text:
    A. R. Colburn et al. v. Samuel P. Barton.
    1. Levy—Satisfaction of judgment.—The mere levy of an execution on personal property sufficient to satisfy it without anything more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended.
    2. Release of levy.—Where plaintiffs bought certain lumber of defendant and a levy to satisfy a judgment existing at the time of sale upon which execution had issued against defendant, was placed by defendant’s direction on such property after its sale to plaintiffs, and plaintiffs, to whom such judgment had been assigned, ordered the sheriff to release such levy and an alias execution was issued by plaintiffs and levied on real estate of defendant. Held, that the second execution and levy and sale thereunder were good.
    Error to the County Court of Lawrence county ; the Hon. Philip W. Barnes, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Bell & Green and Mr. William Bobinson, for plaintiff in error;
    cited Smith v. Hughes, 24 Ill. 270; Howard v. Bennett, 72 Ill. 297; Montgomery v. Wayne, 14 Ill. 373; Smith v. Lozano, 1 Bradwell, 171.
    Messrs. Huffman & Meserve, for defendant in error;
    that the judgment was a lien upon the property before the bill of sale was executed, and the levy having been made within the life of the execution the lien related back to the time of the delivery of the execution to the officer, and the bill of sale was subject to such lien, cited Marshall v. Cunningham, 13 Ill. 20; Leach v. Pine, 41 Ill. 65; Stephenson v. Browning, 48 Ill. 78.
   Wilkin, J.

This case originated in the court below on amotion by defendant in error to quash an execution. In his sworn petition he states in substance that at the October term, 1882, of said court, James and Scott Emison obtained a judgment against him for $481.13 and$6.90 costs. That on the 28th of November following execution issued thereon, which on the 20th of February, 1883, was levied on a large quantity of lumber worth one thousand dollars, and sufficient to fully satisfy the same. That the property at the time of the levy belonged to him. That March 3, 1883, pending the lien of the execution, the said judgment was assigned to plaintiffs in error, who on the same day ordered the levy released and the property discharged from the said execution, and the same was so released and discharged without his knowledge or consent. That on the 23d of January, 1885, this execution issued and was levied on real estate of defendant which was sold to plaintiffs in error. On the hearing of the motion plaintiffs in error introduced in evidence a bill of sale for the lumber levied on. The consideration in said bill of sale is stated to be §89o.47. It is dated the 2d day of February, 1883 ; executed under the hand and seal of Samuel P. Barton and to A. B. Colburn & Co. Also the proceedings in a replevin suit- between the same parties for the property mentioned in the said bill of sale and levy, wherein A. B. Colburn & Co. were plaintiffs and Samuel P. Barton was defend mt, in which the judgment of the County Court of Lawrence county found the property in plaintiffs. A]so the evidence of Edmund Byan, sheriff of Lawrence county, who testified: The property included in the bill of sale from Barton to Colburn & Go. was turned out to me by Barton on the execution issued against him on the Emison judgment after it had been taken possession of by George Young, the agent of A. B. Colburn & Co., and moved to the east side of the Wabash railroad track.”

The only question involved in this case is whether or not the levy of the execution first issued operated as a satisfaction of the judgment.

The validity of the bill of sale of February 2, 1883, is not questioned by defendant in error. The regularity of the proceedings in the county court, finding the property therein described in the plaintiffs in error, is in no way impeached. Tie evidence of Sheriff Byan is not contradicted. On this uncontradicted evidence it must be conceded that from and after the 2d day of February, 1883, plaintiffs were the owners of the property, and before the levy of the 20th of February, 1883, their agent, Young, had taken possession of it; also that the levy was made—not by the direction of the plaintiffs in the execution, but by the defendant himself.

To hold that the levy under these facts operates as a satisfaction of the judgment would be to maintain the anomalous proposition that a defendant in execution may satisfy his judgment by turning out the property of the plaintiff in the execution. The bare statement of the proposition is a sufficient reason for its rejection.

While it may be sometimes stated in text books and decisions that the levy of an execution upon personal property, sufficient in value to satisfy the same, will operate as a satisfaction of the judgment, yet a casual examination of the rule readily leads to the conclusion that it is not correctly stated in this general language.

In Montgomery v. Wayne et al., 14th Ill. 374, Caton, J., said: “ The general proposition is undoubtedly true that the levy of an execution upon personal property, of value sufficient to satisfy it, operates for the time being as a satisfaction of the execution. But it is not an absolute satisfaction of it like an actual payment.”

In Freeman on Judgments, Sec. 475, it is said that “none of the decisions assume that a levy produces any absolute satisfaction.” And again in the same section the author says: “ It is apparent that the satisfaction, if such it may be called, produced by a levy on personal property, is liable'to be removed by a variety of circumstances.” Therefore it is probable that the term suspension is more applicable to the effect of such a levy than the term satisfaction.

In the case of the People v. Hopson, 1st Denio, 574, Chief Justice Bronson says: “ If the broad ground has not yet been taken it is time it should be asserted, that a mere levy on sufficient personal property, without anything more, never amounts to a satisfaction of the judgment. So long as the property remains in legal custody the other remedies of the creditor will be suspended.” And so in this case the levy of February the 20th, 1883, was “for the time being” a satisfaction of the judgment. It suspended all other remedies of the plaintiffs. It was an obstruction to the final satisfaction of the plaintiff’s debt, but how came it there ? An execution is the plaintiff’s process, and he has the right to control it. Under our statute he has the right to elect on what property not exempt from execution he will have it levied. When he has so elected he cannot change his levy without the consent of the defendant in the execution. The officer making the levy can not of his own motion release a levy and seize other property. “ The law will not permit the creditor to use his judgment for the purpose of annoyance and the oppression of his debtor.” And this is the full scope of the decision in Smith v. Hughes, 24th Illinois, 276, on this question. From the evidence in this case the plaintiff did not change Ms levy. The officer did not, of his own mere motion, change it. There is nothing to show an attempt to annoy or oppress. On the contrary the plaintiffs found a levy placed upon their own property by direction of the defendant, which being an obstruction and only an obstruction to the collection of their judgment they removed it by ordering the sheriff to release the levy.

Had the sheriff been allowed to proceed to a sale no benefit could rightfully have resulted to the defendant in error. On the contrary it would only have increased his costs, unless as we have before said he could insist. upon the sale of the property of another to satisfy his- debt. The fact that the execution was a lien on the property could not give him the right to have it sold to satisfy that lien in the absence of proof that it was sold subject thereto. We are unable to find any evidence in this record to justify the conclusion that the second execution and lev)7 and sale thereunder were void or even irregular, and must therefore hold the judgment of the court helow erroneous.

Reversed.


source: Caselaw Access Project

author: Green, J.

license: Public Domain

text:
    William F. Thorne et al. v. Thomas J. Crawford.
    1. Feaududent conveyance.—Where a debtor, who was in failing circumstances and unable to pay his debts, mortgaged and transferred possession of a stock of merchandise which he then thought worth $16,000 to $17,-000, together with accounts worth $2,000, (all of his available assets,) to creditors whose claim did not exceed $4,200, with power to sell and dispose of these assets, making no provision for paying out of the proceeds any debts due to his other creditors, and this was done with the intent to hinder and delay his other creditors in the collection of their debts, and appellants creditors, brought a suit in attachment against him. Held, that it was error in the court below, to find the issue for the defendant in attachment under the evidence introduced. ,
    2. Evidence.—Where the facts and circumstances in evidence show the transaction to be fraudulent as against creditors, declarations under oath that it was in good faith and without fraudulent intent avail but little.
    3. Rights of mortgagees.'—The rights of the mortgagees were not in issue and in the decision of the case were not passed on.
    . Appeal from the Circuit Court of Franldin county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed November 27, 1885.
    Mr. W. J. FT. Movers, for appellant;
    cited Merry v. Bostwick, 13 Ill. 398; Reed v. Noxon, 48 Ill. 323; Francis v. Rankin, 84 Ill. 169; Strohm v. Hayes, 70 Ill. 41.
    Mr. James M. Gregg, for appellee;
    that a debtor may prefer one or more creditors to the exclusion of others, cited Morris v. Tillson, 81 Ill. 607; Frank v. Welch, 89 Ill. 38; Goembel v. Arnett, 100 Ill. 35; Bump on Fraud. Con. p. 178-194; Hessing v. McCloskey, 37 Ill. 342.
    A mortgagee is entitled to property of value fully sufficient to cover his demand under any and all circumstances that may be expected or reasonably apprehended: Bump on Fraud. Con. 3d Ed. 46; Truitt v. Griffin, 61 Ill. 26.
   Green, J.

