text:
    Maywood Co. et al. v. Village of Maywood et al.
    1. Dedication oe pabii—Chanceby.—Where, after the dedication of land as a public park, the company giving it seek to reclaim it as private property by assuming to control it, placing a mortgage upon it to secure a private indebtedness and otherwise asserting ownership, the remedy of the village and property owners who had purchased lots of the company, induced by their acts and representations as to the park, etc., is properly in a court of equity.
    2. Pabties.—In such case, where the village and property owners sue together, there is no misjoinder of parties.
    Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed December 16, 1885.

      Mr. Francis Adams and Mr. George M. Garnett, for plaintiff's in error;
    that a private individual can not maintain a bill to enjoin abreacli of public trust in the absence of statutory authority without showing that he will be specially injured thereby, cited Angell on Highways, § 284; Bigelow v. Hartford Bridge Co., 14 Conn. 565; O’Brien v. N. & W. R. R. Co., 17 Conn. 372; Paul v. Carver, 24 Penn. 207.
    Mr. Mason B. Loomis, for defendants in error;
    that the proper remedy was in equity, cited Morris v. Thomas, 17 Ill. 112; Frazier v. Miller, 16 Ill. 48; Martin v. Dryden, 1 Gilm. 187; Haworth v. Taylor, 108 Ill. 276.
    As to misjoinder of parties: Baird v. Jackson, 98 Ill. 92; Gage v. Chapman, 56 Ill. 311; Finch v. Martin, 19 Ill. 105; Ryan v. Trustees, 14 Ill. 20; 1 Daniell s Ch. Pr. 4th Ed. 303, note 3; Murray v. Hay, 1 Barb. Ch. 59; Putnam v. Sweet, 1 Chand. (Wis.) 286.
   Wilson, J.

This was a bill in equity brought by the village of Maywood, Henry W. Small and Joel II. Hubbard, appellees, against the Maywood Company and Jaboz W. Potter, appellants ; the principal relief sought being to obtain a decree declaring block 58 in the village of Maywood to-be a public piark, and to subject the same to the control of the municipial authorities of said village. The case was heard in the court below upon the pleadings and proofs, and the court found that the matters alleged in the bill were true; that the Maywood Company in 1869, being then the owner of the land comprising the present village site of Maywood, laid out and platted the same into blocks and squares as a suburban village, and in doing so designated and set apart block 58, containing about sixteen acres, as and for a public park; that the company caused the plat to be recorded in the recorder’s office of Cook county, and thereafter, in order to induce persons to pnircliase and improve lots and locate in the village, they commenced improving and beautifying said park by constructing walks, lakes, rustic bridges, dancing floors and other appliances for the use and amusement of the public, and also in various ways, by circulars and pamphlets, advertised the same as a public park ; that, induced by such acts and representations of said company? appellees, Small and Hubbard, as also others, bought lots of the company, which they improved and have ever since resided upon; that the village of "Maywood was subsequently, in 1881, incorporated under the general act for the incorporation of cities and villages. The court found as a fact, and so decreed, that said block was dedicated as a public park, and had been accepted as such by the public within a reasonable time after such dedication ; and further, that the village of Maywood, when subsequently incorporated under the general act, offered to take the charge and control of the same. Upon a careful consideration of the evidence we are of opinion that a common law dedication of the block as a public park "was sufficiently shown, and that the decree of the court in that respect is supported by the proofs.

We are also of opinion that the complainant’s remedy was properly sought in a court of equity. The Maywood Company having, after the dedication of the land as a park, sought to reclaim it as private property by assuming to control it, placing a mortgage upon it to secure a private indebtedness, and otherwise asserting ownership, a court of law could not afford adequate relief. Chancery alone could dispose of the incumbrances and settle the rights of all the respective parties. 1 Gil. 187; 4 Paige Ch. 510.

Mor is it perceived that there was any misjoinder of parties. The rule seems to be that where there is an identity of interest in the question involved, and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful act, there is no misjoinder. 1 Dan. Ch. Pr. 345; Hickling v. Wilson, 104 Ill. 58; Trustees of Watertown v. Cowen et al., 4 Paige Ch. supra. Here the producing cause of the injury is one and the same as to all the several complainants, namely, the threatened destruction of a public park, in which the village of Maywood as an entity, and each one of its individual property owners and tax payers, have a like interest, and the relief sought by each is identical.

As to the merits of the case they are plainly, under the showing made hy the proofs, with appellees. The chancellor properly, we think, found that the mortgagees, at. the time of taking the mortgage, knew or were chargeable with notice that the block in question had been dedicated to the public as a park, .and was no longer subject to the disposal of the May-wood Company.

Finding no material error in the record, the decree of the court below will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Elias D. Powell et al. v. David Kelley et al.
    1. Province of jury.—It is for the jury to construe the evidence and give it such weight and effect as in their judgment it is justly and fairly entitled to, and in the absence of anything showing passion or prejudice on their part or indicating that they were misled, an appellate court should not ordinarily interfere with their finding.
    2. Instruction on negligence.—The modification of the court in the instruction on negligence that ‘ ‘ negligence may be inferred or proved by facts and circumstances, provided they are sufficient in the minds of the jury to convince them that there was negligence,’’ was proper.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed December 16, 1885.
    Messrs. McCagg & Culver and Mr. Edgar Madden, for appellants;
    that the modification of the instruction was erroneous, cited Toomey v. Ry. Co., 91 Com. Law R. 146; Quinlan v. Sixth Avenue R. R. Co., 4 Daly, 487; Counselman v. Whitehair, 14 Bradwell, 74; Hunting v. Baldwin, 6 Bradwell, 547.
    Mr. George P. Whitcomb, for appellees;
    as to proof of negligence, cited T. W. & W. R. R. Co. v. Beggs, 85 Ill. 80; Hunt v. Missouri River R. R. Co., 14 Mo. Appeal R. 171; Gardner v. Heartt, 3 Denio, 236; Renick v. O’Hara, 6 Blatchf. 274; Cotterell v. Starkey, 8 C. & P. 691; Fletcher v Ryland, 3 H. L. 330.
   Per Curiam.

