text:
    Cornelia Martin v. Wilson H. Stubbings.
    1. Judgment by confession.—Where the motion to vacate a judgment by confession is made in apt time, if the affidavit read in support of the motion discloses a meritorious defense, it is the duty of the court, in the exercise of its equitable jurisdiction over its judgments by confession, to either vacate, the judgment or stay all proceedings therein, and give the defendant an opportunity to present such defense.

      2. Partnership—Liability op partners to each other.—Prior to the settlement of the partnership accounts, the liability of one partner to another, if it can be said to exist at all, is a mere contingency. The right of a partner as against his copartner is simply a' right to an. accounting after a dissolution.
    3. Same—Not legal consideration for promise.—Such liability would not serve as the legal consideration of aii express promise from one partner to another.
    4. Nudum pactum.—An express promise to pay a sum of money which the promisor, at the time of making the promise, is under no legal, equitable or moral obligation to pay, is a mere nudum pactum, and the giving of a promissory note, as between the original parties thereto, can have no greater force or effect than an express promise would have, if made in any other form.
    5. Partnership—judgment note given by partner—Jurisdiction. —Before a partnership was dissolved, a judgment note was given by A, signed by himself and wife, to B, his partner, which note was in excess of the true balance in favor of such partner. A died ; B obtained judgment by confession against A’s wife, who had no interest in the business, but had simply signed the note at A’s request. Held, that, even if the note could be sustained as being given upon an adequate consideration, upon the facts stated in the affidavit of A’s wife, on motion to vacate such judgment, showing that the note was given upon the agreement that if upon a final and satisfactory accounting the amount due B was found to he less than the amount of the note it should be subject to such difference, and that the accounting was still pending, B’s remedy is in equity and not at law.
    6. Surety—Consideration.—The contract of a surety must be based upon a sufficient consideration. While a consideration running to the principal alone, cotemporaneous with or subsequent to the promise of the surety, is sufficient, the rule is different where the only consideration Tuning to the principal is one which is already fully executed.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 8, 1886.
    In this case William H. Stubbings obtained judgment by confession against Cornelia Martin, in the Superior Court of Cook county, for $3,630.83, and costs, and afterward, at the same term of court, the defendant appeared and entered her motion to vacate said judgment, and to be permitted to interpose her defense to the action; which motion was denied, and the defendant brings the record to this court by writ of error.
    Said judgment was entered upon a promissory note for $3,411.66, executed by Neal K. Martin and Cornelia Martin, dated January 1,1886, payable to the order of the plaintiff one day after date, with interest at the rate of seven per cent, per annum, and a warrant of attorney in the usual form, authorizing the entry of judgment by confession for the amount due on said note, together with attorney’s fees and costs. The only evidence heard upon the motion consisted of the affidavit of the defendant, which, after describing the note and warrant of attorney, -states, in substance, that said Neal K. Martin was the defendant’s husband, and is now dead; that said promissory note, so far as the defendant is concerned, was without consideration; that at the time of signing said note she was not indebted to the plaintiff in any sum whatever, and did not then or at any time, prior or subsequent, receive any money or valuable thing as a consideration therefor, but that she merely signed it at the request of her husband, and that her signing it worked no injury or delay to the plaintiff ; that said note was executed by the plaintiff’s husband to meet a supposed balance due from him to the plaintiff upon their partnership account, they being partners in business, but that the defendant had no interest in said business; that said balance was not fully determined between said partners, and that there was an agreement entered into between the plaintiff and said Neal K. Martin, at the time said note was signed, that if, upon a final and satisfactory accounting, the amount due was found to be other than the said sum of $3,411.66, as stated in said note, the said note should be subject to said difference and should be made to conform thereto ; that there is still an accounting due between the plaintiff and the estate of said Neal K. Martin, deceased; that said Neal K. Martin and the plaintiff were partners at the time of the signing of said note, and up to the time of the decease of said Martin, under the firm name of W. H. Stubbings & Co., and that the estate of said Martin, deceased, has not been probated, and there is now an accounting being made by an expert accountant, between said parties, and that the defendant verily believes that there will be a balance shown in favor of said Neal 3L Martin, deceased, which will materially lessen the amount of said note ; that said note was not signed and executed on the 1st day of January, 1886, but was signed on the 16th day of April, 1886> and that the defendant was deceived in the matter of the contents and nature of said note, in that she was not aware that it was a judgment note; that she was led to believe that said note had embodied in it the conditions upon which it was agreed that the final and exact amount due the plaintiff should be determined, and that it was a conditional and not an absolute promise to pay an exact amount, but that she did not read the note, and only signed it in obedience to her husband’s request; that the plaintiff, nevertheless, on 1he 16th day of September, 1886, pending said accounting, caused said judgment to be entered' against the defendant by confession, and that the defendant verily believes that she has a full and complete defense in law and equity to said action, and prays that said judgment be vacated and she be allowed to plead.
    Mr. E. S. Iles and Mr. Millard R. Powers, for plaintiff in error;
    as to the equitable jurisdiction exercised by courts of law over judgments entered by confession, cited Lake v. Cook, 15 Ill. 353; Flemming v. Jencks, 22 Ill. 478; Hall v. Jones, 32 Ill. 40; Norton v. Allen, 69 Ill. 307; Wyman v. Yeomans, 84 Ill. 403; Condon v. Besse, 86 Ill. 159; Heeney v. Alcock, 9 Bradwell, 433.
    There was no consideration as to plaintiff in error, growing out of the indebtedness of her husband to defendant in error, and therefore she should have been allowed to file her plea: Williams v. Nichols, 10 Gray, 83; Daniel on Negotiable Instruments, (2d Ed.) § 185; Carson v. Clark, 1 Scam. 113; Hutson v. Overturf, 1 Scam. 170; Blankenship v. Cutrell, 16 Ill. 62; Hodgen v. Kief, 63 Ill. 146.
    Messrs. Follansbee & O’Connor, for defendant in error;
    that the indebtedness of the principal debtor on said note to defendant in error formed a sufficient consideration to support the making of said note by plaintiff in error, cited Schepp v. Carpenter, 51 N. Y. 602; Varnum v. Bellamy, 4 McLean, 87; Niles v. Porter, 6 Black (Ind.), 44; Parkhurst v. Vail, 73 Ill. 343; Rich v. Hathaway, 18 Ill 548; Klein v. Currier, 14 Ill. 237.
    Where it clearly appears that there is a good defense to the suit upon its merits, the judgment by confession should be set aside and the cause be tried upon its merits; but where the case is involved in doubt, the judgment should be allowed to stand as security only, until the cause can be tried upon its merits upon an issue formed: Lake v. Cook, 15 Ill. 353 ; Hall v. Jones, 32 Ill. 38; Pitts v, Magie, 24 Ill. 610; Condon v. Besse, 86 Ill. 159 ; Walker v. Ensign, 1 Brad well, 113.
   Bailey, J.

The motion to vacate the judgment in this case having been made in apt time, the only question 'to be considered is, whether the affidavit read in support of the motion disclosed a meritorious defense to the note or any material part of it. If such defense was shown, it was the duty of the court, in the exercise of its equitable jurisdiction over its judgments by confession, to either vacate the judgment, or stay all proceedings thereon, and give the defendant an opportunity to present such defense. Lake v. Cook, 15 Ill. 353; Wyman v. Yeomans, 84 Id. 403 ; Condon v. Besse, 86 Id. 159; Walker v. Ensign, 1 Bradwell, 113; Herney v. Alcock, 9 Id. 431.

The defendant’s affidavit being nncontradicted, must, so far as it discloses material facts, be taken as true, and giving the affidavit that effect it must, for our present purposes, be regarded as established, that, at the time the note in question was executed, there was a partnership subsisting between the plaintiff and the defendant’s husband; that such partnership had not then been dissolved, but continued after the execution of the note, and was dissolved only by the subsequent death of one of the partners; that no accounting took place and no balance was struck between the parties during the lifetime of the defendant’s husband, and that no accounting has taken place since, by which the true state of the accounts between the partners has been ascertained ; that the consideration of said note was an estimated balance, which was not arrived at by any accounting, and was not regarded or treated by the parties as the true one, but was subject to correction whenever an accounting should be had and a balance ascertained ; that there was an oral agreement between the parties that when the accounting should be had and the balance arrived at the note should be subject to correction accordingly, and that a true and satisfactory accounting will show that the note was given for a sum materially larger than the true balance due to the plaintiff from his copartner. It must also be taken as established, that the defendant signed the note as surety merely, and upon no other consideration than that upon which her principal executed the instrument, and that the note was signed and delivered several months after its date, and long after the day of maturity fixed by the note had elapsed.

The propositions raised upon these facts are: 1. That as between the plaintiff and Neal K. Martin there was no such subsisting indebtedness, either of a legal or equitable character, as would furnish a legal consideration for the note, and that not being binding on the principal, it was for the same reason not binding on the defendant, his surety. 2. That the liability of both principal and surety, at the utmost, could he only for the amount of the balance which may hereafter be found to be due to the plaintiff from the estate of Neal K. Martin, deceased; that the ascertainment of the amount of such liability necessarily involves an investigation of the partnership accounts, and that for that reason the note can not be made the basis of a suit at law. 8. That whatever may have been the consideration of the note, as between the plaintiff and Neal K. Martin, such consideration was fully executed, it being for a past indebtedness, and that the note was dated hack so that it could not have operated as an extension or forbearance of such indebtedness, and there was therefore no consideration as between the plaintiff and the surety.

