text:
    Alex Hamilton and Marie Hamilton, Appellees, v. Earle Sampson, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Menard county; the Hon. Gut R. Williams, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Alex Hamilton and Marie Hamilton, partners, against Earle Sampson to recover damages for the loss of seventy-four turkeys belonging to plaintiffs and alleged to have been killed by defendant while they were foraging on an adjoining farm belonging to defendant. From a judgment in favor of plaintiffs for two hundred and eighty-five dollars, defendant appeals.
    Abstract of the Decision.
    1. Animals, § 28*—right of owner of farm to hill or injure trespassing turheys. An owner of a farm has a right to drive turkeys belonging to another off his premises, but the mere fact that they are trespassing on his place gives him no right to kill or injure them.
    2. Animals, § 43*—when evidence sufficient to sustain recovery for hilling trespassing turheys. In an action to recover for turkeys killed by defendant while they were foraging on defendant’s adjoining farm, evidence held sufficient to sustain a verdict for plaintiffs, it appearing that no serious damage was done to defendant’s farm or his crops thereon by reason of the trespass.
    Watkins & Golden, for appellant.
    Thomas P. Reep, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Dora E. McEvoy, Appellee, v. Court of Honor, Appellant.
    1. Appeal and error § 1818

      —conclusiveness of decision of Appellate Court on former appeal. Prior decision of Appellate Court on a former appeal as to the sufficiency of a replication is conclusive on a subsequent appeal.
    2. Appeal and error, § 1442

      —when permitting withdrawal of deposition not error. A party has a rigfit to withdraw his deposition prior to the time of the trial if he sees fit to do so, and it is not error for trial court to permit its withdrawal where the witness was present in court and the other party could have used him as a witness.

      3. Appeal and error, § 1361

      —when not error for trial court to deny leave to file additional plea. Granting of leave to file additional pleas is discretionary with the trial court, and unless in denying the motion the court has abused the exercise of its discretion, there is no error in denying the leave.
    4. Insurance, § 788

      —when evidence insufficient to show that insured’s use of intoxicating liquor avoided the insurance. In an action on a benefit certificate to recover insurance, where the bylaws and the policy provide that if the insured should use intoxicating liquors to the extent of impairing his health the policy shall be void, held that the evidence of the insured’s use of intoxicating liquors was insufficient to show that his health was impaired thereby, though it showed that he did occasionally use intoxicating liquors .to excess.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Fitzhenry & Martin and Lemon & Lemon, for appellant; William B. Risse, of counsel.
    Ingham & Ingham, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action on a benefit certificate issued by the defendant to one A. J. McEvoy, in his lifetime, plaintiff is the beneficiary, and recovered a judgment against defendant for the amount of the policy, defendant prosecutes this appeal to reverse that judgment.

This cause was before this court on appeal from former judgment in favor of defendant. At that time the question presented was the action of the trial court in sustaining the demurrer of defendant to the second amended replication. to defendant’s sixth plea. The substance of the plea and the replication are fully set forth in the former opinion of this court in McEvoy v. Court of Honor, 163 Ill. App. 556. Upon that hearing this court then held that the court erred in sustaining the demurrer, that the replication was an answer to the plea, and reversed the judgment directing the lower court to overrule the demurrer. After the cause was reinstated in the trial court the demurrer was overruled as directed by this court. Defendant refused to join issue but elected to stand by its demurrer, and in its presentation of this cause at this time insists that the court improperly sustained that demurrer. The question as to the sufficiency of that replication was determined by this court upon the former hearing (163 Ill. App. 556), and the question is not now open for discussion in this court, and we will make no further comment thereon.

Issue was joined upon the other replications filed and trial had by the court without a jury. To the declaration defendant filed various pleas, which were, in substance, that the deceased made false and fraudulent representations and warranties in his application for insurance, that the by-laws and policy issued provided that if the defendant should use intoxicating liquors or narcotics to the extent of injuring or impairing his health the policy should be avoided thereby, and that the death of the deceased was caused by reason of the excessive use of intoxicating liquors. The burden of proving these pleas was upon the defendant, and while the facts disclose that at the time of the making of the application for insurance by the deceased he did use intoxicating liquors; that he continued the use thereof up to the time of his death; that a short time before the death of the deceased he became intoxicated and that this brought on a condition of diabetic coma from which he never recovered, and the defendant insists that his death was caused indirectly by this use of intoxicating liquors, and that the use of intoxicating liquors produced an acute state of this disease which resulted in his death.

The provisions of the policy, instead of providing that the use of intoxicating liquors should avoid it, are that in order to avoid the policy the insured must use intoxicating liquors to such an extent as to impair his health, and the defendant insists that this is shown by the showing that the deceased became intoxicated one or more times, and asked the court to so hold in the propositions of law submitted to it, but the court properly refused to hold that such use of intoxicating liquors avoided the policy. There is no contention that the deceased did not comply with all of the rules and regulations of the order, except the alleged violation in the use of intoxicating liquors, and paid his dues therein, and was a member in good standing. There is no defense to this policy unless it can be held under the evidence in this record that the deceased either was at the 'time or after the issuance of the policy became addicted to the use of intoxicating liquors to such an extent as to impair his health. While it is shown that he did occasionally use intoxicating liquors to excess, there is no evidence that will justify the conclusion or support the .contention that the use of intoxicating liquors ever impaired his health or in any way shortened the life of the deceased.

Prior to the time of the trial in the lower court the deposition of appellee was taken in the State of Mississippi, where she then resided. Before the trial this deposition was withdrawn from the files of the clerk by appellee by permission of the court. On the day upon which the case was tried appellant asked leave to file one additional plea. This plea related and set forth the facts which averred forfeiture of the certificate, the court denied the application to file this plea at that time, and appellant insists that the court erred in permitting appellee to withdraw the deposition and also in denying the right .to appellant to file this additional plea.

Appellee had the right to withdraw her deposition prior to the time of the trial if she saw fit to do so; the court did not commit any error in permitting her to withdraw it. Adams v. Russell, 85 Ill. 284; Doggett v. Greene, 254 Ill. 134.

She was present in court at the time of the trial, and if appellant desired to use her as a witness they had the opportunity to do so.

Upon the contention that the court erred in denying appellant the right to file this additional plea, the matter of granting leave to file additional pleas is discretionary with the trial court, and unless in denying the motion the court has abused the exercise of this discretion, there is no error in denying the leave, and we are satisfied that it was not an abuse of the discretion of the court in denying this motion, and that it committed no error in so doing. Pierpont v. Johnson, 104 Ill. App. 28; Fisher v. Greene, 95 Ill. 94.

We find no error of the court either in the admission or rejection of evidence, nor any reversible error in the holding of propositions of law submitted to it.

The judgment is, therefore, affirmed.

Affirmed.


author: Mr. Presiding Justice Philbriok

text:
    Town of Georgetown, ex rel. Eugene Quartier, Appellant, v. Oscar McCorkle and Kittle McCorkle, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Town of Georgetown ex rel. Eugene Quartier against Oscar McCorkle and Kittie McCorkle for obstructing a public highway alleged to exist by reason of prescription. From a judgment finding defendants not guilty, plaintiff appeals.

      Abstract of the Decision.
    1. Roads and bridges, § 23

      —when evidence insufficient to show establishment of highway by prescription. In an action for the obstruction of a highway, the issue being whether the road was established by prescription, evidence held sufficient to warrant a verdict for defendants, the evidence being conflicting, as to whether a gate or bars had been maintained at a place where the alleged road leads off from the public highway, and it appearing'that a short distance from the public highway the road ceased to maintain any general direction and there was no demarcation of any line of travel ever maintained from that point on.
    2. Roads and bridges, § 208

      —admissibility of evidence. In an action for the obstruction of a highway, the issue 1 ng whether the alleged road was established by prescription, evidence showing that there was another highway or public road by which access might he gained to a certain cemetery, held wholly immaterial, the admission thereof held error, though not prejudicial.
    This cause was before this court on a prior appeal (164 Ill. App. 314), in which a judgment in favor of defendants was reversed upon errors of law committed by the trial court upon the former trial.
    Lewman & Crayton, J. Ed. Thomas and Thomas A. Graham, for appellant.
    Lindley, Penwell & Lindley, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbriok

delivered the opinion of the court.


text:
    George Heyen et al., trading as Heyen Bros., Appellees, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed.
    Opinion filed October 16, 1913.