The appellees sued the appellants in case, and recovered a judgment for §210 and costs, for the loss of a horse, alleged to have been killed by the negligence of an employe of the appellants. It appears that while the appellees’ team was standing on one of the streets of the city of Chicago, a span of horses belonging to the appellants, in charge of and being driven by their teamster, became frightened and unmanageable, and ran into appellees’ team, causing an injury to one of their horses, from which he shortly afterward died.

With the exception of the modification of one of the instructions to the jury asked by the appellants, the questions presented by the record are purely questions of fact. We have examined the evidence and are of the opinion that it sustains the verdict and judgment. There was evidence tending to charge the appellants’ drivers with negligence, and we think the jury were warranted in finding that such negligence was established, and also that the appellees’ driver was guilty of no negligence which materially contributed to the injury complained of.

It was for the jury to construe the evidence and give it such weight and effect as in them judgment it was justly and fairly entitled to, and in the absence of anything showing passion or prejudice on their part, or indicating that they were misled, an appellate court should not ordinarily interfere with their finding.

The appellants asked an instruction that the burden of proving negligence was on the party alleging it; that such proof must be made by a preponderance of evidence; and that if the jury found that the appellants’ driver was guilty of no negligence, or that the weight of evidence was 'in favor of the appellants, or was equally balanced, the appellees could not recover. This instruction was modified by the court by adding thereto the following: “ But in this connection, the court instructs the jury that negligence may be inferred or proved by facts and circumstances, provided they are sufficient, in the minds of the jury, to convince them that there was negligence.” We think that the proposition contained in this modification is clearly the law, and it is not apparent to us that the appellants could have been prejudiced thereby.

There being no error in the record the judgment will be affirmed.

Judgment affirmed.


text:
    John H. McMillan et al. v. Cyrus H. McCormick, Jr.
    This case involves the construction of section 11 of the act in relation to limitations, chapter 88, R. S., and is affirmed to allow the case to go directly to the Supreme Court for decision.
    Appeal from the Superior Court of Cook county ; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed December 16, 1885.
    Mr. Egbert B. Kendall, for appellants.
    Messrs. Jenkins & Bareness and Mr. W. T. Burgess, for appellee.
   Per Curiam.

This was a hill in equity brought by appellants against appellee, McCormick, and Gerhard Foreman, to enjoin the foreclosure of a trust deed.

The bill alleges that the complainants are severally seized in fee of two certain parcels of land situate in the city of Chicago; that complainant McMillan obtained title to one of said parcels under a sheriff’s deed, upon a sale made by virtue of a judgment-recovered by him at the July term, 1875, of the Superior Court of Cook county, against Samuel J. Walker; that complainant Thomsen obtained title to the other parcel under a sheriff’s deed by virtue of a judgment recovered by one Scliloesser against Samuel J. Walker and Henry H. Walker in said Superior Court September 14, 1874.

That, November 18, 1868, said Henry H. Walker, claiming to be the owner in fee of both of said parcels of land, executed a trust deed thereon to said Foreman as trustee, to secure the payment of said Walker’s promissory note of that date for $20,000, payable November 21, 1870, of which said note, said McCormick claims to be the legal holder; that the defendant, Foreman, at the request of McCormick, has caused a notice of sale of conrplainant’s said lands to be published, claiming to act under the power of sale in said trust deed.

The bill charges that under the provisions of section eleven of chapter eighty-three of the Revised Statutes, the right to foreclose said trust deed by sale of said lands has been lost and is perpetually barred; that said trust deed is no longer a valid lien upon the lands therein described, and is a cloud on complainant’s title which ought to be removed.

The bill was taken pro confesso, as to the defendant Foreman. McCormick demurred, assigning, among other causes, “ That upon the face of said bill and the facts stated in it, it doesnot appear that the right to have the said power of sale exercised, or the liability of said land to be sold under said trust deed, or the cause of action accrued under said note and trust deed, all of which were in existence before the act stated and relied upon by said complainants went into effect, were, or are, affected by said act so relied upon or within the provisions of the same, but are by those provisions excluded therefrom.”

The court sustained the demurrer and dismissed the bill, and complainant appealed to this court.

As the decision of the principal question presented by the record depends upon the proper construction and effect of section eleven of the act in relation to limitations, Ch. 83, Rev. St., approved April 4, 1872, in respect to which we have been unable to reach a conclusion favorable to appellants entirely satisfactory to ourselves, and inasmuch as it seems desirable that a construction should be given to said section of the statute by the Supreme Court, for the guidance of inferior tribunals, we have deemed it best simply to affirm the decree of the court below, and allow the case to go directly to the Supreme Court.

As to the point made by appellants that the court erred in dismissing the bill after a default, and decree %>ro confesso against Foreman, it is only necessary to say, that, it being held that the case made by the bill is insufficient to entitle the complainants to the relief sought as to McCormick, and should be dismissed as against him, the case as to Foreman necessarily falls with it.

The decree is affirmed.


text:
    Central Illinois Coal Co. v. Marshall Field et al.
    Practice.—In a suit upon an account for the recovery of money where the defendant suffers default for the want of an affidavit of merits, and at defendant’s request a jury is called to assess the plaintiff’s damages, the affidavit filed with the declaration is competent evidence under section 37 of the Practice Act to prove the amount due upon such account.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed December 16, 1885.
    Mr. Frederic Hllmann, for appellant.
    Mr. Frank P. Lefeingwell, for appellees.
   Per Curiam.

