, so far as we can see, fails to show any such acquiescence on the part of the complainant, either by himself or his agent, in the structures on his land commenced by the defendant, as should now estop him from seeking the relief sought by the bill.

The decree seems to be the only one warranted by the pleadings and evidence, and the decree will therefore be affirmed. '

Decree affirmed.


author: Wilson, J.

text:
    A. H. Andrews & Co. v. William A. Stanton, Receiver.
    1. Chancery practice—Claims against receiver.—Parties having claims against a company or corporation, in the hands of a receiver, may come into court by intervening petition and have their claims adjudicated, or by leave of the court may institute suits at law therefor.
    2. Same.—The possession of the receiver is regarded as the possession of the court from which he derives his appointment and the court will not allow any interference therewith, nor tolerate any attempt to disturb him in his rightful possession without leave being first obtained for that purpose.
    3. Same.—Appellee as receiver for a corporation which had been carrying on business as licensee of appellant, under an agreement for payment of royalty, obtained permission of court and proceeded to fill, among others-, an outstanding contract; but on said contract being completed refused to account for and pay over to appellant the royalties due thereon under the contract between appellant and appellee’s insolvent company. Appellant filed a petition in the cause in which appellee was receiver asking for an order upon the receiver to pay the amount of royalty which might be due, which petition the court dismissed, upon the, ground that its remedy was exclusively at law. Held, erroneous, and that under the circumstances there was no necessity or propriety in sending the petitioner to a court of law.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed January 6, 1886.
    This was a petition filed by appellant in a creditor’s suit pending in the Superior Court of Cook county, in which II. W. Lyman and others were complainants, and the Booth & Osgood Manufacturing Company was defendant, in which suit appellee was receiver, praying for a rule on the receiver to pay over to appellant certain royalties in -his hands as such receiver, which were claimed by appellant as owner of a patent fo'r an improvement in school seats and desks, and under -which the Booth & Osgood Company, as successors to the Richard T. Hambrook Manufacturing Company, had been carrying on business as licensees of appellant under an agreement for the payment of a stipulated royalty.
    It was represented in the creditor’s bill that the Booth &
      Osgood Company had on hand a large amount of unfinished material, prepared under special contracts for supplying school furniture, which by completion and delivery under such contracts would save from fifteen to twenty thousand dollars. The receiver, after his appointment, filed a ¡letition asking for authority to finish and deliver seats and desks to fill outstanding contracts, among which was one with the board of education of Chicago, amounting to about $18,000, and authority for that purpose was granted by the court.
    Appellant’s petition alleges that the receiver has manufactured under said license, seats and desks to a large amount, to which appellant assented, subject to the payment of royalty as provided in the original contract; that the receiver refuses to pay to appellant the royalties received by him, and that there is due to the petitioner on account thereof $1,680.50.
    Appellee answered, denying that he had used petitioner’s patent; and denying that there is anything due to petitioner for royalties. Replications were filed, and the cause was referred to the master to take and report proofs, together with his opinion upon the law and the facts. The master reported that the material allegations of the petition were true, and that the receiver since his appointment had furnished to the board of education 8,874 desks, the royalty on which at the rate originally agreed upon amounted to $1,331.10 ; that there was due to said petitioner from said receiver said sum on account of said royalties, and the master recommended that a decree in favor of said petitioner be entered to the amount of $1,331.10.
    The record recites that on July 14, 1885, “the exceptions of said receiver to the report of B. D. Magrnder, one of the masters in chancery of this court, now coming on to be heard, and it appearing to the court that the order allowing the said petitioner to file its said petition heretofore entered herein was improvidently entered, and that the remedy of said petitioner is at law ; it is ordered and considered that said order be and the same is hereby set aside and vacated, and leave is given to said petitioner to bring a suit at law against said receiver in this court, or a suit at law or in equity in the Circuit Court of the United States for the Northern District of Illinois.
      “ It is further ordered that said petitioner and receiver each pay its or his own costs. And thereupon said petitioner excepts, and prays an appeal to the appellate court, which is allowed,” etc. Appellant brings the case here for review.
    Mr. Lyman M. Paine, for appellant;
    as to status of receivers, cited Republic Life Ins. Co. v. Swigert, 17 Legal News 177; Safford v. People, 85 Ill. 558 ; Kerr on Receivers, 159 ; Hoffman’s Master in Chancery, 154; Baker v. Backus, 32 Ill. 79; Booth v. Clark, 17 How. U. S. 331; Coates v. Cunningham, 80 Ill. 467; High on Receivers, §§ 5, 470 ; Gage v. Smith, 79 Ill. 219 ; Marsh v. Dodge, 4 Hun, 278; Enrigh v. Chamberlain, 1 Biss. 367 ; Balfe v. Blake, 1 Irish Ch. R. 365.
    Messrs. Hutchinson & Luff, for appellee ;
    that the remedy is at law, cited Root v. Railway Co., 105 U. S. 189 ; Crandall v. Piano Mfg. Co., Federal Reporter, Sept. 29, 1885, p. 738.
   Wilson, J.

The only question we are called upon to consider in the present case is whether, under the facts as reported by the master, appe llant’s claim was cognizable in a court of equity or whether as held by the court below his only remedy was at law. We understand it to be the well established practice that parties having claims against a company or corporation, in the hands of a receiver, may come into court by intervening petition and have their claims adjudicated, or by leave of the court may institute suits at law therefor. The possession of the receiver is regarded as the possession of the court from which he derives his appointment, and the court will not allow any interference therewith nor tolerate any attempt to disturb him in his rightful possession without leave being first obtained for that purpose; High on Injunctions, Sec. 139. In Daniell’s Ch. Pr., page 1057, it is said, “ Where any person c’aims to be entitled to an estate or other property sequestered, lie should apply to the court to direct an inquiry whether the applicant has any and what interest in the property. This inquiry is called an examination pro inter esse suo.” And in Hunt v. Priest, 2 Dickens, 540, the mode of proceeding in such cases is stated thus: “After the examination, the other side hath liberty to examine witnesses to falsify the exam'nation * * Then an order is made to refer it to the master to look into the examination and depositions, and to certify whether the claimant hath made out any, and what, interest in the premises or in any, and what part thereof. The report the master makes is set down to be heard for directions, and the court pronounceth a final order,” citing Fawcett v. Fothergill, decided in the high court of chancery in 1699. And see Story Eq. Jur., Sec. 833; Noe v. Gibson, 7 Paige Ch. 513; Richards v. People, 81 Ill. 551.