      Abstract of the Decision.
    Carriers, § 235—when not liable for failure to unload stock during a severe snowstorm. In an action against a railroad for damages to a shipment of cattle consigned to plaintiff alleged to have been caused by failure of defendant company to unload the stock after defendant’s train was stalled in a snowdrift during a severe snowstorm, evidence held insufficient to sustain a judgment for plaintiff, it appearing that after the train was stalled in the snow it was impossible to either unload or move the stock, and the record disclosing that the storm was of such a character as not to have been reasonably anticipated and therefore must be held to he an act of God, for which the defendant company was not responsible.
    Statement of the Case.
    Action by George Heyen, William Heyen and Albert Heyen, partners, doing business under the firm name of Heyen Bros., against Cleveland, Cincinnati, Chicago and St. Louis Bailway Company to recover damages for loss of cattle while being shipped to plaintiffs over defendant’s railroad. From a judgment in favor of plaintiffs for $368.40, defendant appeals.
    George B. Gillespie, for appellant.
    B. J. Cart, Bell & Burton, Shepherd & Trogdon and Gillespie & Fitzgerald, of counsel.
    Alfred A. Isaacs and Truman A. Snell, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    Frank M. Wood, Appellee, v. A. W. Slaughter et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1105

      —when appeal will he dismissed. Where no bill of exceptions is filed and no assignment of errors made upon or attached to the record there is nothing preserved for review, and the appeal will be dismissed.
    Appeal from the Circuit Court of Edgar county; the Hon. Daniel V. Dayton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Dismissed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Scire facias by Frank M. Wood against A. W. Slaughter and others to make defendants, who were sureties on an appeal bond, parties defendant to a judgment recovered by plaintiff against the principal on the bond. From a judgment rendered against defendants making them parties to such judgment, defendant appeals.
    L. A. Cranston and W. H. Hickman, for appellants.
    Charles McKnight, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


author: Mr. Justice Thompson

text:
    Gertrude H. Kelsey, Appellant, v. Frank M. Palmer, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Forcible entry and detainer, § 87

      —when evidence insufficient to show defendant's possession. In an action of forcible detainer to recover possession of premises, the defendant owning an adjoining tract, and a house being built on about the center of the two tracts, evidence held to sustain finding of trial court that defendant was not guilty of forcible detainer after demand for possession, it appearing that the defendant had moved into his portion of the house, and the only evidence tending to show that he was in possession of plaintiff’s premises being that the constable who served the notice saw some cows and calves on the premises, and that defendant was residing in part of the house but he did not know which part.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action of forcible detainer by Gertrude H. Kelsey against Frank M. Palmer to recover possession of premises formerly belonging to defendant but after-wards acquired by plaintiff under a master’s deed. The defendant owns an adjoining tract of land and about one-half of a residence stands on plaintiff’s tract and the other half on defendant’s tract. From a judgment in favor of defendant, plaintiff appeals.
    Johh Fuller, for appellant.
    Lemon & Lemon, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

2. Forcible entry and detainer, § 24—effect of plaintiff’s conveyance of premises pending suit. Fact that plaintiff in an action for forcible detainer conveyed her interest in the premises to a third party pending suit is no defense to the action.


author: Mr. Justice Thompson"

text:
    Isaac Horn, Petitioner, Appellee, v. Sallie F. Sayer et al., Appellants.
    1. Judgment, § 603—limitations. While the lien of a judgment expires in seven years, it may he renewed or an action brought on it at any time within twenty years after its date.
    2. Executors and administrators, § 293—when claim allowed against an estate is a lien on the entire estate. A claim presented and allowed before an executrix files an inventory is a lien on the entire estate that may he collected in any manner in which the collection of claims allowed against estates may he collected.
    3. Powers, § 6—power of devisee to dispose of property. Where a widow is devised property by her husband with power only to convey same to their children, a conveyance by her to third parties being void, a subsequent conveyance by her to the children with provision that the conveyance is to inure to the benefit of the former grantees is also void, as being an attempt to do indirectly what could not he done directly.

      4. Executors and administrators, § 386—jurisdiction to enforce payment of claims allowed against estate. The payment of a claim allowed against an estate may he enforced in the Probate Court or it may be enforced in a court of equity if the remedy in the Probate Court is inadequate and there are reasons why a court of equity should take jurisdiction.
    5. Executors and administrators, § 386—when person having claim allowed against estate may intervene in partition proceeding to enforce payment. On bill filed by sole beneficiary under a will for partition of certain lands of which complainant’s husband died seized of an interest therein, such interest being the share of the deceased in his father’s estate, and comprising his whole estate, held that a person having a claim allowed against the estate of complainant’s husband was entitled to intervene for the purpose of collecting his claim on filing a petition in the nature of a cross-bill, alleging that the interest of complainant’s husband in the lands had been fraudulently conveyed by the widow of testator’s father in violation of the power under the testator’s father’s will.

      6. Equity, § 362

      —when dismissal of hill to defeat intervenor’s claim is fraudulent. Where sole devisee under a will files a hill for partition of lands in which testator had an interest, and a person having a claim allowed against the estate, intervenes to enforce claim, held that an arrangement between complainant and defendants whereby defendants paid complainant a certain sum for her interest in the lands upon claimant dismissing her bill and executing to defendants quitclaim deeds showing, an attempt by complainant with aid of defendants to fraudulently appropriate the estate to her own use and to defeat the collection of intervenor’s claim.
    7. Abatement and revival, § 30

      —when plea to jurisdiction of court may he stricken. When an intervenor in a partition proceeding files a supplementary petition after the original hill has been dismissed by an agreement between the complainant and defendants, action of court in striking a plea filed to the jurisdiction of the court, setting up that the defendants were not residents of the county in which suit was brought, held not error, a part of the real estate involved being situated in the county of suit, and it appearing that the plea was only on behalf of some of the defendants and there were other defendants found in the county and the plea does not state the names and residences of the other defendants and that there were no necessary defendants residing in the county.
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final.)
    James A. Connolly and A. J. Fryer, for appellants.
    F. M. Harbaugh and F. J. Thompson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson"

delivered the opinion of the court.

In February, 1910, Clara E. Humphreys filed a bill in chancery in the Circuit Court of Moultrie County against Sallie F. gayer, Sinia A. Norfolk and various other defendants, praying for the partition of certain lots in Sullivan in Moultrie County, a quarter section of land in Edgar County, a quarter section of land in Shelby County, and a large amount of other described real estate in Moultrie, Shelby, Edgar and Coles counties, Illinois, in which she alleged she was the owner of a one-fonrth interest as sole devisee of her former husband, Xavier B. Trower, who it is alleged died seized of said real estate. Isaac Horn, who had presented a claim against the estate of Xavier B. Trower, which had been allowed, was permitted at the March term, 1910, to intervene, and filed an intervening petition in the nature of a cross-bill containing full allegations of fact and praying for relief.

The record shows the following facts. X. B. Trower died testate December 7, 1896, in Christian County, leaving a widow, Clara E. Trower, now Humphreys, who is the sole beneficiary under his will. The will was probated and the widow qualified as executrix. X. B. Trower prior to 1877 was engaged in running a private bank in Charleston, Illinois, where he failed in business that year. Isaac Horn was one of the depositors in the bank. At the November term, 1891, of the Circuit Court of Christian County, Isaac Horn recovered a judgment against X. B. Trower for $1,048.26. An execution was issued on this judgment within a year after its rendition and delivered to the sheriff of Christian County, where Trower resided. The sheriff being unable to find any property on which to levy said execution returned it unsatisfied. After the issuing of letters testamentary on the estate of X. B. Trower, this judgment being unpaid, was presented as a claim against the estate of the deceased and on December 2, 1907, allowed in the sum of $1,963.98 as a seventh class claim against the estate. The executrix did not file any inventory in the estate of her deceased husband, and does not appear to have taken any steps to close up the estate and has never been discharged as such executrix. The claim of Isaac Horn is still due and unpaid.

X. B. Trower was a son of Thomas B. and Polly A. Trower of Charleston. On August 20, 1877, after the bank failure of X. B. Trower in 1877, Polly A. Trower and X. B. Trower made an agreement in writing, in two parts, each being stated to be the consideration for the other, in reference to the prospective interests of X. BTrower in the estate of Thomas B. Trower, who was still living. The purport of the first part of this agreement is that X. B. Trower should have a certain described farm in Edgar County, a certain described farm in Shelby County and a bank building in Sullivan in lieu of all other interest in his father’s estate. This part of the agreement was signed by Polly A. Trower. The other part of this agreement was signed by X. B. Trower and assigns all his prospective interest in his father’s estate to the heirs and executors of said estate.

