text:
    Minnie Schwitters et al., Plaintiffs in Error, v. R. Magoon Barnes et al., Defendants in Error.
    Gen. No. 5324.
    1. Pleading—what essential to constitute paper hill in chancery. A mere written motion is not the equivalent of a bill in chancery to set its machinery in motion. A bill in chancery must set up the facts upon which the relief is sought; it must pray for relief; it must have a party complainant and name parties defendant.
    2. Parties—who necessary to proceeding to appoint trustee. Those having an interest in a trust, whether present or contingent, are necessary to a proceeding in a court of chancery to appoint a trustee as the successor of a testamentary trustee who has resigned.
    3. Writs of error—when cannot he maintained. A writ of error does not lie except to review the action of the trial court with respect to litigation which has been conducted before it. Such a writ likewise must be sued out by a person who was a party to such litigation in the trial court.
    Error to the Circuit Court of Woodford county; the Hon. J. H. Moffett, Judge, presiding. Heard in this court at the October term, 1909.
    Dismissed.
    Opinion filed October 18, 1910.
    Livingston & Bach, for plaintiffs in error.
    R. Magoon Barnes, pro se.

   Mr. Justice Dibell

delivered the opinion of the court.

On February 10, 1903, Dorothy Schwitters filed in the office of the clerk of the circuit court of Woodford county a paper, which read as follows:

“State of Illinois ) Woodford County j ss‘

In Circuit Court Of December Term 1903.

In the matter of the estate of Heiio Schwitters Deceased.

How comes Dorothy Schwitters in her own proper person and moves the court to appoint E. Magoon Barnes of Bacon, Illinois, as sole trustee under the last will of her deceased Husband, Heiio Schwitters, in place of James I. Kerr and Frank I. Stubblefield and said Dorothy Schwitters, all of whom have resigned and declined to act.

Her Dorothy Schwitters X mark.”

Witness S. H. Schwitters.

Thereupon, on the same day, a circuit judge signed a decree and the same was filed in the office of the circuit clerk. The decree recited that on that day Frank A. Stubblefield and Dorothy Schwitters, executors of the last will of Heiio Schwitters, deceased, came into court and presented a certified copy of said will and proof that the same had been duly admitted to probate by the county court of Woodford county. The decree then sets out said will. The testator therein gave all his real and personal estate to his wife, Dorothy Schwitters, and to Frank A. Stubblefield and James I. Kerr, as trustees, to pay off his debts, to pay his wife the income during her life, unless she should marry again, and if she married again, then to pay her one-half of said income for the rest of her life, and to invest the other half thereof. The will required the wife to pay the taxes and keep the buildings on the real estate in repair. It made her the guardian of the children until she married again and, at her death, or remarriage, made Stubblefield and Kerr guardians. It required the wife to maintain and educate the children until they were twenty-one years of age and also to maintain the mother of the testator. It required the wife, out of said income, to pay each child $600 when he or she attained the age of twenty-one years, bnt if the wife married again, any child thereafter coining of the age of twenty-one years should receive said sum of $600 out of the one-half of the income not given to the wife. The will directed that, upon the death of the wife and the youngest living child reaching the age of twenty-one years, then the trustees should divide the testator’s property pro rata among his children, giving to the lawful issue of a deceased child a parent’s share, and this should be done either by converting all the estate into money or by dividing it without converting it into money. The will gave the trustees authority to sell any or all of testator’s real or personal estate at public or private sale and to invest the proceeds, or to lease the real estate, as they deemed best. The trustees were also made executors, and their compensation, as executors, trustees or guardians, was fixed at $50 per annum each for Stubblefield and Kerr, or $100 for one if the other did not qualify. The decree found that the estate, exclusive of the trusts named in the will, was ready for final settlement. It recited that Dorothy Schwitters and Stubble-field and Kerr declined to act as trustees under the will. 11 was thereupon decreed by the circuit court that it now assumed jurisdiction of said trusteeship; and on said motion of Dorothy Schwitters, it was decreed that R. Magoon Barnes be appointed as trustee to execute the trusts named in said will, to rent and control the real estate left by the testator and also that purchased by the executors subsequent to his death, and to loan out the moneys on hand, to collect the income from the estate and to pay the same to Dorothy Schwitters during her life or until she shall remarry, and, if she remarries, to pay her one-half of the income, and to cause her to pay the taxes and keep the buildings in tenantable condition. The decree further ordered Kerr and his wife, Stubblefield and his wife, and Dorothy Schwitters to convey the real estate, amounting to 360 acres, to Barnes as trustee. It was further decreed that, upon the death of Dorothy Schwitters and when the youngest living child became twenty-one years of age, the trustee should further execute the trust by sale and division of the proceeds, or partition in fact, of the lands therein described. The decree found that the executors had in hand $1,452.13, to be paid to the trustee, and it directed that the trustee give bond in the sum of $3,000 conditioned for the faithful discharge of his duties as trustee ; and the court reserved the right to increase or diminish said bond and required that the trustee, before selling the real estate, should give another bond. The decree also approved a bond then presented by the trustee and directed the executors to pay over said money to said trustee.

It seems to be claimed that with the motion of Dorothy Schwitters, above set out, was filed a complete transcript of the proceedings had in the county court. This cannot be so, for the transcript so filed shows that a certified copy of the foregoing decree of the circuit court, showing the appointment and qualification of Barnes" as trustee, was presented to said county court in the matter of said estate and that the executors were then ordered to pay Barnes as trustee $1,452.13, and that they thereafter reported to the court that they had paid said sum and exhibited the receipt of Barnes therefor, and that the county court thereupon found the administration of the estate fully settled and entered an order discharging the executors, except as to the execution of the said trusts. The transcript therefore must have been filed after the decree was entered, and when the decree was entered the only paper on file having any pretense to be called a pleading was said written motion of Dorothy Schwitters. But if said ■ transcript had been filed before the decree was entered it did not aid in conferring any jurisdiction on the circuit court. There had been no appeal from any order of the county court, and there was no authority of law to file a certified copy of its proceedings in the circuit court; and the only office that transcript could perform was as documentary evidence upon a hearing. Thereafter the trustee filed a number of reports from year to year, and the circuit court from time to time entered a rule upon all parties in interest to file objections to said report by a given time, and, after that time had passed, approved the report. In 1909, Minnie, Mary and Christopher Schwitters, claiming to he minors, by their next friend, sued out from the Supreme court a writ of error against Barnes the trustee, and against George Schwitters, Sophie Yerlc, Schwittert Schwitters, Dorothy Schwitters and John H. Schwitters, all of whom, except Barnes and Dorothy Schwitters, we are asked to assume are other children of said testator. Barnes moved to dismiss the writ of error, and,.upon a consideration of that motion, after John H. Schwitters had been changed to a plaintiff in error, that court found that no freehold was involved and that that court did not have jurisdiction, and it directed the cause to be transferred to this court, which was done. Schwitters v. Barnes, 243 Ill. 493.

This was not a suit at law, nor a proceeding under any statute. If maintainable, it was a cause in chancery, brought for the appointment of a successor to testamentary trustees, and to control and enforce the execution of testamentary trusts affecting real and personal estate. It seems to be seriously argued that the brief paper set out at the commencement of this opinion was a bill in equity. It is obvious that it was only a written motion. It is said it contained a prayer. That may be said of every motion. We are led to inquire what is necessary to be done in order to institute a suit in equity. Section 1 of the Chancery Act authorizes the circuit courts to proceed as in that act prescribed and, where no provision is made in that act, then according to the general usage in courts of equity. Section 4 enacts that the mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint. Various sections of that act show that the suit is to have one or more complainants, who prosecute the suit, and one or more defendants, and require the issue and service of process or notice upon every defendant as therein prescribed. Section 7 of Story’s Equity Pleading shows that the complainant must file a bill in equity and set forth material facts and pray for appropriate relief and for the usual process against the other parties in interest. In Helm v. Cantrell, 59 Ill. 524, it is held that every fact essential to the plaintiff’s title to maintain the hill and to obtain the relief must be stated in the bill, otherwise the defect will be fatal, and that relief cannot be granted for matters not charged in the bill. In Dickey v. Reed, 78 Ill. 261, it is said there are several things which are indispensable to enable the court to hear, to determine, and to decree; and, among other things specified is that there must be a complainant who must file a bill, alleging facts showing that he has an interest in the matter in litigation, or at least to complain and have relief for others. In Campbell v. Powers, 139 Ill. 128, the court said: “Every bill must contain sufficient matters of fact per se to maintain the case, so that the same may be put in issue by the answer and established by proofs.” In J. H. Rice Co. v. McJohn, 244 Ill. 264, the court said: “Ho facts are properly in issue unless charged in the bill, and no relief can be granted for matters not charged. The averments of a bill and the decree must correspond. It is fundamental that a party must stand or fall by the case made by his bill.” In C. P. & St. L. Ry. Co. v. Jacksonville Ry. & Light Co., 245 Ill. 155, it was held that a decree cannot give relief which the evidence would warrant, where there are no averments in the bill to which the evidence can apply, and that the complainant must stand or fall with the case made by his bill. In Windsor v. McVeigh, 93 U. S. 274, 283, the court said, by way of illustration: “The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an advisory proceeding of the chancellor; and the reason is that the courts are not authorized to exert their power in that way.” In Kerfoot v. People, 51 Ill. App. 409, the court said: “A court of chancery cannot obtain jurisdiction, save by the filing of written pleadings, and the extent of the jurisdiction of the court in the case under consideration is determined by the contents of the pleadings.” In the case at bar, there was no bill stating facts which would authorize a court of equity to appoint a trustee to take control of the estate and to retain the estate within its control till the period of final distribution, and to direct and control that final distribution. There was also no prayer for relief. If it be said that Dorothy Sch-witters might be considered a complainant, no one was named as a defendant. The children of Heiio Schwitters, deceased, who are finally to receive this estate are not even named anywhere in the proceedings before us. The decree recites that Dorothy Schwitters and Stubblefield appeared and refused to act. That did not make Stubblefield a defendant nor give him an opportunity to be heard in the manner prescribed by the practice in courts of equity. But Kerr also was ordered, with his wife, to make a deed, and they did not even appear. It is said that Kerr had refused to act as trustee in the county court. The county court could relieve him from the duty of administering the estate in that court, but it could not accept his resignation as trustee. This action was taken long before the Act of June 14, 1909, extending the jurisdiction of probate and county courts so as to include testamentary trusts. It is argued that Dorothy Schwitters and Stubble-field, being the widow who was entitled to the income and the two trustees who had not originally declined to act, are all the parties in interest, and that however irregular the procedure may have been, no one else can complain. The basis of this argument is the fact that under the will those children only will take who arrived at the age of twenty-one years and those only are interested in the final distribution who may be then living or who have lawful issue then living, and the assumption that therefore the present interests of the children are contingent only. We are of opinion that whatever name may be applied to the present interests of the children, they are necessary parties in a proceeding to appoint a trustee, the very purpose of which is to protect their estate. Chapin v. Nott, 203 Ill. 341; Ohio Coal Co. v. Daughetee, 240 Ill. 361. If the position contended for here by Barnes is sound, then the testamentary trustees and the widow can by collusion absorb the entire estate, and the children of the testator would have no standing in a court of equity to protect themselves. But the supreme court in this very case (Schwitters v. Barnes, supra), decided that the children of the testator have a right to a voice in the appointment of a trustee. We are of opinion that the decree and subsequent orders embodied in the record before us are coram non judice and void. There has been no suit in equity involving this estate, and the orders entered in the court below have been without jurisdiction. It is manifest that great mischief and confusion would result from the adoption of a rule of practice that would permit a party on a mere motion in a court of equity, without any pleading or notice to opposite parties, to dispose of important financial interests in an estate like this. This proceeding violates the fundamental principle that courts may not dispose of the rights of any one without notice pursuant to law and a hearing.