Was there a consideration as between the plaintiff and Neal K Martin ? The rule is too well settled to admit of discussion that a partner can not sue his copartner at law in respect to any matter involving the partnership accounts, until there has been a final settlement of the partnership affairs and a balance struck between them. Different rules have been adopted in different States, as to whether there must be an express promise to pay the balance, yet all concur that it is only "when a final balance has been adjusted that an action at law can be maintained. Among the numerous decisions upon this question in the several States, reference may tie had to the following: Dowling v. Clarke, 13 R. I. 134; Mickle v. Peet, 43 Conn. 65 ; Ross v. Cornell, 45 Cal. 133; Crater v. Binginger, 45 N. Y. 545 ; Scott v. Caruth, 50 Mo. 120; Stanton v. Buckner, 24 La. An. 391; Spear v. Newell, 13 Vt. 288; Gomersall v. Gomersall, 14 Allen, 60 ; Bael v. Cole, 54 Barb. 353 ; Leidy v. Messinger, 71 Penn. St. 177; McSherry v. Brooks, 46 Md. 103; Lang v. Oppenheim, 96 Ind. 47; Wicks v. Lippman, 13 Nev. 499; Lower v. Denton, 9 Wis. 268; Miller v. Andres, 13 Ga. 366; Anderson v. Robertson, 32 Miss. 241. Gulick v. Gulick, 14 N. J. L. 578; Gleason v. White, 34 Cal. 258; Ridgway v. Grant, 17 Ill. 117; Burns v. Nottingham, 60 Id. 531; Hanks v. Baber, 53 Id. 292 ; Smith v. Riddell, 87 Id. 165 ; Chadsey v. Harrison, 11 Id. 151; Johnson v. Wilson, 54 Id. 419 ; Frink v. Ryan, 3 Scam. 322 ; Davenport v. Gear, 2 Id. 495.

Prior to the settlement of the partnership accounts and a fortiori prior to the dissolution of the copartnership, the liability of one partner to another, if it can be said to exist at all, is a mere contingency. The right of a partner as against his copartner is simply a right to an accounting after a dissolution. In Wisconsin it has been held so frequently as to be said to be perfectly well settled,” that one partner has no claim against his copartner individually, on account of the partnership transactions, although a final settlement of the affairs of the firm would show a balance in his favor. Tolford v. Tolford, 44 Wis. 547. This seems to be upon the principle that until dissolution and final settlement, the indebtedness, if any exists, is between the firm and its several meml>ers, and not between the copartners themselves. Thus, if one partner has failed to contribute his share of the capital, or has drawn out more than his share of the profits, he becomes a debtor to the firm, and not to the members of the firm individually. If he has contributed more than his share, or has forborne to take his share of the profits, he is a creditor of the firm, and not of his copartners. Sprout v. Crowley, 30 Wis. 187. As said in Ives v. Miller, 19 Barb. 196, “ Until the affairs of the concern are wound up, what one partner may owe the firm is not a debt due a copartner, nor is the indebtedness offtlie firm to one of the members a debt due from the other members to him.” So, in Gleason v. White, 34 Cal. 258, the court, discussing the relations between a surviving partner and die estate of a deceased partner before a balance is struck, say: “ Until it is struck, the surviving partner can not be said to be either the debtor or creditor of the estate of the deceased partner on account of the partnership dealings ; though the surviving partner or the estate of the deceased partner may be either a debtor or creditor of the partnership while it is beingívennd up, as they may have been before dissolution.” In Richardson v. The Bank of England, 4 Mylne & Craig, 165,Lord Chancellor Cottenham discusses the use of the words “debtor” and creditor ” in this relation as follows : “ But though these terms ‘ creditor ’ and ‘ debtor ’ are so used, and sufficiently explain what is meant by the use of them, nothing can be more inconsistent with the known law of partnership than to consider the situation of either party as in any degree resembling the situation of those whose appellation has been so borrowed. The supposed creditor has no means of compelling jiayment of his debt; and the supposed debtor is liable to no proceedings, either at law or in equity, assuming always that no separate security has been taken or given. The supposed creditor’s debt is due from the firm of which he is a partner, and the supposed debtor owes the money to himself in common with his partners; and, pending the partnership, equity will not interfere to set right the balance between the partners. Indeed, it could not do so with effect, inasmuch as immediately after a decree has enforced payment of the money supposed to be due, the party paying might, in exercise of his power of a partner, re-possess himself of the same sum.” Applying the foregoing principles to the case before us, it seems very clear that at the date of the execution of the note in question there was no indebtedness or liability from Real K. Martin to the plaintiff which would serve as the legal consideration of an express promise from the former to the latter. Martin was not indebted to the plaintiff, nor was he under any liability to him of either a legal or equitable nature. An express promise to pay a sum of money, which the promisor, at the time of making the promise, is under no legal, equitable or moral obligation to pay, is a mere nudum,pactum, and the giving of a promissory note, as between the original parties thereto, can have no greater force or effect than an express promise would have if made in any other form.

In Chadsey v. Harrison, 11 Ill. 151, it was held that without a general adjustment of the partnership concerns there is no consideration to uphold an express promise of one partner to pay his copartner a balance alleged to be due. In Buel v. Cole, 54 Barb. 353, a firm, consisting of four members, dissolved by transferring all its assets to two of its members, they agreeing to take the same and pay the debts of the firm, provided said assets should be sufficient for the purpose. Ho accounting or settlement of the partnership matters was ever had between the partners. As to a certain debt of the firm which remained unpaid, it was subsequently agreed that each partner should pay one fourth. The defendant, one of the retiring partners, failing to pay his part, it was paid by the others, and he gave them his notes for the amounts so paid. It was held that said notes, not being given upon any settlement among the partners or upon any adjustment of their accounts, as between themselves, were not legal liabilities as between the partners, and could not be enforced at law.

Swell v. Cooper, 21 La. An. 582, was a suit to recover the amount of a promissory note given by a, partner to his co-partner as a part or proximate settlement, there never having been a final adjustment of the partnership affairs; and it was held that the plaintiff could not recover, the court applying the principle that partners have no cause of action for a specific sum as against each other, resulting from the partnership transactions, until a final settlement of the partnership.

A somewhat different rule has prevailed in Massachusetts, where, in the absence of a chancery jurisdiction, the law courts have gone further than the courts of common law jurisdiction in the other States have done. Accordingly, the case of Rockwell v. Wilder, 4 Metc. 556, has been referred to as being apparently in conflict with the authorities above cited. In that case a failing partner, wishing to dissolve the partnership, and in so doing to prefer his copartner, gave him his note for a sum less than was known to be his due on final settlement, although the exact amount of the balance could not then be ascertained. The payee of the note attached certain property of the maker, and in a subsequent contest between him and other attaching creditors the note was held to be valid, the court laying down the rule, that where one partner has received more than his share of the partnership property, and the partners are closing their concern, and it is ascertained that a balance will certainly be due to one of them on a final settlement, al* though a true balance can not, at the time, be ascertained, then, if such debtor partner gives his note to the creditor partner for a sum within the balance, which it is acknowledged will be due to him on the final settlement, such note is given upon a good consideration, and is equivalent to a promise to pay the given sum mentioned; and the payment of such note may be enforced at law, though the balance is not struck between them.” But, even within the rule thus announced, the note in the present case can not be sustained, for it appears that the partnership here was not dissolved and that the note was given for a sum in excess of the true balance in favor of the plaintiff.

But even if the note could be sustained as being given upon an adequate consideration, we think upon the facts stated in the defendant’s affidavit, that the plaintiff’s remedy is in equity, and not at law. In no event can he recover more than the actual balance in his favor on a final settlement of the partnership affairs, and a court of law is not the proper tribunal to investigate the partnership accounts, and strike a balance between the partners.

In Burns v. Nottingham, 60 Ill. 531, it is held that a balance between partners capable of being recovered in an action at law, must be a final settlement of all the partnership accounts, and that balances only struck preparatory to a final settlement are not sufficient to form the subject-matter of such action, the remedy being only in equity. Davenport v. Gear, 2 Scam. 495. In Frink v. Ryan, 3 Scam. 322, it was held that where there has been a dissolution, and a final settlement, and a note given for the balance ascertained to be due, with a stipulation in the body of the note that the errors and omissions in the settlement might be deducted as payments on the note, a court of law, in an action on the note, has jurisdiction to allow such errors or omissions as a defense. But the court intimate the opinion that where the parties settle without such stipulation, they would have to resort to a court of equity to have the proper correction made. In Hanks v. Baber, 53 Ill. 292, it was held, that when partners upon a settlement of their partnership affairs, ascertain and agree upon a balance, but by mistake, fail to state the account correctly, assumpsit will not lie, the remedy being by bill in chancery for a settlement of the partnership accounts.

While the plaintiff’s note undoubtedly gives him, prima facie, a right to maintain an action at law, such right is defeated by the facts disclosed by the affidavit of the defendant. His recovery can no longer be for the amount of the note or upon the note, but he is remitted to a court of equity for the purpose of having an.accounting, and the correct balance ascertained.

We are of the opinion that the oral agreement set up in the affidavit that the note should be corrected in accordance with the true balance, when the same should be ascertained, is not an agreement of which either party can take advantage, at least in a court of law, for the reason that it would tend to change the terms of a written contract by parol evidence. In a court of equity, however, such contract is not material to the rights of the parties, as such court would in no event award the plaintiff anything beyond the actual balance found to be due him.