Thomas B. Trower died testate in April, 1878, in Coles County, Illinois, leaving Polly A. Trower, his widow, and X. B. Trower with three other children surviving him. By his will he devised his estate to his wife, Polly A. Trower, “to have and to hold for the future benefit of herself and children, and which she may dispose of to our children in such just and proper proportions as necessary and due regard to prudence may dictate, as long as she remains unmarried and my widow, but on her decease or marriage I give and devise the remainder of my said estate to my children, viz: Mrs. Lemuel L. Silverton, Xavier B. Trower, Sinia A. Norfolk and Sallie F. Sayer, in equitable proportions, as may be deemed right and proper, taking into account what they have had heretofore, which will appear from a book kept by myself for the purpose of showing that to them and their heirs, to have and to hold the same in fee simple forever.” The will appoints Polly A. Trower executrix; it was probated and she qualified.

On August 17, 1895, Polly A. Trower and her three daughters conveyed by warranty deed to William B. Titus for $2,500 twenty-three feet off of the north part of lot two, and all of lot one in block twelve, in the city of Sullivan in Moultrie County.

On April 25, 1897, Polly A. Trower and her three daughters, their husbands joining therein, for a valuable consideration conveyed to Jacob G-alster, by warranty deed, the Shelby County farm pf which Thomas B. Trower died seized, and which is described in the contract of August 20, 1877, signed by Polly A. Trow-er; and on November 13, 1897, the same grantors for a valuable consideration conveyed to George W. Julian the Edgar County farm described in the contract of August 20th.

On February 18, 1903, Polly A. Trower conveyed the said land in Shelby County to Sallie F. Sayer. The deed recited that it is for the consideration of one dollar and “this deed is made to more completely invest Sallie F. Sayer with title to said premises and to inure to the benefit of any grantee to whom she may have conveyed said premises.” On July 10, 1905, Sallie F. Sayer executed a deed of the Shelby County land to Jacob Galster in consideration of one dollar. This deed recites that it is made to the grantee to perfect the title to said premises, the mother of said Sallie F. Sayer having made a deed to same premises on the 18th day of February, 1903, by virtue of a power to so convey the same contained in the will of Thomas B. Trower, father of said Sallie F. Sayer. On the same day that Polly A. Trower made the deed of the Shelby County land to Sallie F. Sayer she made a deed of the Edgar County land to Sinia A. Norfolk, which contains a similar recital to that in the deed made by Polly A. Trower to Sallie F. Sayer. On July 10, 1905, Sinia A. Norfolk conveyed by deed to the heirs of George W. Julian the Shelby County land; this deed contains a recital similar to that in the deed made by Sallie F. Sayer to Galster.

The original petition of the intervenor together with an amended petition sets forth the foregoing facts and alleges that the deeds executed by Polly A. Trower in 1903 were not made in good faith for the purpose of conveying the property therein described to the daughters of Thomas B. Trower, but that said conveyances were made to inure to the benefit of grantees of said daughters and are fraudulent and void as against the claim of the intervenor. It is also alleged that Polly A. Trower held the title to said real estate in trust for the children of Thomas B. Trower, one-fourth part thereof for X. B. Trower with no general right to convey the same, but only the right to convey the same to the children of Thomas B. Trower as necessity might require; sets forth the wills of Thomas B. Trow-er and X. B. Trower and makes all necessary parties, parties defendant to the petition. A supplemental petition further alleges that on July 31,1911, Clara E. •Humphreys compromised and settled the suit for partition in consideration of $-i-,2C0 paid to her by Sinia A. Norfolk and Sallie F. Sayer and the release of Clara E. Humphreys from the payment of the costs which had been adjudged against her in former litigation concerning this same real estate, and signed a stipulation for the dismissal of her bill for partition, and executed and delivered the following deeds:

(1) A quitclaim deed conveying for an expressed consideration of $500 to William B. Titus, who was in possession of it, all her interest in the twenty-three feet off of the north side of lot two in block twelve in the city of Sullivan; (2) A quitclaim deed conveying to F. M. Craig, who was in possession of it, all her interest in lot one in block twelve in Sullivan for $500; (3) a quitclaim deed conveying for $500 all her interest in the Edgar County farm to Michael Gossett, who in 1907 had secured deeds from the Julian heirs of all their interest in the Edgar County farm; and (4) a quitclaim deed conveying for $500 all her interest in the Shelby County farm to William Miller, who had bought the interest of Jacob Galster in the said Shelby County farm. It is stipulated that these deeds were made as a part of the settlement of the partition suit. The grantees in these deeds are parties to this suit but have not joined in this appeal.

The record in this cause is very imperfect. The cause would appear to have been referred to a special master before the dismissal of the original bill for partition. After the compromise and dismissal of the original bill for partition, and the filing of the supplemental petition by the intervener and the joining of issues, the cause was re-referred to the regular master in chancery, who made a report of evidence with conclusions. The final decree in the ease shows that an exception by appellants to the conclusions was sustained for the reason that the reference did not authorize the master to report his conclusions. The record filed here does not contain any order of reference. The cause was heard by the court, findings were made and a decree entered on evidence introduced on the trial, which is contained in the report of the master. A certificate of evidence signed by the trial court states that the foregoing evidence contained in the report of the master in chancery was all the evidence introduced and heard by the court on the trial of the cause. The certificate of the clerk to the record does not state that the record contains the certificate of evidence but states that it contains certain named pleadings, and the report of evidence made by the master except certain parts thereof. There is no formal beginning of a certificate of evidence in the record from which it can be ascertained where the record proper ends and the certificate of evidence begins.

On the hearing, the court, after finding the facts, among others that there was due Isaac Horn on May 11,1912, the sum of $2,400.14 from the estate of Xavier B. Trower on the claim allowed in the Probate Court on December 2, 1907, and that all parties who had received deeds of conveyance of the one-fourth interest of Xavier B. Trower in the two described quarter sections of land and said property in Sullivan took such deeds with notice of the claim of Isaac Horn and were not innocent purchasers of said interest, entered a decree finding said conveyances to be void so far as they interfered with the collection of the claim of Isaac Horn, and ordered that the estate of Xavier B. Trower pay to Isaac Horn the sum of $2,400.14 with legal interest from May 11, 1912, within forty days, and in default thereof, that the master in chancery sell, first the undivided one-fourth interest in the said described lots in Sullivan, in Moultrie County, to pay said sum and costs, then that he sell the undivided one-fourth interest of the said described quarter section of land in Shelby County, and if the said real estate in Moultrie and Shelby counties does not bring sufficient to pay said claim and costs, then that he sell the said described real estate in Edgar County and bring the money into court to abide the further order of the court. The decree dismisses the intervening petition as to defendants interested in other lands in Coles County. The defendants Sallie F. Sayer and Sinia A. Norfolk appeal.

In 1902 Clara E. Trower, now Humphreys, filed a bill in equity against Polly A. Trower and the purchasers of said real estate described in said deeds to compel a specific performance of the said contract of August 20, 1877, between Polly A. Trower and X. B. Trower. 'The defendants answered and the Circuit Court on a hearing entered a decree for specific performance. The decree was reversed by the Supreme Court and remanded with directions (Sayer v. Humphreys, 216 Ill. 426), that court holding that the contract was void and that under the will of Thomas B. Trower, Polly A. Trower had no right to convey the real estate of which Thomas B. Trower died seized to any person except to his children, and that the fee to the real estate in question vested in the children of Thomas B. Trower subject to be divested by the conveyance thereof by Polly A. Trower to a child or one or more of the children of Thomas B. Trower. The opinion holds that “at the time of the death of X. B. Trower he therefore was seized of the one-fourth part of said Shelby and Edgar county farms, which interest was never divested by conveyance by Polly A. Trower to a child or the children of Thomas B. and Polly A. Trower to Sallie F. Sayer in fee.” The name of Isaac Horn does not appear in the opinion in 216 Ill.