This was a suit in attachment commenced by appellants in the court below against the appellee. The affidavit for attachment is based on the 6th clause of the 1st section of chapter 11 ítev. Stat., and plaintiff's set up and allege therein, that Crawford is justly indebted to them in the sum of §938, on a note; that on Eebruarv 5, 1885, said Crawford fraudulently conveyed his effects so as to hinder and delay his creditors. To this defendant interposed his plea in abatement, denying only the fraudulent conveying of his effects as alleged, but not denying the indebtedness. Til’s issue was submitted to the court for trial without a jury. The court thereupon found for the defendant, and rendered tud ;ment on the finding against plaintiffs for costs, from which julgment they have prosecuted this appeal. In deciding this case the only question of importance that arises is: Did the court below err in finding the issue for the defendant in attachment, upon the evidence introduced on the trial and in rendering the judgment appealed from ? From tlie evidence in the record it appears to us perfectly clear and manifest, that Crawford did fraudulently convey his property and effects, so as to hinder and delay his creditors as alleged in the affidavit. It was fully proven on the tidal, that he had within two years next preceding the time of filing the affidavit, while in failing circumstances and unable to pay his debts, mortgaged and transferred possession of a stock of merchandise which he then thought was worth $16,000 to $17,000 together with notes and accounts amounting to from $1,500 to $2,000 (being all of his available assets) to creditors whose claims against him did not exceed $4,200, giving these creditors the power to sell and disjjose of these entire assets without making any provision for paying out of the proceeds any debts due his other creditors, and he did all this too, as he testifies, with the knowledge, that thereby his other creditors would be hindered and delayed in the collection of their debts, and with the object of securing mortgagees and to place his goods out of reach of his other creditors. Other witnesses in their testimony detail admissions made by Crawford to them touching this wholesale transfer by him that still more clearly demonstrate the purpose and intent of Crawford in that transaction, and dispel every doubt that the allegations in the affidavit were true, and were fully proven. It is suggested by counsel for appellee that Crawford also testified that he made the mortgages in good faith, and did not intend to defraud any one, but to give a preference to these mortgagees in the payment of their debts; “ hut where the facts and circumstances in evidence show the transaction to be fraudulent as against creditors, declarations under oath that it was in good faith and without fraudulent intent avail but little,” as was said in the opinion in Bell v. Devin, 96 Ill. 217, and while it may be that a debtor, acting in good faith under certain circumstances can lawfully prefer one creditor in the payment of his claim to the exclusion of other creditors, yet a transaction entered into to give certain creditors the benefit of such a preference by transferring to them all the available assets of the debtor, and in value treble the amount of the preferred debts, writh the- power to sell and dispose of such assets, without accounting for the proceeds and without providing for the payment of debts due other creditors out of the surplus, and coupled with an intent and purpose on the part of the debtor, in making such transfer, to hinder and delay his other creditors in the collection of their debts, is fraudulent and void. Reed v. Noxon, 48 Ill. 324; Hansen v. Dennison, 7 Bradwell, 73.

The rights of the mortgagees to which our attention is invited were not in issue; they did not become parties to the proceeding in attachment or place themselves within the jurisdiction of the court below, hence we have no jurisdiction to pass upon and determine their rights in or to the attached property ; but it is the question of the intent of the defendant in attachment in conveying his property, and not the intent of the mort. gagees in receiving it which is to be decided here; and in deciding this case, we do not forget that the remedy by attachment is summary and extraordinary, is unknown to the common law and purely statutory, and that a creditor, to entitle himself to the benefit of this remedy, must allege and prove that the debtor, whose property he seeks to levy upon and attach, has been guilty of at least one of the acts which under the statute renders his property liable to be seized and held, to respond to the payment of a judgment against him in'favor of the attaching creditors; and we also remember that where, as in this case, a debtor has been ¡woven guilty of one of those acts inhibited by the statute, our duty is to enforce the law for the protection of the creditor. Believing as we do that the court below erred in rendering the judgment appealed from, the same is reversed and the cause remanded.

Beversed and remanded.


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    Joseph Graham v. John M. Mason.
    1. Statute op Frauds.—Where the leading object of the undertaking is to promote some interest of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another. The court is of opinion that the promise in this case was of such a character.
    2. Promise—Original undertaking—Consideration.—If the promise is in the nature of an original undertaking to pay a debt to a third party and is founded on a valuable consideration received by the promisor, it is not within the provisions of the statute, and need not be in writing to make it valid.
    Appeal from the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. -Callahan & Jones and Messrs. Allen & Fritoi-iy for appellant;
    as to Statute of Frauds, cited Eddy v. Roberts, 17 Ill. 505; Blank v. Dreher, 25 Ill. 331; Williams v. Corbett, 28 Ill. 262; Frame v. August, 88 Ill. 424; Hite v. Wells, 17 Ill. 88.
    Messrs. Giiison & Johnson, for appellee.
   Green, J.

This was an action in assumpsit brought in the Richland Circuit Court by the appellee against the appellant. The cause of action is alleged in the declaration to he substan tially as follows in first count: That on September 24, 1880, said John W. Mason sued out a writ of attachment from the Circuit Court of Jasper county against Wm. Frazier & Co. for the sum of 8275; that in December, 1880, the writ was duly levied on the property of defendants; that at the time of said levy Frazier & Co. were employed in and were constructing the Danville, Olney & Ohio River Railroad, and in so doing, required the use of and were using the said property levied on, and then had Joseph Graham in their employ as a superintendent of construction ; that hy reason of the said levy and seizure of said property, said Frazier & Go. were compelled to and did temporarily suspend the construction and work on said railroad; that while said attachment suit was pending and undetermined and for the purpose of procuring further employment for himself by securing the settlement and dismissal of said suit, thereby to make the property levied on, available for use in continuing the construction of said railroad, and in consideration that Mason should dismiss his said attachment suit, Graham promised Mason to pay him, the amount of the indebtedness aforesaid, due him from Frazier & Co.; that in consideration of said promise and undertaking of Graham, Mason on December 16, 1881, dismissed his suit in attachment and thereby Graham became and was indebted, etc. The second count is substantially like the first, with an additional averment that payment to Mason was to be made when a certain amount of township bonds were issued, delivered and the money realized thereon; this declaration concluded with the usual breach, and ad damnum of $500. To this declaration, defendant below pleaded the general issue, and the Statute of Frauds, and proper replications thereto were filed by plaintiff below. By agreement the cause was tried by the court without a jury, and no propositions of law were asked to be held by the court below.

The trial resulted in a finding for appellee, and a judgment thereon by the court below for $275 against appellant, who took this appeal therefrom. On the trial below, appellee offered and read in evidence, without objection, the original papers in the attachment suit of appellee v. Frazier & Co., including affidavit showing an indebtedness from Frazier & Co. to appellee for work and labor for $275, attachment bond and writ of attachment, with a levy indorsed thereon upon horses, mules, wagons, cars, tools, etc., levied upon as the property of Frazier & Co., and also the record of the final order and judgment of the court in the attachment suit, May 16, 1881, which recites, that the parties appeared by their respective attorneys, and it appearing to the court that the matters at issue in this cause have been settled by agreement, and each party is to pay one half the costs, judgment is thereupon awarded, and execution against the parties for costs due from each, and appellee also proved by oral testimony, that at the time the said levy was made Frazier & Co. were constructing said railroad, and in such work required the use of and were using the property levied on; that the property levied on belonged to said firm; that the work of constructing the railroad was suspended; that Graham, the defendant below, Avas the superintendent of construction and chief engineer of the road, and was anxious to have the work progress; that while the attachment suit of appellee against Frazier & Co., Avas pending, and, said levy not released, appellant promised appellee to pay him the amount due him from Frazier & Co., in consideration that appellee Avould settle said attachment suit and release said levy; that appellee accepted this proposition, and relying on Graham’s promise, notified his attorney in the attachment suit that the same had been settled, and directed him to dispose of the said suit accordingly, and that the amount due appellee from Frazier & Go., Avas 8275, all of which remained unpaid, and that appellee had frequently requested Graham to pay him this amount, according to his promise and before commencing suit, but Avas not paid any part thereof. We think the proof supports the first count of the declaration of plaintiff below, and he Avas entitled to recover. Various reasons are urged for the reversal of the judgment in this case on behalf of appellant, none of Avliich appear to us necessary to notice, other than the point urged, that the promise of appellant set up in said'declaration, Avas void as being Avithin the Statute of Frauds. We do not so understand it. It Avas not a promise to pay the debt of another, hut a promise to pay the amount of such debt, in consideration that the original debtors should be released from the payment thereof, and that the appellee should release the lien of a Icaw upon the debtor’s property for his debt for the benefit of appellant. It Avas an original undertaking and promise made by appellant for a sufficient consideration to pay appellee §275.