For the purposes of our present inquiry it must be assumed that the receiver had in his possession an ascertained amount of royalties derived from the estate which the court, through him as its instrument, was administering; since the court, without passing upon the master’s report or inquiring into the merits of the case, vacated the order allowing the petitioner to intervene, upon the sole ground that his remedy was exclusively at law. We think it very clear that the court fell into an error. The money paid to the receiver for the desks furnished the board of education included and covered the royalties due from the Booth & Osgood Manufacturing Company to appellant, and was a trust fund in the receiver’s hands for appellant’s use. Under these circumstances there was no necessity or propriety in sending the petitioner to a court of law. The amount due him was already ascertained, and was aprima faaie correct. Had the claim been for an alleged tort or for unliquidated damages, the court might, in its discretion, have properly sent the case to a jury to settle the legal rights of the parties and ascertain the damages, retaining the case for ultimate disposal by the court. But the rights of the parties had already been settled by the master and there was no occasion-for a jury. The case is simply, in substance a proceeding to have the receiver decreed to be a trustee for appellant for moneys in his hands paid by the city by way of royalty for seats furnished the board of education. We are of opinion that the court below, sitting as a court of equity, had jurisdiction and ample authority to hear and determine the case.

The decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Clark Roberts et al., Adm’rs, etc., v. Daniel K. Draper.
    J. Gift inter titos.—To constitute a gift inter vivos there must be a gift absolute and irrevocable, without any reference to its taking effect at some future period. The donor must deliver the property and part with all present and future dominion over it.
    2. Gift—Causa mortis.—A gift causa mortis is defined to be a gift of personal property, made by a party in expectation of death then imminent, and upon an essential condition that the property shall belong fully to the donee in case the donor dies as anticipated, leaving the donee surviving him and the gift is not, in the meantime, revoked, but not otherwise, i 3. Conditional deposit of money.—Where one about to take a journey hands a sum of money to another with the request that in case he never returns from his journey, his friend shall give the money to a designated charitable institution, and he subsequently returns safely from his journey, but dies without making any further valid disposition of such sum of money, such facts wiR constitute neither such a gift inter vivos nor causa mortis as to entitle such charitable institution to the said sum of money.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed January 6, 1886.
    Messrs. Millard & Smith, for appellants;
    as to gift mortis causa, cited Raymond v. Sellick, 10 Conn. 480; Grattan v. Appleton, 3 Story, U. S., 755 ; Redfield on Wills, Part 2, p. 296; 1 Roper on Legacies, 26, 40 ; Ward v. Turner, 2 Ves. Sen. 431; Bloomer v. Bloomer, 2 Bradf. Sur. Rep. 339; 1 Story’s Equity, 606; 1 Williams on Executors, 774.
    As to gift inter vivos: Jackson v. 23d St. Ry. Co., 88 N. Y. 520; Northrup v. Hale, 73 Me. 66; Robinson v. Ring, 72 Me. 140; People v. Johnson, 14 Ill. 342; Cranz v. Kroger, 22 Ill. 81; Pearson v. Pearson, 7 Johns. 26; Cotteen v. Missing, 1 Maddock Ch. 103; Carpenter v. Davis, 71 Ill. 395; Wilson v. Keller, 9 Bradwell, 347.
   Bailey, P. J.

In this case a citation issued from the Probate Court of Cook county, at the instance of the administrators of the estate of Timothy Hubbard, deceased, against Daniel K. Draper, requiring him to show cause why he should not pay over to said administrators the sum of $650, of moneys in his hands, alleged to be a part of said estate. Draper appeared, and upon a hearing before the probate court, an order was entered requiring him to pay $600 of said money to said ad. ministrators. From this order Draper appealed to the circuit court, where a trial was had before the court and a jury, resulting in a verdict in favor of Draper. A motion by the administrators for a new trial having been overruled, judgment was entered on the verdict,- and the administrators have brought the record to this court by appeal.

Draper was the only witness who testified at the trial, and according to his testimony the money in controversy was placed in his hands by Timothy Hubbard, in August, 1883, under the following circumstances :

Hubbard was Draper’s stepfather, and was then living in Draper’s house, in the.town of Wheeling, Cook county, Illinois, and was about to go on a visit to Amherst. Massachusetts, his native town. On the evening before his. departure, he went into the room where Draper was, when Draper remarked to him, “ Father, you are about to leave us for awhile,” to which Hubbard replied in the affirmative, and said he presumed it would be the last visit he would make to the East; that he was not going for the pleasure of the visit, but felt there was a duty which called him there ; and he then placed in Draper’s hands $650, and said that if anything happened to him while he was gone, or he should not return, he wanted Draper to give $600 of that money to the Foundlings’ Home, and $50 to a Mr. Hazelton, who was trying to get a depot for the Chicago, Milwaukee & St. Paul Railway Company built by subscription near Draper’s farm, said $50 to be paid over when the depot should be built. Draper then said: “ Father, if anything should happen to you and you should not return, I might be called to account for this transaction by your legal heirs;” to which Hubbard replied, “ Well, I think I have a right to make a gift if I choose.”

Hubbard went on his journey East, and returned on the 5th day of October, following. A few days after his return he Avas taken ill, and Draper having entered the room Avliere lie way lying on a lounge apparently much prostrated, said to him: “Father, are you sick?” “ Are you feeling worse to-day ?” to which Hubbard replied, “ I feel pretty shiftless,” and commenced conversing about the disposition he wished to have made of his property, saying, “ I have been thinking the matter over in my mind of what l want to do with some of my property ; ” and he then proceeded to state how he wished to remember Draper’s íavo sisters and Draper’s wife, and each of his own legal heirs, including all his nephews and nieces, and the heir of a deceased nephew. Draper then said: “ Father what do you propose to do with the balance of your property ? The sums you haA*e named to me Avon’t take nearly all of that. ■ Do you intend giving it to some charitable institution or something ofthatkind?” Hubbard replied, “Perhaps ; I have not exactly made up my mind.” Then Draper said, “ This sum that you have deposited with me for the Foundlings’ Home, why have you done that and selected that institution and are undecided with regard to some of the others ? ” and he replied, “ I Iciioav the officers of that institution, or some of them, and have confidence in their management.” Draper, understanding that Hubbard was talking about a final settlement of his affairs, in contemplation of death, said to him, “ Father, you need, if you wish to do this—if you wish to make this distribution of your property—you know you will have to make a will;” and Hubbard replied, “Tes, I suppose so. I think I will see Mr. Dutton (a justice of the peace of the neighborhood), and will talk the matter up with him when I have a chance.” A few days afterAvard Hubbard died without having made a Avill, and without saying anything further in relation to the disposition of his estate or of the money now in question.

There seems to be no controversy in relation to the §50 which was to be paid to Hazelton as Hubbard’s contribution toward the erection of the raihvay depot, and no notice therefore need be taken of that portion of the money deposited in Draper’s hands. It is clear that the disposition made by Hubbard of the $600 did not amount to a gift witer vivos. To constitute a gift inter vivos, there must be a gift absolute and irrevocable, without any reference to its taking effect at some future period. The donor must deliver the property and part with all present and future dominion over it. Dole v. Lincoln, 31 Maine, 422; Northrup v. Hale, 73 Id. 66; Robinson v. Ring, 72 Id. 140 ; Grover v. Grover, 24 Pick. 261. As said in Jackson v. Twenty-third St. Ry. Co., 88 N. Y. 520, “ The delivery must be such as to vest the donee with the control, and dominion over the property, and to absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title of the property in the donee.”