Polly A. Trower died in 1904, before the case was disposed of by the Supreme Court. After the reversal of the case it was redocketed in the Circuit Court, and Clara E. Humphreys sought to amend her bill so as to recover as devisee of X. B. Trower deceased, and Horn, who at the same time had been permitted to intervene, sought to amend his cross-bill so as to enforce the collection of his claim. The Circuit Court struck the amended bill and the cross-bill from the files and dismissed both bills for the reason that the cause of action stated in the original bill had been disposed of on the merits by the Supreme Court. From that decree an appeal was again prosecuted to the Supreme Court where the case was affirmed. Humphreys v. Sayer, 242 Ill. 80.

The former suit between Mrs. Humphreys and Polly A. Trower and others is not referred to in the pleadings in this case, but the foregoing reference to that litigation is made for the purpose of showing that the Supreme Court has construed the provisions of the will of Thomas B. Trower and the effect of deeds made by Polly A. Trower to third parties, and held void the assignment made by X. B. Trower of his interest in the estate of Thomas B. Trower, and these questions are involved in this case.

It is insisted that the lien of the judgment against X. B. Trower expired in seven years after "the date of the judgment, and that a court of equity did not have jurisdiction over the subject-matter of this litigation. "While the lien of the judgment would expire in seven years, yet it might be renewed or an action brought on it at any time within twenty years after its date. R S. c. 83, ¶ 26 (J. & A., ¶ 7221.)

The purpose of the intervening petition is to collect the claim of $1,963.98 allowed against the estate of X. B. Trower in the Probate Court of Christian County on December 2,1907. Under the will of X. B. Trower, Clara E. Humphreys is the sole beneficiary and took all real estate charged with the payment of his debts. X. B. Trower died in 1898. He left no personal estate or real estate except his interest'in the estate of his father, Thomas B. Trower. His will was probated in September, 1897, and Clara E. Humphreys qualified as executrix. She has neither filed any inventory nor taken any steps to close the estate or to pay this claim from the assets, although fifteen years have elapsed since she qualified as executrix. In December, 1907, the claim of Horn against the estate being called for trial in the Probate Court, by agreement between Horn and the executrix, it was allowed in the sum of $1,963.98. The record does not show when the claim was first presented, but no inventory having been filed, the claim allowed was a lien on the entire estate that could be collected in any manner in which the collection of claims allowed against estates may be enforced. It was held in Humphreys v. Sayer, supra, that the grantees of Polly A. Trower, other than the children of Thomas B. Trower, were not innocent purchasers of the interest of X. B. Trower in the estate of his father. The record in this case shows that after the intervening petition was filed the appellants paid to the executrix, the beneficiary under the will, $4,200 for conveyances from her as devisee of X. B. Trower of her interest in the real estate devised to him by his father. It also shows that Clara E. Humphreys, as executrix of X. B. Trower, fraudulently with the aid of appellants attempted to appropriate the estate to her own use and to defeat the collection of this claim by the conveyance of the estate to appellants and by the attempt to deprive the court of jurisdiction of this case by a dismissal of the original bill, and also that Clara E. Humphreys is insolvent.

The claim of the intervenor is not sought to be enforced on the ground that it was a lien because of the •judgment obtained against Trower in his lifetime, but on the theory that it is a claim allowed against the estate, and all purchasers from heirs and devisees take subject to the payment of claims allowed against an estate. The payment of this claim might have been enforced in the Probate Court, or it may be enforced in a court of equity, if the remedy in the Probate Court was inadequate and there were reasons why a court of equity should take jurisdiction. Fraud is one of the heads of original equity jurisdiction. With very limited exceptions it may be said that courts of equity “possess a general, and perhaps a universal concurrent jurisdiction with courts of law in cases of fraud cognizable in the latter; and exclusive jurisdiction in cases of fraud beyond the reach of courts of law,” 1 Story’s Eq. Jur. sec. 184. It is very clear that the Probate Court did not have jurisdiction to grant the relief that the nature of this case requires. A bill in chancery will lie to establish a debt of an ancestor and decree it a lien on his real estate and order the debt paid and in default of payment that the real estate be sold to satisfy the debt. McConnel v. Smith, 39 Ill. 279. Equity will take jurisdiction of the settlement of an estate to afford relief to a creditor whose claim has been allowed in the County Court, where some satisfactory reason exists why the County Court cannot grant the relief, the facts require that justice and equity may be done. Elting v. First Nat. Bank of Biggsville, 173 Ill. 368; Patterson v. Patterson, 251 Ill. 153. There was no error in permitting appellee to intervene and in overruling the demurrer and appellant’s motion to strike the petition.

Appellants at the September term, 1911, filed a plea to the jurisdiction of the court setting out that they were not residents of Moultrie county and that the suit in which the petition of intervention was filed had been settled. Appellee filed a motion to strike this plea and the same was allowed. Appellants insist this ruling of the court was error. Part of the real estate involved in this suit is in Moultrie County. Under the. Chancery Act (chapter 22, sec. 3, J. & A. ¶ 883) suits in chancery affecting real estate may be maintained in any county where any part of the real estate is situated. It further appears that this plea was only on behalf of some of the defendants and there were other defendants found in the county and- the plea does not state the names and residences of the other defendants and that there were no necessary defendants resident in the county. There was no error in the order of the court.

The real estate in Sullivan, in Moultrie County, decreed by the court to be the first sold to pay the claim of the intervenor, was owned by Thomas B. Trower at the time of his death, and under the will of Thomas B. Trower, X. B. Trower became the owner of one-fourth of it subject to be divested by a deed by Polly A. Trower to a child of the deceased. This real estate was never conveyed by Polly A. Trower to any child of Thomas B. Trower, and the trial court finds in its decree that this real estate is not the business property mentioned in the opinion in Humphreys v. Sayer, supra.

In construing the will of Thomas B. Trower the Supreme Court held that X. B. Trower died seized of a one-fourth interest in the other real estate decreed by the court in this case to be sold, subject to be divested by a conveyance by Polly A. Trower and to a child or children of Thomas B. Trower. In 1897, Polly A. Trower and her three daughters joined in warranty deeds attempting to convey the Shelby and Edgar county farms to Julian and Galster.

These deeds were void because the authority to execute them was not within the power conferred by the will of Thomas B. Trower. The grantors therein were liable on their warranties. The subsequent conveyances made February 3, 1903, by Polly A. Trower attempting to convey these farms to Sallie F. Sayer and Sinia A. Norfolk inured to the benefit of Julian and Galster even if the latter deeds had not contained such express provisions. The daughters having, in 1907, conveyed these lands by warranty deeds, the reason for the exercise of the power under the will of Thomas B. Trower ceased to exist and the power also had ceased to exist. Smyth v. Taylor, 21 Ill. 296; 2 Sugden on Powers, 178. The deeds made in 1903 were conveyances in the interest of Julian and Calster to perfect the title in them and not deeds made to carry out the powers in the will of Thomas B. Trower. They were fraudulent for the reason they were an attempt to do indirectly what could not he done directly. Henderson v. Blackburn, 104 Ill. 227; Whiton v. Whiton, 179 Ill. 32; Griffin v. Griffin, 141 Ill. 373.

Appellants have neither by any assignment of error nor argument raised any question concerning either title by possession and payment of taxes or the numerical order in which the pieces of real estate should be sold.

The decree is justified by the record and is affirmed.

Affirmed.


text:
    John Replogle, Appellee, v. Toledo, St. Louis and Western Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. Mobton W. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by John Replogle against Toledo, St. Louis and Western Railway Company to recover damages for the killing of a horse and a sheep alleged to have been caused by the failure of the defendant to maintain fences and for failure to construct and maintain cattle guards at road crossing. From a judgment in favor of plaintiff for one hundred and eighty-seven dollars* defendant appeals.
    Abstract of the Decision.
    1. Railroads, § 882

      —when place and manner in which stock was killed questions for jury. In an action against a railroad for killing a horse alleged to have been caused by failure of defendant to construct and maintain cattle guards at road crossing, whether the horse was struck by defendant’s locomotive while it was on defendant’s right of way or whether the horse ran against the side of the engine in attempting to cross the track at the road crossing held questions for the jury.
    2. Set-off and recoupment, § 6

      —right of railroad company to set-off in action for negligently killing stock. Railroad company is not entitled to have a claim for damages to its locomotive resulting from plaintiff’s stock running against the side thereof, in an action against the company for negligently killing the stock, and refusal of court to give an instruction allowing defendant such set-off held not error.
    3. Set-off and recoupment, § 9