But, if we are right in sustaining the position of plaintiffs in error that there is not and has not been any suit in equity pending in the court below, nor any parties named there, by what authority can these void proceedings be reviewed in this court on a writ of error % In section 8 of the Appellate Court Act the appellate courts are given jurisdiction of appeals or writs of error from the final judgments, orders and decrees of the circuit court “in any suit or proceeding at law or in chancery, other than criminal cases not misdemeanors, and cases involving a franchise or freehold or the validity of a statute.” Section 16 of said Act authorizes the writ of error to be taken to the appellate court in the district “in which the case is decided.” Similar language in sections 118 and 120 of the Practice Act shows that writs of error relate to cases in the court below. In Suydam v. Williamson, 20, How. 427, the court said: “A writ of error is an original-writ and lies only when a party is aggrieved by some error in the foundation, proceedings, judgment or execution of a suit in a court of record.” The definitions of a writ of error in the text books show that it is a writ to review the final judgment'or decree of an inferior court in a suit or action brought before it. We do not suppose, that, if a judge voluntarily chooses to cause to be inscribed upon the records of his court matters not involved in any suit brought in his court or pending before him, and to which record no one is named as a party, such matters can be reviewed by writ of error sued out by some one not named in the record sought to be reviewed.

The plaintiffs in error on this record are Minnie, Mary, Christopher and John H. Schwitters. The defendants in error are Barnes as trustee, George Schwitters, Sophie Yerk Schwittert Schwitters, and Dorothy Schwitters. The record before us contains the names of Barnes and Dorothy Schwitters. In .one of the reports there is shown the payment of $600 to John Schwitters, therein recited to be a son of Heiio Schwitters, deceased. The reports contain the name of Schwittert H. Schwitters, a tenant. We have no means of knowing that he is the same person as Schwittert Schwitters, de; fendant in error; indeed the record justifies the inference that these are different persons. The rest of the plaintiffs in error and the defendants in error are not named anywhere in this record, so far as we can find. In the will the testator did not give the names of his children. We find among the papers in this court a prcecipe for a writ of error. It declares that a decree was obtained in the court below against Minnie, Mary, Christopher, John H.., George, Dorothy and Schwittert Sch-witters and Sophie Yerk. TTo such decree is contained in this record. We cannot know that the parties named are the the children of the testator, nor that they are all his children. Even the prcecipe for a writ of error does not allege that these are children of the testator, nor that they are all the children of the testator. We are of opinion that there is nothing in the record before us which shows that plaintiffs in error have any litigation pending, nor anything which shows that all persons interested are before the court. We conceive that if plaintiffs in error are children of the testator, their remedy is not by a writ of error to review a record in which they are not named and with which there is nothing to identify them. We are of opinion that they should have brought an original suit in equity in the circuit court, either to charge Barnes as trustee de son tort, or in some appropriate way to bring the control of said trust estate within a court having jurisdiction, and should have made parties thereto all persons in interest. This would have included all the children of deceased, and the widow, and Barnes, and also Stubblefield and Kerr, who have never resigned their positions as trustees to any court having jurisdiction to act thereon. When such a suit is heard, after jurisdiction obtained and issue formed, it does not necessarily follow that Barnes will be removed from the trusteeship. If the resignation of Dorothy Schwitters, Stubblefield and Kerr, shall be accepted by a court so having jurisdiction, and if it shall be found that Barnes was a suitable person to be a successor in trust, and that he had in all things acted pursuant to the directions of the will and in entire good faith, and that he had well preserved the interest alike of all the parties, it may be that the court in its discretion would approve his acts and make him a lawful trustee.

The writ of error is therefore dismissed, without prejudice to the right of the plaintiffs in error to seek other redress.

Dismissed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    George B. Stitzel et al., Appellees, v. Loren B. Miller, Adm’r., Appellant.
    Gen. No. 5327.
    1. Negotiable instruments—endorsee’s right of action in his own name. If an instrument is negotiable, its endorsement by the payee accompanied by delivery so as to pass the legal title to the endorsee entitles him to maintain an action thereon in his own name.
    2. Negotiable instruments—what does not destroy negotiability. Held, that the following clause did not operate to destroy the negotiability of the instrument in question: “We also agree that in casé said note is not paid at maturity that it is at the option of the holder hereof to extend as he deems proper the payment of the above note, and that said extension shall not in any manner release one or either of us from the payment hereof.”
    3. Negotiable instruments—when action may be brought prior to maturity. If the action upon a note is against the administrator of the deceased maker it may be commenced prior to maturity (so held as a matter of first impression).
    4. Negotiable instruments—what prima facie establishes delivery. Possession by one claiming to own a note is prima facie evidence that it had been duly delivered to him.

      5. Suits—what commencement of action. The filing of a praecipe and the issuance of the first summons is the commencement of an action at law.
    6. Suits—when premature commencement waived. If an action is brought upon a promissory note before its maturity the point is not preserved for review if after demurrer raising such question a plea of non assumpsit is filed and thereafter the trial had and the note received in evidence without objection being made thereto upon the ground that it had not matured at the time the action was instituted. Such objection must be made at the trial otherwise than by instructions.
    7. Administration of estates—what remedy concurrent udth right to file claim. The holder of a claim against a deceased person is not required to proceed in the county court but may bring an original suit against the exeeutor.in the circuit court.
    8. Evidence—how question of genuineness of signature cannot be determined. 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 and a part of the record. (So held from the testimony where the comparison had been made by an expert.)
    9. Evidence—effect of admissions by one heir at law. The silence or admission of one heir at law is not competent to bind his co-heirs, he not being the administrator of the estate in question and no express agency being shown.
    10. Evidence—when non-production does not justify unfavorable inference. The failure to produce a witness who if called would have been incompetent by virtue of interest does not justify any unfavorable inferences.
    11. Instructions—must not submit questions o_f law. An instruction is properly refused which leaves the jury to determine what evidence is competent.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. E. S. Babrand, Judge, • presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Trusdell, Smith & Leech, for appellant.
    H. A. Brooks, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

On December 18,1908, George B. Stitzel and 0. O. Brooks, the appellees, brought this suit against Loren B. Miller, ad ministrator of the estate of D. C. Miller, deceased, the - appellant, upon a promissory note purporting to be signed by said D. C. Miller, dated February 2, 1908-, and payable one year after date to the order of Harrison Miller and by him endorsed in blank and sold and delivered to appellees, which note was for the principal sum of $6,500., with interest at the rate of six per cent per annum. Appellant obtained an order of the court below impounding the note, and thereafter filed a special demurrer which prayed oyer and set out the instrument sued on. The demurrer was overruled and appellant then filed a plea of non assumpsit, with his affidavit attached that to the best of his knowledge," information and belief, the signature of the deceased to said note was not his genuine signature and that the plea of non assumpsit was true. Hpon a jury trial appellees had a verdict for $7,140.25. Motions by appellant for a new trial and in arrest of judgment were denied and appellees had a judgment upon the verdict, to be paid in due course of administration, and from that judgment the administrator prosecutes this appeal. He contends: (1) that the instrument sued upon is not negotiable and therefore appellees have no title upon which they can recover in their own names; (2) that the suit was prematurely begun and therefore appellees cannot have judgment; (3) that the court erred in refusing to admit competent evidence offered by appellant tending to show that the signature to this instrument was not the genuine signature of D. C. Miller, deceased; (4) that the court erred in admitting proof of the conduct of the administrator and of one out of nine heirs at law of deceased; (5) that the court erred in refusing certain instructions requested by appellant.