In Wilson v. Bevans, 58 Ill. 232, it is said: “ If the promise is in the nature of an original undertaking to pay a debt to a third party, and is founded on a valuable consideration, received by the promisor himself, it is not within the provisions of the statute and need not be in writing to make it valid and binding.

In Borchsenius v. Canutson, 100 Ill. 92, and cases cited there, this rule is stated: That where the leading object of the undertaking is to promote some interest of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another; to the same effect are the cases of Clifford v. Luhring et al., 69 Ill. 401; Meyer v. Hartman, 72 Ill. 442; and Bunting v. Darbyshire, 75 Ill. 408. The finding of the court below on the evidence was right and the judgment on such finding must he affirmed.

Judgment affirmed.


author: Pillsbury, P. J.

text:
    Ferdinand Fleischer v. Jacob B. Rentchler.
    Special char ter—Liability oe stockholders.—Where the charter of a private bank provided that “whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockliolders shall be hold individually responsible for an amount equal to the amount of stock held by them respectively,” etc., in suit brought after failure of the bank, against a stockholder upon a certificate of deposit. Held, that the liability of the stockholders upon the contracts of the bank ivas coeval with that of the corporation, and that to the amount of their stock the stockholders were bound as partners by such contracts.
    Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    The plaintiff in error sued the defendant in error in an action of assumpsit, to enforce his personal liability as a stockholder in the People’s Bank of Belleville, under the provisions of the charter of that corporation. Vol. 1, Pr. Laws, 1869; page 194.
    By the 9th section of that act it is provided that “ whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount, equal to the amount of stock held by them respectively, and such liability shall continue until three months after an assignment of the stock, and publication of a notice thereof in a newspaper published in said city of Belleville.”
    The indebtedness of the bank to Fleischer was evidenced by a certificate of deposit as follows:
    Certificate of Deposit.
    The People’s Bank of Belleville. Capital §100,000.
    No. 16,344. Belleville, Ill., May 15, 1877.
    Ferdinand Fleischer has deposited in this bank four hundred dollars, payable to the order of himself on the return of this certificate one year after date, with interest at the rate of seven per cent, per annum for the time specified.
    E. D. Bsner, Cashier. Sebastian Fietsan, President.
    In April, 1876, the bank made an assignment to one Penn, and ceased to do business. To a declaration averring the facts necessary to show the personal liability of the defendant as á stockholder, he pleaded the Statute of Limitations of five years, to which plaintiff demurred, and the court overruling the demurrer, he abided and suffered final judgment to go against him for costs, and then removed the record into this court by writ of error.
    Mr. William C. KueffneR, for plaintiff in error;
    cited Meisser v. Thompson, 9 Bradwell, 368; Gauch v. Harrison, 12 Bradwell, 457; Thompson v. Meisser, 108 Ill. 359; Buchanan v. Meisser, 105 Ill. 638.
    Mr. Charles W. Thomas, for defendant in error.
   Pillsbury, P. J.

The only question arising upon this reeord for our determination is presented by the action of the court below in holding that the Statute of Limitations of five years bars the action.

The defendant in error insists that the cause of action disclosed by the declaration brings the case within § 15 of the general Statute of Limitations, while the plaintiff in error contends it is governed by § 16 of the same act. By § 15, all actions on unwritten contracts, expressed or implied, must be brought within five years after the cause of action accrued, and §16 permits an action on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing to be brought within ten years after the cause of action accrues.

Two different periods are thus fixed within which an action may be brought for the breach of contract, not dependent upon the name or character of the action by which the obligation is to be enforced, but upon the kind of proof required to sustain the action, whether written or unwritten. If this certificate of deposit be a written contract, or other evidence of indebtedness in wilting binding upon tho stockholders as a primary obligation, either by their own act or by operation of law, it would clearly seem that it would fall within the class of actions named in § 16, and not be barred until ten years after it became due and payable.

Whether it be thus obligatory upon the stockholders of the corporation issuing it depends upon the effect that should be given to the ninth section of the charter, preserving the personal liability of the stockholders in favor of outside creditors of the bank.

In what character and to what extent are they bound to respond as individuals for the debts of the corporation by virtue of this provision ?

This, and kindred provisions in other charters, have been so often before our Supreme Court and there construed, as to render any extended discussion of its effect upon the liability of the stockholders by us unnecessary. In Fuller v. Ledden, 87 Ill. 310, the action was brought against a stockholder to recover the amount of certain moneys deposited in the Bank of Chicago, an institution organized under a special act, and which provided that “ each stockholder shall he liable to double the amount of stock held or owned by him,” and the Supreme Court, after referring to the decisions in other States construing like provisions, says: “ From these authorities it is apparent that the stockholders assumed the primary liability to creditors of the corporation to pay the indebtedness of the company to an amount equal to double the amount of stock held by each stockholder. When a debt was contracted by the corporation the liability of the then stockholders attached, and from that moment they became bound in the same manner and with like effect as if they had been doing business as partners unincorporated, except under the act the liability of each stockholder is limited to double the amount of stock held or owned by him.” It was further held that when the money was deposited in the bank, the stockholder, under the charter, became the debtor of the depositor, and he could not release himself without the consent of the depositor, without selling his stock and ceasing to be a member of the corporation, and that even this would not release him for liabilities incurred while he was a member. Following this is the case of McCarthy v. Lavasche, 89 Ill. 270, where the same provision again came before the court in a like case, and the stockholder set up the unconstitutionality of the act of incorporation as a defense, and the court held the stockholder estopped from relying upon such objection, and held, that independent of all constitutional questions, each shareholder, became liable under the charter as articles of copartnership, as it operated as an agreement by each subscriber to be liable to creditors to double the amount each subscribed. The provision in the charter of the People’s Bank of Belleville was construed in Buchanan v. Meisser, 105 Ill. 638, where it was held to have the effect of withdrawing from the stockholders, to an amount equal to the amount of stock held by them respectively, the protection of the corporation, and leave them liable as partners; and again in Thompson v. Meisser, 108 Ill. 359, where the same doctrine is re-asserted, the court holding that the conclusion to be derived from an examination of tlie decided cases is, that the stockholders, with respect to their personal liability under a provision of this kind, are in effect partners, and are consequently jointly and severally liable to the creditors of the corporation, exclusive of the stockholders themselves, to the amount of stock held by them respectively.”

From these decisions it is clear that the stockholders of the bank, as members of the corporation, did not acquire the benefits and advantages accruing from an unqualified act of incorporation, in that they -were not relieved or exempted from liability for the defaults and miscarriages of the corporation. They were allowed by law to do a banking business, to sue and be sued, and to contract debts and liabilities in the name of and by and through the agency of an incorporated company; but the same act provided that they should at the time of the creation of the debt by the corporation be absolutely bound as individuals, to the amount of their stock, to discharge such debt, in the first instance through the medium of the agency adopted hy them for the transaction of their business, but- if they make .'default in this regard then they should respond as individuals composing a partnershi]}.

Their liability as partners was no less absolute and fixed at the inception of the debt or obligation, because the law allowed them to incur it and discharge it through the corporation. It Avas none the less their liability because of the means employed in fixing the terms by Avhich they Avere bound. So long as the stockholders, collectively, through this legal entity, the corporation, complied with all its contracts creating liabilities against it and them they were alloAved to conduct business in this manner, but upon default in this respect the act of incorporation no longer afforded them any protection, and they were remitted to the common Iuav liabilities of members of a partnership under articles of agreement equivalent to the terms of the statute under which, as a corporation, they conducted their affairs. If these stockholders had formed a partnership under a contract identical in terms with the charter incorporating them, and had commenced doing business under the name and style of the People’s Bank of Belleville, and by that name had contracted debts for money deposited, can it for a moment be doubted that they would be liable as original promisors, at least to the extent named in the articles of copartnership % Wherein would this method of doing business make their liability any greater than the one actually adopted by them, when by the default of the corporation all the protection afforded by the latter mode is withdrawn from them 1 These stockholders, to the amount of their stock, are, by force of the statute as construed by our courts, upon the default of the bank, placed in exactly the same position regarding the debts and liabilities created by the corporation, that they would occupy if they were unincorporated, and had themselves incurred the liability as members of a partnership.

Their liability upon the contract was coeval with that of the corporation, both became bound at the same time and by the same contract— the bank as an incorporation, they as partners —with definite and separate interests represented by the amount of stock held by them respectively, and thus limited, their liability upon the contract creating the indebtedness was co-extensive with that of the corporation incurring it, ujmn their as well as its own behalf. Their obligation becoming thus fixed and absolute to discharge the debts and liabilities of the corporation according to the terms and conditions of the contract creating them, it seems to legally and logically follow that their liability would continue so long as the debt is a subsisting obligation against the corporation, and they still hold stock of the corporation not yet applied to the discharge of such debts and liabilities. Were this not so, the anomalous case would be presented of a statute making these stockholders liable as partners upon the contracts of the corporation at the time of their inception, and yet stand discharged from such original liability from the mere lapse of time, while the indebtedness is confessedly not paid, but is still a valid claim against their representative, the corporation, and will so continue for years. This result could not certainly have been contemplated by the legislature in enacting this provision preserving the personal liability of the members of the company. The object of the legislature clearly was to make them liable for the debts of the corporation in the way and manner the same were contracted, the act of incorporation not availing them in the least, if they made default to comply with the contracts thus entered into through its agency.