      —demands which may he set-off. The nature of demands to which set-off may be pleaded is controlled by statute. Under R. S. c. 110, §§ 33, 47, J. & A. ¶¶ 8570, 8584; set-off is a proper plea in assumpsit, but not in an action on the case.
    A. J. Fryer and C. E, Pope, for appellant; Charles A. Schmettau, of counsel.
    J. H. Marshall, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    A. T. Green, Appellee, v. Eunice M. Jennings, Appellant.
    1. Appeal and error, § 994

      —when refusal of leave to file additional plea not saved for review. Error of court in refusing leave to file an additional plea not saved for review where there is neither a motion for leave to file such plea in the bill of exceptions nor any order concerning such motion. A record made by the clerk will not save such question for review.
    2. Appeal and error, § 800

      —what necessary to make motion for leave to file plea a part of the record. A motion for leave to file an additional plea is no part of the record unless made so by the bill of exceptions.
    3. Appeal and error, § 1506

      —when exclusion of question ashed of witness on direct examination is error. Where plaintiff on cross-examination testifies that on a certain date when defendant signed and executed the note he loaned to defendant a certain sum of money, held that the exclusion of a question asked of defendant on direct examination as to whether plaintiff did advance her money on that date was error.
    4. Witnesses, § 284

      —when exclusion of question on cross-examination is error. In an action on a promissory note, exclusion of a question asked of plaintiff on cross-examination as to whether he had testified o# a former trial that defendant made a certain statement to the plaintiff regarding the note, when the note was delivered to him, held error.
    5. Witnesses, § 227

      —when exclusion of question ashed on cross-examination is error. In an action on a promissory note, exclusion of question asked of plaintiff on cross-examination whether he signed defendant’s name to her leases and other contracts, held error.
    6. Evidence, § 452

      —when exclusion of testimony of witness as to genuineness of handwriting is error. In suit on a promissory note where a wirness for defendant testifies that he had seen defendant write, that he was acquainted with her signature and that the signature to the note “isn’t her signature as I am used to it,” and testifies on cross-examination that he knew defendant’s handwriting “sufficient for my own purpose,” held that the testimony of the witness was competent and material, the weight of which was for the jury, and that the exclusion of all his evidence on motion of plaintiff was reversible error.
    7. Evidence, § 453

      —when affidavit filed in suit denying signature may he exhibited to witnesses on cross-examination to test knowledge of signature. In an action on a promissory note where certain witnesses for the defendant had on cross-examination testified that they knew the signature of the defendant, permitting plaintiff’s counsel to exhibit to the witnesses the affidavit made by defendant filed in the case denying the signature to the notes sued on and asking them if they knew the signature to the affidavit, held not error.
    8. Evidence, § 453

      —when signature to plea putting execution of note in issue may be exhibited to witness on cross-examination to test his Knowledge of handwriting. Where a witness testifies he is acquainted with defendant’s handwriting it is proper on cross-examination for the purpose of testing the accuracy of his memory to show him the signature to the plea putting the execution of the note in issue, there being no question as to its genuineness, and ask him whether it was the signature of the defendant. This is not proving the signature but testing the accuracy of the memory of the witness.
    9. Evidence, § 450

      —rule as to comparison of handwriting. Genuineness or falsity of a handwriting or. signature cannot be proved by comparison with other handwriting or signatures admitted to be genuine unless said other handwriting or signatures are in evidence in the case for some other legitimate purpose or at least are among the files of the case as a part of the record. The rule even goes to the extent of permitting the jury to make the comparison.
    10. Bills and notes, § 421

      —evidence admissible to prove execution or nonexecution of note. On an issue as to the execution of a note, evidence tending to show a reason for its execution and a reasonable probability or improbability that defendant made or delivered the same is not only competent but highly important for the consideration of the jury.
    11. Bills and notes, § 420

      —admissibility of evidence. In suit on a promissory note, refusal of court to admit in evidence a schedule made by plaintiff to the assessor after the commencement of the suit, held proper.
    12. Bills and notes, § 462

      —when instruction inaptly worded and tending to mislead. In an action on a promissory note, instructions given for plaintiff as to the proof necessary to enable plaintiff to recover, held inaptly worded and tending to mislead the jury.
    13. Bills and notes, § 462

      —when requested instruction properly refused. In action on a promissory note, an instruction for defendant held properly refused as requiring plaintiff to prove a consideration.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.

      Vose & Creel, for appellant.
    Flack & Lawyer, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit begun on July 20,1911, by A. T. Green against Eunice Jennings. The declaration contains three special counts and the common counts. The first count is in the ordinary form on a promissory note and avers that the defendant on July 13, 1908, executed and delivered to plaintiff a promissory note for $294.75. The second count declares on a note dated August 20,1909, for $800, averred to have been executed and delivered by the defendant to the plaintiff. The third count is for work and services averred to have been rendered by the plaintiff to the defendant. The summons was served on the defendant personally and on Dora Booth, her conservator.

A plea of the general issue was filed by the defendant by her conservator. The conservator also filed an affidavit stating on information and belief that the defendant, Eunice Jennings, did not make the instruments sued on. Two affidavits made by Eunice Jennings were filed, one stating that she did not make and deliver the instruments sued on, the other verifying the plea. There was a trial before a jury at the January term, 1912, in which the jury disagreed.

The May term of the court, 1912, convened on May 13th and on that day adjourned to May 20th. On May 20th the defendant, who at that time appears to have been restored to the charge of her property, by her counsel moved for leave to file a plea of want of consideration, and a plea of res adjudicata to the third and fourth counts.

The plaintiff on May 21st dismissed as to the third and common counts, and the court denied leave to file the additional pleas. There was then a second trial before a jury and a failure of the jury to agree. At the September term, 1912, at the third trial, a jury returned a verdict for plaintiff for $1,316.43, on which judgment was rendered and the defendant appeals.

It is assigned for error that the court erred in refusing leave to the defendant to file a plea of want of consideration. There is neither a motion for leave to file such a plea in the bill of exceptions nor any order concerning such a motion. A motion for leave to file an additional plea is no part of the record unless made so by a bill of exceptions. A record made by the clerk will not save for review a ruling denying a motion for leave to file a plea. St. Louis & O’Fallon Ry. Co. v. Union Trust & Savings Bank, 209 Ill. 457; Chicago & Eastern I. R. Co. v. Goyette, 133 Ill. 21; People v. Weston, 233 Ill. 104; Boys v. Bernhard Milling Co., 138 Ill. App. 88. It appears from the record, however, that the May term was the first term at which appellant had control of her case, theretofore being under a conservator. If the question had been properly preserved we would not hesitate to hold that there was an abuse of legal discretion in overruling the motion for leave to file a plea of want of consideration.

It appears from the evidence that the appellant is a maiden lady about seventy years of age and that she was for many years an invalid, who was wheeled about in a chair. The appellee was a merchant in Macomb, who about the time of the date of the notes sued on was the agent of the appellee and attended to her business.

The appellee testified that the appellant executed and delivered the notes to him at their respective dates. At the last trial he testified that the appellant said to him in July, 1908, when the July note was delivered to him, that she wanted him to show it to the board of review to show that she was a borrower and not a money loaner. On cross-examination an objection was made and sustained to a question as to whether he had testified to any such statement on the former trial. The question was a proper question and it was error to sustain the objection for the reason it was proper to show if such was the fact that at a former trial he gave a different version of what was said when the note was executed.

The appellee on cross-examination was also asked if he did not, during the time he was acting as her agent, sign her name to her leases and other contracts. In Gitchell v. Ryan, 24 Ill. App. 372 where the issues were the same as in this case, it was held that the sustaining of objections to questions similar to the questions put to appellee was error. Great latitude should be allowed in cross-examination of a party to a suit in a case of this kind.

The appellee also testified on cross-examination, while detailing what occurred at the time he claimed defendant executed the note, that on August 20th he loaned $800 to defendant at the time she signed and delivered the note. The appellant on her direct examination was asked, if on August 20, the plaintiff advanced any money to her; an objection made by plaintiff was sustained to this question. While there was no plea of want of consideration, still the defendant had the right to testify concerning anything that occurred or that certain things did not occur at the time the note ivas made; she also had the right to testify concerning those things for the reason that they tended to impeach the evidence of the appellee on a material matter that he had testified to as a part of the res gestae of making the note. By the evidence of the appellee the receiving of the $800 was a part and parcel of the making of the note by the defendant.