It is manifest that no such delivery was made at the time the money was placed in Draper’s hands. The only gift then contemplated was one in fut/wro, and dependent upon the happening of a then uncertain event, which, however, did not happDen. Then, it can scarcely be contended that there was at that time any delivery whatever, even a conditional one. Draper was clearly Hubbard’s agent or trustee, to hold the money for him, and in case of his death during his journey, to effectuate for him an intended gift to the Foundlings’ Home by handing the money over to that institution, but if he returned, to hold it subject to his order.

Mor was any act performed after Hubbard’s return from the East, which was tantamount to a delivery. All that occurred then was a mere reference to this money in a conversation between Hubbard and Draper in relation to the genéral disposition which Hubbard wished to have made of his estate in case of his death. So far as this particular money was concerned, no change was attempted to be made in what had previously been done. It was referred to as a matter already disposed of. Draper was asking Hubbard whether it was his intention to give the residue of his property, after making certain specific gifts to his relatives, to charitable objects, and on Hubbard’s saying that perhaps he would do so, but had not yet made up his mind, Draper referred to the money deposited in his hands for the Foundlings’ Home, and asked him why, after having selected that institution, he was undecided as to certain others. All the reply Hubbard made was, that he knew the officers of that institution or some of them, and had confidence in their management. This reply was clearly a mere statement of Tie motives which had actuated him in doing what he had already done, rather than an attempt to snperadd any new arrangement, or make any new disposition of the money. But even if there had been a further attempt to make a gift, Draper being already Hubbard’s agent and trustee, could effectuate the gift only by making an actual delivery to the donee, or by so changing the character of his own possession as to become the donee’s agent or trustee. 2 Schouler on Personal Property, Sec. 85. There being no evidence that he did either, the property continued to be the donor’s until his death.

Did the disposition made of the money by Hubbard amount to a gift causa mortist A gift causa mortis is defined to be a gift of personal property, made by a party in expectation of death then imminent, and upon an essential condition that the property shall belong fully to the donee in ease the donor dies as anticipated, leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise. 2 Schouler on Personal Property, Sec. 135. Blackstone defines it to be a gift by a person in his last sickness apprehending his dissolution near. 2 Black. Comm. 514. According to Mr. Justice Story, there can be no valid donation mortis causa, 1, unless the gift be with a view to the donor’s death; 2, nffiess it be conditioned to take effect only on the donor’s death by his existing disorder, or in his existing illness; and 3, unless there has been an actual delivery of the subject of the’ donation. 1 Story’s Eq. Juris., Sec. 607 a.

When the money was deposited by Hubbard in Draper’s hands, Hubbard was not in his last illness, but was about to enter upon a long journey from which he apprehended he might not return. The gift was to be effectual only in the event of his death during his journey. Even if a gift made under such circumstances could be regarded as a gift causa mortis, the donor was fortunate enough to escape the anticipated danger, and the gift thereby became if so facto void. Hor does it seem to us that the conversation between Hubbard and Draper after Hubbard’s return and after he was seized with the illness which a few days afterward terminated in his death, even tends to establish a gift causa mortis. The former disposition of the money was no longer operative. Hubbard had returned from his journey, in safety. To establish a gift causa mortis a substantively new disposition of the money must be shown. Hothing of that kind, however, seems to have occurred. What was said in Hubbard’s last illness amounted to a mere recognition of what had already been done, and an explanation of his motives in doing it.

But, besides this, it is quite manifest that the conversation during Hubbard’s illness had relation solely to an intended disposition by him of his property by will. He was not at that time making or attempting to make a definite and final disposition of his property or any part of it, but was merely conversing with Draper in relation to the way he would wish to have his property divided in case of his death, and closed the conversation by announcing his intention to consult Mr. Dutton in relation to the matter as soon as he could have an opportunity, doubtless with the view of having Dutton draft for him a will. Such conversation, instead of supporting, negatives the theory of a gift causa mortis.

The verdict of the jury is unsupported by the evidence, and the judgment will therefore be reversed and the cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    Bernard A. Eckhart et al. v. Agnes F. Irons et al.
    Easement—Building line.—The court is of opinion that upon the facts of this case, the alleged right of complainants, as appurtenant to their respective lots, to have the building line in question observed by every other lot owner, is too doubtful to justify a court of equity in awarding a permanent injunction against defendants; and that this doubt arises from the peculiar clause contained in the deeds from the original grantor, through which and whom each party to the suit derives title.
    Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed January 6, 1886.
    This was a hill in equity by plaintiffs in error against defendants in error to restrain the latter from erecting a certain building on their own premises, upon the corner of Monroe and Laflin streets, in the city of Chicago, so as to transcend a certain building line along said Monroe street said to have been irrevocably fixed by an original plat or plan duly made by the owner, who laid out the subdivision. The plaintiffs, being severally owners of lots which abut upon said Monroe street, allege that by such building they would he injured as respects light,- air and prospect. The case was heard upon pleadings and proofs before Hon. Murray F. Tuley, sitting as chancellor, who dismissed the bill for want of equity; and, upon that occasion, delivered the following opinion:
    “ Mathew Laflin, owning blocks 5, 6 and 9 in C. T. Sub. W. ½ and W. ½ N. E. ¼, Sec. 17, 7, 39, caused the same to be subdivided and plat thereof to be recorded in the year 1863.
    The north boundary of block 9 is Monroe street, the east boundary is Loomis street, and the west Laflin. The plat shows, on Monroe street, lots 1 to 18 fronting Monroe, and lot 55,.the corner of Monroe and Loomis, fronting on Loomis, running back 125 feet to a 12-foot alley. Lot 18 is the corner lot of Monroe and Laflin.