This was an action of assumpsit, brought by Marshall Field and others against the Central Illinois Coal Company, in the Superior Court of Cook county, to recover upon an open account for merchandise sold and delivered. With the declaration, which consisted only of the common money counts, the plaintiffs filed an affidavit, in the usual form, showing the nature of their demand, and the amount due them from the defendant, after allowing to it all its just credits, deductions and set-off's, as provided by section 36 of the act in regard to practice in courts of record. The defendant was served with process in Cook county, and afterward appeared and filed pleas in bar, but failed to file with its pleas an affidavit of any defense to the whole or any part of the plaintiffs’ demand. Thereupon, on motion of the plaintiffs, said pleas were stricken from the files and the defendant’s default entered for want of such affidavit.

On the assessment of damages, the defendant asked for a jury, which was granted, and a jury being impaneled to assess the damages, the plaintiffs were permitted, against the objection of the defendant, to read in evidence to the jury the affidavit filed with their declaration, and no other evidence being offered, the jury assessed the plaintiffs’ damages at the amount shown by said affidavit to be due, and for that sum and costs the plaintiffs had judgment.

It is urged that the admission of the affidavit in evidence was error, and that is the only ground now urged for a reversal of the judgment. It is not claimed that the affidavit was not in all respects in compliance with the requirements of the statute, nor is it pretended that either party sought to introduce any evidence to either corroborate or contradict it. The case then rests solely upon the effect to be given to the provision of section 37 of the Practice Act, that the affidavit filed with the declaration may be taken as prima, facie evidence of the amount due upon the account.

Counsel seek to limit the application of this provision to cases of exparte assessments of damages by the court, and urge that it should not be applied to cases where the defendant appears and avails himself of his right to have the damages assessed by a jury. We are referred to no authority which so holds, and no course of reasoning has been developed possessing, in our judgment, even the merit of plausibility, which could justify such restricted construction. The statute by its terms embraces all cases of suits upon accounts where the defendant suffers a default, and applies as well to assessments by a jury as by the court. We think there was no error in permitting the affidavit to he read in evidence to the jury, and that it furnished such prima faoie proof of the damages as warranted the jury in assessing them at the sum therein specified. The judgment will be affirmed.

Judgment affirmed.


author: Bailey, P. J.

text:
    Charles Gardner v. Chicago, Rock Island & Pacific Ry. Co.
    1. Bilí, of exceptions.—-A recital at the close of a bill of exceptions that “ the foregoing constitutes the substance of all the evidence introduced by the parties on the trial of said cause,” is regarded as equivalent to a recital that it contains all the evidence.
    2. Evidence of habits of deceased.—Evidence of the habits of the deceased introduced in order to raise a presumption of the exercise of due care is admissible for that purpose only when nv one was°present or knew how the accident occurred.
    8. Impeachment of witness.—Where a document purporting to be a party’s evidence at the coroner’s inquest was offered as impeaching evidence and it was not materially in conflict with the evidence just given, and no proper foundation was laid for its introduction, it was properly rejected.
    4. Instructions—Negligence.—Before the rule of comparative negligence can have any application it must appear that the plaintiff exercised ordinary care and that the defendant was guilty of gross negligence.
    Error to the Oounty Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Opinion filed December 16, 1885.
    Mr. E. W. Becker, for plaintiff in error.
    Messrs. Thos. F. Withrow and James C. Hutchins, for defendant in error. '
   Bailey, P. J.

This was an action on the case, brought by Charles Gardner against the Chicago, ¡Rock Island & Pacific ¡Railway Company, to recover the value of a span of horses killed, and a wagon, hayrack and harnesses destroyed, by a collision with a train of cars on the defendant’s railway. A trial before the court and a jury resulted in a verdict and judgment for the defendant, and the plaintiff brings the record here by writ of error.

It is insisted by counsel for the defendant in error, that the bill of exceptions does not purport to contain all the evidence. In this we think they are in error. The recital in the bill of exceptions at the close of the evidence is as follows: “ The foregoing constitutes the substance of all the evidence introduced by the parties on the trial of said cause.” This seems to be regarded as equivalent to a recital that it contains all the evidence. Buckmaster v. Cool, 12 Ill. 74; Love v. Moynehan, 16 Id. 278.

The collision in question occurred at a railway crossing over a public highway, and the negligence charged in the declaration, in respect to which there seems to have been any material controversy at the trial, was a failure to ring a bell or sound a whistle for eighty rods before reaching the crossing, and running the train at a high and dangerous rate of speed. On these points the evidence is conflicting. We do not understand the counsel for the plaintiff to urge a reversal of the judgment on the ground that the evidence does not support the verdict, but merely on account of certain errors which, as he claims, occurred in the rulings of the court in the progress of the trial.

The collision took place early in the evening, and there is evidence tending to show that it was somewhat dark at the time. The plaintiff’s servant, who was in charge of the team, was killed, and no witness saw the accident except the driver of another team, who, at that time, was about thirty feet in the rear. Under these circumstances, counsel for the plaintiff asked several witnesses what were the habits of the deceased as to carefulness and sobriety, which questions, on the objection of the defendant, were excluded by the court.

The only authority to which we are referred which sustains the admission of evidence of the habits of the deceased, in order to raise a presumption of the exercise of due care, is Chi., R. I. & P. Ry. Co. v. Clark, 108 Ill. 113, and it is there held that such evidence in admissible for that purpose where no one was present or knew how the accident occurred ; but where there are witnesses who saw the transaction, such evidence is not admissible. In this case a witness, who was called and examined, testified not only that he was within a few feet of, and saw the deceased at and immediately before the accident, but had been in his company for a considerable time prior thereto. It is clear, then, that this case does not come within the rule laid down in the case above cited, and that the evidence was properly excluded.

The engineer, after being examined as to the speed of the train and the circumstances of the accident, was asked whether he did not make certain other statements in his testimony before the coroner, to which he replied that he did not remember, lie was also shown the signature to a document purporting to be his evidence before the coroner, and admitted the signature to be his. Said document was afterward offered as impeaching evidence and excluded. We think it was properly excluded, for the reason, first, that it was not materially in conflict with the evidence which he had just given at the trial, and secondly, that no proper foundation was laid for its introduction. The questions as to his former testimony did not embody either the language or the substance of his testimony before the coroner, and the document by which he was sought to be impeached was not shown to him, so as to give him time or opportunity to examine its contents. 1 Wharton on Ev § 68; 1 Greenl. on Ev. § 463.