By operation of the statute the contracts of the corporation became their contracts, upon which they were primarily liab'e, in case of such default, according to the terms of the contract and to the extent provided for by the charter. We are of the opinion that their liability is co-extensive with that of the co-operation upon the contracts legally entered into by it, and are consequently bound to respond so long as the contract is existing as an evidence of indebtedness against it, and that they can interpose no defense to such original liability not equally available to the corporation. They may, of course, show that they have in good faith paid the debts of the corporation to the amount of stock held by them, and thus discharge themselves from any further liability, but that defense is not relied upon here. The certificate of deposit, set forth in the pleadings in this case, is an evidence of indebtedness in writing, equally binding upon the defendant, under the facts alleged in the declaration as upon the corporation issuing it, and as it is valid against the corporation for ten years, after it became due and payable, no less time will bar an action against the defendant below, for the money due upon it. Oases have been referred to as holding different views from those here expressed, but giving the decisions of our court the effect that we think, logically flows from the relations of the parties as therein determined, we can reach no other or different conclusion than that such cases can not have the controlling influence claimed for them. For the reasons given, we think the court erred in overruling the demurrer and the judgment will be reversed, and the case remanded.

Judgment reversed.


text:
    Illinois & St. Louis R. R. & Coal Co. v. S. H. Caldwell.
    1. Trespass —Possession.—The question as to who was in possession of the premises at the time of the trespass complained of, was fairly submitted to the jury, and their verdict must be held as settling it in favor of defendant in error
    2. Contractor in possession.—The objection that defendant in error being but a contractor to erect a building on the premises in question, did not have actual possession and therefore could not maintain this suit of trespass quare clausum fregit. Reid, that such objection is not tenable.
    Error to the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Gr. & Gr. H. Koerner, for plaintiff in error.
    Messrs. Flannigan & Canby, for defendant in error.
   Green, J.

This was an action in tJ’esjpass quare clausum fregit commenced by Caldwell against plaintiff in error, in the City Court of East St. IvOnis.

There was a verdict in favor of Caldwell for §100, a motion for a new trial by defendant below, which was overruled, and a judgment upon the verdict, to reverse which this writ of error was sued out.

It appears from the record that one Baird was in possession of a small piece of ground in East St. Louis, upon which, by a contract with Baird, Caldwell agreed to erect a building and furnish the materials therefor; that Caldwell in pursuance of this contract entered peaceably upon this piece of ground, and without objection on the part of any one, hauled the materials and proceeded with the work of erecting the building thereon, and had nearly completed the building when the agents and servants of plaintiff in error, claiming to be in possession of said premises, forcibly entered thereon, pulled down a portion of said building and removed the materials. On the part of the defendant below, at the trial, evidence was introduced tending to prove that it was in possession of said premises at the túne Caldwell entered. By proper pleas and upon the evidence, the question, “ who was in possession thereof when Caldwell entered and during the time he worked in the erection of said building?” was fairly submitted to the jury who tried the cause, and their verdict must be held as settling it in favor of defendant in error. The point is made on behalf of plaintiff in error, that Caldwell, being but a contractor to erect a building on said premises, did not have actual possession and therefore could not maintain this suit. This position, however, is not tenable. Scammon v. City of Chicago, 95 Ill. 424; Prairie State Loan & Trust Co. v. Doig, 70 Ill. 52.

The evidence tended to prove and the jury were justified in finding that at the time of the trespass, Caldwell had peaceable possession of the ground occupied by the building at least, and the damages claimed and recovered by him are for the loss he sustained by tearing it down and by the injury to and destruction of the materials furnished and used by Mm in its construction. The damages so recovered by him were not excessive, and we see no reason why the judgment below should be reversed; the same is therefore affirmed, and the costs of the additional abstract, furnished by the defendant in error, will he taxed against the plaintiff in error.

Judgment affirmed.


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    Great Western R. R. Supply Co. v. George Guenther.
    1. Burden of proof.—As the paper read in evidence was not a receipt, and the testimony intended to give it that character was contradicted by appellees, the burden of maintaining the defense interposed rested on appellant. As there is no error in the record the judgment is affirmed.

      Appeal from the Circuit Court of St. Clair county; the lion. Amos Watts, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Flabbigab & Cabby, for appellant.
    Mr. A. S. Wildermab, for appellee.
   Green, J.

This suit was brought hy appellee against the appellant to recover damages for a crop belonging to appellee, and alleged to have been destroyed by the employes of the appellant. A trial was had in the court below hy the court without a jury which resulted in a finding for appellee and a judgment thereon against appellant for $95 whereupon this appeal was taken. No propositions of law were asked to he held by the court on the trial. On the trial, plaintiffs below introduced evidence proving the destruction of grain, vegetables, etc., belonging to him hy said employes, and also proved the amount of damages he had thereby sustained. In defense appellant set up that an agreement had been made between it and Guenther whereby the sum of $50 was fixed and settled as the amount he would take in full satisfaction for all his damages sustained by the acts of said employes, and that appellant paid him that sum under the agreement. To maintain this defense, Jackson, a director and stockholder of appellant company, was introduced as a witness on its behalf on the trial, and testified in substance that Guenther came to the office in St. Louis and demanded $50 for his damages; that witness on behalf of appellant allowed him that sum and he (Guenther) then agreed to take one share of the capital stock of said company in lieu of the money; that the shares were one hundred dollars each, and that appellee still owed the balance of his subscription; that witness thus gave Guenther $50 for the damages and had his receipt therefor signed by Guenther, and witness then produced the same, and it was also read in evidence on behalf of appellant, and is a subscription paper with a printed heading containing these words: The undersigned hereby subscribe to the capital stock of the Great West-era B. B. Supply 'Company for the number of shares set opposite our respective names.” Under this printed heading in the column headed “ names ” appear these words in the handwriting of Guenther:

“ 1881, August 9, George Guenther one share.

“ Aug. 9. Fifty per cent, paid.”

In rebuttal, Guenther flatly contradicts Jackson in respect to the essential details of the interview and transaction between hjmself and Jackson, and gives a version of that interview indicating that no subscription for stock was then made or intended to he made by him, and no agreement to take stock in lieu of money for his damages, or fixing the amount he would take, etc., was made, and further testifies that Jackson then promised to pay him his damages for his crop destroyed, when McLean, the treasurer of appellant (then absent) should return. In addition to this testimony of Guenther, appellee read documentary evidence, showing that the full amount of the capital stock of ajopellant had been subscribed for prior to August 9, 1881.

We are satisfied from an examination of the record that plaintiff below proved enough to justify the court in its finding and judgment. And as the burden of maintaining the defense interposed rested on appellant we can not say that the court below erred in believing the testimony of appellee in jn-eference to that of Jackson, and in holding that appellant’s defense was not proven. We further concede the propositions of law insisted upon by counsel for appellant in their brief to be correct, viz.: “ That a receipt may be explained or contradicted by parol evidence.” That to do away with the force of a written receipt the proof should be convincing, and the burden of proof rests on the party attempting the explanation, and “ That a final settlement by appellee with appellant for these damages would be binding,” but we fail to perceive the applicability of these propositions to the facts in this case. The paper read in evidence was not a receipt and the testimony of Jackson intended to give it that character was contradicted by Guenther, and in like manner the testimony of Jackson tending to prove an agreement and settlement between the parties was contradicted by Guenther. We find no error in the record requiring the reversal of the judgment of the court below and the same is affirmed.

Judgment affirmed.


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    Peoria, Decatur & Evansville Ry. Co. v. John D. Reed.
    Instructions.—Instructions which inform the jury that certain facts as a matter of law constitute negligence and which are not based on the evidence are erroneous. As the instructions on negligence given in this case were obnoxious to such objections, the case is reversed.
    Appeal from the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 27, 1885.
    Hr. J. L. Ryan and Hr. Wm. H. McDonald, for appellant.
    Messrs. Stevens, Lee & Hobton and Messrs. Gibson & Johnson, for appellee.
   Green, J.