The endorsement of the name of the payee on the back of this instrument and its sale and delivery by him to appellees, made them the legal owners thereof and authorized them to maintain an action at law upon it in their own names, if it was negotiable. Kistner v. Peters, 223 Ill. 607; Keenan v. Blue, 240 Ill. 177. Appellees have caused the original instrument and certain other instruments hereafter mentioned to be certified to this court. The original instrument sued on is therefore before us. It is evident that the parties used a printed blank prepared by and for the Stocking Trust & Savings Bank, and everything is in print except the date, names, amount, time when payable and rate of interest. The first part is printed in large type and is an ordinary promissory note. Thereafter follows in fine print a power of attorney to confess judgment upon the note. Then follows in fine print the following words: “We also agree that in case said note is not paid at maturity that it is at the option of the holder hereof to extend as he deems proper the payment of the above note, and that said extension shall not in any manner release one or either of us from the payment hereof.” It is contended that these words make .the instrument nonnegotiable. The question seems not to have been expressly decided in Illinois, but outside of Illinois in some jurisdictions those or similar words are held to destroy the negotiability of the instrument, and in others like words are held not to have that effect. The Negotiable Instrument law of 1907 requires that to make an instrument payable in money negotiable it must be payable on demand or at a fixed or determined future time. Such also was the law before the adoption of that Act. It is contended that the words above quoted from the instrument sued on give the holder the option to extend the note as he pleases, and that it cannot be known what extension or extensions he may grant, and therefore the time when the note will become payable is uncertain and cannot be determined, and therefore the note is not negotiable. We conclude that the principle laid down in Dorsey v. Wolff, 142 Ill. 589, is applicable here. It will be observed that the note is dated February 2, 1908, and that the first part of the note makes it expressly due one year after date, and that the clause above quoted does not give the holder an option if the note is paid at maturity. It is only in case the payee fails to perform his contract and pay at maturity that an option arises in the holder to extend the time. In Dorsey v. Wolff, supra, the notes there sued on by an endorsee against the maker contained a provision for the payment of a certain percentage as attorney fees if the notes were not paid when due, and it was contended that this provision made the notes non-negotiable and therefore the endorsee had no right to bring suit in his own name on the notes. The court said that the promise to pay the attorney fees was a promise to do something after the note matured; that it did not affect the character of the note before or up to the time of its maturity; that the stipulation could not affect the negotiability of the note because the negotiability of the note for all practicable purposes is at an end when it matures; that commercial paper is expected to be paid promptly when it is due; that this stipulation could have no force except on the maker’s default; that if the maker kept his contract by paying his note at maturity no element of uncertainty entered into the contract, and that the notes in question were negotiable notwithstanding the stipulation. Numerous authorities from, this and other states are there cited, holding in various forms that that which only produces uncertainty after the note fails to be paid at maturity does not destroy its negotiability. Following and applying the rule there laid down, we conclude that in this suit the clause above stated does not destroy the negotiability of the note.

The note was due on February 22, 1909. The suit was begun on December 18, 1908. The first summons was not served. A second summons was issued on January 23, 1909, and served on March 10., 1909. The filing of the praecipe and the issue of the first summons were the commencement of this action at law. C. & N. W. Ry Co. v. Jenkins, 103 Ill. 588; Schroeder v. M. & M. Ins. Co., 104 Ill. 71; M. M. Ins. Co. v. Schallman, 188 Ill. 213; 1 Enc. L. & P. 1082; 1 Encyc. of Pl. & Pr. 124. Therefore the suit was begun before the maturity of the note by its face, even though the summons was not served till after that time. In an ordinary action at law a plaintiff cannot recover for money not due when the suit was begun and that defense can be made under the plea of non assumpsit, unless its non-maturity is the result of an agreement extending the original time for payment. If then this was an ordinary action at law, and if the question is properly preserved for review, the judgment cannot stand. We are disposed to consider this defense unavailable here for two reasons: First. We doubt if the question is properly preserved for review. In appellant’s special demurrer, after craving oyer and setting out the instrument, one of the grounds of the demurrer was that the note was not due when the suit was begun, and another was that the cause of action had not accrued to the plaintiffs when the suit was begun. That demurrer was overruled. If appellant had abided by it the question would have been thereby preserved for review. But appellant thereafter filed a plea of non assumpsit and thereby waived the demurrer. C. & A. R. R. Co. v. Clausen, 173 Ill. 100. When the note was finally offered in evidence no such objection was made to its introduction. The only objection contained in the record is “the general objection, the want of sufficient proof.” That objection did not raise the question here under discussion, but in effect waived the objection that it appeared from the face of the note that it had not matured when the suit was begun. The court refused instruction Ho. 5, requested by appellant, to the effect that the jury must find the issues for appellant because the suit was brought before the note sued on was due by its terms. The refusal was excepted to and was made one of the grounds of the motion for a new trial. We doubt if this question could be raised for the first time on the trial by an instruction, because if this objection had been interposed before the close of the evidence it may be that proof could have been offered that would have obviated it. It may be that appellees could have shown that appellant had agreed to waive this point. It was purely technical because appellant was not served until after the maturity of the note, and the bringing of the suit was a presentation to the administrator so that another suit could have been maintained or the claim could still have been filed against the estate, and the record shows that appellant had one or more witnesses present from a foreign state, so that it might very well be that he did not wish to raise the point at the trial, but was willing to waive it. We think, therefore, that this point should have been raised before the evidence was closed. Appellees had no means of knowing what instructions requested by the appellant the court refused and very likely were not apprised of the fact that such an instruction had been requested till after verdict. We think that where an objection of this kind is capable of being removed by further proof, it should be raised before the close of the evidence. Second. Under section 67 of chapter 3 of the „ Revised Statutes relating to the Administration of Estates, appellees could have filed and secured the allowance of this claim against the estate in the county court, notwithstanding it was not yet due. The holder of a claim against an estate of a deceased person is not required to proceed in the county court, but may bring an original suit against the executor in the circuit court. This is because the jurisdiction of' the circuit court is conferred by the Constitution and cannot be withdrawn or limited by legislation. This was held in Darling v. McDonald, 101 Ill. 370; Roberts v. Flatt, 142 Ill. 485, 493; Starrett v. Brosseau, 208 Ill. 408, 412, and in a number of cases in the appellate courts. While as to summons and pleadings this has the form of an ordinary action at law, it is not so as to the judgment recovered. It is not a judgment which creates a lien upon real estate nor can an execution be had and personal property seized thereunder. The judgment is only for the payment of certain moneys by the administrator in due course of administration of the estate of the deceased. While the form used by the circuit clerk in writing the order of the court may slightly differ from that used by the county clerk on the allowance of claims, the substance and the effect are the same. A suit brought against an administrator in the circuit court is therefore not brought to secure an ordinary judgment at law, but it is brought for the same purpose for which a claim is filed in the county court, namely, to secure an order fixing its amount and requiring it to be paid in due course of administration. If appellees had filed this note as a claim against the estate., the defeated party could have appealed from the county court to the circuit court and the circuit court would then have had jurisdiction to try the case.and enter the same judgment which was here entered, notwithstanding that when the claim was filed, in the county court the note had not matured. By beginning in the circuit court appellees shortened the time when a final decision could be reached. We are disposed to hold that this proceeding to procure the allowance of the claim could be brought in the circuit court before the maturity of the debt, as well as in the county court; though this conclusion is one of first impression only.