It is claimed that the court erred in refusing to give to the jury an instruction asked by the plaintiff upon the rule in relation to comparative negligence, and that for such error the judgment should be reversed. That instruction was as follows :

“.Even if the jury believe from the evidence that the plaintiff or his servant in charge of said horses, harness and wagon at the time of the injury, were guilty of slight negligence, stil if it appears from the evidence that their negligence was slight, while that of the defendant or its servants was gross in comparison, thereby causing the injury complained of in the declaration, they should find for the plaintiff.”

Without attempting to determine whether this instruction stated the rule of law in relation to comparative negligence with accuracy, or whether the evidence was such as to warrant the giving of an instruction on that subjective think the error in refusing to give it was without prejudice to the plaintiff. The court gave for the plaintiff, and the jury, as we must presume, duly considered the following instruction:

If the jury believe, from the evidence in this case, that the plaintiff’s horses, harness and wagon were injured by defendant or his agents, by negligence as charged in the dec’aration, and that the servant in charge of said horses, harness and wagon used due and ordinary care in managing the same, and to avoid the injury, they will find for the plaintiff.”

By this instruction two questions of fact were submitted to the jury, viz.: whether the defendant was guilty of negligence contributing to the injury, and whether the plaintiff exercised ordinary care. As the jury were instructed that upon finding both these issues for the plaintiff the verdict should be in his favor, and as their verdict was for the defendant, it follows necessarily that they found one or the other of these issues adversely to the plaintiff. They must have found either that the defendant was not guilty of negligence, or that the plaintiff failed to exercise ordinary care. Either of these facts being established, the rule of comparative negligence had no application. Before that rule can apply it must appear that the plaintiff exercised ordinary care, and that the defendant was guilty of negligence, and that such negligence was gross. It follows that the finding of the jury, under the instruction given, was such as to exclude the application of the rule, and therefore that the plaintiff was in no way prejudiced by the refusal of an instruction on that subject.

As we find no material error in the record, the judgment will be affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    Frank Smentek et al. v. Morris Cornhauser.
    Practice.—As the instrument in writing, involved in this case, was not set out or described in either count of the declaration, and as it was not a promissory note, section 88 of the Practice Act, requiring an affidavit denying the execution of an instrument in writing in the cases therein mentioned, has no application, and the instruction to the effect that the defendants were not permitted to deny the execution of the instrument in question was erroneous.
    Appeal from the County Court of Cook county; the Hon. Richard Pbendebgast, Judge, presiding.
    Opinion filed December 23, 1885.
    This was assumpsit, brought to thé March term, 1885, of the court below, by appellee, Cornhauser, against appellants, Smentek and Reich,and one Jankowsky. The declaration contained the general common counts and one count upon a special promise to pay money; but no written instrument was set out or attempted to be described in either count. At the second term after suit brought, the plaintiff filed, as a hill of particulars, wliat purported to be a copay of an instrument as follows :
    “ Chicago, July 24, 1885.
    “This memorandum witnesses: That the undersigned, Floryan Jankowsky, as agent for M. Cornhauser & Co., did collect for them the sum of four hundred and forty-five dollars, and did embezzle and convert to his own use the said sum of money; now, in consideration that said M. Cornhauser <& Co. will not sue the said Jankowsky, we, the undersigned, hereby promise to piay the said M. Cornhauser & Co. the said sum of four hundred and forty-five dollars in one year from date, playable in monthly installments of thirty-eight dollars each, until said sum is p)aid.
    (Signed)
    Flobtan Jankowskr,
    Fbank Smentek,
    John Reich.”

      The latter two only defended, filing the plea of general issue with affidavit of a good defense upon the merits; the plea of non est factum, and a special plea averring in substance that they, Smentek and Reich, were respectively wholly ignorant of and unable to read the English language, that Jankowsky, with whom they wrere acquainted, brought to them a paper to sign, written in that language, and stated that he wanted to get employment in the business of the Brand Brewing Co.; that to get it he-had to have a recommendation as to his ability and honesty ; that the paper he had was for that purpose, and contained such recommendation; that the defendants believing him, and not knowing that the paper was other than as stated, and - not being able to read it, put their respective names to it, which is the same paper, etc. The plea concluded with a verification, and there is nothing in the record to show that plaintiff traversed any of said averments by replication. On the trial the plaintiff assumed the burden of proving the execution, and offered in evidence an instrument of which the foregoing is a copy. And the defendants were permitted, without objection, so far as the record shows, to introduce evidence showing that their respective signatures were put to the instrument, under the circumstances as stated in said special plea. At the conclusion of the testimony, the court instructed the jury, “ that the defendants not having denied the execution of the instrument sued on, by affidavit annexed to their pleas, the execution of it is ¡moved by the mere production of the instrument by the plaintiff, and offering the same in evidence.” To the giving which, defendants duly excepted.
    The jury found for plaintiff in the sum of 8167.25, on which iudgment passed, and said defendants bring the record here by appeal.
    Messrs. Brandt & Hoffmann, for appellants;
    that appellants are not liable, cited Hubbard v. Rankin, 71 Ill. 129; Auten v. Gruner, 90 Ill. 300; Anderson v. Warne, 71 Ill. 20; Riley v. Johnson, 8 Ohio, 526.

      Hr. Allan 0. Story, for appellee ;
    cited Fulford v. Block, 8 Bradwell, 284; Anderson v. Warne, 71 Ill. 20; Strong v. Linington, 8 Bradwell, 436; Wheeler v. Long, 8 Bradwell, 463; Gridley v. Bane, 57 Ill. 529; Young v. Ward, 21 Ill. 223; Selan v. Brock, 8 Ohio, 302: 1 Parsons on Notes and Bills, 235.
   McAllister, J.