As to the remaining proposition above stated, we are inclined to the opinion that, independent of the foregoing conelusions based upon the law of partnership, the affidavit shows that there was no consideration for the execution of the note by the defendant. It can not he doubted that the contract of a surety must be based upon a sufficient consideration. Undoubtedly, a consideration running to the principal alone, cotemporaneous with or subsequent to the promise of the surety is sufficient, but the rule is different where the only consideration running to the principal is one which is already fully executed. See Brandt on Suretyship, §§ 6-10. Here the note was given for an alleged indebtedness already in existence, and it was given upon no contract to extend the time of payment, nor did it have the effect to postpone the indebtedness. The note was given April 16th, but being dated back to January 1st, and made payable one day after date, it was due the instant it was given, and was in no sense a forbearance of the debt by the creditor. The execution of it was no benefit to the debtor or his surety, and no detriment to the creditor. All the elements of a legal consideration seem to have been wanting.

As the affidavit disclosed meritorious defenses to the note, the defendant’s motion should have been granted. The judgment of the court below overruling said motion will therefore be reversed, and the cause remanded with instruction to vacate the judgment by confession with leave to the defendant to plead, and for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Peter W. Field et al. v. Addison Macullar et al.

      1. Executions—Levy.—Where a sheriff has in his hands an execution, and levies upon personal property, and reduces it to possession, it is then in the custody of the law, and it is not essential to the lien of other .executions in his hands or subsequently received, that they should be formally levied.
    2. Same.—Where the property was sold under the first execution of de. fendanfs, and the proceeds paid over to them, and their lien was then extinguished by the reversal of their judgment, complainants, who had the second execution, would be entitled to the fund. Defendants having obtained possession of such fund with notice of complainants’ rights, are properly chargeable as trustees holding said fund for the benefit of complainants.
    Error to the Superior Court of Cook county ; the lion. George Gardner, Judge, presiding.
    Opinion filed December 8, 1886.
    Mr. James H. Fairchild, for plaintiffs in error.
    Messrs. Lyman & Jackson, for defendants in error.
   Bailey, J.

This was a bill in chancery brought by Addison Macullar and others, copartners under the firm name of Macullar, Parker & Co., against Peter W. Field and others, copartners under the firm name of Field, Benedict & Co., to recover from the defendants certain moneys arising from the sale on execution of the personal property of one Eric E. Anderson. It appears that on the 3d day of October, 1879, the defendants obtained a judgment against said Anderson in the Superior Court of Cook county, by confession, for $800 and costs, and on the same day caused an execution to be issued thereon to the sheriff of said county, who immediately levied the same upan a stock of goods and certain fixtures belonging to said Anderson. On the 4th day of October, 1879, the complainants obtained a judgment against said Anderson in said superior court, by confession, for $833.99 and costs, and on the same day an execution was issued on their judgment, and placed in the hands of said sheriff, with directions to levy upon said goods and fixtures. The sheriff promised to make such levy, but does not appear to have indorsed the same upon said execution.

On the 11th day of October, 1879, Anderson appeared in the superior court and entered his motion to vacate said judgment in favor of the defendants, on the grounds, 1, that the execution of the warrant of attorney by virtue of which said judgment was confessed had been procured by fraud; 2, that no proof of its execution was presented or heard at the time of the entry of judgment, and 3, that the judgment, though entered in term time, was not entered in open court, but was entered by the clerk, without being presented to or acted upon by the court. Said motion being overruled by the superior court, the record was brought by Anderson to this court by appeal, and on the hearing of said appeal, each of the several grounds urged in support of the motion was* sustained, and said judgment was reversed and vacated, and the cause remanded for further proceedings. Anderson v. Field, 6 Bradwell, 307.

On the 13th day of October, 1879, the sheriff sold the property levied upon, making over and above the costs and expenses of the levy and sale the sum of $709.41. Prior to the sale the complainants’ attorney had several interviews with the sheriff, in which he claimed and insisted that the defendants’ judgment was fraudulent and would not hold the property levied upon as against the complainants’ execution, and on one occasion shortly prior to the sale, he had an interview with one of the defendants in which he made similar statements. After the sale said attorney saw the sheriff and demanded of Irm the money, and notified him not to pay it over to the defendants. The sheriff, notwithstanding, paid the money to the defendants in part satisfaction of their execution, and returned the complainants’ execution wholly unsatisfied. Subsequently, and prior to the commencement of this suit, the complainants’ attorney made a demand for said money upon the defendants, which was refused. At the hearing, on pleadings and proofs, the court rendered a decree, finding that the defendants held said money as trustees for the complainants and ordering them to pay the same to the complainants, together with the costs of this suit, instanter, and in case of their default in such payment, that execution issue therefor.

The bill makes Anderson a defendant, and the first error assigned is, that no decree was taken as against him. It appears that Anderson "was defaulted, and that the bill was taken pro confesso as against him, and the decree then finds-that the equities are with the complainants, and that all the material allegations of their bill are true. As no relief is prayed against Anderson, this was a sufficient disposition of the bill as to him.

The principal question in the case is, whether the complainants obtained, by means of their execution, a first and paramount lien on the goods of Anderson levied upon by the sheriff, and upon the proceeds of said goods after the sale-That said execution became a lien on said property from the time of its delivery to the sheriff, is indisputable. Such was its effect by virtue of the express provisions of the statute. Lawrence v. McIntire, 83 Ill. 399 ; Leach v. Pine, 41 Id. 65; Ross v. Weber, 26 Id. 221; Marshall v. Cunningham, 13 Id. 30; Garner v. Willis, 1 Id. (Breese) 368.

It is not material that there was no formal levy of the complainant’s execution. The sheriff had in his hands a former execution against Anderson, apparently valid, in favor of the defendants, and by virtue of that execution he had levied upon said property and taken the same into his possession. In Leach v. Pine, supra, it was held that where a sheriff has in his hands an execution, and levies upon personal property and reduces it to possession, it is then in the custody of the law, and it is not essential to the lien of other executions in his hands or subsequently received, that they should be formally levied; that the execution first coming to hand authorizes the seizure of the property, which creates the levy, and while it remains in his possession he is unable to seize it again.

Upon the execution sale the liens of the two executions immediately attached to the fund created by the sale, with the same rights to priority which existed before the property was sold. See Hart v. Wingart, 83 Ill. 282, and authorities cited. It can not be doubted that the effect of the reversal of the defendants’ judgment was to extinguish their lien. If the property had remained up to that time in the hands of the sheriff, it could not afterward have been sold under their execution. The property having been sold and the proceeds having been paid over to them, they were no longer entitled, as against Anderson, to retain the money, but as between them, it was defendants’ duty to repay it to him, and he could have recovered it in an action for money had and received. Clark v. Pinney, 6 Cow. 298; Maghee v. Kellogg, 24 Wend. 32; Green v. Stone, 1 Harris & John. 405; Freeman on Executions, Sec. 346, and authorities cited.

The defendants’ lien, then, having been extinguished by the reversal of their judgment, and the complainants’ lien having remained in full force, the complainants’ right to the fund produced by the sale became paramount, entitling them to have the whole of said fund paid to them in satisfaction of their judgment. Said fund belonged to them, and the defendants having obtained possession of it with notice of the complainants’ rights, are properly charged as trustges, holding said fund for the benefit of the complainants. We are of the opinion that there was no error in the decree, and it will therefore he affirmed.

Decree affirmed.


text:
    Mary C. Dobbins v. Seth F. Hanchett.
    1. Sale—Fraud—Suit for price affirms sale.—The bringing of a suit to recover the price of goods or to recover damages for fraud in inducing the vendor to sell them, proceeds upon the theory that the vendor has parted with his title, and is therefore in affirmance of the sale.
    2. Attachment—Title to attached goods.—An attaching creditor acquires no title to the goods attached by means of his attachment writ., and no right of action against a third person, who may take them from the officer or destroy them.
    3. Replevin—Verdict.—In a replevin suit, where the defendant pleads property in several different parties, and the verdict of the jury is returned not guilty, and property in a certain one of those parties, but the evidence contains nothing to show title in that party, hut on the contrary shows the title to have been in one of the other parties in whom it was pleaded, held, that this is such error as to reverse the case.
    4. Evidence—Attachment affidavit not evidence.—An affidavit upon which an attachment was issued, is not competent evidence in the trial of a replevin suit, brought by a third party to recover possession of the goods attached.
    Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 8, 1886.
    Messrs. Cratty Bros. & Aldrich, for appellant.
    Mr. E. F. Allen, for appellee.
   Bailey, J.

On the 2d day of November, 1885, Parker, Holmes & Co., brought a suit in case against John Dillon and caused an attachment to he issued in aid of said suit. On the same day the attachment was levied upon a lot of boots and shoes as the property of John Dillon, and on the day following, said property was replevied from the sheriff by Mary C. Dobbins. In the replevin suit the plaintiff declared charging the defendant, in two counts, with having wrongfully taken and wrongfully detained said goods and chattels, to which was added a count in trover. The sheriff pleaded non eejoit, non detinet, property in Parker, Holmes & Co., property in John Dillon, property in himself, a special plea justifying under the attachment writ, and not guilty as to the count in trover. Issues were duly taken on said pleas, and on the trial before thecourtand a jury, averdictwas rendered finding “the defendants not guilty and the title of the goods in said defendants Parker, Holmes & Co.” A motion by the plaintiff for a new trial was overruled, and judgment was thereupon entered that the defendant recover his costs, and that a writ of retorno habendo issue for the return of the property replevied.