Defendant produced as a witness an expert in handwriting, who testified that for many years he had devoted himself to the study of handwriting and of genuine and forged signatures ; that no person can write his signature twice alike; that if several supposed signatures of one person exactly coincide in width and height and the like, and, if, when superimposed upon each other before a strong light, such signatures exactly coincide in every particular, that fact is practically conclusive proof that they have been traced over some signature; that a traced signature is written more firmly and slowly than a signature written in the ordinary way; that he had examined the signature “D. 0. Miller” to the note in suit under magnifying glasses of various powers, and that in his opinion it had been made by tracing over some other signature. It had incidentally appeared in appellees’ proofs that when appellees purchased the note in suit from Harrison Miller they bought another note at the same time. At the time of the trial there was then pending in the same court another suit by appellees against appellant and another on a note for $4,500, purporting to be executed by D. O. Miller and La Fayette Miller, payable to the order of Harrison Miller and by him endorsed, and this note, on motion of the defendant in that suit, had been impounded. Appellant on cross-examination of appellees’ witnesses had them identify said $4,500 note as the other note which they bought from Harrison Miller at the same time they bought the note here in suit. Appellant offered that note in evidence. Appellant also offered evidence tending to show that a suit had been brought in the district court of Scott county, Iowa, by L. O. Miller against Ella Quinn, executrix of the estate of James Quinn, deceased, upon a promissory note dated at Davenport, Iowa, September 14, 1907, for the sum of $15,000 with interest at six per cent per annum, payable semi-annually, executed by James Quinn and payable to the order of D. C. Miller nine months after date, bearing upon the back thereof the purported endorsement of D. C. Miller; that in said trial it was claimed that the purported signature of D. C. Miller on the back of the note was a forgery and that that defense was sustained in that court; that appellant had sought leave to have said note withdrawn from the files óf that court for use in this trial and that such leave had been refused because that case was pending in the supreme court of Iowa; and that appellant had procured said note and the back thereof to be photographed correctly and of its natural size. Appellant also offered to prove that a witness on the trial of that case in the Scott County District Court testified that the writing filling up the face of that note was in the hand of Harrison Miller. Appellant offered in evidence said $4,500 note and said photograph of said $15,000 note, and offered to prove by his expert that upon careful measurement of the purported signature of D. O. Miller on the face of the $6,500 note, upon which this suit was based, and of the $4,500 note and in the photograph of the back of the $15,000 note, the various dimensions of said three signatures exactly agreed in every particular, and that when said three signatures were superimposed on each other before a strong light they exactly coincided in every respect, and that the signatures on the face of the $6,500 note and of the $4,500 note were exactly the same distance from the margin of the printed blanks upon which they were written, and that these facts showed that said three purported signatures of D. C. Miller were tracings from the same signature. This expert was entirely unacquainted with the handwriting of D. O. Miller. The court refused to admit this evidence. The rule is very firmly 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 and a part of the record. Among the cases establishing and illustrating this rule are Pate v. People, 3 Gilm. 644, 660; Jumpertz v. People, 21 Ill. 374, 407; Kernin v. Hill, 37 Ill. 209; Putman v. Wadley, 40 Ill. 346; Brobston v. Cahill, 64 Ill. 356; Melvin v. Hodges, 71 Ill. 422; Massey v. Farmers’ Nat. Bank, 104 Ill. 327; Bevan v. Atlanta Nat. Bank, 142 Ill. 302; Riggs v. Powell, 142 Ill. 453; and Himrod v. Gilman, 147 Ill. 293. While what appellant here proposed was not the usual comparison of hand writing proposed upon such a trial, yet it is evident that what appellant offered was merely a.comparison of the signature to the note in question with signatures to other instruments purporting to be by the same party. Appellant has made a strong argument that in a case of this particular kind, where it is alleged that the signature in issue exactly resembles the genuine signature of the party because it has been produced by tracing over a genuine signature, and the other signatures are presented for the purpose, not of showing that they are genuine but that they also had been produced by the same fraudulent means, the rule in this State should be relaxed and such testimony should be received. While recognizing that there is much force in appellant’s argument on this subject we do not feel at liberty to set aside a rule so thoroughly established and so long prevailing. We are of opinion that if any change or modification or enlargement of the rule ought to be made, such change cannot reasonably be asked of this court. We deem it our duty to follow the rule as we find it.

There was proof that the deceased left eight or nine heirs at law. Among these were Loren B. Miller, who became his administrator, and Clark Miller. There was evidence of an interview by one of appellees with Loren B. Miller and Clark Miller when they were negotiating for the purchase of these notes, and that said appellee showed the notes to said sons and asked them if the notes were all right and that they made no reply. It is argued that this evidence was incompetent as these heirs could not bind the estate nor their co-heirs at law. There was no proof that Loren B. Miller had at that time been appointed administrator, so that the question whether an administrator ¿ould bind an estate by his admissions or silence is not presented for decision. We are clear that as they were not the only heirs at law their conduct did not bind the estate and that the evidence was incompetent. But appellant did not object thereto. He did afterwards offer instructions to the effect that this conduct should not prejudice the appellant’s rights. The court refused these instructions. We are of the opinion that at least two of them should have been given, but we conclude that appellant was not harmed by their refusal because no other verdict than the one rendered could reasonably have been returned. ¡Numerous witnesses identified the signature to the note"as the genuine signature of D. C. Miller. ¡No one testified that it was not. We are of opinion that the testimony of the expert that it was his opinion that this signaure had not been written in the ordinary way, but had been traced, was not sufficient alone to overcome the testimony of the witnesses, some of them very familiar with the signature of D. C. Miller, who recognized this as his genuine signature. Indeed, it is evident that the expert was really testifying from a comparison of this with the other signatures which were not in evidence. The proof warranted no other verdict than that rendered, and therefore the refusal of the instructions in question did not harm appellant. The court gave an instruction requested'by appellant to the effect that appellees must prove by a preponderance of the evidence that the note sued upon was executed by D. 0. Miller, but refused an instruction requested by appellant that that meant not only that D. 0. Miller signed the note, but also that he delivered it to Harrison Miller, and unless they believed from a preponderance of the evidence that D. 0. Miller not only signed the note but also delivered it to Harrison Miller, they should find for appellant. The proof showed Harrison Miller in possession of the note, and that he sold, endorsed and delivered it to appellees. This proof prima facie established delivery of the note to Harrison Miller. Hunter v. Harris, 131 Ill. 482. There was no proof to the contrary. The jury could not do otherwise under the proof than find that the note had been delivered, and therefore no harm was done appellant by the refusal of said instruction. The court refused instruction Ho. 1, requested by appellant, to the effect that if either party had failed to produce evidence which was competent and could have been obtained, they might consider that circumstance with the other evidence in the case. This instruction left it to the jury to determine what evidence was competent, and was therefore properly refused. But the purpose of the instruction seems to have been to authorize the jury to draw an unfavorable inference against appellees because they failed to call Harrison Miller as a witness. There was no proof where Harrison Miller was nor that appellees could have produced him. The endorsement by Harrison Miller on the back of this note made him a guarantor of the genuineness of the signature of D. C. Miller. He therefore was not a competent witness against the estate of D. 0. Miller to establish the signature to the note. Appellees therefore were not lawfully subject to any unfavorable inference because they failed to call him.

The judgment is therefore affirmed.

'Affirmed.


text:
    George B. Stitzel et al., Appellees, v. Loren B. Miller, Adm’r., Appellant.
    Gen. No. 5328,
    1. Negotiable instruments—sections % and 8 of Act of 1895 construed. Held, that these statutory provisions do not authorize a joint suit against a living person liable upon a note and against the administrator of a deceased person who is likewise liable thereon, for the reason that the statute intends but one judgment if all should defend and be defeated; and a single judgment could not be rendered in such a case.
    2. Pleading—when motion in arrest should 66 sustained. If a misjoinder of defendants appears upon the face of a declaration, a motion in arrest should be sustained.

      3. Appeals and errors—when ruling upon motion in arrest not preserved. Unless error is assigned thereon, a ruling upon a motion in arrest is not preserved for review.
    4. Evidence—when proof of conviction of infamous crime not competent. It is only as impeaching testimony that proof of conviction of an infamous crime is competent.
    5. Evidence—what incompetent upon question of genuineness of signature. Proof of the financial responsibility of the plaintiff and of the financial responsibility of the maker of a note claimed to be a forgery are alike incompetent upon such question.
    6. Evidence—when admission of heir not binding upon co-heirs. The silence or admission of one heir at law is not competent to bind his co-heirs even though he be the administrator of the estate in question, no express agency being shown.
    7. Instructions—when modification as to duty of jury if the evidence is evenly balanced, erroneous. In an action upon a promissory note, the defense being that the "note was a forgery, it is error to instruct the jury that if they find the evidence to be evenly balanced the verdict might be for the defendant. The defendant having filed with his plea of general issue an affidavit denying execution, the burden of proof was upon the plaintiff to establish such execution, and the instruction should have been, if the jury found the evidence evenly balanced their verdict should be for the defendant.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S, Fabband, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Trusdell, Smith & Leech, for appellants.
    H. A. Brooks, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

This is an action brought on December 18, 1908, in the circuit court of Lee county by George B. Stitzel and 0. O. Brooks, the appellees, against Loren B. Miller, administrator of the estate of D. O. Miller, deceased, the appellant, and La Fayette Miller, upon a promissory note for the sum of $4,500 with interest at the rate of six per cent per annum, dated February 22, 1908, payable six months after date to the order of Harrison Miller, purporting to be executed by La Fayette Miller and D. O. Miller, and indorsed in blank by Harrison Miller and by him sold and delivered to appellees. With the exception of La Fayette Miller, the parties are the same as in Gen. Mo. 5,327, Stitzel v. Miller, ante, p. 390, and the note is upon the same printed blank as the note in that case, and this is the note for $4,500 referred to in our opinion in that case. LaFayette Miller was defaulted. The administrator filed a like demurrer, which was overruled, and a like plea with an affidavit denying the execution of the note by D. O. Miller. There was a trial as between appellees and appellant and a verdict for appellees in the sum of $4,953. Motions by appellant for a new trial and in arrest of judgment were denied. Two judgments were entered for the same amount, one against La Fayette Miller with execution, and one against the appellant to he paid in due course of administration. The questions as to the negotiability of the instrument, and as to the admissibility of evidence as to the genuineness of the signature of D. O. Miller by comparison with other instruments, are substantially the same as in Gen. Mo. 5,327 and we refer to that opinion for the decision of those questions.