      Along the entire Monroe street front, twenty feet from the street line, there appears on the plat a dotted red line, under which is written these words: ‘Line of front of building twenty feet from the street.’ The figures 105 on side lines of lots 13 to 18, and 168.82 on side lines of lots 1 to 12, would appear at first glance to indicate the depth respectively of. said lots from the street line to alley line, but a comparison of figures indicating distances shows that those figures upon the lots indicate the distance from the dotted red line to the alley line of the lots. The land was then vacant and unoccupied. There is no reference to the dotted line in the acknowledgment.
    Laflin conveyed the lots to different purchasers, and at the time the bill was filed nearly all the lots were occupied by substantial residences, all built back twenty feet from the Monroe street line.
    The defendant having acquired through one Prescott, by divers mesne conveyances, the title to the two lots eighteen and seventeen, proceeded, against the objections of complainants., to erect thereon six brick and stone dwellings with their front on Laflin street, occupying with the north one the twenty feet strip lying between the dotted red line and Monroe street. The walls of said six houses being up and ready for the roof, the complainants filed this bill for an injunction against the erection of any building upon the twenty feet strip and for the removal of the one erected, and praying also that defendant may be compelled to front her buildings upon Monroe street.
    The defendant denies that complainants have any easement as to said twenty feet strip, or right to the relief sought, and sets out the deed of Laflin to Prescott from whom defendants derive title, and avers, and it is admitted by the stipulation of parties, that Laflin sold from time to time, all the lots in the subdivision, to parties through whom complainants derived title, and conveyed the same by deeds exactly similar to the deed from Laflin to Prescott, except as to the names of parties, consideration and number of lots. The deed to Prescott, dated June 22, 1863, grants, bargains, sells, remises, releases, aliens and confirms to Prescott, lots 17 and 18 (and other lots) in block 9, of the subdivision recorded in book of maps 161, page 75, being the map or plat in question, together with all and singular the hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion, etc., in usual form. Then follows the following: 1 Together with the exclusive use of the court yard between said lot and the street upon condition that said yard shall only be used as a front door yard, and that said party of the second part shall put no buildings upon said yard, except front door steps, nor erect any fence of unusual height, which shall obstruct the view of the neighborhood, nor create nor allow any nuisance which may be objectionable to the neighbors; and also upon condition that said party of the second part shall pay all taxes and assessments which shall be levied upon said court yard; it being the intention of the party of the first part in reserving said court yard to benefit and improve the neighborhood; said reservation to continue for fifteen years from the date of record of the plat of said subdivision, and after the expiration of said term the fee of said “court yard shall vest in said party of the second part, his heirs or assigns, without any further conveyance. But in case the conditions upon which the use of said court yard is granted to said party of the second part shall be violated, the party of the second part, his heirs, executors, administrators or assigns to forfeit and pay to said first party, his heirs, executors, administrators or assigns, §10 a day for each and every day such nuisance or obstruction shall remain thereon; said penalty recoverable before any justice of the peace or court of record.’
    It will be perceived that the questions presented are both novel and interesting.
    They must be decided upon principle, as no analogous case is to be found in the reported decisions.
    1st. What effect is to be given to the making and recording of such a plat ?
    At common law a negative easement of this nature can only be acquired by a grant, commonly by deed or by prescription which pre-supposes a grant. In this State it can not be acquired by prescription. Guest v. Reynolds, 68 Ill. 478.

      In order that there shall be a grant or deed there must be a grantee.
    Laflin owned all the land, was the only party to the plat, and there was no grantee, unless the public could be so considered, as to all that portion dedicated to public use.
    The definition of an easement—a right which the proprietor of one estate has to some profit, benefit or use out of or over the estate of another—forbids the idea that one can have an easement in his own land.
    An owner of land may lay it off into town lots and publish a map thereof, without being concluded to any extent, but as soon as he sells with reference to such a map, other rights intervene. City v. Dunn, 8 Ind. 378.
    When one makes a deed with reference to a plat, the plat becomes a part of the deed, to the same extent as if incorporated into it.
    A deed being made by Laflin of a lot, referring £o the plat, would incorporate into the deed, the plat, showing a dotted red line across the front line of all lots bordering on Monroe street, with the words written upon that line, ‘ Line of front of buildings twenty feet from the street.’
    The property all being vacant, the presumed intention of the grantor and grantee of such deed would be that the deed was made and received upon the understanding that all buildings should be erected with the front at the dotted red line, or at least not nearer than twenty feet from Monroe street.
    The deed and plat would be held to constitute an implied agreement to that effect between the parties to the deed, binding them and all assigns with notice.
    Upon the execution of such a deed to the first grantee there would be imposed upon the lot deeded, a burden or servitude in favor of all Laflin’s remaining lots.
    The burden or servitude would be that the twenty feet in front of the dotted line should forever be kept free from any obstruction or building which would mar or obstruct the view from all the other lots, or the light and air passing .over the twenty feet space between the dotted red line and the street.