The instrument in writing, involved in this case, was not set out or described in either count of the declaration. And, unless it was admissible in evidence under the common money counts, it was not admissible at all. It was not so admissible, unless it was a promissory note. But, it not being an unconditional promise to pay a specified sum of money, it was not a promissory note. Myers v. Phillips, 72 Ill. 460.

The action not having been brought upon said instrument in writing, and it not being admissible under any of the counts of the declaration, § 33 of the Practice Act, requiring an affidavit denying the execution of an instrument in writing in the cases therein mentioned, has no application to this case. The instruction, by the court to the jury, to the effect that the defendants were not permitted to deny the execution of the instrument in question, was therefore erroneous.

Such instrument not being a promissory note, so as to import a consideration, and none appearing on the face of it, because it does not say for value received, or imply value received, so far as the sureties are concerned, it will be necessary for plaintiff, in order to be in a condition to recover upon it, to declare specially upon it, averring performance of the condition therein expressed, and a legally sufficient consideration. Wells v. Girling, 8 Taunt. 737; Butler v. Rawson, 1 Denio, 105.

Appellee’s counsel assumes that the law will not permit the defendants to show that they were illiterate or unable to read English, and that Jankowsky presented said paper to them and stated it to be a mere recommendation of himself for a situation, and that they signed it as such, unless the plaintiff participated in the act of obtaining it by fraud and circumvention. And the counsel seems to think, that the defense is founded upon the statute in respect to setting up fraud and circumvention in actions upon negotiable instruments. The right of defendants to contest the execution of this instrument is in no respect founded upon that statute, but arises from very old principles of the common law ; one of which is that an act of the mind, an assent, is indispensable to the making of a valid express contract. In modern times, such assent to a contract in writing is usually manifested by signing; as a general rule if the mind does not accompany the act of signing, by reason of the misreading or misstatement of the effect of the instrument, and the party, without negligence, signs one instrument, when he supposes, from the circumstances of such misreading or misstatement of the contents and effect, that he is signing one of a different nature, he will not be bound; and it will make no difference whether such misreading or misstatement of contents and effect was by the party who seeks to enforce the obligation, or by a stranger. In Thoroughgood’s case, 2 Coke, 9, trespass was brought by Thoroughgood against Cole for breaking plaintiff’s close. The defendant pleaded that long before the trespass, the plaintiff released to one William Chicken, all demands, etc., whatsoever, whose estate defendant had, and justified the trespass. The plaintiff replied that he was a layman, not lettered, and that, at the time of the said release made, divers arrearages of an annuity were due him by said William Chicken, and that the said writing of release was read and declared to him as a writing of acquittance for those arrearages only; and that he, giving credit thereunto, did seal and deliver the same to said William Chicken, and so not his deed. The jury found a special verdict, that plaintiff was a layman, not lettered, and that divers arrearages of the said annuity were behind, and that the writing was never read to plaintiff; but after that one Thomas Ward had begun to read it to the plaintiff, and before he had read a line of the writing, one John Ward took the writing out of his hands, saying to the plaintiff : “ Goodman Thoroughgood, you are a man unlearned, and I will declare it unto you and make yon understand it better than you can by hearing it read.” And then said further to him: “ Goodman Thoroughgood, the effect of it is that you do release to William Chicken all the arrearages of rent that he doth owe you, and no otherwise and then you shall have your land again.” To which plaintiff said: If it be no otherwise, I am content;” and thereupon the plaintiff, giving credit to said John Ward, delivered said release to said William Chicken; and whether this, upon the whole matter, be the plaintiff’s deed, the jury refer to the court. The court adjudged that it was not the plaintiff’s - deed, resolving first, that although the party to whom the writing is made, or other by his procurement, doth not read the writing, but a stranger of his own head read it in other words than in truth it is, yet it shall not bind the party who deliveretli it; for it is not material who readeth the writing so as he who maketh it be a layman and being not lettered (without covin in himself) be deceived. * "x" Thirdly, although the writing be not read to the party, yet if the effect be declared to him in other form than is contained in the writing, and upon that he deliver it, he shall avoid the deed.

We are not aware of the doctrine of this case being overruled, as applied to instruments other than negotiable paper-They may be said to have been modified to the extent that the party having executed and seeking to avoid the deed must exercise due care. Tliorougligood’s case was expiressly recognized as law in Foster v. McKinnon, 38 Law Journal Rep. 310, decided by the English Common Pleas in 1869; R. R. I. & St. L. R. R. Co. v. Shumick, 65 Ill. 229; Strong v. Linington, 8 Bradwell, 436; Id. 463.

For the error in the instruction to the jury, the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Wilson, J.