At common law one suit could not be maintained against a living maker and the administrator of a deceased maker of a promissory note, because a single judgment could not be entered against them, as the judgment against the living maker must award execution and be absolute, while the judgment against the administrator could only be for payment in due course of administration with the other creditors of the deceased maker. If this judgment can he sustained it must be under sections 2 and 3 of the Act of 1895, amending section 7 of the Act of 1874 in regard to Negotiable Instruments. That statute provides that persons severally liable upon promissory notes may be included in the same suit at the option of the plaintiff, and section 3 provides that, on default of one such defendant, judgment may be entered against him and the suit shall thereby be severed, and shall proceed against the remaining defendant or defendants as if commenced against him or them only, and another judgment may be entered against him or them. Section 3 of said Act was intended to permit one suit against all parties liable upon a promissory note, though the grounds of their liability might be unlike, as, against the maker upon the contract contained upon the face of the note, against a guarantor upon his contract of guaranty written upon the back of the note, and against the several indorsers upon the contracts written by them or by the law over their several signatures upon the back of the note. We are of opinion, however, that that section cannot fairly be construed to authorize such a suit jointly against those who could not be included in one judgment if all should defend and be defeated. We do not think it was intended that such a joint suit could be maintained against a living person so liable on the note and against the administrator of a deceased person, who was liable on the note, for the reason that the statute intends but one judgment if all should defend and be defeated; and a single judgment could not be rendered in such a case. Moreover, it would not be practicable to try the issues in such a case together, for the plaintiff would be a competent witness against the living signer but not against the administrator of the deceased signer. True, in the case before us, the living maker was defaulted, and the plaintiff could have had a judgment against him and could thereby have severed the action, though he did not do so. Yet the living maker might have defended, and then the suit could not have been maintained. The right to bring such suit against an administrator and a living signer jointly cannot be made to depend upon the subsequent action of the several defendants in defending or failing to defend. Therefore we conclude that this case is not sustainable under said section 3. Mo one appealed from the judgment against Harrison Miller, and no assignment of error questions it, and its validity is not before us; but we hold that the judgment against the administrator cannot stand, because rendered in a suit not authorized by the statute. “If too many persons be made defendants, and the objection appear on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error.” 1 Chitty Pl. 44. This misjoinder of defendants appeared upon the face of the declaration. Appellant moved in arrest of judgment, that motion was denied and he excepted, hut he has not assigned for error that action of the court. It is doubtful whether that defect can be presented under the assignment that the court erred in rendering judgment. But as the judgment must be reversed for other reasons we deemed it our duty to discuss this question for the benefit of the parties upon another trial.

Appellant contends that the court erred in refusing to permit him to prove that La Fayette Miller had been convicted of grand larceny. He was not a witness and it is only as impeaching testimony that the proposed evidence could be competent. It is contended that the court erred in refusing to permit appellant to prove the financial responsibility of La Fayette Miller and D." 0. Miller respectively. As to La Fayette Miller, the only question asked was whether, at the time of the trial, he was a man of any financial responsibility, and it is manifest that that inquiry was improper. As to D. 0. Miller, the offer was to prove that at the time of his death and prior to the date of the note sued on, he owned $36,000 worth of unencumbered real estate in Lee county. We fail to see how that would tend to show that his signature to this note for $4,500 was a forgery. Men may own much real estate and yet find it necessary to give promissory notes; and, indeed, it incidentally appeared in this case that D. O. Miller had frequently given promissory notes. Appellant offered to prove that, as administrator, he obtained a judgment by confession against Harrison Miller upon a note dated one day prior to the date of the note in suit, which was payable to the order of D. O. Miller one year after date and which was for the sum of $560 and interest, and offered in evidence a bill in equity filed by appellant against Harrison Miller and his wife to set aside an alleged fraudulent conveyance made by Harrison Miller to his wife, and also offered in evidence the answer of Harrison Miller and his wife to that bill. We are of opinion that the court properly sustained objections to this proposed proof as well as to an offer to prove certain things that Harrison Miller had said concerning said last mentioned note and his financial relations with his uncle, D. C. Miller. None of this was competent against appellees, who purchased the note in suit long before maturity for value and were not claimed to have had any prior notice of these matters.

Appellees introduced in evidence the same testimony as in Gen. No. 5,321 of a conversation with Loren B. Miller and his brother, Clark C. Miller, concerning this note at a time when the note was present, and of the silence of said Loren B. Miller and Clark C. Miller when asked if the note was all right. The present record shows that Loren B. Miller was at that time administrator, a fact not shown in the other suit. Begardless of the question whether evidence of the language or conduct of the administrator was competent, it is clear that nothing said or done or omitted to be done by Clark C. Miller, one of the eight or nine heirs at law of D. C. Miller, deceased, could bind or prejudice the estate in any way. Instruction No. 9, requested by appellant and refused, was confined to Clark C. Miller and by it the court was requested to charge the jury that the failure of Clark 0. Miller to answer the question should not influence their verdict. In our opinion it was error to refuse this instruction. Appellant requested the court to instruct the jury that if the evidence on the question whether the note was executed by D. 0. Miller was evenly balanced or preponderated in favor of the administrator, “Then you should find the issues for the defendant, Loren B. Miller, administrator.” The court expunged the word “should” and inserted the word “may,” so that it read “then you may find the issues for the defendant, Loren B. Miller, administrator,” and gave the instruction in that form. The affidavit filed by the administrator with his plea of the general issue placed upon appellees the burden of proving the execution of this note. Appellant was entitled to an instruction that if the evidence was evenly balanced upon that subject, then it was the duty of the jury to find the issue for the administrator. The instruction as requested contained that direction. The court struck out the mandatory word and inserted another which in its literal meaning only said that in the case stated the jury were at liberty to find the issues for the administrator. ¡No instruction was given which took the place of this or which directed the jury to find a verdict for the administrator if the evidence as to the execution of the note by D. 0. Miller was evenly balanced. Indeed, this error was somewhat emphasized by the instruction given by the court of its own motion as to the form of a verdict for the administrator. It began, “If you find that the signature on the note in question is not the genuine signature of D. 0. Miller, then the form of your verdict may be,” etc. It did not tell the jury what the form of their verdict should be if they found the evidence evenly balanced on the question whether the signature was or was not the genuine signature of D. 0. Miller. Under some conditions of proof. this error in modifiying appellant’s instruction might not justify a reversal, but here not only did the expert testify that from many examinations of the signature of D. 0. Miller to this note under glasses of different magnifying powers he concluded that it was made by a tracing over some other signature, but also one, of appellees’ witnesses, called to prove the signature of D. 0. Miller to this note, testified that in his opinion it was not the signature of D. 0. Miller. Some other of appellees’ witnesses were not very positive in identifying the signature. In this state of the evidence we are of opinion that it was important to appellant to have the instruction above mentioned given without modification and to have the jury thereby told that if the evidence was evenly balanced upon the question whether the note in suit was executed by D. 0. Miller, then they should find the issues for the administrator.

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

Reversed and remanded.


text:
    The First National Bank of Chadwick, Ill., Appellee, v. Daniel S. Mackey, Appellant.
    Gen. No. 5330.
    1. Amendments and jeofails—when amendments to bill of exceptions not stricken. In the absence of a bill of exceptions to support the contention that the amendments of a bill of exceptions were not predicated upon a memorial, the presumption of regularity will be indulged in favor of the amendments made.
    2. Evidence—when custom not competent. A custom is not competent unless shown to have been known to the party sought to be charged thereby.
    3. Negotiable instruments—sections SO and 11 construed. It is not the meaning of such sections of the Negotiable Instrument Act that a cheek may be sent for collection in a roundabout way through many banks, and that the reasonable time for its presentment begins after the last time it is sent on for collection.
    4. Negotiable instruments—when endorser discharged for failure of presentment within reasonable time. Irrespective of actual damage, an endorser is discharged by the omission to present a check for payment within a reasonable time.
    Assumpsit. Appeal from the Circuit Court of Carroll county; the Hon. R. S. Fabrand, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Henry Mackey and A. F. Wingert, for appellant.
    Franklin J. Stransky, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

This is a suit by the First National Bank of Chadwick, Illinois, as indorsee, against Daniel S. Mackey, the indorser of a check for $520. Plaintiff recovered and defendant appeals. Appellee filed, by leave of court, an additional record containing amendments to the bill of exceptions, striking out certain words in certain exceptions. Appellant moved to strike this additional record from the files, and that motion was taken with the case. The main ground of the motion was that there was nothing in the court below to amend by. Appellant did not take a bill of exceptions containing the proceedings and proof of the making of the amendment. In the absence of a bill of exceptions, we must presume that the court below did have before it that by which to amend. The presumption is in favor of the regularity of the amendment. The amendment was made in term time on due notice. . The motion to strike the amended record from the files is therefore denied.

There were some disputed questions of fact at the trial, but the most important facts were not disputed. Appellant was a farmer, living three and one half miles from the village of Chadwick. J. E. Smith was a horse buyer. Smith had been accustomed for a long time to do his business through the appellee bank. Appellant was accustomed to do his financial business through the First National Bank of Mt. Carroll, in the same county. Appellant had a team of horses for sale at $520 which Smith wished to buy. On the morning of May 21, 1909, appellant called up an officer of the appellee bank and had a conversation with him by telephone upon the question whether these horses would be paid for, about which conversation there is a dispute. Appellant' then sent the team to Chadwick by his nephew, Jesse Mackey, with directions to bring home the money for the horses. J esse delivered the horses to Smith and Smith gave him therefor the check here in question for $520, drawn on the Exchange National Bank of Polo, Illinois, a village twenty miles east of Chadwick on the Chicago, Burlington & Quincy ¡Railroad. It was payable to appellant or bearer. Jesse took it to the appellee bank, indorsed the name of his uncle on the back, and received therefor a certificate of deposit payable to the order of his uncle, and took it home and gave it to his uncle, and his uncle soon thereafter deposited it in the First National Bank of Mt. Carroll, and it’ was afterwards presented to and paid by appellee, May 25.