It appears that for some time prior to the commencement of the attachment suit, John Dillon had been engaged in the retail boot and shoe trade, and had been occupying the front part of a room in the basement of a building on Madison street, Chicago, and that Mrs. Mary C. Dobbins was, at the same time, engaged in the wholesale boot and shoe trade, occupying for her business the rear portion of the same room. It is claimed by Mrs. Dobbins, and the evidence offered on her behalf tended to show, that on the 28th day of October, 1885, she had in good faith purchased and taken possession of the stock of goods belonging to Dillon; that the price agreed upon between her and Dillon was what he had paid for the goods, less fifteen percent., payable in thirty, sixty and ninety days, and that instead of giving Dillon her notes, it was arranged between them that she should accept orders drawn by Dillon in favor of his creditors, maturing as above stated; that an inventory of the goods was taken, and the goods delivered to her October 28 th, and that at the time of the service of the attachment writ, she had accepted Dillon's orders for the greater part but not for all of the purchase money of the goods.

Evidence was introduced on behalf of the sheriff tending to show, on the other hand, that at the date of the attachment, the sale bf Dillon’s stock of goods, though in contemplation and even in fieri, had not been consummated so as to vest Mrs. Dobbins with the title to the property. It was also claimed on behalf of the sheriff, and there was some evidence tending to show, that the sale of said goods to Mrs. Dobbins was in fraud of Dillon’s creditors.

There was no evidence showing or tending to show that at the time of the service of the replevin writ, said goods or any portion of them belonged to Parker, Holmes &Co. Some of said goods seem to have been purchased by Dillon from them, but there is no evidence in the least tending to impeach that sale, or to show that Dillon did not obtain a good title to the goods. Indeed, the whole theory of the attachment suit was in affirmance of Dillon’s title. Our only source of knowledge as to tlie subject-matter of that suit is the attachment affidavit, in which Parker, Holmes & Co. set forth the nature and amount of the indebtedness for which an attachment was being sued out, as an indebtedness “ for damages for the value of goods, wares and merchandise, fraudulently purchased by said defendant (Dillon) of said plaintiffs on credit.” It nowhere appeal’s that the goods, wares and merchandise mentioned in the affidavit were the same or any part of the goods attached, but if they were, the bringing of a suit to recover the price of the goods, or to recover damages for fraud in inducing the vendor to sell them, proceeds upon the theory that the vendor has parted with his title to the goods, and is therefore in affirmance of the sale. Whitney v. Allaine, 4 Denio, 554; Bumback v. Flower (decided at the present term), and authorities cited.

For did Parker, Holmes & Co. obtain any title to the goods attached, by means of their attachment writ. As said in Richardson v. Reed, 4 Gray, 441, “Attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special, no right to the possession of them, and no right of action against a third person who may take them from the officer or destroy them.” See also Blatchford v. Boyden, 18 Bradwell, 378, and cases cited.

That portion of the verdict by which the jury found the defendant not guilty, is responsive only to the pleas of non cepit and non detinet. Bourk v. Riggs, 38 Ill. 320; Hanford v. Obrecht, Id. 493; Underwood v. White, 45 Id. 457; Hanford v. Obrecht, 49 Id. 146; Mattson v. Hanisch, 5 Bradwell, 102; Wells on Replevin, § 746. The only issue involving the title to the property replevied, upon which the jury found in favor of the defendant, was the issue found upon the plea of property in Parker, Holmes & Co. As to the other issues the verdict is silent, and whatever inference may be drawn from such silence, it is manifest that it can not be an inference that the jury intended to find those issues also in favor of the defendant. The contrary presumption is to be indulged in if any. Wittich v. Traun, 27 Ala. 562; Stoltz v. The People, 4 Scam. 168.

The only plea of property to which the verdict is responsive is the plea that the property in the goods and chattels in question, at the time when, etc., was in Parker, Holmes & Go., and not in the plaintiff. It of course must be admitted that the material averment of this plea v as, that the property in said goods and chattels was not in the plaintiff, and that the averment of property in Parker, Holmes & Co. was mere matter of inducement. Also that as to said plea the burden of proof was on the plaintiff. Anderson v. Talcott, 1 Gilm. 365; Reynolds v. McCormick, 62 Ill. 412; Atkins v. Byrnes, 71 Id. 326. It can not be held, however, that after the plaintiff had established title in herself under such issue by j?rim.a facie proof, the defendant could depart from his plea and rebut the plaintiff’s prima facie case by proving title in some party other than the one named in his plea. In forming said issue the plaintiff averred that said goods and chattels belonged to her, and the defendant averred that they did not belong to her but to Parker, Holmes & Co. The issue, then, upon which the jury found their verdict, was as to which of these parties was the owner of the property. Upon this issue the plaintiff gave evidence which clearly established & prima facie title in her. This was met by the defendant by proof tending to show title, not in Parker, Holmes & Co., but in Dillon. This evidence was doubtless competent for the jury to consider as bearing upon the issues formed upon the plea of property in Dillon, and the plea of justification under the writ of attachment against him ; but it had no application to the issue upon which the jury have found for the defendant. So far as that issue was concerned there was no evidence rebutting or disproving the plaintiff’s title. The verdict, then, finding the ¡property in said goods and chattels in Parker, Holmes & Co., was wholly unsupported by the evidence. The verdict is in no way aided by the fact that there was evidence upon which the jury might have found the property in some party other than the plaintiff, upon the other issues presented by the pleadings. Those issues not having been found for the defendant, must be deemed to have been found for the plaintiff, or at least to have been ignored by the jury. In the opinion of the jury, the plaintiff’s title was established as against every other party named in the pleadings except Parker, Holmes & Co., but it was found that they owned the property. That finding being wholly without evidence, can not be sustained.

We are also of the opinion that the court erred in admitting in evidence the attachment affidavit. That affidavit was sworn to by one Pinkham, an agent of Parker, Holmes & Co., and charged Dillon with having fraudulently conveyed, assigned, concealed or disposed of his property to hinder and delay his creditors, and with being about to make such fraudulent disposition of his property; and also charged him with fraud in the purchase of goods and merchandise from Parker, Holmes & Co. The affidavit was clearly incompetent, as it was a mere ex parte statement by a witness in a proceeding to which the plaintiff was not a party, and it was manifestly prejudicial to the plaintiff upon the issue of fraud in the sale of the goods and chattels in question by Dillon to her.

For the errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Adolph H. Mahler et al. v. Sigmund Sinsheimer.
    1. Insolvent debtor—Practice—Appeal.—On an appeál of an insolvent debtor from a finding of the county court that malice was the gist of the action in which he had been arrested upon a ca. sa. a judgment of the circuit court, reversing such finding and judgment of the county court, and remanding the cause with directions to allow the debtor to schedule, etc., is final within the meaning of the statute granting appeals to this court.

      2. Same—Requisites for imprisonment.—A wrong and intention to commit the injury, are necessary to deprive the debtor of the right to a discharge from arrest and imprisonment.
    3. Same—Practice—Malice often determined from the pleadings.—When malicious torts are charged in the declaration, and the declaration is admitted by a default or proved at the trial so that a judgment for damages results, the declaration alone furnishes sufficient, and perhaps the only competent evidence that malice was the gist of the action.
    4. Same—Burden of proof as to malice.—The burden of proof that malice was not the gist of the action, lies upon the debtor seeking release from arrest and imprisonment.
    5. Same—Practice—Release of debtor dnder appeal bond.—The release of a debtor on his appeal bond pending the appeal, is clearly contemplated by the statute.

      Appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.
    Opinion filed December 8, 1886.
    Messrs. Moses, Newman & Reed, for appellants.
    Messrs. Flower, Remy & Gregory, for appellee.
   Bailey, J.

Sigmund Sinsheimer, an insolvent debtor, filed his petition in the County Court of Cook county representing that he had been arrested upon a writ of capias ad satisfaciendum issued by the Circuit Court of Cook county upon a judgment in favor of Adolph H. Mahler and others for §590.45, and was in the custody of the sheriff under said writ, and was desirous of being released from said arrest and imprisonment by delivering up his property; and praying that such proceedings to that end be had as are prescribed by the laws of the State in relation to insolvent debtors. Said petition coming on to be heard in the county court, was denied, the court finding that malice was the gist of the action in which the capias was issued. The petitioner thereupon prayed and perfected an appeal to the circuit court, where a trial was had before the court and a jury, resulting in a verdict that malice was not the gist of the action, and that the debtor be allowed to schedule. Upon this verdict, the court rendered a judgment, reversing the judgment of the county court and remanding the cause to that court, with directions to allow said debt- or to schedule, and also awarding said debtor his costs. From said judgment of the circuit court the creditors' have appealed to this court.

The appellee has moved in this court to dismiss the appeal on the ground that the judgment of the circuit court is not a final judgment. The judgment was a complete and final adjudication of the right of the debtor to be discharged from imprisonment upon surrendering his property. The case was not remanded to the county court for a new trial, nor would that court have any power to reconsider any of the questions determined by the circuit court. Nothing remained for the county court to do but to obey the mandate of the circuit court. Under these circumstances we think the judgment was final within the meaning of the statute granting appeals to this court, and that the motion to dismiss should be denied.

The only evidence offered in the circuit court as to the nature of the suit in which the judgment against the insolvent debtor was rendered, and as to whether malice was or was not the gist of the action, was the record, consisting of the summons, declaration, court orders and judgment in said action, and on this evidence the court instructed the jury to find that malice was not the gist of the action. The principal question in the case is as to the propriety of that instruction.