      The right of each lot to have the twenty feet strip unobstructed would be a right in the nature of an easement over every other lot.
    Bights of this nature are termed equitable easements, and in some of the authorities, quasi easements, and will be enforced in equity even if not enforceable at law upon the ground that a purchaser of ground with notice that his vendor or those through which he has derived title had made an express or implied agreement of this nature, it would be unconscientious and inequitable to permit him to discard or violate such agreement. He will not be allowed to appropriate property in contravention of the use or mode of enjoyment imposed upon it by his grantor. It is immaterial in such case whether there is any privity of estate, or of contract between the party opposing and the party seeking to appropriate the property. Parker v. Nightingale, 6 Allen, 341; Dorr v. Harraken, 101 Mass. 534; Washburn on Easements, p. 96 et seq.; Goddard on Easements, p. 23.
    Although the cases found in the boobs almost without exception, and I believe without exception, arose upon express covenants or reservations in deeds, yet I am satisfied that the doctrine is alike applicable to necessarily implied agreements arising from deeds made with reference to plats containing what appear to be limitations or restrictions upon the use of the property. Baxter v. Arnold, 114 Mass. 577.
    As no one acquired any interest in the property except from Laflin, it was competent for Laflin and his first grantees to change or modify any such implied agreement as to this twenty feet strip and the building line, as they might think proper.
    It is of the very essence of this implied agreement, of the easement arising from the words on the dotted line on the plat—iliat the rights of each lot as to the others, should be mutual; that the rights of each lot as a dominant, and its burden as a servient estate, should be one and the same.
    If by the agreement of the only parties then in interest— i, e., Laflin and the grantee in the first deed—this easement arising from the dotted red line on the plat and the words used in reference thereto was modified, and particularly, if every successive grantee of Laflin’s of the other lots received a similar deed which had a like effect as to this easement, it appears to me that the rights of the parties to this suit must depend upon the construction to be given to the peculiar clauses cited as contained in said deeds, construed, however, in .connection with the recorded plat.
    It will be noticed the clauses cited construe the plat as to what is a lot, and in effect declare that the .twenty feet strip between the dotted line and the street is not embraced in the term 1 lot. ’
    It is apparent that it was the intention of the parties to the deed that no present title to the land referred to as a ‘court yard’—other than a qualified use thereof—should pass by the deed.
    There is no land on the map designated eo nomine, as a ‘court yard’—or yard, but it appears to be a necessary inference that the twenty feet strip is-referred to and meant by the terms ‘court yard’ and ‘yard.’ The dotted line twenty feet from the street line, the figures on the side lines of the lot showing the distance of that line from the alley, and the reference to the ‘ court yard ’ as being between the lot and the street, are sufficient to sustain such an' inference.
    I have remarked that no present title to the twenty feet strip was intended to pass.
    The title to it would not pass as an appurtenant to the lot deeded, as land itself can not pass as an appurtenant to other land.
    The only rights in the twenty feet strip that would pass as an appurtenant, would be a right of way—a way of necessity implied from the location of the lot leaving the twenty feet strip between it and the street.
    The deed grants, remises, etc., the lot with appurtenances, together with the exclusive use of the court yard between said lot and the street.
    If this could be construed . as a grant of the exclusive use, forever, of the court yard, it might be contended that the title thereto passed, as the exclusive use forever is all there is of any property; under such a grant nothing remains in the grantor. But the fifteen years limitation considered with the absence of the word ‘ forever,’ would prevent such a construction being given to this grant of the exclusive use.
    The intention of the parties must be gathered from the entire deed. A recital may qualify general words. Allen v. Holton, 20 Pick. 463 ; L. & N. R. R. Co. v. Koelle, 104 Ill. 456.
    The word ‘condition’ is used; the grant of the exclusive use of the court yard is declared to be upon condition that it be used only as a front door yard, etc. No provision, however, is made for a forfeiture upon breach of condition, and no one would contend that this was an estate upon condition.
    A condition, however, will sometimes be construed as a covenant. It will be construed as a limitation or restriction on the use. Fuller v. Ames, 45 Vt. 400.
    The clauses referred to contain this recital: ‘It being the intention of the party of the first part (Lafiin) in reserving said court yard to benefit and improve the neighborhood; said reservation to continue for fifteen years from the date of the record of the plat, etc.’
    This is not strictly speaking a reservation, as all reservations must be to the grantor, and must be something coming out of the thing granted, as a right of the way over the land granted in favor of another piece of land of the grantors.
    But the technical signification of the words will be ignored if the intent of the parties appear to require it.
    Under the authority of Fuller v. Ames, ante, this so-called reservation or condition can be sustained as a restriction or limitation upon the mode of using the property, such restriction or limitation being intended for Laflin and his grantees and assigns who might become interested in the property platted.
    It is a self-evident proposition that a grantor may impose such limitations or restrictions upon the mode of using the property granted, as he may deem proper, and the grantee may accept, if they are not opposed to public policy.
    When such restrictions or limitations are imposed an equitable easement is created in favor of the property, to benefit which, such restrictions or limitations were imposed.
    Such easement may be contained in a deed of the servient estate in favor of another estate, whether such other estate belongs to the grantor or not. ‘ bio privity of estate or connection of title is necessary. All that is necessary is a clear manifestation of file intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another * * * and sufficient language to make the restriction permanent. Washburn on Real Prop., 396.
    The intention to create a servitude or privilege, in its nature perpetual, must be manifested. Washburn on Easements, p. 100, citing 8 Allen, 173.
    This latter case holds, in reference to easements by way of restriction upon use of property, that, 4 To establish such quasi servitude or easement it must appear, either by express stipulation, or necessary and unavoidable implication, that the parties intended to impose a permanent restraint on the use or mode of occupation of their respective estates.’
    The question remains—then, is it manifest, from the deed, that the restrictions and limitations as to the use of this court yard, were intended to be permanent ?
    Restrictions of this nature are not favored in the law. Guest v. Reynolds, 68 Ill. 478.
    It is said natural rights are inherent in the land, but easements of this nature can only be created by the act of mtin.
    The effect of the creation of an easement is to cause a suspension of natural rights during its existence.
    The clause in the deed imposing the limitation or restriction declares that the reservation shall continue for fifteen years from the date of record of the plat, and after the expiration of said term the fee of said court yard shall vest in the party of the second part, his heirs and assigns, without any further conveyance.
    4 Said reservation,’ it appears to me can only be construed to mean the reservation as to the mode of using the twenty feet strip, to wit: That it be used only as a front door yard, that no building or high fence be erected, or, in other words,

      the restrictions on the' use of the twenty feet strip. They are limited, in my opinion, to fifteen years from the date of record of the plat.
    Whether or not the fee passed by the deed, or passed at the end of fifteen years, or has not passed, because a fee can not be limited upon a grant of the use of property for fifteen years, is in my opinion immaterial. The intent which equity regards rather than the form of words used, was that at the end of fifteen years from the date of record of the plat the grantee should become vested with a fee simple in this court yard.
    A fee is the highest estate known to the law. It imports absolute and untrammeled ownership.
    I think the clear intent was that the restrictions were to cease at the end of fifteen years.
    If there is any doubt as to the intent whether the restrictions were to cease then, or whether they were to be permanent, the existence of the doubt is to deny the existence of the easement or privilege. All doubts must be resolved in favor of natural rights, and against restrictions thereon.”
    The complainants bring error to this court.
    Messrs. Abbott, Oliver & Showalter, for plaintiffs in error;
    cited Gebhardt v. Reeves, 75 Ill. 301 ; Smith v. Heath, 102 Ill. 130 ; 1 Hilliard on Real Property, 79.
    Mr. H. F. White, for defendants in error.
   Per Curiam.

We are of opinion that, upon the undisputed facts, the alleged right of complainants, as appurtenant to their respective lots, to have the building line in question observed by every other lot owner, is too doubtful to justify a court of equity in awarding a permanent injunction against defendants ; and that this doubt arises from the peculiar clause contained in the deeds from Laflin, through wdiich and whom, each party to the suit derives title. We have, therefore, substantially upon the grounds and for the reasons set forth and given in the opinion of the chancellor decided to affirm his decree dismissing the bill for want of equity.

Decree affirmed.


author: McAllister, J.