text:
    Mahlon Hutchinson et al. v. Jason C. Ayres.
    Practice.—On final hearing of a suit in equity against three defendants, the court dismissed the bill against the first of the defendants for want of equity. The complainants subsequently dismissed of their own motion as to the other two, and then appealed the case as against the defendant first mentioned. Held, that having voluntarily dismissed their bill as to two necessary parties to the suit, they are not entitled, to a decree to enable them to go hack to the court below to ask that the order of dismissal as to two of the defendants, made on their own motion with a full knowledge of all the facts, he vacated.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Mohan, Judge, presiding.
    Opinion filed December 4, 1885.
    This was a hill in equity brought in the Circuit Court of Cook county, by appellants, heirs and legatees of John P. Hutchinson, deceased, against appellee, Ayres, and Maria U. Hutchinson and John Y. Thomas, praying for an accounting by them as executors and trustees of the estate of said John P. Hutchinson, and also praying for their removal as such trustees, etc. Hutchinson died testate, December 80, 1872, leaving a widow, the said Maria N. Hutchinson, and three children, the said complainants. By his will, which was duly admitted to probate, he bequeathed to his said children ten thousand dollars each, to be taken out of his estate as each should attain the age of eighteen years, and he invested by his executors for their use and benefit until they should respectively reach the age of twenty-six years, when the money was to be paid over to them absolutely. The rest and residue of his estate, real and personal, he bequeathed to his wife, Maria H. Hutchinson, during her natural life, and at her death so much of his estate as remained was to be divided equally among his then surviving children, with a proviso that any child’s share of such remaining estate should also he held in trust until such child or children should respectively attain the age of twenty-six years.
    He nominated and appointed his wife, Maria N. Hutchinson, and Jason C. Ayres of Dixon, Illinois, as trustees of his children and executors of his will, giving them power to sell and convey at their discretion any or all of his estate, and to re-invest the same as they might deem hest.
    Letters testamentary were issued to Ayres and Mrs. Hutchinson in January, 1873, and they proceeded with the administration of the estate until October, 1876, when Ayres, by leave of the court, resigned as executor, whereupon Mrs. Hutchinson, by direction of the court, filed a new bond and proceeded to administer as sole executrix. Subsequently upon petition of her sureties she was required to file a new bond, failing to do which she was removed, and July 25,1877, John Y. Thomas was appointed administrator de ionis non, to whom, as her successor, Mrs. Hutchinson turned over the assets of the estate remaining in her hands.
    In December, 1882, appellants, and the devisees named in his will, brought the present bill in the Circuit Court of Coolc county, against said Ayres, Thomas and Mrs. Hutchinson, alleging that they had wasted and squandered the estate, and praying for an accounting, and that Ayers and Mrs. Hutchinson be removed as trustees, etc. Upon a final hearing the court dismissed the bill for want of equity as to Ayres, decreed that Mrs. Hutchinson, who failed to answer, was guilty of waste, and referred the case to the master to take an account as to her, and retained the bill for further consideration as to Thomas.
    The complainants subsequently on their own motion dismissed them bill as to Mrs. Hutchinson and Thomas.
    Messrs. Edsall & Edsall and Messrs. W. and W. D. Bakge, for defendants in error.
    Messrs. Thomas Dent and Mr. I. K. Boyesen, for plaintiff in error.
   Wilson, J.

We might content ourselves with saying that upon the merits of the case as disclosed in the record we are of opinion that the bill was properly dismissed as to the defendant Ayres, for the reasons stated in the opinion of the chancellor, and found in 17 Chicago Legal News, p. 223. But it may be proper to refer briefly to the condition in which the case is left by the complainants voluntarily dismissing their bill as to the defendants, Maria N. Hutchinson and John V. Thomas.

It is a familiar rule in chancery proceedings that all persons interested in the subject-matter of the litigation, must be made parties to the suit. And in Story’ Eq. Pl. § 541, it is said:

“Wherever the want of proper parties appears on the face of the bill it constitutes a good cause of demurrer. If the parties not brought before the court are necessary and proper to the decree to be made under the bill, the exception may also be insisted upon in the answer, or at the hearing.” Hpon the bill as framed, Mrs. Hutchinson and Thomas were obviously necessary parties. Mrs. Hutchinson, as shown by the bill, was not only co-executrix with Ayres, but also tenant for life of a portion of the estate which it is sought by the bill to take from her control and place in the hands of a trustee to be appointed by the court. She was also trustee for the children named in the will, and so far as appears, has never declined to accept and perform the duties of the trust. Her rights can not be divested by any suit to which she is not a party. And the same is to be said as to so much of the estate as passed into the hands of defendant Thomas.

It follows, that if the complainants had dismissed their bill as to Mrs. Hutchinson and Thomas before or upon the hearing, the court would properly have dismissed the bill as to Ayres, without proceeding to a further hearing of the case. The same result follows, as the case now stands, by the dismissal of the bill as to them after the court had dismissed the bill as to Ayres < n the hearing. This court will examine the entire record on the present writ of error, and judge as to the effect of what was done in the court below at any stage of the proceedings. The complainants have voluntarily put Mrs. Hutchinson and Thomas out of the case, and if this court were to reverse the decree as to Ayres and remand the cause to the circuit court, that court, as the case stands, would he compelled to enter another decree dismissing the bill as to Ayres for want of proper parties, if not upon the merits.

The complainants having voluntarily dismissed these parties out of the case, under no misapprehension as to the facts, we are aware of no principle or rule of chancery practice which permits them to come into this court and ask for a reversal of the decree of the court below, to enable them to go hack to that court and to ask that the order of dismissal made on their own motion be vacated.

It is true the order of dismissal was made “without prejudice as to any suit at law that complainants may be advised to bring,” but reservation is only as to complainants’ right to renew litigation as to Maria Hutchinson and Thomas in a suit at law.

The decree of the court below is affirmed.


text:
    Lucas R. Williams v. The People, etc.
    1. Construction of statute.—In construing a statute the court is required to carefully look at and consider all its provisions, and to so construe it that all its several parts may stand and each have some eSeet given to it if possible.
    2. Practicing medicine—-Revoking certificates.—The court is of opinion that the proper construction of section ten of the “ Act to regulate the practice of medicine in the State of Illinois," relating to the power of the State Board of Health to revoke certificates, is that it applies only to the class of persons who are not graduates in medicine.
    3. Same.—But whatever the construction of such statute, as there is no provision of the penal clause of the above statute, “ Any person practicing medicine, etc., without complying with the provisions of this act, shall be punished, etc.," with which plaintiff in error has not complied, no case is made out against Mm.
    Erbob to the Criminal Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed December 4, 1885.