This suit was commenced before a justice of the peace by appellee to recover the value of his horse, which was struck by appellant’s train of cars and thereby fatally injured. A judgment was rendered by the justice against appellant from which it appealed to the Circuit Court of Jasper county, where a trial was had resulting in a verdict for appellee and a judgment thereon against appellant, to reverse which this appeal has been taken. On the trial below, it appeared from the evidence that appellee’s horse was running at large, and in the night, coming from the east on the public highway it crossed the railway track, and turned south into a lane opening upon the highway, but closed by a fence at its south end, fenced on its west side by a plank fence, and separated from appellant’s right of way by the railway fence of posts and five strands of barbed wire; from this lane the horse broke through the railway fence of appellant, ran down its track to or near a culvert, where it was struck by the train and so injured that it became necessary to kill it. ISTo negligence at common law is imputed to appellant in the running or managing the train which struck the horse, but the only debatable ground upon which appellee could base a right to recover in this action is whether the wire fence at the place through which the horse broke into appellant’s right of way was suitable and sufficient for the purposes named in the statute. Upon this point the evidence is that the fence had been built two years, and during that time had turned stock, and stock had been pastured in lots separated from the right of way by the same character of fence, and it had been sufficient to prevent their entering through it, upon the right of way. The fence was in good condition at the place where the horse broke through; had been originally four feet high there, but some dirt thrown out under the fence, reduced the height there and then to three feet and seven inches; the horse broke two or three strands of the wire in getting through the fence, and hence must have struck it with great force and violence. These facts taken by themselves seem to fairly show the performance by appellant of the duty imposed by the statute in respect to the building and maintaining fences inclosing its right of way; but it is urged on the part of appellee that the fence was not of sufficient height at the place where the horse broke through, and that wire strands used in the construction thereof could not be seen in the night so plainly and distinctly as boards, rails or hedges might be, and hence that suitable and sufficient material was not used in the construction of the said fence. Inasmuch as this case may be tried by another jury we decline expressing an opinion upon the facts, but hold that some of the plaintiff’s instructions given to the jury by the court on the trial were erroneous and ought not to have been given.

The first of these instructions is as follows: The jury are instructed as a matter of law, that it would be gross negli. gence in persons in charge of an engine not to see and observe stock if they are on or near a railroad crossing at least 200 yards before reaching that point, if there was nothing in the way to prevent them seeing if they had looked.”

This instruction informs the jury as a matter of law, certain facts constitute negligence. Negligence is not a legal question, but one of fact to be determined by the jury from the evidence. This is held in Myers v. I. & St. L. Ry. Co., Advance Sheets No. 3 of 113 Ill. p. 386; Brown v. City of Aurora, 109 Ill. 165; Chicago & Alton R. R. Co. v. Barber, 15 Bradwell, 633; Penna. Coal Co. v. Conlan, 101 Ill. 96.

This instruction is obnoxious to the further objection that it ignores the fact proven on the trial that at and immediately preceding the time the horse of plaintiff was struck, the night was dark and foggy, thus preventing those in charge of the engine at that time (as they testify) from seeing the horse until the engine was so close upon it that it was impossible to stop the train in time to avoid the collision.

Thus it appears that although nothing on the track (as the jury probably understood the instruction) was in the way to prevent those in charge of the engine from seeing the horse, yet darkness and fog did so operate, and that too without negligence on the part of defendant’s employes.

The second instruction for plaintiff is this: “ The law is that where by the use of ordinary care and diligence on the part of the servants of a railroad company, animals straying upon its track can be saved from injury, then it is the duty of such servants to exercise that degree of care, and a failure to do so, if proved, renders the company liable for any damage thereby sustained.”

We fail to find any evidence in the record upon which to base this instruction; no lack of care, or diligence on the part of those in charge of the engine and train of defendant, that in the slightest degree contributed to the injury complained of, was proven on the trial. Hence this second instruction was not applicable to the facts and ought not to have been given.

Blaintiff’s third instruction informs the jury in substance : H the horse was in plain view of the engine driver and fireman and was seen or could have been seen by them by the use of ordinary care and attention, in time to have slackened the speed of the train and avoided the accident, and that no efforts were made by them in that direction, this was such negligence as renders the company liable, if plaintiff’s own negligence did not contribute to the injury. This instruction is quite objectionable. It has no evidence to support it and is in violation of the rule laid down in the cases cited in support of our objection to plaintiff’s first instruction. The fourth instruction given on behalf of plaintiff informs the jury, that in a suit against a railroad company for killing stock at a railroad crossing, a failure to ring a bell or sound a whistle, for a distance of eighty rods before reaching the crossing, constitutes a prima facie case of negligence against the company, provided such failure contributed to the injury. This instruction was erroneous. The horse of plaintiff was not killed at a rail-road crossing nor was it so claimed at the trial. The evidence also shows that the bell on the engine was rung, and there is not a shadow of proof in the record that a failure to ring a bell or sound a whistle on the engine in any way contributed to the injury complained of. It would be superfluous to cite authorities in support of the proposition that instructions given by the court to the jury as to the law should be applicable to the facts. And upon the question of the failure to ring a bell or sound a whistle upon an engine, and the liability for such failure, and when and under what circumstances such liability arises, see Galena & C. U. R. R. Co. v. Dill, 22 Ill. 264; I. & St. L. R. R. Co. v. Blackman, 63 Ill. 120; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; R. R. I. & St. L. R. R. Co. v. Linn, 67 Ill. 111; Q., A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60.

Instructions other than those criticised by us herein were also given to the jury on behalf of plaintiff below, which were calculated to mislead the jury, but enough has been said upon this branch of the case and it seems to us unnecessary that more should be added.

Bor the error in giving the instructions mentioned the judg_ ment of the court below is reversed and the cause remanded.

Reversed and remanded.


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    Newton S. Gay v. Henry DeWerff.
    1. Trespass.—An action for false imprisonment by appellee where the general issue was filed by appellant with notice of special matters relied upon in the defense. It was objected that in the affidavit stated 'in the notice (Criminal Code, § 287) the words “when committed ” were omitted after the word “ offense,” and hence that the affidavit failed to charge that a misdemeanor was committed by appellee. Held, that such objection is not tenable. The warrant shall state the offense by name or so that, it can be clearly inferred. Technical accuracy is not required.
    2. Same—Evidence in justification.—Where in such case appellant, under the notice above mentioned, offered in evidence, as a defense in his behalf, his affidavit and the original warrant named in said notice, together with the transcript of the justice’s docket showing the trial, conviction and fine imposed upon appellee for the offense charged. Held, that it was error in the court, to refuse to admit such evidence.

      \ 3. Statement on oath necessary.—If the magistrate has jurisdiction of the subject-matter and does not require a sufficient statement on oath of the party complaining, such party could not be guilty of trespass with force and arms.
    4. Case and trespass.—The statute abolishing the distinction between trespass and case does away with the technical distinction between the forms of action, but does not give any other remedy for acts done under the legal process of a court of competent, jurisdiction than before existed.
    Appeal from the City Court of Alton ; the Hon. A. IT. Gambrell, Judge, presiding.
    Opinion filed November 27, 1885.
    Messrs. Baker & Baker, for appellant.
    Messrs. Wise & Davis and Mr. A. W. Hope, for appellee.
   Green, J.

This is a case of trespass vi et armis, brought by appellee against the appellant and two others (Charles II. Flick and Noah Cook) impleaded with him. The cause was taken by change of venue from the Madison Circuit Court to the City Court of Alton and there tried by a jury. A verdict for plaintiff was rendered for §551 against Gay (the suit being dismissed as to the others). Gay moved for a new trial, but ins motion was overruled and the court rendered judgment upon the verdict, from which judgment this appeal was taken. Plaintiff’s declaration consisted of one count for trespass and false imprisonment. To this all the defendants filed their plea of not guilty with a notice thereunder, in substance, that defendants would prove on the trial that defendant Gay, on June 3, 1882, made affidavit before defendant Flick, a justice of the peace, that on May 4, 1882, and other days and times, before and afterward, in Madison county, Illinois, a violation of the laws of the State was committed by Henry DeWerff, by advising, counseling and encouraging infants under the age of ten years, being his children, to enter upon the lands of M. S. Gay, where there is growing wheat, after they and DeWerff were forbidden so to do, contrary to the statute, and that affiant has reasonable ground to and docs believe that said DeWerff is guilty thereof; that on June 3, 1882, a warrant was issued by said justice and delivered to Hoah Gook, a constable of the county, for the arrest of DeWerff to answer said charge before the justice; that Cook read the warrant to DeWerff, who thereupon went before the justice to answer sail charge, and after hearing the evidence, said justice found DeWerff guilty thereof and fined him three dollars and costs, as provided by the laws of this State.

The justification afforded defendants by the facts stated in the notice is based xxpon the right, claimed under the statute, to make such complaint, under it issue a warrant, make the arrest of DeWerff, convict and fine him. Sec. 381 Crim. Code provides that justices of the peace shall have original jurisdiction in all cases of misdemeanor where the punishment is by fine only, not exceeding §200.