The judgment was by default, and as no proof wras made in this case as to the evidence heard upon the assessment of damages, the court below had nothing before it affording any light as to the nature of the plaintiff’s action, but the declaration. The question then is, whether the declaration alone furnished such evidence of the nature of the grievance for which the damages were assessed that the court can say, by mere inspection of that document, that malice was not the gist of the action.

The declaration consists of four counts. The first two are counts in case for fraud in obtaining goods and merchandise of the plaintiffs by means of certain false and fraudulent representations. The third is in case for fraud in obtaining merchandise of the plaintiffs, with a preconceived design of not paying for it, and the fourth count is an ordinary count in trover.

In First National Bank v. Burkett, 101 Ill. 391, the Supreme Court defined the word “ malice ” as used in the statute in relation to insolvent debtors as follows: It in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong to another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest and imprisonment.” This definition was repeated and adhered to in the Murphy case, 109 Ill. 31, and must now be regarded as the settled interpretation of the word as used in the statute.

It is undoubtedly the law that in many cases the question whether malice is the gist of the action may be determined from a bare inspection of the pleadings, without reference to the evidence upon wrhich the recovery was had. Many torts are in their nature malicious, within the above definition, and when such torts are charged in the dec'aration, and the declaration is admitted by a default or proved at the trial, so that a judgment for damages results, the declaration alone furnishes sufficient, and perhaps the only competent evidence, that malice was the gist of the action. Such would doubtless be the case with judgments recovered upon declarations charging libel, slander, malicious prosecution or other torts of which an affirmative intention or purpose to commit the injury is an invariable and necessary ingredient.

It would seem that in both the cases above cited, the Supreme Court determined the nature and gist of the action from the pleadings alone. In neither case is any reference made to extrinsic evidence, and we presume that none was given. The case of First National Bank v. Burkett, was an action on the case, in which fraud was averred in the declaration as the ground of action. The court held that actual fraud is, in its nature, an intentional wrong, and that it amounted in that particular case to little, if anything, short of a criminal act. In the Murphy case, the judgment was rendered in an action of assault and battery, and the court, after citing the statutory definition of an assault and battery, viz., “the unlawful beating of another,” hold, in the language of Mr. Greenleaf, that “the intention to do harm is the essence of an assault.”

But it has not been held, and can not be held, that every actionable tort is malicious. There are many torts for which an action will lie, where there is an entire absence of any intention or purpose to commit an injury. As a fair illustration of this class of torts, we may refer to injuries from mere negligence. In such cases there may be a total absence of intention on the part of the tort feasor to injure another, and yet the injured party is entitled to his action. It would be impossible to hold that malice is the gist of such actions. On the other hand, negligence may be of a character so gross as to raise an implication of express malice, and in such cases doubtless, under the doctrine established by the decisions above cited, malice might be held to be the gist of the action. It will then be seen that there may be cases where a mere inspection of the declaration is not sufficient to determine the character of the tort recovered for, as to being malicious or otherwise. In such cases extrinsic evidence must necessarily be resorted to in order to determine that cpiestion.

In the present case the first three counts of the declaration were for obtaining the goods and merchandise of the plaintiffs by fraud, and come clearly within the rule laid down in First National Bank v. Burkett. It can not be questioned then, that as to those counts, malice was the gist of the action. But as to the fourth count, which was a count in trover, the case is different. Trover is an action to recover damages for the wrongful conversion of personal property. The action presupposes that the taking or original possession of the defendant may be rightful, the tort or maleficium being confined simply to the conversion, which may consist of any act of dominion over the property which negatives or is inconsistent with the plaintiff’s right. It needs no argument to show that such conversion involves no evil intent or purpose within the definition adopted in First National Bank v. Burkett.

The damages recovered by the plaintiffs may have been assessed under all or under any one of the counts of the declaration. Three of these counts being for malicious torts and one for a tort which can not be held to be malicious, it is uncertain,from a mere inspection of the declaration, whether malice was the gist of the action in which the damages were recovered.

It being uncertain then under which count the damages were awarded, on whom was the burden of proof? Was it incumbent on the creditors, in order to maintain the imprisonment of their debtor, to show affirmativly that the damages were assessed under the first three counts or one of them, and thus establish the fact that malice was the gist of the action, or was it incumbent on the defendant, in order to secure his discharge, to prove that the damages were assessed under the fourth count and thus show that malice was not the gist of the action? The section of the statute under which the debtor seeks to obtain his discharge is as follows:

“When any person is arrested or imprisoned upon any process issxxed for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is sxxrrendered or committed to custody by his bail iu any such action, or is arrested or imprisoned xxpon exeexxtion in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.”

Here is a right given by statute with an exception or proviso in the very clause in which the right is conferred. The right is, to be discharged from arrest or imprisonment on complying with certain conditions, in all cases excepting those where malice is the gist of the action. Upon whom is there the bxxrden of showing that the case is not within the exception? Clearly upon the person who is seeking to avail himself of the right. Mr. Chitty says: In pleading upon statxxtes, whexi there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception, but if there be an exception in a subsequent clause, that is matter of defense, and the other party may show it. ” 1 Chitty on Plead., 247; Clough v. Shepherd, 31 N. H. 490 ; Gould v. Kelly, 16 Id. 551.

This rule has frequently been applied in this State, both as a rule of pleading and as a rule of evidence. Thus, in T., P. & W. Ry. Co. v. Lavery, 71 Ill. 722, where the question was one of evidence simply, the court held that a plaintiff relying on a statute for a recovery, need only negative the exceptions in the enacting clause, and it is for the defendant to show, by way of defense, that the case falls within an exception in some other clause of the statute. See also, C., B. & Q. R. R. Co. v. Carter, 20 Ill. 390; Hyman v. Bayne, 83 Id. 256.

We are inclined to the' opinion that, under well recognized rules of law, it was open to the parties to show under .which count the damages were assessed. Thiswould in no way trench upon the binding force of the judgment as an estoppel. It appearing from the face of the record that the recovery may or may not have been upon a count where malice was the gist of the action, it was for the petitioning debtor, who was seeking to avail himself of the right ,given by the statute, to show that the case was within the proviso of the statute, that is, that he was imprisoned in a civil action, where malice was not the gist of the action. As he failed to make such proof, the court was clearly in error in charging the jury to find that malice was not the gist of the action, and the verdict of the jury so finding was not supported by the evidence.

Error is assigned upon an order of the circuitcourt releasing the debtor from arrest on his appeal bond pending the appeal. The appeal bond was inaccordance with the requirements of the statute allowing appeals from the county court in proceedings of this character, and we are of the opinion that the release of the debtor on his appeal bond pending the appeal, is clearly contemplated by the statute. One of the prescribed conditions of such appeal bond is, that the debtor appear before the circuit court, in case the judgment of the county court is affirmed in whole or in part, and abide whatever decision the circuit court shall make. The statute requiring a bond for the appearance of the debtor, clearly contemplates his release pending the appeal. This seems to be settled by People v. Hanchett, 111 Ill. 90.

For the error of the court in the instruction to the jury, the judgment will be reversed and the cause remanded to the circuit court for further proceedings.

Judgment reversed.


author: Moran, J.

text:
    Morris Barbe et al. v. Herman Glick et al.
    Practice—Pendency oe attachment in another State.—The pend-ency of an attachment suit in another State, will not abate an action of assumpsit subsequently brought in this State upon the same cause of action and between the same parties. Distinction made as to garnishees.
    Appeal from the Superior Court of Cook county; the Hon Elliott Anthony, Judge, presiding.
    Opinion filed December 8, 1886.
    This was an action in assumpsit brought by appellants against appellees, to which appellees pleaded in abatement the pendency of a suit in which an attachment issued in the United States Circuit Court for the District of Colorado. The plea set out that said suit in Colorado was by the same plaintiffs and against the same defendants, and was upon the identical cause of action declared on in the present suit; that said suit was commenced before the present suit and was still pending and undetermined; that in said suit pursuant to the statutes of Colorado (the sections of which relating to the subject are set out at large in the plea), said plaintiffs, before the commencement of this suit, caused an attachment to be issued and levied on sufficient property of the defendants within said District of Colorado, wherewith to satisfy the demand of said plaintiffs in said action; that pursuant to said statutes of Colorado, defendants procured the release of the goods and property so attached, by making a deposit of a certain sum of money with the marshal, and executing and delivering to him an undertaking or release bond with sufficient sureties, in an amount equal to the value of the property attached, -conditioned that in case the said plaintiffs should recover a, judgment in said action and said attachment not be dissolved, then said defendants would deliver the property attached to tho proper officer, orín default of such delivery pay to the plaintiffs the full value of said attached property. The plea then sets forth a certain stipulation between the parties in the district court and certain orders made in that court and concludes with the formal allegations and a prayer that the summons in the present, suit be quashed.
    To this plea plaintiffs below filed a general demurrer, which was overruled by the court, and plaintiffs electing to stand by the demurrer, there was judgment for the defendants, and plaintiffs appeal to this court and assign the overruling of the demurrer for error.
    Messrs. Moses, Newman & Reed, for appellants;
    that the pendency of a prior suit in another jurisdiction is not a bar to a subsequent suit in another State, even although the two suits are for the same cause of action, cited McJilton v. Love, 13 Ill. 494; Walsh v. Durkin, 12 Johns. 99; Stanton v. Embrey, 93 N. S. 554; Bowne v. Joy, 9 Johns. 221 ; Hatch v. Spafford, 22 Conn. 497; Maule v. Murray, 7 Term. 466 ; Imlay v. Ellefsen, 2 East, 457; Colt v. Partridge, 7 Met. 572; Smith v. Lathrop, 44 Pa. St. 328; Cox v. Mitchell, 7 C. B. (N. S.) 55; Wood v. Lake, 13 Wis. 91; Wadleigh v. Veasie, 3 Summ. 167; Loring v. Marsh, 2 Cliff. 322 ; White v. Whitman, 1 Curt. 494; Salmon v. Wotten, 9 Dana, 422; Yelverton v. Conant, 18 N. H. 122; Walsh v. Durkin, 12 Johns. 99; Davis v. Morton, 4 Bush. 444.
    The cases cited in support of the obiter dictvm of Judge Pleasants in Roche v. Rhode Island Asso., 2 Brad well, 364, that “ it seems the pendency of an attachment in another State, for the debt sued for, stands upon different grounds, and is pleadable in abatement,” do not sustain the proposition, and are only applicable to garnishees.
    Mr. B. J. Wertheimer, for appellees;
    that where a party has a complete remedy by an action commenced, another is abatable, cited Wallace v. McConnell, 13 Peters, 136; Renner v. Marshall, 1 Wheat. 215 ; Embree v. Hanna, 5 Johns. 101; Brooks v. Smith, 1 Salk. 280 ; Lawrence v. Remington, 6 Biss. 44; Nelson v. Foster, 5 Biss. 44; Branigan v. Rose, 3 Gilm. 128 ; Hallman v. Buckmaster, 3 Gilm. 500; Gould’s Pleadings, 263, § 122; Wharton on the Conflict of Laws. § 787; 2 Parsons on Contracts, *607 ; Drake on Attachment, *701; Roche v. R. I. Ins. Asso., 2 Bradwell, 364.
   Moran, J.