      Williams was indicted in the court below, and, under plea of not guilty, was tried and convicted and adjudged to pay a fine of fifty dollars for alleged violation of the act entitled “ An act to regulate the practice of medicine in the State of Illinois,” approved May 29, 1877. He brings the record to this court for revision. The undisputed facts are that defendant below was a graduate in medicine prior to the passage of said act, he receiving a diploma from Rush Medical College of Chicago, Feb. 16, 1875 ; that after the act went into force, and Nov. 22, 1877, he duly presented said diploma to the State Board of Health for verification, as required by said act, that said board found it to be genuine, and that he was the person named therein; that thereupon said board issued to him its certificate signed by all its members certifying those facts, and he duly filed it, in the office of the county clerk of Cook county, for registry; that afterward, Feb. 6, 1880, said board, upon notice to him, passed an order declaring said certificate revoked. It was for practicing medicine in said county, after such alleged revocation, that he was convicted as aforesaid. Section one of that act reads : “ That every person practicing medicine in any of its departments shall possess the qualifications required by this act. If a graduate in medicine, he shall present his diploma to the State Board of Health, etc., for verification as to its genuineness. If the dipfinna is found genuine, and if the person named therein be the person claiming and presenting the same, the State Board of Health shall issue its certify cate to that effect, signed by all the members thereof, and such diploma <md certificate shall he conclusive as to the right of the Irnoful holder of the same to practice medicine in this State. If not a graduate the person practicing medicine in this State shall present himself to the said board, and submit himself to such examination as the board shall require; and, if the examination be satisfactory to the examiners, the said board shall issue its certificate in accordance with the facts, and the lawful holder of such certificate shall be entitled to all the rights and privileges herein mentioned.”
    Section three declares that the said board shall issue certificates to all persons who furnish satisfactory proof of having received diplomas or licenses from legally chartered medical institutions in good standing.
    Section four provides that “ the verification of the diploma shall consist in the affidavit of the holder and applicant that he is the lawful possessor of the same, and that he is the person therein named. Such affidavit may be taken before any person authorized to administer oaths, and the same shall he attested under the hand and official seal of such officer, if he have a seal. Graduates may present their diplomas and affidavits as provided in this act by letter or by. proxy, and the State Board of Health, etc., shall issue its certificate, the same as though the owner of the diploma was present.”
    Section five provides: “All examinations of persons not graduates or licentiates, shall be made directly by the board, and the certificates given by the board shall authorize the possessor to practice medicine and surgery in the State of Illinois.”
    Sections six and seven provide for the filing and registration of certificates in county clerk’s office.
    Section eight relates to the fees for examination of candidates, not graduates, and section nine reads: “ Examinations may be in whole or in part in writing, and shall he of an elementary and practical character, but sufficiently strict to test the qualifications of the candidate as a practitioner.” Then follows section ten: “The State Board of Health may refuse certificates to individuals guilty of unprofessional or dishonorable conduct, and they may revoke certificates for like causes. In all cases of refusal or revocation the applicant may appeal to the body appointing the hoard.” The only penal clause is in section thirteen, and reads: “ Any person practicing medicine or surgery in this State, without complying with the provisions of this act, shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than three hundred and sixty-five days, or by both such fine and imprisonment, for each and every offense, * * * provided that the provisions of this act shall not apply to those that have been practicing medí-, cine ten years within this State.” Hurd’s Stat., p. 709-10.

      Messrs. Bareum, Burees & Ames, for plaintiff in error;
    as to construction of penal statutes, cited Andrews v. U. S., 2 Story, 203; Strinson v. Pond, 2 Curtis, 502; U. S. v. Ragsdale, Hempst. Rep. 497; U. S. v. 10 Cases of Shawls, 2 Paine, 162; Chase v. N. Y. C. R. R. Co., 26 N. Y. 523; Potter’s Dwarris, 247; Bacon’s Maxims, 58, 59; U. S. v. Wiltberger, 5 Wheat. 76; Gunter v. Lecky, 30 Ala. 591; State v. Lowell, 23 Ia. 304; Sedgwick on Construction of Statutes, 279; Lair v. Killmer, 1 Dutch. 522; Elias v. Nightingale, 8 E. & B. 698.
    Messrs. Thomson & Felseethal, for defendants in error;
    as to construction of penal statutes, cited Dwarris on Statutes, 635; Ferry Co. v. Jefferson Co., 94 Ill. 220; Perry v. Skinner, 2 M. & W. 471; Walker v. City of Springfield, 94 Ill. 362; People v. Hoffman, 97 Ill. 236; Pearce v. Foot, 113 Ill. 239.
   McAllister, J.

The only penal clause in the statute, under which plaintiff in error was convicted, and which is at all applicable to the case, is in these words: “Any person practicing medicine or surgery in this State without complying with the provisions of this act, shall be punished,” etc.

The last clause of the act excepts from its operation all persons who have practiced medicine within this State for ten years. Those upon whom it does ojierate are practically divided into two classes, as to which the functions of the State Board of Health are essentially different. Both classes are required to possess the qualifications prescribed by the act. Those classes are those who are graduates in medicine, having genuine diplomas of regularly chartered medical colleges, and those who are not. As to the former of those classes, the qualifications were: such diploma; the presentation of it, with a certain prescribed affidavit, to said board for verification; a certificate by the board, signed by all its members, that it was genuine, and that the person named therein was the person claiming and presenting it; then the filing of such certificate with the county clerk, for registry. The case shows that plaintiff in error had complied with each of those requirements. But it appears that some three years thereafter said board passed an order purporting to revoke such certificate or act of certification of plaintiff’s diploma. The whole stress of this case rests upon that circumstance. Counsel for the prosecution maintain that, by the tenth section of the act, the board was vested with power to revoke any certificates it had made. That section says, the board may refuse certificates to individuals guilty of unprofessional or dishonorable conduct, and they may revoke certificates for like causes. And they say that the effect of such revocation was the same as if the plaintiff in error had never had any such certification of his diploma.