Sec. 266 provides that whoever willfully enters and passes over any garden^ yard or improved field after being expressly forbidden so to do, by the owner or occupant thereof, shall be fined not exceeding §5.

Sec. 287 provides that any person counseling, advising or encouraging an infant under the age of ten years, lunatic or idiot, to commit any offense, shall be prosecuted for such an offense, when committed as principal, and, if found guilty, shall suffer the same punishment that would have been inflicted on such person counseling, etc., had he committed the offense directly.

Under these provisions of the statute fairly construed, we think enough was stated in the notice to show that the justice had jurisdiction. The criticism made by counsel for appellee upon the affidavit stated in the notice is that the words “ when committed ” are omitted after the word “ offense,” and hence the affidavit fails to charge that a misdemeanor was committed by DeW erff; but it will be seen by referring to the same chapter of the statute, section 359, that a prisoner shall not be discharged on account of any insufficiency or informality in the complaint, or on account of any informality in the warrant; and in section 349, among other things, is pro Added “the Avarrant shall state the offense by name, or so that it can be clearly inferred.” Technical accuracy is not required either in the complaint or warrant in such cases. Young v. The People, 18 Ill. 566; Besimer v. The People, 15 Ill. 439; People v. Meacham, 74 Ill. 292.

On the trial of' the cause, the plaintiff having proved that ifoah Cook arrested and took him to the office of Fleck (Avhich arrest and detention Avas the trespass and false imprisonment complained of), defendant, Gay, under the notice mentioned, offered in evidence as a defense in his behalf his affidavit and the original warrant named in said notice, together with the transcript of the justice’s docket, showing the trial, conviction and fine imposed upon DeWerff for the offense charged. This evidence Avas competent and material, and tended to prove the defense of justification set up in the notice, hut the court beloAV refused to admit it and erred in so ruling. Even if Gay’s affidavit had been defective this evidence Avas competent and material; “if the magistrate has jurisdiction of the subject-matter and does not require a sufficient statement on oath of the party complaining, such party could not be guilty of trespass with force and arms.” Outlaw v. Davis et al., 27 Ill. 467; Bassett v. Bratton, 86 Ill. 152, and cases there cited.

Counsel for appellee suggests that the distinction between trespass and case having been abolished in this State .by statute, and that some evidence in the trial below tended to show that Gay prosecuted DeWerff maliciously, therefore for this malicious prosecution the latter could recover under his declaration in trespass. Even if the facts proven had established a malicious prosecution of DeWerff as suggested, the law is not as counsel for appellee claims. The construction of this statute given by our Supreme Court and by the appellate court in this State, is that this provision .of the statute does away with the technical distinction between the forms of action, but does not give any other remedy for acts done under the legal process of a court of competent jurisdiction than before existed, viz., an action on the ground of malice and want of probable cause; also that counts in trespass and in case may be joined in one declaration and the action be called trespass or case, but the count in case must contain all the elements necessary to make a good cause of action in case, and the count in trespass in like manner must contain all the elements to make a good cause of action in trespass; also that the rule, in all actions the proof must correspond with the allegations, is not repealed by the statute. Blacklock v. Randall, 76 Ill. 224; St. Louis, V. & T. H. R. R. Co. v. Town of Summit, 3 Bradwell, 160.

There being no count in case in the declaration of plaintiff below, and the construction given the statute being as stated, the suggestion of appellee’s counsel .as to the right of appellee to recover under his declaration for a cause of action in case is not in harmony with or supported by authority.

In addition to the error committed in rejecting the evidence offered by defendant under the notice, the court below also erred in overruling appellant’s motion for a new trial and rendering judgment on the verdict. There was no competent evidence introduced on the trial below to show that appellant, Gay, had anything to do with the arrest or detention of appellee complained of. All the hearsay evidence touching Gay’s orders or direction as to the arrest was ruled out by the court in the first instruction given the jury for plaintiff below, and the affidavit, warrant and transcript of the justice were also rejected as evidence, so that it only appears by the evidence in the record that Cook arrested DeWerff and took him before Flick who fined him for some offense. That Gay participated in any manner in this arrest and detention of De-Werff does not appear, and in this state of the evidence the plaintiff below was not entitled to recover under his declaration.

It is insisted, however, by counsel for appellee, that it is not shown by the record that the bill of exceptions contains all the evidence, and therefore the judgment below should be affirmed. We have examined as to this matter, and find in the bill of exceptions in the record, at the conclusion of the evidence therein set forth, these words: “ This is all the evidence given in the trial.” We think these words sufficiently advise us.that the evidence preceding them was all the evidence introduced by the parties to the suit on the trial thereof.

For the errors of the court below in refusing to admit the evidence offered by appellant on the trial under the notice, and in overruling the motion for new trial and rendering judgment against appellant on the verdict, the judgment of the court below is reversed and the cause remanded.

Eeversed and remanded.


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    Lewis Lavender et al. v. Ambrose Boaz et al.
    1. Setting aside judgment.—Before a bill can be maintained to set aside a judgment rendered in a suit in •which there was a good defense at law known to the defendant at the time it was rendered, it must clearly appear that the defendant was prevented from making his defense by fraud, mistake, accident or surprise without laches, negligence or default on his part or those representing him.

      2. Fraudulent conveyance .—Where a judgment debtor without personal .property makes, ackowledges and himself files for record deeds of all Ms real estate (except Ms homestead), to relatives and inmates of Ms family in their absence, without their knowledge, without previous arrangement having been made between the parties for the purchase of such lands, and no satisfactory evidence shows a consideration for such deeds, the whole transaction bears the badge of fraud, and equity will not uphold it.
    Error to the Circuit Court of Pope county; the Hon. D. M. Browning, Judge, presiding.
    Opinion filed November 27, 1885.
    ¡M¡r. L. F. Platen and Mr. W. G. Bowman, for plaintiffs in error.
    Messrs. Morris & Boyer and Mr. J. A. Pose, for defendants in error.
   Green, J.

Lewis Lavender and George Lavender, two of the plaintiffs in error, on March 3, 1879, filed their bill of complaint in the court below, against the defendants in error, to modify a judgment and enjoin the sale of lands in Hardin county, Illinois, described in the bill, and which were levied upon by virtue of an execution issued on said judgment. The judgment complained of in the bill was recovered against said Lewis Lavender in a suit brought upon his promissory note, given to one James A. Whitesides, was for the sum of $1,078.77, and was rendered in the Circuit Court of Pope county, on ¡November 7, 1878, in favor of Ambrose Boaz and Thomas Austin as the administrators of said James A. White-sides, and the said execution came to the hands of the sheriff of Hardin county on January 15, 1879, who levied it on said lands, on January 17,1879.

Complainants alleged in their said bill that George Lavender was the owner in fee of all the lands described therein; that said judgment was obtained by fraud; admit the sum of $135 was due on said note at the time said judgment was rendered ; alleged that said judgment was taken in violation of an agreement made between Lewis Lavender on the one part and Thomas Clark, the plaintiffs in the suit on note, and the heirs of said James A. Whitesides on the other part, and that complainants did not know of the existence of said judgment until January 20, 1879.

Amendments to this bill were subsequently filed, alleging in substance, that the whole of said note had been paid and more than the sum due thereon had been paid at the time said judgment was rendered; also alleging an error in the computation of the amount due on said note at the time said judgment was rendered, and the recent discovery of an old book account, showing payments by Lewis Lavender on said note, other than the credits indorsed thereon. Answers to the original and amended bills, denying the allegations thereof, were filed by the defendants thereto and complainants prat to the proof of said • allegations.

On March 25, 1879, defendants filed their cross-bill in said cause, alleging in substance the recovery of said judgment, the issuing and levy of said execution (on the lands described in the bill and on other lands in Hardin county described in the cross-bill) by the sheriff of Hardin county; that the conveyance of said lands described in the original bill to said George Lavender, and the conveyance of said other lands described in the cross-bill to Adeline Whitesides, by Lewis Lavender and India Lavender, his wife, were voluntary, fraudulent as to creditors of Lewis, and made by him to defeat complainants in cross-bill in the collection of said judgment. Said India Lavender, Adeline Whitesides, George Lavender and Lewis Lavender were made defendants to this cross-bill, and on August 9, 1879, all filed their answer, admitting the recovery of the said judgment, the issuing and levy of said execution as alleged in cross-bill, and making of conveyances to George Lavender and to Adeline Whitesides of said lands by said Lewis and India Lavender, as alleged in cross-bill, but alleging that the judgment was obtained by fraud; denying fraud in making said conveyances; alleging the same were made in good faith and for a valuable consideration. To this answer replication was filed by the complainants in cross-bill. The prayer of cross-bill was that said conveyances be declared fraudulent, and the lands therein described he subjected to the payment of said judgment. Upon this state of the pleadings and upon hearing evidence, documentary and oral, the court, by its decree below, found the allegations in cross-bill true; that said conveyances to George Lavender and Adeline White-sides were made by Lewis Lavender to hinder and delay complainants in cross-bill in the collection of their said judgment, and were voluntary and without consideration; and that by making said conveyances Lewis became insolvent; that at the time of the rendition of the said judgment against him he was the owner of all the lands described in cross-bill, and that said judgment was rendered for a sum larger than it should have been, and the court decreed that said judgment be confirmed to the amount of §647.10, and the costs of the suit at law, with interest from date of judgment, and that said lands in the cross-bill described be subjected to the payment of said judgment, as so modified, and costs. To reverse this decree this writ of error was sued out.