On an issue as to the execution of a note, evidence tending to show a reason for its execution, and a reasonable probability or improbability that the defendant made or delivered the same, is not only competent but highly important for the consideration of the jury. The defendant has the right to make proof of such facts and circumstances as may tend to show the note is not hers and render it improbable that she executed it. Hunter v. Harris, 131 Ill. 482.

L. F. Dumb art, assistant cashier of the Union National Bank of Macomb, and engaged in the banking business twenty-six years, testified for the appellant that he knew her, had seen her write and that he was acquainted with her signature, that the signature to the note dated July 13th “isn’t her signature as I am used to it.” “my judgment is it is not; so far as my judgment leads me it is not.” He made the same answer when asked about the note dated August 20th. On the cross-examination he was asked if he knew the handwriting of the defendant, and his answer was “Sufficient for my own purposes.” On motion of the plaintiff all the evidence of this witness was excluded. The witness having answered that he had seen her write and knew her signature and that the signatures were not hers, his evidence was competent and material. Its weight was for the jury and the excluding of this evidence was reversible error.

On the cross-examination of certain witnesses for the defendant after they had testified that they knew the signature of the defendant, counsel for plaintiff exhibited to the witnesses the affidavit made by defendant filed in this case denying the signature to the notes sued on, and asked them if they knew the signature to the affidavit. This was in the line of testing the witnesses’ knowledge of appellant’s signature and there was no error in overruling the objection to these questions.

While the genuineness of the signature may not be proved by comparing it with another signature not in evidence, but admitted to be genuine, yet where a witness testified he was acquainted with defendant’s handwriting it is proper on cross-examination for the purpose of testing the accuracy of his memory to show him the signature to the plea putting the execution of the note in issue, about the genuineness of which there was no question, and ask him whether it was the signature of the defendant. This is not proving the signature, but testing the accuracy of his memory. Melvin v. Hodges, 71 Ill. 422.

The rule seems to be settled in this State that the genuineness or falsity of a handwriting’ or signature cannot be proved by comparison with other admittedly genuine handwriting or signatures, unless said other handwriting or signatures are in evidence in the case for some other legitimate purpose or at least are among the files of the case as a part of the record. Brobston v. Cahill, 64 Ill. 356; Melvin v. Hodges, supra; Massey v. Farmers’ Nat. Bank, 104 Ill. 327; Bevan v. Atlanta Nat. Bank, 142 Ill. 302; Riggs v. Powell, 142 Ill. 453; Himrod v. Gilman, 147 Ill. 293. The rule even goes to the extent of permitting the jury to make the comparison. “When, however, other writings or signatures admitted to be genuine are already in the case, comparison may be made by the jury, with or without experts. ” Stitzel v. Miller, 250 Ill. 72; Greenebaum v. Bornhofen, 167 Ill. 640; Bevan v. Atlanta Nat. Bank, supra.

It is also contended that the court erred in refusing to admit in evidence a schedule made to the assessor in April, 1912. This suit was begun in September, 1911; the making of the schedule was subsequent to the beginning of the suit and to a trial wherein the jury disagreed. In Green v. Smith, 180 Ill. App. 572 (opinion filed March, 1913), we held such evidence was competent in behalf of an estate defending as tending to show the plaintiff did not have any such note at the time the schedule was made. Under the facts disclosed by the evidence in the present case, the court properly excluded the schedule, and sustained the objections to the questions asked the assessor.

Appellant contends that the court erred in instructions one and two given for the plaintiff. Instruction one is: “The court instructs the jury that all the plaintiff is required to prove in this case to entitle him to recover the amount of the principal and interest of the promissory note bearing date July 13, ’08, for the principal sum of $294.75 and produced in evidence, is that said note was signed by the defendant, Eunice Jennings, and delivered by her to the plaintiff, and if you find from a preponderance of the evidence, that said proof has been made by the plaintiff, then yon should find the issues for the. plaintiff and assess his damages on said note at the principal sum of said note and the interest due thereon.”

The instruction is inaptly worded and might mislead the jury.

In place of stating “if you find from a preponderance of the evidence that said proof has been made,” the proposition should have been stated, “if you find from a preponderance of the evidence that said note was signed by the defendant,” etc. The appellee did make proof that the note was executed by the defendant, but to find that such proof was made irrespective of the proof to the contrary made by the appellant would not entitle appellee to recover. It was not sufficient to entitle appellee to recover for the jury to find from a preponderance of the evidence that appellee had made proof that appellant executed the note, hut the evidence that she executed the note must preponderate over the evidence that she did not execute it. The second instruction was in the same form and concerned the other note.

It is also argued that the court erred in refusing the following instruction: “You are further instructed, that before the plaintiff, A. T. Green, is entitled to recover in this case, the burden is upon him to prove by a preponderance of the evidence, that the defendant, Eunice Jennings, made, executed and delivered to him for a good and valid consideration the note or notes upon which you find he is entitled to recover if you so find he is entitled to recover upon either of said notes. ’ ’

. This instruction was properly refused for the reason that the plaintiff was not required to prove a consideration, even if there had been a plea of want of consideration on file. If a plea of want of consideration was on file the burden of sustaining such a plea would he on the defendant. Honeyman v. Jarvis, 64 Ill. 366, Par agraph 46, Negotiable Instrument Act (J. & A. ¶ 7667); 6 Am. and Eng. Encyc. of Law, 763.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Ada Switzer, Appellee, v. A. A. Honn, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Partition, § 119

      —when hill insufficient to entitle complainant to solicitor’s fees. In a partition proceeding where the original hill did not properly set forth the interest of the parties and omitted a necessary party, and it was only after answer was filed that the bill properly set forth the interest of all the owners, held that it was necessary for defendant to -employ counsel, and a decree awarding complainant solicitor’s fees was reversed.

      Appeal from the Circuit Court of Coles county; the Hon. Mobton W. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed in part.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Bill filed by Ada Switzer against A. A. Honn for partition of certain lands. From a decree awarding complainant one hundred and fifty dollars as solicitor’s fees to be taxed as costs, defendant appeals.
    An appeal from the decree granting the partition was taken to the Supreme Court where the decree was affirmed in Switzer v. Honn, 254 Ill. 621.
    T. N. Cofer, for appellant.
    Henley & Douglas, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

2. Partition, § 119 —sufficiency of Mil to entitle complainant to solicitor’s fees. Solicitor’s fees will not be taxed against defendants in partition, where the original bill omitted necessary parties making it necessary for defendants to employ counsel to protect their interests. The bill should be so accurate that the parties defendant can safely allow a default to be taken against them.


text:
    Charles H. Nelson, Appellee, v. First National Bank of La Harpe, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord And tenant, § 337

      —extent of landlord’s lien. Landlord has a statutory lien upon crops grown or growing upon the demised premises in any year fop the rent that shall accrue during such year, but no specific lien is created or given on any other property of the tenant.

      Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Charles H. Nelson against First National Bank of La Harpe to recover damages for the appropriation of certain com on which plaintiff had a landlord’s lien for rent. From a judgment in favor of plaintiff for $826.42, defendant appeals.
    C. W. Warner, D. E. Mack and George V. Helfrich, for appellant.
    Scofield & Califf, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number

   Mr. Justice Thompson

delivered the opinion of the court.

2. Landlord and tenant, § 343 —priority of landlord’s lien. The lien of a landlord is superior to that of a subsequent chattel mortgage.

3. Landlord and tenant, § 352 —enforcement of landlord’s lien as against third persons. Any person who knowingly by purchase or otherwise deprives a landlord of the opportunity of enforcing his lien is guilty of a tort, and the landlord has a right of action for the damages sustained. Case is the proper remedy to enforce such liability, but it must appear that the property or its proceeds have been disposed of so that the lien cannot be enforced against either. \

4. Landlord and tenant, § 348 —when evidence sufficient to show wrongful impairment of landlord’s lien. In an action against a bank to recover damages for appropriating certain corn and its proceeds so as to impair plaintiff’s lien for rent, acts of the bank in procuring a chattel mortgage on all' of tenant’s property and in receiving a check from tenant for corn sold knowing of the plaintiff’s lien, together with other attending circumstances, held sufficient to warrant jury in finding that the bank participated in or authorized the sale of the corn and thereby wrongfully deprived plaintiff of his statutory lien.

5. Landlord and tenant, § 348 —admissibility of evidence. In an action to recover damages for appropriating corn upon which plaintiff had a landlord’s lien, a note and chattel' mortgage executed by tenant to defendant held admissible in evidence.