text:
    Drover’s National Bank of Union Stock Yards v. M. J. O’Hare.
    1. Agency—Principal tracing property.—So long as money or property belonging to the principal or the proceeds thereof may be traced and distinguished in the hands of the agent or his representatives or assigns, the principal is entitled to recover it, unless it has been transferred for value without notice.
    2. Same.—The proceeds of plaintiff’s property were deposited by his agents with the defendant bank for transmission to the Henry Bank for the use of plaintiff (such fact appearing on the ticket accompanying the deposit) and the defendant bank transferred these funds to the Northwestern Bank for transmission to the Henry Bank, withholding all indications of the trust character impressed upon such funds. The Henry Bank failing the Northwestern Bank applied such funds to its indebtedness against the Henry Bank. Plaintiff brings an action for money had and received against defendant bank. Held, that the defendant bank is liable.
    3. Pleading.—Privity of contract between defendant and plaintiff is not indispensable to a recovery in this action for money had and received.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed January 6, 1886.
    Messrs. Sleeper & Whiton, for appellant;
    that there being no privity of contract between defendant and plaintiff, he can not maintain an action at law against defendant, cited Hall v. Carpen, 27 Ill. 386; Carpen v. Hall, 29 Ill. 512; Trumbull v. Campbell, 3 Gilm. 502; Miller v. Whipple, 1 Gray, 321 ; Reed v. Savings Bank, 127 Mass. 295 ; Ross v. Milne, 12 Leigh, 204; Savings Bank v. Ward, 100 N. S. 195; Wharton on Contracts, §§ 784.
    Mr. P. L. O’Meara, for appellee;
    that if money is to be transmitted to a distant place a trustee may do so through the medium of a responsible hank, but he must give notice to all persons whom he employs that he transmits said money as trustee, and if he neglects this precaution he will he responsible for any loss, cited Wren v. Kerton, 11 Ves. 380 ; Routh v. Howell, 3 Ves. 566; Mossey v. Bauner, 1 J. & W. 247; Knight v. Plymouth, 1 Dick. 120; 1 Perry on Trusts, 406.
    A trustee may deposit money temporarily in some responsible bank or banking house, but he will be liable for the money in case of failure of the bank or for its depreciation if he deposit it to his individual credit and not as trustee : Perry on Trusts, 2d Ed. 443; Routh v. Howell, 3 Ves. 226 ; ex parte Attorney Gen’l v. Randall, 21 Vin. Ab. 554; Mathews v. Brice, 6 Beav. 239 ; Perry on Trusts, 2d Ed. Par. 444; Mossey v. Bauner, 1 J. & W. 241; Wrenv. Kerton, 11 Ves. 377 ; Mason v. Whitehorn, 2 Cold. 242.
    If the cestui que trust is unable to trace the trust money into the hands of other persons or elects not to do so, he may proceed personally against the trustee: Oliver v. Piatt, 3 How. 333; Flagg v. Mann, 3 Summ. 486; Hawkins v. Hawkins, 1 D. R. & S. M. 75 ; Perry on Trusts, 2d Ed. 839, 843 ; Freeman v. Cook, 6 Ired. 379; Norman v. Cunningham, 5 Grat. 72; Roberts v. Mansfield, 38 Ga. 452; Tathrop v. Bampton, 31 Cal. 17; Calhoun v. Barnett, 40 Miss. 59.
    He may proceed against the trustee as against an ordinary debtor : Tathrop v. Bampton, 31 Cal. 17; 1 Perry on Trusts, 444.
    An action at law will lie: Ed. v. Botts, 13 L. J. (N. S.) 156; 7 M. & Y. 590; Dias v. Brunels, 24 Wend. 9; McCrea v. Purmount, 1 Story’s Eq. 444; 16 Wend. 460; N. Y. Ins. Co. v. Router,24 Wend. 505; 4 Yerg. 57 ; Hull v. Harris, 12 Ired. 29, 289; 2 Perry on Trusts, 843.
    This was an action for money had and received brought by appellee, O’Hare, against the appellant. There was a trial before the court without a jury, at which the finding and judgment were for plaintiff in the sum of §1,129.50 from which the defendant appealed.
    The plaintiff residing at or near Mineral Point, Wis., and' being the owner of a lot of steers, shipped and consigned them, April 10, 1884, from that place to Bensley Bros., commission merchants at Chicago, to be sold by the latter for the former on commission; that the latter received and sold the steers April 11, 1884, the proceeds of which sale amounted to $1,053.16 over and above commissions. It appears that plaintiff had directed Bensley Bros, to send the proceeds to him by sending same to the Henry Bank at Mineral Point; that on said April 11, 1884, Bensley Bros, made a deposit of said proceeds in the defendant’s bank, accompanying the same with a ticket, showing upon its face that such deposit was to be to the credit of the Henry Bank, for the use of M. J. O’Hare (the plaintiff). April 11, 1884, the Henry Bank failed, and the evidence tends to show that the plaintiff used all the diligence practicable to trace out and protect said funds, and April 13, 1884, directed defendant to send them by express to him at Mineral Point. This was by telegram received by defendant April 14, 1884. But it appears that April. 12, 1884, the defendant, by check, transferred the same amount to the Northwestern National Bank to the credit of the Henry Bank, but made no mention that the funds were for the use of O’Hare or anybody else beside said Henry Bank, and said Northwestern National Bank applied the amount to its indebtedness against the Henry Bank. The defendant bank refused to pay any amount to plaintiff, claiming that it was discharged by such transfer over to said Northwestern Bank. There was no evidence tending to show that such transfer was by direction of plaintiff.
   McAllister, J.

It is a well settled principle that so long as money or property belonging to the principal, or the proceeds thereof, may be traced and distinguished in the hands of the agent or his representatives or assigns, the principal is entitled to recover it, unless it has been transferred for value without notice. Van Allen v. American National Bank, 52 N. Y. 1, and authorities there cited.

When the proceeds of plaintiff’s property were deposited by his agents with the defendant, an “ ear mark ” was given to the funds, which clearly indicated that they wore impressed with a trust, and that plaintiff was the cestui que trust. The deposit was for transmission to the Henry Bank, at Mineral Point, Wisconsin, for the use of M. J. O’Hare, the rightful owner of the money, as the proceeds of his property converted into money. Under those circumstances, the defendant hank would have had no right to appropriate such proceeds by applying them to the payment of any debt the Henry Bank might he owing it. Baker v. New York Nat. Ex. Bank, Eastern Reporter, Vol. 2, p. 153, decided by the New York Court of Appeals, October 6, 1885.

When the defendant attempted to transfer these funds to the Horthwestern Hational Bank, for, or by way of transmitting them to the said Henry Bank, it withheld all indications of the trust character impressed upon them in its hands, or that plaintiff was the real owner thereof, or anywise interested therein. We are of opinion that such a transfer, by the defendant, should not he held to operate as a discharge of the defendant as respects the proceeds of plaintiff’s property so received by the defendant, and impressed with a trust in favor of plaintiff. The rights of the latter, as it seems to us, were in no respect affected thereby. The defendant has, therefore, received money belonging to the plaintiff, which it must be deemed to have retained, against equity and good conscience. Privity of contract between defendant and plaintiff is not indispensable to a recovery in this action for money had and received. Eagle Bank v. Smith, 5 Conn. 71; Mason v. Waite, 17 Mass. 560; Hall v. Marston, Id. 575; Dickson v. Cunningham, Mart. & Yerg. 203.

We think the evidence supports the judgment, and perceiving no error of law it will be affirmed.

Affirmed.