It has been repeatedly decided in this State that the mere pendency of a suit in another State can not be pleaded in bar or abatement of an action in this State between the same parties, and for the same cause of action. McJilton v. Love, 13 Ill. 186; Allen v. Watt, 69 Ill. 655. It is contended by counsel for appellees, however, that a different rule obtains where the suit in another State, which is pleaded in abatement of the action here, is a suit in attachment in which the property of the defendant has been levied upon under the process, and security thus obtained for the satisfaction of the judgment whenever rendered. A number of authorities are cited by counsel in support of his contention, but an examination of them discloses that counsel has misapprehended their tenor and effect. With one exception the cases cited by counsel are cases in which the defendant who pleaded the attachment suit in abatement or in bar, was a garnishee in the foreign attachment proceedings, and not the defendant therein, and pleaded such garnishment in bar of a suit by his credit- or against him for the same debt for which he had been garnisheed. It is the doctrine in England that where one is summoned as a garnishee in an attachment proceeding, and the defendant in the attachment before judgment entered against the garnishee, sequestering or condemning the debt, sues the garnishee for that debt, the garnishee may plead the attachment in abatement. Brock v. Smith, 1 Salk. 280 ; McDaniel v. Hughes, 3 East, 367.

In Wallace v. McConnell, 13 Peters, 143, the defendant pleaded that the debt for which he was sued had been attached by proceedings commenced against the plaintiff under the Attachment. Law, and that he, the defendant, had been summoned as garnishee. Though the plea was held bad because it appeared that the attachment was commenced subsequent to the suit in which the plea was filed, the court stated the ground on which such pleas are sustained as follows: “ The attachment of the debt in such case in the hands of the defendant, could fix it there in favor of the attaching creditor, and the defendant could not afterward pay it over to the plaintiff. The attaching creditor would in such case acquire a lien upon the debt, binding upon the defendant, and which the courts of all other governments, if they recognize such proceedings at all, could not fail to regard. The case of Embree v. Hanna, 5 Johns. 101, was a case of a garnishee who was arrested in New York for a debt which had been garnisheed in his hands by an attachment proceeding against his creditor instituted in the State of Maryland, of which State the garnishee was a resident. The court held the plea good, because if it were disallowed the defendant worild be left without protection and be obliged to pay the money twice.”

The attachment, then, which the courts in these cases allowed to be set up in abatement, was an attachment of the debt, which the suit sought to be abated was instituted to recover, and not an attachment of the goods of the defendant in a suit pending in another State to recover the same debt; and the rule is for the protection of the garnishee, and not at all for the benefit of the defendant in the attachment. The judgment against a garnishee is rather in favor of the defendant in the attachment suit than against him, and the defendant in the attachment is the only one authorized to take issue on the attachment affidavit or to take advantage of irregularities in the proceeding. The garnishee is practically helpless, and the attachment debtor, if he will not interpose to protect him in the attachment proceedings when he alone can do so; should at least be prevented from harassing him with another suit until the attachment proceedings are determined.

It is argued, however, that where' a creditor has commenced an attachment suit against his debtor, and levied upon the property of the debtor in another State, the suit in this State, subsequently commenced by the creditor against the debtor for the same cause of action, should be abated by plea of the attachment suit, for the reason that the creditor has, in the attachment, a complete remedy. The attachment, it is said, gives the creditor security, and he will be able to obtain satisfaction of his debt out of the property attached, if he obtains judgment in the suit. Such is the reasoning of the court in the only case which the counsel has cited to us which at all supports his contention, that of Lawrence v. Remington, 6 Bissell, 44. It will be readily seen that this reasoning proceeds upon a false assumption. The creditor may fail to sustain his attachment, even though he gets judgment for the debt. Under the statute law as it formerly stood in this State, if the suit was commenced by attachment, unless the creditor succeeded in the attachment issue, the suit was abated and no judgment could be taken for the debt, even though no denial of the debt was pleaded. Under this law, the Supreme Court of this State held a plea in abatement settingup an attachment suspending in the same court between the same parties and the same cause of action, bad, saying: “If the remedy by the former action may be partial or ineffectual, the plea in abatement can not prevail. On this principle it is clear that the pendency of an attachment ought not of itself to abate a subsequent suit in personam. Under our statute, an attachment is generally a mere proceeding in rem. The judgment is in remxoú. not in personam. It can only be satisfied out of the estate attached. Lío action can be sustained on the judgment, the record not affording prima faeie evidence of indebtedness.” Branigan v. Rose, 3 Gil. 123.

Whatever difference there may be in the statutes authorizing attachments, and governing the practice in such proceedings in the different States, the attachment itself is always a proceeding in rem; and though in the same suit the law may permit a judgment for the debt, i. e., a judgment in personam, to be taken, yet, unless the plaintiff in the suit maintains his right to the attachment, the lien of the attachment upon the goods levied upon will be dissolved and the creditor can not subject it to the payment of his judgment.

In the case at bar the plea itself shows that while the plaintiffs may maintain their suit in Colorado to judgment, their remedy may be no more complete than if they had never sued out the attachment at all, but had commenced their action by ordinary process. The plea sets out that the goods attached were released upon an undertaking or release bond conditioned that in case the plaintiff should recover judgment in the civil action, and said attachment not he dissolved then the said defendants would re-deliver the property or pay the full value thereof, etc. Therefore the cause of action sued on here may be sustained in the Colorado court, and judgment finally rendered thereon, and yet the plaintiffs have no means whatever of satisfying their judgment. What, then, becomes of the argument that their remedy is complete in that suit because of the attachment? Instead of being complete, the remedy may clearly be ineffectual, and the plea presents. no better ground for abating the action here pending, than would a plea setting up the pendency in another State, of an ordinary suit upon the same cause of action. So far as the opinion in Lawrence v. Remington is attempted to be based upon authority, the conclusion reached is wholly without support. The cases cited are Embree v. Hanna, 5 John. 101, and Wheeler v. Raymond, 8 Cowen, 311, both of which were eases on the right of a garnishee to plead the attachment of the debt in his hands in abatement of a suit upon the same debt by his creditor. Such eases, as we have already seen, proceed upon grounds wholly wanting when the attachment pleaded is upon the goods of the defendant in the suit, and furnish no precedent for sustaining a plea such as was considered in Lawrence v. Remington. Without intending to express any opinion as to whether such a plea as that in Embree v. Hanna, supra, would be a good plea in abatement in this State, we are very clear that the plea in abatement filed in this case was bad, and the comt erred in overruling the appellants’ demurrer to said plea. And for such error the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: McAllister, P. J.

text:
    Mary C. Kallbom et al. v. Frederick Lipp.