After a full and careful examination of the record, we are satisfied that the court below by its decree, granted plaintiffs in error the full measure of relief to which they were entitled under the proof. It appears from the evidence that Lewis Lavender was duly served with process in the suit at law. He Imew a declaration had been filed therein, and was told of the rendition of the said judgment against him on the day the same was rendered, and was guilty of such laches, that the court below might with good reason have declined to even modify the judgment, but to have held him liable to pay the full amount thereof. Before a bill can be maintained to set aside a judgment rendered in a suit in which there was a good defense at law known to the defendant at the time it was rendered, it must clearly appear that the defendant was prevented from making his defense by fraud, mistake, accident or surprise without laches, negligence or default on his part or those representing him. Clark v. Ewing, 93 Ill. 574.

The proof in this case fails to establish any fraud, imposition or deception practiced on Lewis Lavender in obtaining said judgment, and all payments or credits on the note sued on or on said judgment, proven by any competent evidence on the hearing, were allowed by the court below. The testimony of Lewis Lavender and his wife, of payments to or for said James A. Whitesides, was incompetent; they were parties to the suit, and under the statute were precluded from testifying to payments alleged to have been made to or by the order of said James A. Whitesides in his lifetime as credits upon said note. We are also of opinion that the court below was justified by the evidence in decreeing that the lands conveyed by Lewis Lavender and wife to George Lavender and to Adeline Whitesides should be subjected to the payment of the judgment as modified by the decree. The proof shows that on November 11, 1879, four days after said judgment was rendered against Lewis Lavender, and at a time when suits were pending against him in Ilardin County Circuit Court, in which county the lands in controversy were situated, he and his wife executed, acknowledged, and he filed for record, a deed to said George Lavender (an unmarried son and inmate of their family) and a deed to Adeline Whitesides (a sister of said India Lavender, and also an inmate of their family), by which deed all the lands in controversy and all the lands owned by said Lewis (except forty-three acres occupied and claimed by him as a homestead), were attempted to be conveyed. Said deeds were so made, acknowledged and filed for record on one and the same day, in the absence of the grantees, without their knowledge or direction, and without previous negotiation between the parties for the purchase of the lands so conveyed, or attempted to be conveyed. Moreover, the evidence tending to show any consideration for the conveyance of said lands is very meagre and unsatisfactory; the only consideration alleged therefor and attempted to be proved being wages claimed to be due George and Adeline from Lewis Lavender for services rendered daring many years (and concerning which no settlement had been ever made or attempted), and the further consideration of some money alleged to have been furnished by said grantees to Lewis. It further appears from the testimony of George Lavender that at the time said deed was delivered to him he had heard of the execution against Lewis, and Adeline testified she made no charge for her services, but went to live with the family of Lewis Lavender, and remained an inmate thereof for over twenty-five years because she had no other home. It is clearly shown by this record that a judgment debtor without personal property subject to execution, makes, acknowledges, and himself files for record deeds of all his real estate (except his homestead) to relatives and inmates of his family, in their absence, without their knowledge, without previous arrangement having been made between the parties for the purchase of the lands described in the deeds, and no satisfactory evidence shows a consideration for such deeds. The whole transaction bears about it the badge of fraud, and equity will not uphold it. Phelps et al. v. Curtis et al. 80 Ill. 110; Jeffers v. Amals, 91 Ill. 487; Lawson et al. v. Funk, 108 Ill. 503.

The decree of the court below, upon the proof offered at the hearing, was right, is fully supported by the authorities, and perceiving no error requiring its reversal, is affirmed.

Decree affirmed.


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    Nicholas Reeb et al. v. Fritz Bosch et al.
    1. Practice—Trial of writ of inquiry.—Judges of courts can enter no orders in vacation except such as may be expressly authorized by the statute, and the judge of the county conrt has no jurisdiction to hear the trial in vacation upon a writ of inquiry under the statute to assess damages for further breaches of covenants in an appeal bond.
    2. Same—Suit pending.—Another suit pending on appeal in the same court is no bar to this suit regarding the same matter so long as there was no final judgment conclusive upon the parties.
    3. Writ of inquiry.—A statutory writ of inquiry to assess damages on subsequent breaches of covenants' in a bond differs from the common law writ of inquiry on default entered, in that on the trial of the former, the defendant can plead any defense to the subject-matter of the new assignment that he could have done originally if it had been a part of the declaration, while in the common law writ, by the default, the defendant conclusively admits his indebtedness upon the cause alleged to some amount, and the writ is issued merely to determine the amount of the judgment.

      Appeal from the County Court of St. Clair county; the Hon. W. J. Hndejrwood, Judge, presiding.
    Opinion filed November 27, 1885.
    Appellees recovered a judgment in the Circuit Court of St. Clair county, against William Homeir and August Stocks for §257.50 and costs of suit, from which an appeal was taken to this court. The appeal was dismissed at the February term, 1885, of this court.
    The appeal bond was signed by these appellants as sureties-Suit was brought upon the appeal bond to the March term, A. D. 1885, of the County Court of St. Clair county, when judgment was rendered against appellants for §400, the penalty of the bond for the debt, and for §183.26 as damages, being the amount due upon the former judgment exclusive of the costs of the suit in that case.
    Only one breach was assigned upon the bond in that suit: the failure to pay the judgment. Afterward the plaintiffs were compelled to pay their own costs in the original cause, and then commenced another suit upon the bond before a justice of the peace to recover the costs thus paid, and from the decisions of the justice an ajijieal was taken to the county court. Pending this appeal the plaintiffs instituted this proceeding by filing a suggestion of a further breach of the bond in the original suit brought upon the bond in the county court, and the judge of that court bear'd the cause in vacation, and rendered judgment for the further sum of §57.65, being the amount of the cost in the original suit, and which had been paid by the plaintiff after judgment in that cause. From this assessment of damages this appeal is prosecuted.
    Mr. O. H. Patton, for appellants.
    Messrs. Turner & Holder, for appellees.
   Pillsbury, P. J.

It is stipulated that the recovery in the suit on the bond was had upon the one breach assigned, the nonpayment of the judgment for damages, and did not include the costs. The statute requires an appeal bond to be conditioned for the prosecution of the appeal, for the payment of the judgment, interests, damages and costs, in case the judgment is affirmed. The non-payment of either would then be a breach of the bond for which an action would lie upon it. The payment of the judgment, interests, and damages would not discharge the bond, if the costs remained unpaid.

Under the authority of the-cases of McDole v. McDole, 106 Ill. 452, and People v. Harmon, 15 Bradwell, 190, there can be no ground for supposing that the recovery upon the bond for the breach alleged would be a bar to a suggestion of a further breach tiled under the statute allowing the proceeding. Heither was the suit commenced before the justice, and then pending on appeal in the county court, a matter to be relied upon as a bar to this proceeding. There was no final judgment conclusive upon the parties. At most, if available in any way, it was matter in abatement only and should have been so pleaded. Besides the penalty of the bond had already been passed into a judgment for the debt, and under the statute stood as further security for other breaches. In our opinion, however, the county judge had no power to try the cause and render judgment upon the breach alleged in vacation. The breach newly assigned in effect becomes a part of the original declaration, upon which the same issue can be formed respecting the cause of action therein assigned as could have been done if it had been a part of the declaration, except that the defendant is concluded by the former judgment from attacking the validity of the bond or the force and effect of the judgment forfeiting it. Ho liability is admitted upion the breach alleged. He can plead "any defense to the subject-matter of the new assignment that he could have done originally if it had been a part of the declaration. And herein the proceeding differs from a writ of inquiry issued as at common law upon default entered. By the default the defendant conclusively admits his indebtedness upon the cause alleged to some amount, and the writ of inquiry is issued to determine the sum for which judgment should be entered.