Appellee received the check on Friday, May 21, 1909, between 2:30 and 3:00 o’clock in the afternoon. According to the proof, there was but one mail going east from Chadwick each day and that went about five o’clock p. m. on the Chicago, Burlington & Quincy ¡Railroad, and the mail was closed about twenty minutes before five o’clock. Appellee did not send the check away for collection that day, but at five o’clock p. m. of Saturday, May 22, it sent the check to the Corn Exchange ¡National Bank of Chicago, its Chicago correspondent. That bank received the check on the morning of Monday, May 24. There were in Polo two banks, the Exchajnge ¡National Bank, on which this check was drawn, and Barber Brothers & Company of Polo. Between five and six o’clock p. m. of Monday, May 24, the Corn Exchange Bank sent the check to Barber Brothers Bank, and on Tuesday, May 25, the latter bank presented the check for payment to the Exchange ¡National Bank of Polo and payment was refused. Barber Brothers Bank then placed the check in the hands of a notary, who duly demanded payment, protested it, and mailed notice thereof to each party in interest. Appellant received the notice on May 26, and that was the first knowledge or notice he had that Jesse did not obtain the cash for the horses and that he took a check instead. The horses by this time were beyond appellant’s reach. Appellant denies the authority of Jesse to take a check for the horses and to indorse it in appellant’s name, and claims an estoppel against the appellee bank by reason of what its officer said to him over the telephone before he sent the horses to town that morning. He also contends that there were many errors in the rulings of the court upon the evidence and the instructions. We deem it necessary to consider but one of the many questions raised.

Polo was twenty miles east of Chadwick, on the same line of railway. Barber Brothers Bank was proved to be a responsible institution. If appellee had remitted the check to that bank on Friday, May 21, it would have reached Polo about 5:30 p. m. and would have been received by Barber Brothers Bank either that night or the first thing the next morning, and would have been immediately presented for payment. As the law was prior to the time when the ¡Negotiable Instrument Law of 1907 went into effect, we tbink it clear that the delay in sending the check from Chadwick and the sending of it by the circuitous route described, so that it did not reach Polo till the following Tuesday, would constitute such negligence as would release the indorser. Section 192 of that Act enacts that in determining what is a reasonable time, regard is to be had to the nature of the instrument, the usage of the business with respect, to such instrument, and the facts of the particular case. Appellee introduced evidence tending to show that it was the general usage among'banks not to send country checks to the town where they are payable, but to send them to the correspondent of the bank in some commercial center, and that, when appellee received the check drawn on a place between Chadwick and Chicago, it sent the check to the Corn Exchange Bank of Chicago, regardless of the fact that there was a reputable bank at the place where it was payable, and that the sole reason for doing this was to save expense, as exchange was frequently charged where the check was sent to another bank in the same town where it was payable. Counsel have argued at great length the question whether such a custom is within the meaning of section 192 of the ¡Negotiable Instrument Law, and whether proof thereof could be received without pleading the custom. We deem it unnecessary to decide those questions. Appellee received this check about two thirty or three o’clock p. m. of Friday May 21, and not later than three o’clock. It was accustomed to close its bank at 4 or 4:30 p. m. It knew that the only mail east for twenty-six hours went about five o’clock p. m. and that it closed about twenty minutes before five o’clock. ¡No reason is seen why, if appellee intended to send this check by this circuitous route, it was not required to send it by that. mail. Appellee explains it in this way. Its officer testified that at their bank the checks for collection were made up from two to three o’clock and if their remittance of checks had already been made up and sent out before a check was received they would hold it till they made up a remittance again. He did not testify that this check was received after the remittance had been made up nor that he had any recollection on the subject. It may be that it was done to accommodate Smith, who had been their customer for ten or twelve years, and to give him a little more time to meet the check. In our view of the case, if appellee designed to avail itself of this usage to send the check by a circuitous route, requiring several days to reach a point twenty miles away on a connecting railway, ordinary diligence required that it be sent out by the first mail. If there was any usage in appellee bank to hold a check back for twenty-six hours, that usage was neither known to appellant, nor binding on him. We are of opinion that, notwithstanding the Negotiable Instrument Act of 1907, this case is practically governed by Travers v. T. M. Sinclair & Co., 122 Ill. App. 203. Appellee lays some stress on the word “negotiation,” as used in sections 71 and 30 of said Act. The officer of appellee testified that appellee sent this check to the Corn Exchange Bank for collection. A clerk of the Corn Exchange Bank testified that it received the check for collection; that, while it called it a cash item, yet it was only cash in case it was paid, and that the Corn Exchange Bank sent the check to Barber Brothers Bank for collection. We think it cannot be the meaning’ of the sections of the Act referred to that a check may be sent for collection in a roundabout way, through many banks, and that the reasonable time for its presentment begins after the last time it is sent on for collection.

¡No one proved whether, if the check had been presented within a reasonable time, the funds were there on hand with which to pay it. Such proof would be material if the suit were against the.maker of the check, but it was decided in Travers v. T. M. Sinclair & Co., supra, that in America, the indorser is discharged by the omission to present the check within a reasonable time, irrespective of actual damage.

The judgment is therefore reversed.

Reversed.

Finding of facts, to be incorporated in the judgment: We find that appellee was guilty of negligence in not presenting the check to the bank upon which it was drawn within a reasonable time after appellee received it; and that, if it had a right under the custom of banks to send the check for collection by way of Chicago, it did not send the check forward with due diligence; and that, by reason of the negligence of appellee, the appellant, the indorser of the check, is discharged.


text:
    E. Doherty, Appellee, v. Schipper & Block, Inc., Appellant.
    Gen. No. 5331.
    1. Res adjüdicata—what estoppel by judgment. A fact determined inkme case is as between the same parties res adjüdicata as to the same question-subsequently in issue between the same parties in another suit arising out of the same transaction.
    2. Employee and employe—duty of latter wrongfully discharged. A servant wrongfully discharged must look for other employment and must accept and enter upon any reasonable employment of the same kind which he can obtain.
    3. Employee and employe—remedy of latter wrongfully dischm-ged. An employe wrongfully discharged cannot hold himself in readiness to perform his contract of service and by successive suits upon the theory of constructive service recover the various installments of salary as they accrue according to the terms oi the contract of employment. Such employe can have but a single action—and that for the damages occasioned by the wrongful discharge; and a recovery in one action, upon whatever theory instituted, is a bar to all subsequent actions.
    4. Justice op the peace—how form of action determined. Where there are no written pleadings, as in a suit that comes before a justice of the peace, the action is what the proof makes it, regardless of the name which the plaintiff or the justice may give it.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wobthington, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Page, Wead, Hunter & Scully, for appellant.
    Luther 0. Híncele, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. E. Doherty, the appellee, is a milliner trimmer. She was employed to work for Schipper & Block, Incorporated, the appellant, for eighteen weeks, at $25 per week, and was paid each Monday evening for the preceding week. At the end of the ninth week, she was discharged. She went to appellant’s place of business on Monday and on Tuesday of the next week and was refused permission to work. She was paid for all the time she worked. At the end of the tenth week she brought a suit before a justice of the peace and filed in that suit a bill of particulars as follows: “One week’s salary as trimmer, $25 from April 27 to May 2, 1908, both dates inclusive.” Upon a trial she had a judgment for $25 against appellant, and appellant paid the judgment. At the end of the term for which she was employed she brought this suit before a justice and filed therein the following bill of particulars:. “For services rendered as trimmer (wage earner) for eight consecutive weeks, beginning _ with, to wit, May 4, 1908, and continuing to June 27, 1908, both dates' inclusive, at $25 per week. $200.” She recovered a verdict and a judgment for $200 before the justice. On appeal to the circuit court the cause was tried without a jury and she had a judgment for $200, from which defendant below appeals.

The main question of fact was whether the discharge was wrongful. We conclude the court was warranted in so finding from the oral testimony. But we conclude that the former judgment offered in evidence by appellant is conclusive that the discharge was wrongful, for there could have been no recovery in that first suit without it was found that the discharge was wrongful, and that issue, once determined by a final judgment, is settled between the parties. The fact that appellant, and not appellee,' offered the judgment in evidence is immaterial. It is in evidence and it is conclusive that the discharge was wrongful.

The main question of law presented is whether the former judgment is a bar to this suit. Appellee contends that a servant who had been hired for a fixed term for agreed wages to be paid in instalments, and who has been wrongfully discharged before the expiration of the term of employment, may hold himself in readiness to perform the service for which he was hired and, after any instalment or instalments of wages or salary has matured by the terms of the contract, may bring a suit or sucessive suits for such instalment or instalments, and may bring as many different suits as* there would have been instalments payable during the rest of the agreed term of service if the employment had continued. Appellant contends that such an action cannot be maintained, but that the remedy is to sue for a breach of the contract, and, as the wrongful discharge constitutes but a single breach of the contract, there can be but one recovery for the damages arising therefrom. Appellee’s theory is that where the servant has been wrongfully discharged and thereafter holds himself in readiness to perform till the end of the term, he constructively renders the service, and therefore is entitled to recover the several instalments of wages agreed to be paid him therefor. Each side argues that its position is supported by the decision's in this State, and the true meaning of those decisions must be considered.