6. Landlord and tenant, § 348 —sufficiency of instructions is suit for impairment of landlord’s lien. In an action by a landlord for the impairment of his lien on tenant’s corn, an instruction given for plaintiff stating that it is not required of plaintiff to prove actual fraud or actual fraudulent intent, held to correctly state the law, and instructions requested by defendant held properly refused.


text:
    Hettie R. Hapenny, Appellee, v. J. T. Huffman and Frank Wilson, Appellants.
    1. Intoxicating liquors, § 251

      —when instruction in words of statute misleading on question of damages. In an action by a widow under section 9 of Dramshop Act, J & A. H 4609, to recover damages for loss of means of support by death of her husband alleged to have been caused by the sale of intoxicating liquors by the defendants, an instruction given for plaintiff setting out a portion of the statute held misleading as permitting plaintiff to recover all damages sustained, there being no instruction given limiting plaintiff’s recovery to the loss to her means of support or informing the jury what was the proper measure of damages in the case.
    2. Intoxicating liquors, § 245

      —when verdict for loss of widow’s means of support is excessive. Verdict for five thousand dollars for loss of widow’s means of support resulting from death of husband caused by sale of intoxicating liquors, held excessive, the evidence showing that the deceased was a tenant farmer, selling some years about twelve hundred dollars of produce from his farm, and when not occupied with farm work doing teaming at three dollars per day for himself and team.
    Appeal from the Circuit Court of Mason county; the Hon. Guv R. Williams, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Rehearing denied November 5, 1913.
    Thomas D. Masters, E. P. Nischwitz, W. H. Nelms and Alfred Adams, for appellants.
    Clarence W. Heyl and Lyman Lacey, Jr., for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Hettie B. Hapenny against J. T. Huffman and Frank Wilson, partners doing business under the name of Wilson & Huffman, to recover damages for an injury sustained to her means of support in consequence of the death of her husband, Daniel Hapenny.

The first count of the declaration avers that the defendants sold and gave intoxicating liquors to one J. I. Reed, thereby causing the intoxication, in whole or in part, of said Reed, and thereupon the said Reed, while so intoxicated, drove an automobile in which the said Reed and Daniel Hapenny, the husband of plaintiff, were riding in such a careless and dangerous manner as to cause said automobile, while running at a dangerous speed, to turn over, thereby killing said Hapenny.

The third count avers the sale by the defendants to J. I. Reed of intoxicating liquors causing his intoxication, and by reason of said intoxication the said Reed was in such a mental condition as to be unable to appreciate danger from physical causes, and that the said Reed, while in such condition, invited said Daniel Hapenny to ride in an automobile driven by said Reed, and the said Hapenny, while riding in said automobile driven by said Reed while so intoxicated, was killed by the said automobile, being in consequence of such intoxication, operated in such a dangerous manner that it was overturned, etc.

The fifth count avers that defendant sold and gave intoxicating liquors to Daniel Hapenny causing his intoxication, and by reason of such intoxication said Ha-penny was unable to perceive danger from physical causes, and while so intoxicated and in consequence of such intoxication the said Hapenny was thrown from said automobile and killed. A jury returned a verdict for plaintiff for five thousand dollars, on which judgment was rendered and the defendants appeal.

The evidence shows that Daniel Hapenny was a farmer, twenty-six years of age, who farmed an eighty-acre farm as a tenant about four miles from San Jose, Mason county, Hlinois. The appellee is twenty-seven years of age, and she and Hapenny had been married five years. J. I. Reed, who is a farmer and stock buyer living about one and a half miles from San Jose, started about ten o’clock in the forenoon of October 21, 1911, in an automobile, which he had had about six weeks, with his brother Kenneth Reed and Win. Lux, from San Jose to Manito, near where Reed was going to look at a farm. When passing the farm of Hapenny, J. I. Reed inquired of Hapenny, if he had any hogs for sale. After some talk Hapenny got into the automobile with Reed and they went to Manito, where they arrived about noon. J. I. Reed there entered the saloon of appellants, he says, for the purpose of telephoning to the country. His companions also entered the saloon, where J. I. Reed bought drinks for the others. Reed testified, as do his companions, that he did not drink any liquor that day. They also testify that Reed, when asked to drink, said he would not touch liquor but that-he took cigars and gave as a reason therefor that he was driving the car. There is some evidence, however, tending to show that Reed while in the machine acted like an intoxicated person. It began to rain soon after they got to Manito. In consequence of the rain Reed did not go to visit the farm, but stayed in the saloon of defendants until about one o ’clock, when they started home. About four and a half miles from Manito the car was upset killing Ha-penny and injuring J, I. Reed. On the way from Manito the car appears to have “zigzagged” more or less across the road, and where the accident happened it turned a complete somersault, alighting on its wheels. The defendants claim that the accident was caused either by the machine skidding on a muddy road and striking a wet place which had been filled with gravel at a place where the beaten track, which the driver of the machine was attempting to follow, crossed from one side of the road to the other, or by both causes combined, and that the steering gear of the machine broke rendering the machine uncontrollable, while on the part of appellee it is insisted that the irregular movements of the car and its overturning were caused by the manner and the speed at which it was run by an intoxicated driver, ft is contended on the part of appellants that a clear preponderance of the evidence shows that the parties were not intoxicated, but since the case must be reversed for other reasons and on another trial there may be additional evidence, we will not discuss the weight of the evidence or the merits of the case.

It is insisted that the court erred in giving the following instruction at the request of the appellee: “The Court instructs the jury in this case, that the section of the statutes of the State of Illinois, upon which this suit is founded is in part, as follows, to-wit:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in means of support, in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part, of such person or persons, for all damages sustained, and a married woman shall have the same right to bring suits and to control the same, and the amount recovered, as a feme sole; and all suits for damages under this act may be by any appropriate action in any court of this State having competent jurisdiction.”

This instruction pretends to be a copy of the statute. Section 9 of the Dramshop Act (J. & A. ¶ 4609) is as follows: “Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, or means of support, by any intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge' that intoxicating liquors are to be sold therein, or who have leased the same for other purposes, shall knowingly permit therein the sale of cmy intoxicating liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving intoxicating liquors aforesaid for all damages sustained, and for exemplary damages; and a married woman shall have the same right to bring suits and to control the same and the amount recovered, as a feme sole; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parent, guardian or next friend, as the court shall direct and the unlaivful sale or giving away, of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant, under any lease or contract of rent upon the premises where such unlawful sale or giving away shall take place; and all suits for damages under this act may be by any appropriate action in any of the courts of this State having competent jurisdiction.”

In Colesar v. Star Coal Co. 255 Ill. 532, it was said: “Generally speaking, when a party, in an instruction offered, purports to quote verbatim a provision of the statute he must quote it correctly or the instruction must be refused.” In Baker & Reddick v. Summers, 201 Ill. 52, an instruction in the language of the statute, with the ad damnum in the declaration added, was condemned because it made no other reference to the case and did not require proof of facts creating a liability. The provisions of section 9 of the Dramshop Act (J. & A. ¶ 4609) give a wife, who shall be injured in person or property or means of support by an intoxicated person, or in consequence of the intoxication of any person, a right of action against any person, who shall by selling or giving intoxicating liquors have caused the intoxication, in whole or in part, of such person or persons for all damages sustained. The appellee did not sustain any damages to her person or property, but only to her means of support. The words of the statute which are italicized are omitted from the instruction. The instruction as given is misleading since it tells the jury that appellee was entitled to recover all damages sustained, and is not limited to damages sustained to her means of support. The right of action in this character of cases is purely statutory, and a jury was very liable to construe the instruction as giving the right to all damages which the estate of deceased, or the appellee, sustained by his death. All damages might be understood to include the probable increase of his estate, her mental suffering, and the loss of companionship of her husband. The giving of this abstract instruction was reversible error, when the record shows that no instruction was given limiting the damages to the loss to her means of support or informing the jury what was the proper measure of damages in the case.