Final judgment for the qdaintiff in contemplation of law has already been entered, but as the court is not advised of the exact amount of damages sustained, the writ of inquiry goes to ascertain it. All the defendant can do upon such inquiry is to reduce the amount of recovery. He can not deny the cause of action nor introduce evidence to defeat it. As we understand the statute and the practice obtaining in proceedings like the present, these strict rules are not applied to the defendant. As has been said he may plead to and deny any liability arising out of the facts alleged in the new assignment, except as stated. He may show that he was never liable or that the cause of action has been satisfied. Even if he should allow a default to be entered against him in the cause for the breaches originally assigned, he would not be precluded from defending against breaches subsequently suggested. As to the former lie may have no defense but may have to the latter. A defendant surely can admit the right of recovery upon some of the breaches assigned and deny it upon others, and no reason is perceived why he can not do this, whether the breaches are suggested in the original declaration or subsequently suggested under the statute. Judges of courts can enter no orders in vacation except such as may be expressly authorized by the statute (Blair v. Reading, 96 Ill. 600), and we fail to find any authority therein for the county judge to take jurisdiction of the cause and determine it in vacation, as was done in this case; the judgment for this cause must be reversed and the cause remanded.

Judgment reversed.


author: Pillsbury P. J.

text:
    Louis Fusze et al. v. Christian Stern et al.
    1. Cbeditob’s bill.—Where a bill is filed by a creditor, who having recovered a judgment against his debtor, seeks to remove a fraudulent conveyance or incumbrance out of the way of an execution issued or to be issued upon such judgment, the complainant need not even prove the return of execution nulla Iona, as such conveyances are void by the statute, and courts of equity do not hesitate to declare them void because of such fraud, and place the creditor in the same position respecting his judgment that he would have occupied if such conveyance had not been made.
    2. Same.'—After judgment against two defendants and execution returned nulla lona, after demand, and a special execution thereupon issued against land alleged to have been fraudulently conveyed by one of the defendants, a bill will lie to remove the fraudulent conveyance out of the way of the said execution, and may at the same time include a prayer for the discovery of money or personal property in the hands of another party for the benefit of the other defendant, notwithstanding the existence of the special execution at the time.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed November 27, 1885.
    “ This is a bill in equity filed by Louis Fusze and Mathias Backer, as late partners, against Christian Stern, Mary A. Stern and ¡Nicholas Staub, defendants, the material averments being that complainants recovered a judgment in the St. Clair Circuit Court on the 18th day of April, 1885, against Frederick Backer and Christian Stern, late partners, for the sum of §33,050.79; that in said suit an attachment writ was issued against Stern, upon an affidavit averring a fraudulent assignment of his property within two years, and levied upon certain real estate described in the bill. That Stem appeared and defended, denying the cause alleged for the attachment as well as pleading to the merits, and upon trial both issues were found against him and judgment rendered as above stated. That complainants had caused a general execution to be issued upon said judgment against both defendants, which was returned, no property found, after demand upon them by the sheriff. That, thereupon, they caused a special execution to be issued against the real estate attached, which writ of special execution was in the hands of the sheriff at the time of exhibiting their bill herein. The bill then avers that the defendant firm in the judgment is entirely insolvent; that before the levy of said attachment writ upon said real estate, but during the existence of said indebt, edness, the defendant Stern conveyed said lands to the defendant in the hill, Nicholas Stanb, for a pretended consideration of §13,000, but that such conveyance was a mere sham and without consideration, and made with intent and design to prevent the complainants from collecting said debt, and that said Stanb holds the title to said land in trust for said Stern. The bill then charges that said Christian Stern has no property known to the complainants subject to execution, but has alargo amount of personal property and money concealed for the purpose of preventing the collection of complainants’ judgment, which money and personal property the bill avers to be in the possession of his wife, the said Mary A. Stern, who holds it in trust for the said Christian and for his use and benefit. Avers the insolvency of the firm of Stern & Backer and of said Frederick Backer, and prays that said fraudulent conveyances to said Stanb may be removed out of the way of said special execution, to the end that the said real estate may be sold thereon, and that the money and personal property held by Mrs. Stern may be made subject to the payment of the same and for general relief.
    The defendants appeared and filed a general demurrer to the bill, which was sustained by the court, and the complainants abiding by their bill, the same was dismissed and they appealed to this court.
    Messrs. Turner & Holder, for appellants.
    Messrs. Wilderman & IIamill, for appellees.
   Pillsbury P. J.

The only point made in support of the decree of the court below in dismissing the bill is, that as it is averred that a special execution was still in the hands of the sheriff at the time of exhibiting the bill, the court had no jurisdiction of the cause in equity, as it did not appear complainants had exhausted their legal remedy. An examination of the bill discloses that two grounds are relied upon for equitable relief ; first, that the fraudulent conveyance to Stanb of the real estate, is an obstacle to the free and unobstructed right of the complainants to expose the real estate to sale upon their execution, and second, the discovery of the money and personal property alleged to be in the custody and control of his wife for the use and benefit of said Christian, one of the judgment debtors.

There are several kinds of original bills known to our laws, wherein courts of equity entertain jurisdiction to aid a credit- or in obtaining satisfaction of his claim from his debtor, and which are generally denominated creditors’ bills, not only by the members of the legal profession, but by the courts as well, as where a debtor seeks to satisfy his debt out of some equitable estate of the defendant which is not subject to levy and sale under an execution at law; then before he can have the aid of a court of equity to decree the equitable estate, subject to the payment of his debt, the creditor must show by his bill, as in other cases where invoking equitable jurisdiction, that he has no adequate remedy at law, which can only be shown by alleging and proving that he has exhausted all the means provided by the law for the collection of his debt, viz., a recovery of judgment, the issuing of execution and its return nullabona by the officer charged with its collection. Another kind of bill analogous to this is where the creditor, having recovered judgment against his debtor, seeks to remo vea fraudulent conveyance or incumbrance out of the way of an execution issued or to be issxxed upon such judgment. In such case equity will afford relief on the ground that such judgment is an eqrxitable lien upon real estate, nominally held by a third party under such fraudulent conveyance, and the creditor having this lien is entitled to levy upon and sell upon his execution such real estate discharged and untrammeled from the cloud upon it caused by such conveyance.

In bills of this kind the complainant need not even prove the return of execution nulla Iona, as such conveyances are void by the statute, and courts of equity do not hesitate to declare them void because of such fraud, and place the credit- or in the same position, respecting his judgment, that he would have occupied if such conveyance had. not been made.

A recovery of a judgment which at time of filing the bill would, in absence of such conveyance, be a legal lien under the statute upon the land, is all that is necessary to aver and prove. Miller v. Davidson, 3 Gil. 518; Wightman v. Hatch, 17 Ill. 281; Shufeldt v. Boehm, 96 Ill. 561.

In another class of cases, where the creditor seeks to satisfy his claim out of a fund charged with its payment, and which can only be reached by proceedings in chancery, he may file his bill and establish his claim in that suit without having reduced it to a judgment at law. Russell v. Clark, Ex. 7 Cranch, 87; Shufeldt v. Boehm, supra.

The bill in this case partakes of the character of the two first above mentioned in that it asks to have the conveyance to.Staub removed as fraudulent, and also seeks for the discovery of assets of defendant, Christian Stern, in the possession of his wife.

The facts stated in the bill are in our view sufficient, under the strictest rule applying to creditors’ bills, to entitle complainants to the relief prayed. A judgment against the debt- or firm was rendered, a general execution awarded and issued thereon, a demand by the officer for payment which was refused and return by him unsatisfied. This is all that the law requires to give a court of equity jurisdiction to aid the creditors in the discovery of assets held by any one else in trust for them or either of them, and the fact that a special execution is in the hands of the sheriff, upon which the real estate attached may be sold when the fraudulent conveyance to Staub shall be removed, can in no way affect the rights of Mrs. Stern in the matter, as that execution, being special, is not a lien upon the money and personal property held by her, and could not be levied upon by virtue of it; but as the complainants have a right to call to their aid the power of a court of chancery to remove out of the way of such execution the obstruction to its effectual enforcement, created by the fraud of the judgment debtor, no reason is perceived why he may not include in the same hill a prayer for the discovery of property in her hands. Besides, as we have seen, the facts averred give the court jurisdiction without the issuing of the special execution, and that averment may be treated as surplusage. Wightman v. Hatch, supra. And even if still in the hands of the officer it would not seem in any degree to affect the question of jurisdiction. Weis v. Turnan, 91 Ill. 29; Lawson v. Funk, 108 Ill. 503.

But even if it should be held as affecting the right to call upon Firs. Stern to make discovery, the bill is good upon the first ground shown for relief, and a general demurrer by all the defendants should have been overruled. Gooch v. Green, 102 Ill. 507.

The decree of the court below will be reversed and the cause remanded, with direction to overrule the demurrer and for further proceedings.

Beversed and remanded.