In Higgins v. Lee, 16 Ill. 495, it was held that where performance of a contract is alleged, proof of an excuse for nonperformance will not sustain the allegation. In Russell v. Gilmore, 54 Ill. 147, it was held that where there has been a breach of a contract and damages resulting therefrom, the party injured cannot recover upon an indebitatus assumpsit, but he must declare especially for damages for the breach of the contract. In Parmly v. Farrar, 169 Ill. 606, it was held that a party relying solely on a contract, and seeking to recover in assumpsit under the common counts only, must prove full performance on his part in order to entitle him to recover. In Trustees v. Shaffer, 63 Ill. 243, a servant had been discharged without cause and brought his action to recover for the whole time of his employment after his discharge, and it was held that his action was not for work and labor done, but for damages for a breach of the contract, and that indebitatus assumpsit could not be maintained. In Dana v. Short, 81 Ill. 468, plaintiff contracted to work for defendant from September 21 through the winter at $10 per week, worked about one month, and was then discharged without cause and failed to procure employment elsewhere after reasonable efforts. It was held that he could not compel a specific performance, but that the law would give him redress for the damages he had sustained. The head note implies that he recovered just the wages agreed to be paid him. The judgment was affirmed. These cases favor appellant’s contention. .

Appellee relied on the following cases. In Hamlin v. Race, 18 Ill. 422, plaintiff was hired for a year at a salary payable in monthly instalments. He was afterwards discharged, and refused to receive the unpaid wages earned to the day of his discharge. About a month and a half after his discharge, and in the eighth month of his year, he sued to "recover the balance for the full year, declaring in assumpsit, with a special count and the common counts. The question whether the discharge was wrongful was controverted. The year of his employment had. expired before the suit was tried and he recovered the agreed wages for the full year, less what he had been paid. Defendants appealed and argued that as plaintiff was claiming that the contract was still subsisting and that he was ready and willing to perform it in full, he could only recover in that suit the amount that would have been due when the suit was begun if he had continued in the service of the defendants, and that it was error to admit proof of instalments that would have matured after the date when the suit was begun. This position was sustained and the judgment was reversed, because it included instalments not due when the suit was begun: The questions whether he could recover wages as such or only damages, and whether there could be more than one recovery for the term after the discharge, were not involved in the case, and therefore were not decided and could not be decided, and what was said on those subjects was only by way of argument and illustration. Plaintiff claimed that the contract was still subsisting after bis discharge, and defendants assumed that that position was sound and argued that on plaintiff’s own theory he had recovered too much because he recovered the salary for the whole year, less the payments, whereas over four months of the year had not elapsed when the suit was begun. The court decided the case upon the basis assumed by both parties. In Mt. Hope Cemetery Assn. v. Weidenmann, 139 Ill. 67, Weidenmann, by written contract with the Association, was to serve it for five years from October 1., 1885, at an annual salary to be paid in monthly instalments. He was discharged on June 15, 1886, and that was treated as wrongful. There was due him his salary from May 1, to June 15, 1886. On October 22, 1886, he brought suit against the Association, filing the common counts only. On March 12, 1888, he filed a special count, which set out the contract and alleged his continued readiness to complete the services contracted for, but that defendant had prevented his doing so and had wrongfully discharged him and that he had thereby been deprived of the profits he otherwise would have derived from the completion of said service. The court held that, by that count, the plaintiff treated his discharge as a repudiation of the contract and sought to recover once for all his damages for being wrongfully prevented from performance, and that in that count he did not seek to recover wages, hut damages. The case was tried without a jury on July 9, 1889, before the expiration of the period of employment. The trial court held that plaintiff was entitled to recover, first, the agreed salary remaining unpaid to the date of discharge; second, damages from the date of discharge' to the date of trial, measured by the agreed salary, less what he had earned elsewhere during that time; and, third, damages from the trial to the end of the term, measured by the agreed salary, less a discount of six per cent per annum from the trial to the expiration of the agreed term of service. The supreme court held that the salary earned before the discharge was recoverable under the indebitatus assumpsit count, and that the damages from the discharge to the date of trial were recoverable under the special count; but that the trial court erred in permitting a recovery for damages after the date of the trial, because plaintiff could only recover his actual loss and it might be that after the trial he would earn other wages and perhaps even more than the salary defendant agreed to pay him, in which case his damages thereafter would he merely nominal, and that could not be known in advance. This was substantially all that was actually decided in that case. It was said in that opinion that plaintiff could have kept the contract alive and could have sued for the several instalments of wages after they fell due, and that in Hamlin v. Race, supra, the court had held that a wrongfully discharged employe could keep the contract in force and recover for the instalments as they severally fell due. As Weidenmann did not so elect and did not sue for the salary accruing after the discharge, but sued for damages for the breach of the contract, what was said by the court on that subject was only by way of illustration and argument and not by way of decision. It will therefore be seen that, though the opinions in Hamlin v. Race, supra, and Mt. Hope Cemetery Assn. v. Weidenmann, supra, contain language distinctly favorable to appellee, yet the points there actually raised and decided are not applicable to this case, while the other cases decided by our supreme court, to which we have called attention, are in principle against the position of appellee.

This question has been passed upon in the appellate courts in the several districts of this State. In Jones v. Dunton, 7 Ill. App. 580, and Monarch Cycle Co. v. Mueller, 83 Ill. App. 359, the appellate court of the first district, in able and exhaustive opinions, has collected many authorities from other jurisdictions, and has strongly argued that the suit of such an employe for that part of the term of employment which comes after a wrongful discharge cannot be for wages as such, and that the theory of .constructive service has been abandoned by the courts of England, where it originated, and is repudiated by most of the courts of this country; but that the action must be to recover damages for the breach of the contract, though the measure of damages will usually be what the employe would have received under the contract, if he had been permitted to complete its performance, less what he has been able to earn elsewhere during that term or what he could have earned elsewhere by reasonable, diligence, provided, always, that he has waited till the expiration of the term and till his damages are fully ascertained before he brings his suit. It is there also held that there can he but one recovery for the breach of the contract in wrongfully discharging the employe. In Jones v. Dunton, supra, there had been a judgment recovered in a prior suit brought after the discharge and that judgment had been paid, all substantially as in the case at bar. Mr. Justice McAllister, in a separate opinion, held that that judgment was a bar to the second suit. Like decisions have been rendered in the first district in Weill v. Fontanel, 31 Ill. App. 615; Bean v. Elton, 44 Ill. App. 442; and World’s Columbian Exposition v. Thompson, 57 Ill. App. 606. Like views were expressed by the appellate court for the third district in City of Jacksonville v. Allen, 25 Ill. App. 54, and by the appellate court for the fourth district in Brown v. Board of Education, 29 Ill. App. 572. The decisions of the appellate court for this district on this subject have not been entirely consistent. In White v. Gray, 4 Ill. App. 228, the servant quit before the end of the term, either of his own accord or by mutual consent, and was not discharged. He brought suit against his master for his wages and filed the common counts only, and this court held that he had recovered more than he was entitled to. Apparently, he recovered for the full period of the contract, less what he had been paid. The court said in argument that if he had sought to recover for the full contract period on the ground that he was discharged, he should have declared specially, alleging a breach of the contract. In Moline Plow Co. v. Booth, 17 Ill. App. 574, we held that in a case similar to this the servant may, at the expiration of the period for which he was hired, bring his action and recover damages for the wrongful discharge, and that the measure of damage would necessarily be the amount he was to receive by the terms of the hiring, less what he had earned or might have earned in some other employment of the same general character. In that case the plaintiff had notified his employer that he was ready to serve whenever it wanted him during the rest of the term. In Trawick v. Peoria & Ft. C. St. Ry. Co., 68 Ill. App. 156, an employe had keen wrongfully discharged about two months after he had been employed for a year, at a certain salary payable semi-monthly. He brought that suit two months and ten days later, and recovered at the agreed rate to the commencement of the suit. His employer had offered to retain him at a lower salary, and only discharged him when he refused to accept the reduction. The main question was whether he was wrongfully discharged. The declaration contained only the common counts. It was said that a recovery could he had under the common counts in such case, but also that the want of form of the declaration had not been raised in the lower court and could not be raised for the first time in this court. In Am. Glucose Co. v. Lubitz, 71 Ill. App. 638, a like suit by an employe against his master, it was held that under the evidence the plaintiff was rightfully discharged and for that reason the judgment was reversed. An instruction as to the measure of damages in harmony with the current of authority above stated was discussed and approved, but we there said that the contract could be kept in force and the wages recovered as they fell due and that that was such a case. This was said in reliance upon those things said in Hamlin v. Race, supra, and Mt. Hope Cemetery Assn. v. Weidenmann, supra, which, as we have above pointed out, were not material to the point actually decided therein. In the Lubitz case there was no question raised whether a second suit could be maintained after one recovery. We regard Patrick v. McAleenan Boiler Co., 136 Ill. App. 563, as not in conflict with Trustees v. Schaffer, supra, and the cases above mentioned from the other appellate courts of this State. It will therefore be seen that, while this court has at least once incorporated in its opinion language from Hamlin v. Race, supra, implying that a discharged employe could hold himself in readiness to serve and thereby acquire the right to recover successive instalments of wages accruing after his wrongful discharge, and may thereby have misled the court below, yet no such question has in fact been presented to ns for decision and so decided by this court. We therefore feel at liberty to decide this question on principle.