It is also contended that the damages assessed are excessive. The deceased was a tenant farmer. • The evidence shows that he sold some years about twelve hundred dollars worth of produce from his farm and that when not occupied with farm work he occasionally worked at teaming at three dollars per day for himself and team; only his gross income was shown by the evidence. The appellee contributed her services in the work ordinarily done on a farm by a farmer’s' wife. If her husband was killed in consequence either of his own intoxication or of the intoxication of the driver of the machine and the appellants, by selling and giving intoxicating liquor, materially contributed to such intoxication", and such intoxication was the proximate cause of the death of her husband, then she is entitled to recover whatever damages she has sustained to her means of support. In view of the habits, earnings and income of appellee’s husband, the judgment appears to be excessive. For the reasons pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Rasar & Johnson, Appellants, v. Harry Spurling, Appellee.
    1. Brokers, § 93

      —when question whether real estate agent was the procuring cause of sale is for jury. An owner under a written contract gave real estate agents an exclusive agency for the sale of his real estate reserving to himself the right to terminate the agency on sixty days’ notice. The owner sold the property to a purchaser through a different agent and the former agents claimed they had procured such purchaser through their sub-agent. 3eld, in an action against the owner by the former agents to recover commissions on the sale that it appeared from the correspondence between the parties that the exclusive agency had terminated and that it was a question for the jury to determine from the conflicting evidence whether the plaintiffs were the procuring cause of the sale.
    2. Brokers, § 97

      —when instruction as to what agent is required to prove to be entitled to commissions not objectionable on review. In an action to recover commissions for selling real estate, an instruction given for defendant which states a correct proposition of law as to what plaintiff is required to prove to he entitled to recover, held not objectionable for failure to include a statement that if the parties were brought together by the plaintiffs and the sale was consummated on the terms proposed by the purchaser the plaintiff would be entitled to recover, where such statement was given in plaintiffs’ instructions.
    3. Witnesses, § 299

      —when opinion of witness as to general reputation for truth and veracity admissible. Testimony of a witness that the general reputation of a party for truth and veracity among his associates in the neighborhood where he resides is not good, held properly admissible, though such witness states on cross-examination that his opinion was based in part on what a certain person had said three or four years before.
    4. Appeal and error, § 1560

      —when refusal of requested instructions not error. Appellant cannot complain of error in refusing his requested instructions where the jury was fully instructed in the instructions given at his request on every legal proposition in the cause.
    5. Appeal and error, § 1186

      —objections presented for review. Appellate Court should only review the specific objections to instructions presented and argued.
    6. Appeal and error, § 1539

      —when giving an instruction stating an abstract proposition of law harmless. In an action to recover commissions for selling real estate, the giving of an instruction which might have been refused because it states an abstract proposition of law, held harmless.
    Appeal from the Circuit Court of Christian county; the Hon. Aebebt M. Rose, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    George T. Wallace, for appellants.
    R. C. Neff and E. E. Adams, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit brought by Rasar & Johnson to recover commissions from Harry Spurling for the sale of real estate in Taylorville belonging to the defendant. There have been two trials in the Circuit Court. On the first trial a verdict was returned for the defendant and judgment rendered thereon. That judgment was reversed by this court for error in instructions, October 15, 1912. [176 Ill. App. 349.] On a second trial in the Circuit Court, a verdict was returned for the defendant on which judgment was rendered and the plaintiffs again appeal.

The evidence shows that on September 29, 1909, the appellee entered into a contract in writing giving appellants the exclusive right to sell said real estate for five thousand dollars, with a confidential price of four thousand five hundred dollars. The owner reserved the right to take the real estate off the market at any time by giving the agents sixty days’’ notice in writing of such withdrawal.

Appellee testified that while he was in Ohio, early in February, 1910, he wrote a letter to appellants taking the property out of the market. Appellants wrote a letter February 14, 1910, in reply to a letter from appeEee stating that they had a few prospects of closing up a sale, naming a Mrs. Fish and several other prospective purchasers, but not mentioning the party who did subsequently purchase in October, and stating if those on whom they had worked should decide to purchase in the near future “we would naturally be interested and feel sure you will be fair” and if we can serve you in the future we will be happy to do so. The appellants testified that they did not receive any letter from appellee withdrawing the real estate from the market. Appellee testified to the mailing of the letter and its contents, and the letter of appellants written February 14 would appear to show that they did receive a letter withdrawing the property from the market. Appellee also testified that in May, 1910, he called upon appellant Johnson and asked for the return of the contract, and that Johnson stated that they never surrendered a contract but would give him a duplicate. In June, 1910, after some oral communications between the parties, appellee wrote to appellants fixing the price at three thousand six hundred dollars and on July 6, 1910, appellee having made certain improvements, wrote that he wanted three thousand seven hundred and fifty dollars, but would give them until July 15, to sell at three thousand six hundred dollars. In September, Luther Chestnut took G-. W. Micenheimer to see the property but did not disclose the fact, if it be the fact, that he was an agent for appellants. Chestnut testified that he told Micenheimer that he was not a real estate agent, that he had no interest in the sale of the property but that he showed it to him as a friend, Micenheimer, who was a retired farmer, having inquired of him as a friend, if he knew of suitable property to buy. After the letters of February 8 and July 6, 1910, appellee authorized Teaney, another real estate agent, to sell the property. He showed Micenheimer the property, tried to sell it to him and closed a sale on October 12, for three thousand five hundred dollars. Neither of appellants ever communicated with the purchaser, but their claim is that Chestnut was their subagent. The exclusive agency under the written contract, from the correspondence between the parties, would appear to have been terminated. It was a question of fact for the jury to determine from the conflicting evidence whether the appellants were the procuring and efficient cause of the sale.

It is assigned for error that the court admitted improper testimony tending to impeach the reputation of appellant Johnson for truth and veracity. Among the witnesses examined on that question, E. U. Vallintine testified that he had lived in Taylorville twelve years; that he had known Johnson thirty years; that he knew his general reputation for truth and veracity among his associates in the neighborhood where he resides and that it was not good. On cross-examination he stated that he had heard one Thornton, three or four years ago, say Johnson’s reputation was bad and it was partly on his statement that the witness based his opinion. The appellants then objected to the testimony of the witness and the court ruled that the evidence was proper and the weight to be given to it was for the jury. The evidence of the witness is within the rule laid down by the authorities in this State and there was no error in the ruling of the court. Gifford v. People, 148 Ill. 173.

•It is contended that the first instruction given for the defendant is erroneous in that it told the jury that “before plaintiff would be entitled to recover in this case, they must show by a preponderance of the evidence that they, by the means by them -employed, were the procuring and efficient cause of the sale having been made and unless they have done so you should find the issues in favor of the defendant.” The contention of appellants is that the instruction should have included the statement that if the parties were brought together by the acts of appellants and the sale consummated on terms proposed by the purchaser, then under such circumstances the appellants would be entitled to recover. This statement of the law was given in several of appellants’ instructions and does not change the accuracy of the instruction given for appellee. The instruction states a correct proposition of law as applied to such cases. White v. Sellmyer, 157 Ill. App. 435; Rigdon v. Strong, 128 Ill. App. 451; McGuire v. Carlson, 61 Ill. App. 295.

Appellants make the same objection to the second and fifth instructions given for appellee that they make to the first. That objection we have held to be not well taken. There is no error in the instructions in any particular pointed out, and while there may be other technical objections to some of them, yet, since appellants have not pointed out or raised such other objections, it is not probable that the jury were improperly influenced by them. An Appellate Court should only review the specific objections presented and argued. Mather Electric Co. v. Matthews, 47 Ill. App. 557.

The third instruction for appellee states “that where a purchaser of real estate makes an agreement with the owner to take the property on terms agreed upon between the purchaser and seller that this constitutes a contract of sale and it is immaterial in the absence of any failure of either party to carry out this agreement whether the contract is reduced to writing or not.” This might properly have been refused because it was an abstract proposition of law. It however stated a correct proposition of law so far as the right to recover commissions is concerned and could not harm the appellants.

The fourth instruction given for appellee is objected to on the ground that “it helped emphasize the errors heretofore pointed out relative to the testimony of the impeaching witnesses.” There was no error in the impeaching evidence and the objection to the instruction also must fail.

The appellants also argue that there was error in refusing instructions asked by them. The jury were fully instructed in the ten instructions given at appellants’ request on every legal proposition in the case and some of the instructions given for them should have been refused. The eighth given is simply an argument on what makes reputation.

There is no error in any of the questions presented for review. In view of the conflicting evidence, the questions of fact were peculiarly within the province of a jury to determine. A court of review is only authorized to set aside a judgment as being against the evidence, when it can be said that the verdict and judgment are manifestly against the weight of the evidence. The judgment is affirmed.

Affirmed.