      Negligence.—As appellants’ loss is fairly attributable to their own want of care, prudence and discretion in dealing with their real estate broker, as against one who, without fault, was induced to deal with that agent upon appearances which appellants themselves had clothed him with, a court of equity can afford no relief.
    Appeal from tire Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed December 16, 1886.
    This was a suit in chancery brought by Frederick Lipp against Charles J. Kallbom and Mary C. Kallbom, his wife, to foreclose a trust deed upon certain described real estate, executed by the latter to one Frederick Freudenberg, August 5, 1881, and duly recorded; which trust deed was made to secure the promissory note of said Kallbom, bearing the same date as said deed, whereby they promised to pay to said Lipp the sum of one thousand dollars within two years after date, with interest at the rate of eight per cent, per annum; the bill alleging that the whole of said principal and interest from August 5, 1884, was due and payable. The bill also alleged that said Freudenberg had fraudulently executed to said Kallboms a release of said trust deed, which bore date August 15, 1881, and was recorded October 11, 1881, which purported to have been signed by said Lipp and said Freudenberg, said release deed reciting that said trust deed was made in error and no actual loan of money thereon had been made. But the bill alleged that in truth plaintiffs’ name to said release deed was forged; that the full consideration of said trust deed was paid; and the bill prayed that’ said release deed might be set aside, and a foreclosure of said trust deed decreed.
    The said defendants answered admitting that on said 5th day of August, 1881, they executed a note for one thousand dollars, hut which they understood to be a note for one month only; that they executed a trust deed securing said note upon said property to said Freudenherg. But further answering they said, “ that they received no money on said note at the time of the execution thereof, but that it was the agreement that the said Freudenherg should use the money thereon realized for the purpose of paying for said property;” that within a few days after said time they were informed by said Freudenherg that he could not use the note and trust deed mentioned for the purposes intended, and thereupon he produced said note and trust deed and in the presence of this defendant, Charles J. Kallbom, tore up said note and trust deed and destroyed the same; that they did not know at that time, but have since been informed, that said Freudenherg had caused said trust deed to be recorded; and they have also since learned that on or about August 15, 1881, the said Freudenberg caused said trust deed to be released and the release to be recorded.
    Further answering they said that the note and mortgage described in the bill were not, nor either of them, signed, delivered or acknowledged by them, or either of them; that they were properly destroyed, and the release of the same properly recorded. And they further stated upon information and belief that when complainant Lipp bought the note and trust deed of said Freudenherg, if he bought the same, he well knew that no consideration had ever been paid for said trust deed, and he also well knew that a release had been recorded in the recorder’s office of Cook county.
    Replication was filed and the cause referred to the master, who heard testimony and reported in favor of complainant, but afterward the complainant was examined orally before the chancellor, who entered a decree setting aside the said release deed, finding the amount due to complainant to be §1,166.38, and decreed that said defendants pay that sum within five days, with interest at six per cent, and costs of suit, and in default thereof the mortgaged premises be sold. From that decree the said defendants took this appeal.

      Messrs. Blanks & Chytraus, for appellants.
    Mr. Arnold Tripp, for appellee.
   McAllister, P. J.

Upon an appeal or writ of error, every reasonable presumption is in favor of the correctness of the decree or judgment, and the burden is upon the appellant or plaintiff in error, to make evident such error as requires a reversal. We are of opinion that the counsel for appellants in this case have failed in that respect. The evidence shows by a clear preponderance, almost amounting to demonstration, that the note and trust deed described in the bill were signed, acknowledged, and left, by the appellants, with Freudenberg, a professed real estate agent and loan broker, for the ''purpose of having him obtain the amount of said note of appellee, said Lipp, to whom the note was made specifically payable, and under the agreement with Freudenberg, as appellants state in their answer, that he should use the money thereon realized for the purpose of paying for the property covered by the trust deed. It appeared from undisputed testimony of appellee, taken orally before the 'chancellor, that while said note and trust deed were so in the hands of said Freudenberg, the agent of ajipellants, as they say in their answer, to receive and use the said money as above stated, the appellee, without notice of anything tending to affect the validity of said note or trust-deed, or the bona fides of the transaction, paid to Freudenberg, in cash, the sum of one thousand dollars, and took from him said note and trust deed, which appellee had ever since kept in his possession. It is true that appellants never received, or had the benefit of, any part of said money; that Freudenberg, after having fraudulently and by forgery, made and put a supposed deed of release of said trust deed upon record, after the supposititious destruction of said note and trust deed in the presence of one of the appellants, and after another piece of forgery and fraud by which he obtained a large sum of money from another innocent party, with equal skill and cunning, made his escape out of the country.

It seems very hard that these parties, appellants, should be compelled to submit to this loss, but a careful consideration of the record shows that it is fairly attributable to their own want of care, prudence and discretion. Undue confidence on their part in a professedly honest and capable business man, holding himself out to the public as such, but in reality a swindling villain, has brought the misfortune upon them, as it has upon thousands of others in similar cases. But as against one who, without fault, was induced to deal with that agent, upon appearances which appellants themselves had clothed him with, a court of equity can afford no relief.

The decree below will be affirmed.

Affirmed.


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    P. J. Roche v. M. M. Day.
    1. Admissions by stkangek.—An admission by a stranger can not be received as evidence against any party.
    2. Same.—An action of assumpsit upon two promissory notes. The defense was that the notes were given under and in pursuance of the mutual, unlawful agreement of the parties to deal in differences. Plaintiff testified in contradiction of defendant that there was no such agreement, and that in all eases there was or might have been a delivery if desired, and offered in evidence his check to a third party accompanied with papers from such party showing that he had on hand, corn, ready to deliver to plaintiff. Held, that such evidence was inadmissible.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed December 16, 1886.
    This was an action of assumpsit brought by appellee as the payee, against appellant as the maker, upon two promissory notes, both bearing date at Chicago, November 6, 1883, one payable in eight and the other in twelve months after date. The pleas were the general issue and special pleas, setting up in substance and effect, dealings by the plaintiff as member of the Board of Trade of Chicago, on behalf of the defendant, in grain, under and in pursuance of the mutual, unlawful agreement of the parties that such deals should be in options, no grain to be delivered or received and paid for, but that settlements should be made only upon differences, averring that such differences constituted the consideration of said notes respectively. Issue was taken by plaintiff upon these pleas by replication traversing the averments of the pleas as to such illegal consideration. The case was tried by jury, their verdict being for plaintiff, assessing his damages at §2,105.45, and the court overruling defendant’s motion for a new trial? gave judgment upon the verdict, and from that judgment the defendant took an appeal to this court, assigning various errors.
    Upon the trial, the plaintiff having read in evidence the notes in suit, rested. The defendant thereupon offered himself as a witness in his own behalf, and gave testimony tending to support all the necessary elements of his defense under his special pleas as above stated. To rebut that evidence, the plaintiff was sworn as a witness in his own behalf, and testified in contradiction of defendant, that there was no such agreement or understanding between them; that there was to be no delivery or acceptance and paying for the property, but that in fact he bought the grain on defendant’s behalf for cash, and that in all cases there was or might have been a delivery if desired. To support him in that statement, his counsel offered in evidence an uncertified and unindorsed check of plaintiff to A. H. Bliss & Co., dated March 1,1883, upon the International Bank, for §5,654.20, accompanied with papers purporting to come from said A. H. Bliss & Co., of the same date, addressed to plaintiff, stating: “We have on hand ready for delivery the following warehouse receipts, and hereby make tender to you of the same in fulfillment of our contract of sale to you of 5 M. corn at 56J.” Then followed the statement as to warehouse receipts, with the quantity represented by each; and also another statement of the same import, of the same date, for other warehouse receipts. The court, against the objection of the defendant, admitted in evidence said check, and the said statements purporting to have been made by A. H. Bliss & Co.
    There was no evidence tending to show that the defendant had any knowledge of, or connection with, any of said statements of A H. Bliss & Co. But the case shows that the defendant proved by a Mr. Griffin, a short-hand reporter, that the plaintiff, in his testimony on a former tidal, made statements and admissions in respect to the transaction in question, which tended to corroborate the evidence of the defendant.
    Mr. Francis A. Riddle, for appellant.
    Mr. D. M. Kirton, for appellee.
   McAllister, P. J.

We are of opinion that, as the case stood upon the evidence, the admission in evidence, against the objection of the defendant below, of the statements of A. H. Bliss & Co., in respect to the delivery of corn, was prejudicial error. It involved an act of which the defendant was in no respect cognizant, and in which he did not participate. A. H. Bliss & Co. were strangers. The defendant was entitled to have all evidence against him given upon oath, and the witnesses subject to cross-examination. Such evidence was res inter alias aeta. The general rule is, that “an admission by a stranger can not be received as evidence against any party, for it. may have been made, not because the fact admitted was true, but from motives and under circumstances entirely collateral, or even collusively, and for the purpose of being offered in evidence.” 1 Starkie on Ev. *59; Spargo v. Brown, 9 Barnw. & Cress. 935; Longnecker v. Hyde, 6 Binney, 1; Cutbush v. Gilbert, 4 Serg. & Rawle, 551; Jacobs v. Putnam, 4 Pick. 108; Warner v. Price, 3 Wend. 397; Heller v. Howard, 11 Bradwell, 554.

But we are of opinion that there was no error in the refusal by the court to order the plaintiff to produce his books, etc., or to continue the trial for the want of such production, be.cause the bill of exceptions fails to show reasonable notice to produce, or a sufficient cause for their production within the provision of the statute. First National Bank v. Mansfield, 48 Ill. 494.

But for the error in admitting in evidence the statements of A. H. Bliss & Go., as to a tender of delivery of warehouse receipts in pursuance of a contract with plaintiff, the judgment below should be reversed and the cause remanded for a new trial.

Judgment reversed.