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    Rudolph Brand v. William P. Whelan.
    1. Practice.—Proceeding to trial with an issue on one of the pleas not made up is a waiver of a formal issue and the irregularity is cured by verdict.
    2. Statute of Frauds—Indemnifying surety.—The weight of American authority is in favor of applying the Statute of Frauds to a contract- of indemnity against the liability of a surety or guarantor for a third person.
    3. Same—Exception.—An exception is generally recognized where the indemnitor is himself primarily liable for the debt guaranteed.
    4. Same—Pleading.—-If the promise is to be considered a collateral undertaking the declaration should be special; but if it may be regarded as an original undertaking, the declaration may be general.
    5. Bill of exceptions.—As plaintiff’s undertaking as surety or guarantor was written on the lease in question and that document was offered in evidence at the trial but has not been preserved in the bill of exceptions, this court has no evidence of the nature or extent of the liability assumed.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Opinion filed January 6, 1886.
    This was assumpsit brought hy William P. Whelan against Rudolph Brand. The declaration consists simply of the common money counts. A rule having been entered requiring the plaintiff to file a bill of particulars, he filed, in response to said rule, the following statement:

      “ The defendant promised that if the plaintiff would become the surety of one Dalton upon a lease executed hy the said Dalton to one John W. Smyth for the term commencing on the 1st day of August, 1882, and ending on tlio 30th day of April, 1883, that the defendant would guarantee the payment of said lease money, and would secure the plaintiff harmless ther<#in; that acting upon this said promise, the plaintiff became such surety, and in consequence of the default of the said Dalton, has been compelled to pay the sum of $450 and costs; that the plaintiff only became such surety upon the representation of the defendant that he would hold him, the plaintiff, harmless, and would pay all damages, costs and charges by reason of the plaintiff’s going upon said bond; that the promises of the defendant alone caused him to become the surety upon said contract; that it, the said promise, was the original consideration and inducement for plaintiff to become surety upon said lease; that the said Smyth recovered judgment against the plaintiff upon the said lease for the sum of $450 and costs, and that the same has been paid by the plaintiff, and for which he says the defendant ought to repay him.”
    The defendant pleaded non-assumpsit and the Statute of Frauds. It does not appear that any replication was filed to the last mentioned plea, but the parties appeared, and by agreement submitted the cause to the court for trial without a jury, and a trial being thereupon had before the court, the issues were found for the plaintiff and his damages assessed-at $450, and the court after overruling the defendant’s motion for a new trial, gave judgment against the defendant for that amount and costs.
    At the trial it appeared that on or about the 1st day of August, 1882, the plaintiff, being the owner of the furniture, fixtures and personal property pertaining to a variety theater and saloon at 134 West Madison street, Chicago, and being the holder of an unexpired lease of the building and premises wdiere the same was situated, sold and transferred said variety theater and saloon, and said fixtures, furniture and personal projierty, by a bill of sale in writing, to one James H. Dalton, for the sum of $750. This sum was paid to the plaintiff by the defendant’s check.
    The plaintiff, on delivering possession of the premises, desired to be discharged from his liability on the lease. A new lease was thereupon drawn up running to Dalton, but the lessor required the signature of some responsible third party as surety or guarantor. The defendant, according to the plaintiff’s testimony, explained that, owing to some rule of the Brewer’s Association, of which he was a member, he could not become such surety or guarantor, but said to the plaintiff, “You go on that lease and I will see you harmless and safe and secure.” The plaintiff then put his signature on the lease. The defendant, in his testimony, denies making any such promise. ,
    The record seems to indicate that said lease was present in court at the trial, and that it was offered in evidence, but it does not appear in the bill of exceptions, nor does the record contain any evidence of its contents or terms, or of the nature or extent of the liability assumed by the plaintiff in putting his signature thereon.
    Dalton failed to pay his rent, and the lessor demanded the same of the plaintiff, and the evidence shows that the plaintiff paid on account of such rent the sum of §450. The bill of exceptions recites that the plaintiff gave in evidence the record of a judgment recovered against him by said lessor for §450 and costs, but the record itself is omitted from the bill of ex. ceptions, and there is consequently no evidence of its contents or of the nature of the demand upon which it was recovered.
    The evidence of the alleged contract of indemnity was duly objected to by the defendant, on the ground that it was inadmissible under the declaration; but said objection was overruled by the court, to which decision the defendant excepted. The court found the issues for the plaintiff and assessed the plaintiff’s damages at §450, and after denying the defendant’s motion for anew trial, rendered judgment on said finding.
    Messrs. Barnum, Rubens & Ames, for appellant;
    as to Statute of Frauds, cited Hite v. Wells, 17 Ill. 88; Eddy v. Roberts, 17 Ill. 505; Wilson v. Bevans, 58 Ill. 232; Easter v. White, 12 Ohio St. 219; Greene v. Cresswell, 10 A. & E. 453; Brush v. Carpenter, 6 Ind. 78; Kelsey v. Hibbs, 13 Ohio, 340; Kingsley v. Balcome, 4 Barb. N. Y. S. C. 131; Draughan v. Bunting, 30 N. C. 10.
    Mr. Player Martin, for appellee ;
    that where the question involved is whether a promise is original or collateral, the test is whether the credit is given to the person sought to be charged or to some one else whom the person sought to bo charged guaranteed should pay the debt, cited Geary v. O’Neil, 73 Ill. 593; Clifford v. Luhring, 69 Ill. 401; Scott v. White, 71 Ill. 287 ; Meyer v. Hartman, 72 Ill. 442; Dencer v. Parsons, 8 Bradwell, 625 ; Walden v. Karr, 88 Ill. 49; Mathers v. Carter, 7 Bradwell, 225 ; Schoenfeld v. Brown, 78 Ill. 487; Hartford Fire Ins. Co. v. Olcott, 97 Ill. 439 ; Bunting v. Darbyshire, 75 Ill. 408 ; C. & W. Coal Co. v. Liddell, 69 Ill. 639; Hayward v. Gunn, 82 Ill. 385.
   Bailey, P. J.

It is claimed by the defendant that, as there was no replication to the plea of the Statute of Frauds, that plea stands admitted. It appears that the defendant askedfor no rule on the plaintiff to reply, nor prayed judgment against him for want of a replication, and made no objection to going to trial as the pleadings were. It is the well settled rule that proceeding to trial with an issue on one of the pleas not made up, is a waiver of a formal issue, and that the irregularity is cured by verdict. Strohm v. Hayes, 79 Ill. 41, and cases cited.

The suit, is brought to recover upon an alleged contract of indemnity against the liability claimed to have been assumed by the plaintiff as surety or guarantor for one Dalton, upon a lease demising certain premises to him. If it be admitted that the alleged contract of indemnity is proved, it is manifest that) as the record is made up, there is no competent evidence before us that the plaintiff ever assumed any such liability. The plaintiff’s undertaking as surety or guarantor seems to have been written in some form on the lease, and that document was present at the trial and was offered in evidence, but, as it was not preserved in the bill of exceptions, we are obliged to treat the case the same as though it had not been produced at all. It follows that we have no evidence of its terms, or of the nature, character or extent of the liability assumed by the plaintiff. So far as appears, it may not have been a liability within the purview of the defendant’s contract of indemnity, or one calling for the payment of the money now sought to be recovered of the defendant.

But waiving this point, we are inclined to the opinion that the defendant’s contract upon which a recovery is sought, was a special promise to answer for the debt, default or miscarriage of another person, and so, within the provisions of the Statute of Frauds. It is true that the question whether a contract of indemnity against the liability of a surety or guarantor for a third person is within the Statute of Frauds, has been the subject of very great and perplexing discussions both in this country and in England, and very different conclusions have been reached by different courts, but the weight of the American decisions at least, seems to be in favor of applying the Statute of Frauds to contracts of this character. See 1 Reed on Statute of Frauds, Sec. 144, where this question is discussed at length and the authorities cited.