The theory of constructive service in such a case requires the wrongfully discharged employe to keep himself at all times during the remainder of the term of his employment in readiness to resume his service, so that his master can at any time put him hack at work under the old contract. On the other hand, it is the well-established measure of damages in this State in such a case that the wrongfully discharged employe must seek other employment of a like kind, and must accept it if he can find it by the exercise of reasonable diligence. If he brings suit after the end of the term, the measure of his damages will be the wages agreed to he paid him, less what he has been able to earn, and if he has been able to earn as much as the agreed wages he can only recover nominal damages. If he has not worked elsewhere, the employer may show that he could, by a reasonable effort, have gained other employment, and may diminish the damages by whatever he can show the plaintiff could have earned thereat. This is but another application of the rule that he who seeks to recover damages for any injury must show that he has done what he reasonably could to diminish the damages. Or, as generally stated, the law imposes upon a party injured by a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. Hartford Deposit Co. v. Calkins, 186 Ill. 104; Wabash R. R. Co. v. Campbell, 219 Ill. 312; Evans v. Howell, 211 Ill. 85. This measure of damages, so firmly established in this State, is wholly inconsistent with the theory of constructive service. If the servant must look for other employment and must accept and enter upon any reasonable employment of the same character which he can find, he cannot at the same time he holding himself in readiness at all times to resume his place with his former master. Clark v. Marsiglia, 1 Denio, 317; Howard v. Daly, 61 N. Y. 262; Chamberlain v. McCalister, 6 Dana (Ky.) 352; Whitaker v. Sandifer, 1 Duvall (Ky.) 262. We therefore conclude that we should not follow the expressions used in Hamlin v. Race, supra, and Mt. Hope Cemetery Assn. v. Weidemann, supra, which were not essential to any question there submitted for decision; but that Russell v. Gilmore, Trustees v. Schaffer, Jones v. Dunton, and Monarch Cycle Co. v. Mueller, supra, must be regarded as stating the true rule. It follows that we are of opinion that appellee could not recover wages under the contract, but could only maintain an action for damages for the breach of the contract. It also follows that she could have but one recovery for damages for the breach of the contract, and that, having once recovered a final judgment, which has been paid, she could not afterwards bring another action for a breach of the same contract. This is forcibly illustrated in the separate opinion of McAllister, P. J., in Jones v. Dunton, supra.

Here the proof shows that the plaintiff filed a bill of particulars in each suit claiming wages. Where there are no written pleadings, as in a suit begun before a justice, the action is what the proof makes it, regardless of the name which the plaintiff or the justice may give it. That rule has been applied under many varying circumstances, in Ballard v. McCarthy, 11 Ill. 501; Swingley v. Haynes, 22 Ill. 214; C. & R. I. R. R. v. Reid, 24 Ill. 144; Pollock v. McClurken, 42 Ill. 370; Powell v. Feeley, 49 Ill. 143; Allen v. Nichols, 68 Ill. 250; Rehm v. Halverson, 197 Ill. 378; Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311; Block v. Blum, 33 Ill. App. 643; Steele v. Hill, 35 Ill. App. 211; Fischer v. Spang, 43 Ill. App. 378; Columbian Hardwood Lumber Co. v. Langley, 51 Ill. App. 100; World’s Columbian Exposition v. Thompson, supra; In Re Mansfield, 120 Ill. App. 511; and Schwarzchild v. Goldstein, 121 Ill. App. 1. If this rule be applied here, then each of these suits is in fact for a breach by appellant of the contract between the parties, regardless of what the plaintiff called it in her bill of particulars, and the one recovery bars this second suit. If, however, it he considered that by the bills of particulars each suit has been made an action to recover wages under the contract, then under the principles above stated, and under the authorities we have cited, this action for such wages cannot he maintained. We are of opinion that the plaintiff has no cause of action.

The judgment is therefore reversed.

Reversed.


text:
    Atchison, Topeka & Sante Fe Railway Company, Appellant, v. Marjorie Klepfer Hough et al., Appellees.
    Gen. No. 5334.
    1. Costs—how statute pertaining to imposition of, construed. Statutes which impose costs are to be strictly construed.
    2. Costs—fees of guardian ad litem in proceedings to condemn. The reasonable compensation of a guardian in protecting the interests of a minor made defendant in an eminent domain proceeding is properly taxed against the petitioner.
    3. Eminent domain—character of proceeding. A proceeding to condemn is not an action at law, nor yet a proceeding in chancery, but belongs to the class of actions known as special statutory proceedings.
    Condemnation proceeding. Appeal from the Circuit Court of Peoria county; the Hon. FT. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Stevens, Miller & Elliott, for appellant; Egbert Dunlap, of counsel.
    Frank J. Quinn, for appellees; Shelton F. McGrath, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant filed a petition in the court below to condemn several small pieces of real estate adjoining its right of way, for additional track room and for use as a borrow pit to take therefrom earth, gravel, stone and other materials. Among those pieces was one owned by three minor children of John It. Hough, in which land he had an estate entitling him to the possession of the land till his youngest child reached her majority. . He was' their testamentary guardian, but his interests were adverse, to theirs and therefore appellant asked for and obtained the appointment of Frank J. Quinn as a guardian ad litem. Hpon the trial there was allowed to the minors $642.50 for the land taken and $500 for damages to the land not taken, to be diminished in the sum of $250 to be paid to said John B. Hough for his interest. After final judgment in favor of the respective parties, which required petitioner to pay the costs of the proceeding, to be taxed by the clerk, the guardian ad litem petitioned the court to allow him a reasonable fee for his services, to be taxed as costs. There was a hearing of said petition and an allowance of $125 as a reasonable guardian ad litem fee for services rendered said minor defendants, and it was ordered that said allowance be taxed as costs. From that order the railway company appeals. At the hearing of the application there was no proof what services the guardian ad litem had rendered, because it was stipulated that if the minor defendants were entitled to an allowance for the fees of a guardian ad litem in the cause, to be taxed as costs against the railway company, the sum of $125 was not an unreasonable allowance for such service. The railway company now complains that it is thereby made to pay the attorney’s fees for the minors. This claim is not supported by the record. There is no proof that Quinn acted as their attorney. There was no request that attorney’s fees be allowed. While the sum allowed seems very large for a guardian ad litem, and may, in fact, have been intended to cover attorney’s fees, the stipulation prevented proof of the time the trial occupied or what services the guardian ad litem rendered, and we cannot know that the trial was not so protracted that the award was reasonable. Hnder -the stipulation that this was a reasonable allowance for the fees of a guardian ad litem, we are called upon to determine only whether the proper fees of a guardian ad litem for minor landowners may be taxed as costs against the petitioner in a condemnation suit.

The Eminent Domain Act contains no provision for the payment of the costs by the petitioner, except where the petitioner dismisses his petition or fails to pay the compensation awarded within the time fixed by the court. It is, however, settled in this State that the just compensation which the constitution requires shall be paid for private property taken for public use would not be paid if the petitioner did not pay the costs of the proceeding. C. & M. R. R. Co. v. Bull, 20 Ill. 218; C. & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141, 151; Epling v. Dickson, 170 Ill. 329. Therefore if these fees of the guardian ad litem are taxable as costs in this case, the petitioner must pay them. Statutes which impose costs, are, however, to be construed strictly. Gehrke v. Gehrke, 190 Ill. 166. Nothing can be allowed and taxed as costs by the clerk or by the court, except such items of costs as are designated by the statute. Section 6 of the Chancery Act provides for a guardian ad litem in chancery cases, and requires the court to allow him a reasonable sum for his charges to be taxed in the bill of costs. Appellees contend that this is a chancery proceeding and therefore governed by that provision. The only respect in which a proceeding to condemn under the Eminent Domain Act bears any resemblance to a chancery cause is that by section 4 of said Act the service of summons and the publication of notice is required to be made as in cases in chancery. We do not regard this as either a chancery suit or an action at common law, but as a special statutory proceeding. Chapter 64 of the Revised Statutes relates to the subject of Guardians and Wards. Section 18 thereof requires a guardian to appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend, and provides that nothing in that Act shall impair the power of any court to appoint a guardian to defend the interest of a minor impleaded in such court. Blackstone says, Book 3, star page 427, that the power to appoint a guardian ad litem to manage the defense of an infant if a suit be commenced against Mm, is one wMch is incident to the jurisdiction of every court of justice. Section 42 of the Act relating to Guardians and Wards provides that guardians shall be allowed such fees and compensation for their services as shall seem reasonable and just to the court. A guardian ad litem does not have the custody of the person of the minor nor of his estate, but he is a guardian to protect the interests of the minor in the case in which he is appointed, and to see that those interests are properly presented to the court. As to that suit, he performs the same duties which the regular guardian would perform if he should appear therein. Inasmuch as the statute referred to enacts that a guardian shall be paid reasonable fees or compensation to be fixed by the court, and as a guardian in a suit performs the duties of a guardian so far as relates to that suit, we are of the opinion that the court which appoints the guardian ad litem has power to fix his compensation for that suit. Why then should it not be taxed as costs in that case ? These minor defendants were not seeking any relief. ■ They owed no debt and had incurred no liability which was therein sought to be enforced against them. The only party to be benefited was the railway company, which desired to take their land against their will. We are of opinion that it is within the spirit of the cases above cited wherein it was held that the petitioner under the Eminent Domain statute must pay the costs, though that statute does not explicitly so provide, to hold that the fees of the guardian ad litem in such a cause should be taxed as costs. We concede that the question is not free from doubt, but the decision of the court below seems to us most in harmony with the course of legislation and decision in this State.

The order is therefore affirmed.

Affirmed.