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    Frederick Krueger v. Town of Palatine.
    1. Public highways—-Owner of the fee.—'Where a public highway is laid out by road commissioners under the provisions of the statute of this State, over the land of a private owner, the public only acquire an easement in the land included in the limits of the highway and the owner retains the fee simple title in the land and the exclusive ownership of it for every purpose not incompatible with the public right of way.
    2. Same—Incorporated towns.—The rights of the public in the use of the street may be more enlarged in incorporated towns and villages, than where the street or highway is an ordinary country road. But by the increased use of the highway, the public do not gain any new right as against the owner of the soil, only a more extended enjoyment of the right.
    3. Same—Right not divested by town ordinance.—The owner of the fee took gravel from a bank on the public highway, from which the town authorities were taking it to repair other streets in the town. No injury was done to the condition of the road or street by such taking. Held, that the owner had the right to take such soil, and that such right could not be divested by force of a town ordinance.
    Appeal from the Criminal Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed December 16, 1886.
    This was an action of debt- commenced before a justice of the peace, to recover a penalty for an alleged violation of an ordinance of the town of Palatine. Appellant was lined by the justice, and appealed the case to the Criminal Court of Cook county, where the case was heard by the court without a jury, and a fine of eleven dollars assessed against the appellant. The following are the facts so agreed to by the parties.
    1. The plaintiff was incorporated by a special act of the legislature of Illinois, approved March 25, A. D. 1869.
    2. That the board of trustees of said town did, on June 1, A. D. 1874, ordain that it should not be lawful for any person to remove any dirt or earth from off any of the streets within the limits of said town, for personal or individual purposes, whatever, without first obtaining the consent of the said board, and that any person violating such ordinance, should, upon conviction, forfeit and pay a fine of one dollar for every load of earth so removed; which ordinance is still in force in said town.
    3. That the defendant, by order of John Kitson, did, on or about the 15th day of October, 1885, take and carry away from within the boundaries of said Smith street, and west of the center thereof, eleven loads of gravel, worth fifty cents a load.
    4. That at the time defendant took said gravel said John Kitson owned the land .from which the giavel was taken, subject to all the rights of said town in and to said Smith street, and that said Kitson became such owner long after said town was incorporated.
    5. That said Smith street was originally a public highway, laid out by the road commmissioners of Palatine, over twenty years ago, and was, at the time defendant took said gravel, all within the boundaries fixed by special act of incorporation of the town of Palatine, passed by the legislature of Illinois, and approved March 25, 1869.
    6. That the corporate authorities of said town, at the time said gravel was taken by the defendant, were engaged in removing the gravel from the portion of Smith street from which defendant took said gravel, for the purpose of grading and repairing that and other streets in said town.
    It is further stipulated that the defendant took said gravel for individual purposes, and took the same without permission or consent of the board of trustees of Palatine; that said gravel is a natural deposit in the form of a ridge or hill, extending across the highway; that said Kitson’s farm is partially within the corporate limits, and adjoins said highway, but is not laid out into town lots; that the grade of Smith street has not been fixed by a municipal ordinance, nor was any vote, resolution or ordinance recorded directing the removal of said gravel; and that before said gravel was taken by the defendant, Krueger, said Kitson forbade the corporate authorities to take gravel from the said west side of Smith street, and was then told by the street commissioners that the corporate authorities desired and needed said soil to repair Smith street and other streets in said corporation.
    Mr. E. A. Sherburne, for appellant;
    that the owner of the fee had therein all property rights not incompatible with the public enjoyment of the highway, cited Old Town v. Dooley, 81 Ill. 256; Angell on Highways, 395, § 301; Goodlittle v. Alker, 1 Bur. 133; Stager’s Road and Bridge Law, Law of Ill. 24; Williams v. Kenney, 14 Barb. 629; Jocksin v. Hathaway, 15 Johnson (N. Y.), 452; Tucker v. Benedict, 6 R. I. 404; I. B. & W. R. R. Co. v. Hartley, 67 Ill. 439; Board of Trade Tel. Co. v. Barnett, 107 Ill. 515; Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. 83; Cumming v. Prang, 26 Mich. 514; Williams v. Kenney, 14 Barb. 629; Smith v. City of Rome, 19 Ga. 89.
    Mr. C. S. Cutting, for appellee;
    that where a railroad company acquired an easement only by condemnation, the owner of the fee could not remove soil or sod from that part of the right of way not actually in use, cited C. & P. R. R. Co. v. Holton, 32 Vt. 43.
    Although the fee of the street may be in the adjoining lot owner, the city in grading may remove the soil and use it in grading that or another street: Dillon on Municipal Corporations, 3d Ed., §§ 687-689; New Haven v. Sargent, 38 Conn. 50; Callendar v. Marsh, 1 Pick. 418; Boston v. Richardson, 13 Allen, 146.

      The public must be taken to get every right necessary to the beneficial use and enjoyment of the street, and these rights in the streets of a populous place are much more enlarged and various than with respect to ordinary highways: Dillon on Municipal Corporations, 3d Ed., 609, 688; Cincinnati v. White, 6 Peters, 431; Cincinnati v. Penny, 21 Ohio, 499.
   Moran, J.

When a public highway is laid out by road commissioners, under the provisions of the statute of this State, over the land of a private owner, the public only acquire an easement in the land included in the limits of the highway, and the owner retains the fee simple title in the land and the exclusive ownership of it for every purpose not incompatible with the public right of way. Old Town v. Dooley, 81 Ill. 255.

The common law principle is thus stated: “The public acquired no more than the right of way, with the powers and privileges incident to that right, such as digging the soil and using the timber and other materials found within the space of the road, in unreasonable manner, for the purpose of making and repairing the road and its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way.” Jackson v. Hathaway, 15 John. 447.

He may remove the trees upon the highway or the grass thereon, and he may work the mines and quarries therein as he may choose, save only he must not interfere with the use of the road as a public highway. His dominion over the land and everything connected therewith is as absolute and complete after the road is laid out upon it as it was before, except that he must submit to the public right of passage upon it, and to the incidental right which the proper public officer has, of taking timber, stone, earth or gravel which he may find within the limits of the highway and using the same in a. reasonable and proper manner, to bee}) the highway in proper repair. Angell on Highways, Secs. 302 to 312; Washburn on Easements, 3d edition, page 265; Breman v. Hay, 35 Iowa, 97.

The passing of the highway known as Smith street, under the control of the corporate authorities of the town of Palatine, by reason of the incorporation of said town, deprived tho owner of the land of none of the rights which he had as the owner óf the fee to the center of the said highway. Before the incorporation of the town there can he no doubt, under the authorities above cited, that the owner of the fee might dig and carry away gravel or earth which might he found at the side of the way, and not in the road bed or on the direct line of travel, provided, always, he did not impede the public right of passage or in any manner obstruct the way. It may be true, as contended by counsel for appellee, that the rights of the public in the use of the streets are more enlarged in incorporate towns and villages than where the street or highway is an ordinary country road. Where the population is comparatively dense, the necessities of the public in the highway is increased, and a sidewalk for foot passengers may be needed and may be built upon the street, and the street may be traveled to a greater width than would be necessary in a country road. By the increased use of the highway the public do not gain any new right as against the owner of the soil; it is but a more extended enjoyment of the right gained when the easement was first acquired. So streets may be graded and leveled by the proper authorities, and when so graded doubtless the owner of the soil would have no more right to dig or cart away soil, so as to disturb the grade or leave holes or pools in the leveled street, than would a stranger. There is no pretense that appellant, in taking the gravel, was doing an injury to the condition of the road or street. He took gravel from the same ridge or bank from which the authorities were taking it to repair other streets in the town. The right of the corporate authorities to remove the gravel within the limits of the highway, and from the part thereof in which appellant’s employer held the fee for the purpose of repairing other streets within their jurisdiction, is asserted by some courts and questioned by others, but no such question is made in this case, and we express no opinion thereon. In only one case, that of Sargent v. New Haven, 38 Conn. 56, is the right of corporate authorities to the surplus soil on the street held to be paramount to that of the owner of the fee, and that arose in a populous city, where a grade was established and a new street laid out, and a board of compensation of the city appraised the damages and assessed the benefits; and the court held that such board, when it assessed damages, contemplated that the material excavated to bring the street down to grade would probably be removed to some other street which required to be elevated, and that presumptively the owner had been paid for the soil to be taken. The right of the owner of the fee to sand and gravel or stone within the limits of the highway, has been frequently sustained by the courts. In Smith v. The City of Rome, 19 Geo. 89, the fragments of rock which resulted from the process of leveling a rocky bluff within the limits of the street, were held to belong to the owner of the soil, who had made a gift to the city of the right of way over his land. In Cumming v. Prang, 26 Mich. 514, the owner of the soil recovered for gravel taken from a public alley, by a contractor who was grading the same, and used by him on streets of the city which he was under contract with the city to grade. In Williams v. Kenney, 14 Barb. 629, it was said that the owner of the soil over which a public highway was laid, might sell and remove any portion of a bank of sand in the highway which could be removed without prejudice to the public easement. The right of the owner of the soil is one that can not be divested by force of a town ordinance. Before the public can prevent his taking gravel from a ridge in the highway in which he owns the fee, they must show an extinguishment of his right by a proceeding which will vest in the public the exclusive title to it. Ordinances must be reasonable and just, and must not contravene public right, or be so construed as to deprive an individual of a property right without just compensation is made therefor. The ordinance in evidence, though so far as it protects the soil in the streets from appropriation by strangers it is probably valid, yet so far as it may be construed to impose a penalty on the owner of the fee in the highway for taking gravel or earth therefrom for his individual use, when no injury is thereby done to the surface of the traveled way or road bed, is unreasonable, unauthorized and void. The owner’s right to appropriate to his own use such portion of the gravel as he may desire, is in no way incompatible with the right of- the public officers to use gravel from the same bank or ridge as it may be reasonably needed for the repair of the streets or highway. Assuming the law to be that he could not prevent the carting of it off by the proper officer to repair other streets in the town, yet it is very clear that he can not he prevented from taking it for his own purposes, no matter how apparent the present or future needs of the town for gravel to repair the streets might he. In taking the gravel appellant was acting as the servant of the owner of the said soil, and his employer’s direction was a complete justification.

The judgment of the criminal court, fining the appellant, was erroneous, and must therefore be reversed.

Judgment reversed.