An exception is generally recognized, however, where the indemnitor is himself primarily liable for the debt guaranteed, because, in that case, he only promises to pay his own debt; and accordingly an effort was made in this case to show that Dalton, the lessee, was in'fact a mere agent of the defendant, and that the defendant was primarily liable for the rent guaranteed by the plaintiff. While there was some evidence tending to support that theory, we think the preponderance of the evidence was clearly the other way.

We are further of the opinion that the evidence was not admissible under the declaration. The rule is that if the promise is to be considered a collateral undertaking, then the declaration should be special; but if it may be regarded as an original undertaking, then the declaration may be general. Runde v. Runde, 59 Ill. 98; Northrop v. Jackson, 13 Wend. 85. As we have already seen, the promise in this case is collateral, and it should therefore have been declared upon specially. The declaration contains only the common counts. The bill of particulars is not a part of the declaration, and lends no aid to it in this respect.

For the reasons above given, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Drover’s National Bank of Union Stock Yards v. The Anglo-American Packing and Provision Co.
    1. Certified ciieck—Liability of drawer.—The drawer of a certified check is primarily liable for its payment the same as the acceptor of an inland bill of exchange.
    2. Duty of bank to transmit to agent.—Where a bank receive! for collection a bill of exchange or note payable at a distant place, it is its duty to seasonably transmit it to a suitable bank, or other agent at the place of payment.
    3. Same—Mailing to drawee.—Where a hank receives for collection a certified check payable at a distant place in Michigan, and transmitted it by mail directly to the drawees, private bankers, who were primarily liable for payment, who, drawing a worthless draft on a Detroit hank, mailed it to the bank at Chicago,surrendered said check to the drawer of it as paid, and failed, and it appeared that if the check at the time it was so received by the drawees had been presented to them by some third person and payment demanded it would have been paid. Held that such mailing to the drawees was not the selection of a suitable or competent agent for collection.
    4. Same—Wiio is suitable agent.—-The suitable correspondent or agent must from the nature of the case be some one other than the party who is to make the payment.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed January 13, 1886.
    Messrs. Sleeper & Whiton, for appellant;
    cited Morse on Banking, 2d Ed. 396; Fay v. Strawn, 32 Ill. 295 ; Chandler v. Hogle, 58 Ill. 46; Daniel on Negotiable Instruments, § 1599a (last Ed.); Indig v. City Bank, 80 N. Y. 100 ; Freeholders v. State Bk. 32 N. J. 467.
    Messrs. Page & Booth, for appellee;
    that the drawer of a check or the person primarily liable for its payment is not the proper agent, cited Daniel on Negotiable Instruments (3d Ed.) §§ 1601, 1603.
   McAllister, J.

The drawer of a certified check is prima,rily liable for its payment, the same as the acceptor of an inland bill of exchange. Rickford v. First Nat. Bank, 42 Ill. 238.

Where a bank receives for collection a bill of exchange or note, payable at a distant place, it is its duty to seasonably transmit it to a suitable bank or other agent at the place of payment. Fabens v. The Mercantile Bank, 23Pick. 230; Allen v. Merchants Bank, 15 Wend. 482; Mechanics Bank v. Earp, 4 Rawle, 384; Bank of Washington v. Triplett, 1 Pet. 25.

In Ætna Ins. Co. v. Alton City Bank, 25 Ill. 243, the above authorities were cited with approval, and the doctrine that it is the duty of the collecting bank to transmit the paper to a suitable agent, fully recognized.

The defendant below, having as a bank received for collection the certified check in question, payable at Cadillac, Michigan, a distant place, transmitted it by mail directly to the drawees, who, drawing a worthless draft on a bank at Detroit mailed it to defendant at Chicago, surrendered said check to the drawer of it, as paid, failed and closed their bank. It appears that if said check, at the time it was, so received by the drawees, had been presented to them by some third person and payment demanded, it would have been paid.

The question is as to the liability of the defendant bank to its depositor, the plaintiff, for the amount of said check so lost. The facts being agreed upon, the question becomes one merely of law.

Was the mailing said certified check directly to the drawees, who were primarily liable for payment, the selection of a suitable or competent agent for its collection ? We were strongly inclined to the opinion, at the close of the argument, that such selection was improper, and that the defendant had not used reasonable precaution and care in so sending such check directly to the drawees’ private bankers, personally and primarily responsible for its payment, as the agents to make collection of themselves. Since the argument, a case has come to our notice, decided October 5,1885, by the Supreme Court of Pennsylvania, and reported in the Eastern Reporter issued January 2, 1886, Vol. 2, p. 897, which is precisely sucha case as this in hand, except that there the check had not been certified by the bank on which it was drawn. The case is Merchants National Bank of Philadelphia v. Goodman. The court, after stating the authorities, said: “ The weight of authority preponderates greatly in support of the doctrine that it was the duty of the defendant to transmit to a suitable agent to collect, and it seems to us that the Mississippi Valley Bank, on whom the check was drawn, was in no sense a suitable agent to demand payment against itself; its interest plainly was to delay instead of speeding payment. The defendant put it in the power of the Mississippi Valley Bank to do what it pleased with the check, and that which it did please to do, on the eve of insolvency, was to cancel and surrender the check, and transmit, not money, but a worthless draft in payment. We think the principle may be stated as a true one, as the plaintiff’s counsel have presented it, that no firm, bank, corporation or individual can be deemed a suitable agent, in contemplation of law, to enforce in behalf of another a claim against itself.

The only safe rule is to hold that an agent with whom a check or bill is deposited fbr collection, must transmit to a suitable sub-agent to demand payment in such manner that no loss can happen to any party, whether he be depositor and indorser or the indorser and holder. In this instance had the demand for payment been made by such agent the amount of the check would have been collected over the counter of the Mississippi Valley Bank. It was doing business on the 19th day of November, 1883, and the cancellation of the check on that day shows there was money of the drawer in bank sufficient to pay the check.

“We interpret the cases to which we have referred as establishing the rule of transmission to a suitable correspondent or agent, to mean that such suitable agent must, from the nature of the case, be some one other than the party who is to make the payment. By no other rule can the rights of indorsers be protected, if it is the interest of the party who is to make payment to hinder, postpone or defeat payment. This imposes no hardship on the institution undertaking to transmit for collection, which can always protect itself by stipulating (hat special instructions by the depositor shall be given, which will save the collecting bank from all risk or peril.”

We regard the views above expressed as entirely sound and satisfactory. The judgment was proper upon its merits, and therefore the refusal of the court below to hold as requested by defendant’s second proposition of law, is no ground for reversal. North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207.

Judgment affirmed.