The statute prescribes no silcIi effect. Indeed it is wholly silent as respects any consequence of such revocation. The question here arises whether such effect can follow by implication, so as to bring the party within said penal clause, the statute being silent and containing no prohibition against his practicing thereafter. It seems to us, that the statute itself emphatically repels and rebuts any such implication or presumption. Section one enacts: “ That every person practicing medicine in any of its departments shall possess the qualifications prescribed by this act. If a graduate in medicine, he shall present his diploma to the State Board of Health for verification as to its genuineness. If the diploma is found genuine, and if the person named therein be the person claiming and presenting the same, the State Board of Health shall issue its certificate to that effect, signed by all the members thereof, and such diploma and certificate shall be conchisive, as to the right of the lawful holder of the same to practice med'cine in this State.” The word “ c m-c'usive,” as there used, has a well-defined legal signification. Its proper synonyms are irrefutable, final. With the question as to what powers the board possesses in regard to the making such certification of a diploma, we have no concern in this case. What was the legal effect of it after it was made, is the question. The declaration of the legislature that such diploma and certificate shall be conclusive as to the right of the holder to practice medicine, is subject to no limitation as to time or qualification as to circumstances. It is clear and unambiguous, admitting of no construction. And there is no other provision of the statute which is necessarily in conflict with it. For the court to coin and interject a counteracting phrase, would, in our opinion, be nothing but judicial legislation, which, in theory, is always condemned, but not unfrequently practiced. There is a very good reason in the nature of the case, for supposing that the legislature meant just what it said; and no such serious consequences w ould, as counsel seem to suppose, follow, that view. The legislature did not, evidently, suppose that the entire prosperity of the State depended upon giving the State Board of Health unlimited, arbitrary power over the fortunes and reputations of every pei" son who practiced medicine. As indicative of that, we find that the act excepts from its operation all who had practiced ten years. They are entirely outside the jurisdiction of said board. The principal evils aimed at were two: First? ignorance, or want of scientific knowledge; secondly, the use of diplomas either spurious as respects the holder, or emanating from a college having no title to respect. An analysis of the act clearly evinces the intention to favor the class making applications upon genuine diplomas, and thereby encourage and superinduce the pursuit of medical studies in reputable institutions chartered for that purpose, and to the extent of obtaining a diploma. A convenient species of evidence is prescribed, viz., the affidavit of the applicant. The applicant need not appear in person, but may cause his affidavit and diploma to be presented to the board for verification, by letter or by proxy. (Sec. 4.)

The spirit of the act evinces a policy of encouraging collegiate medical education. It was therefore not the intention of the legislature to give to the board the power of disappointing the hopes of the student who had honestly acquired such a diploma as was contemplated by the act, by destroying its value to the possessor. Hence the legislative declaration that such certificate and diploma should be conclusive as to his right to practice medicine.

Ho such declarative effect is given to the certificate made, upon examination, to a person not a graduate. The statute simply says that such certificate shall authorize the possessor to practice medicine and surgery in this State. (Sec. 5.)

Section ten, which purports to give power to the board to revoke certificates to individuals, is associated with provisions which relate exclusively to the class who are not graduates in medicine. It is a rule of law, as well as of common sense, that in construing a statute, the court is required to carefully look at and consider all its provisions, and to so construe it that all its several parts may stand, and each have some effect given to it if possible.

By construing this act so that said section ten is regarded as applying only to the individuals of the class who are not graduates in medicine, some effect and operation is given thereto, and at the same time, the clear, unambiguous and unqualified declaration as to the effect of the certification of a diploma, will be upheld, agreeably to the intention of the legislature as manifested by the words employed. We believe that to be the proper construction. But suppose we are mistaken; is the posture of the case any more favorable to the prosecution? As before observed, the act is entirely silent as respects any effect to follow such supposed revocation. It enjoins no duty on the part of the practitioner as contingent upon it; nor can we see that any is implied. This is a criminal case; we are considering a penal statute. How then can this case, in any point of view, be said to come within the penal clause— “ Any person practicing medicine, etc., without complying with the provisions of this act, shall be punished, etc.” Counsel have failed to point out, and we are unable to find, any provision of the statute which plaintiff in error had not complied with.

Being of opinion that no case was made out against the defendant below, within the act, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    John Cresswell et al. v. John H. Oberly et al.
    1. Corporation—Organization.—The act of recording the certifi cate with the recorder of the c otmty is the necessary and final act which gives to the organization its corporate life and endows it with its franchises and faculties. Until this is done, there is in fact no corporation in esse capable of doing business or contracting liabilities.
    2. Same—Liability op stockholders as partners—Estoppel.—A suit and judgment therein against an imperfectly organized corporation, as between the plaintiffs and defendant corporation, will operate as an estoppel to bar the same plaintiffs from recovering from the members of the corporation on their individual liability as partners in the same cause of action.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed December 23, 1885.
    Mr. Thomas Dent and Mr. I. K. Boyesen, for plaintiffs in error.
    Messrs. W. and W. D. Barge, for defendant in error.
   Bailey, P. J.

This was a suit in assumpsit, brought by John Cresswell and another, against John Oberly and eight others, upon an account for merchandise sold and delivered, the declaration charging the defendants as “late partners trading and doing business under the firm, name and style of the Bloomington Printing and Publishing Company.” The defendants pleaded non-assumpsit, and special pleas denying their joint liability, said pleas being duly verified by the affidavit of one of their number, and upon a trial of the issues by the court without a jury judgment was rendered for the defendants.

The defense interposed was, that the Bloomington Printing and Publishing Company was a corporation organized under the laws of this State, and that the indebtedness for which the suit was brought was incurred by it in its corporate capacity.

It appears that on the 4th day of November, 1880, seven of the defendants made and acknowledged a statement that they proposed to form a corporation under the name of The Bloomington Printing and Publishing Company,” setting forth the objects for which it was to be formed, its capital stock, the number of shares of which such stock was to consist, the location of the principal office, and the duration of the corporation, in accordance with the second section of the act concerning corporations, and filed said statement in the office of the secretary of state; that a license was thereupon issued to said associates as commissioners, to open books of subscription to the capital stock of said company, and that on the 7th day of February, 1881, said commissoners filed in the office of the secretary of state, a report of their proceedings, showing that the entire amount of the capital stock had been subscribed, and that they had convened a meeting of the subscribers for the purpose of electing directors of the company, due notice of said meeting having been given, and that at such meeting a board of directors had been duly elected. Among the subscribers to said capital stock were the other two of the defendants.

It further appears that upon such report the secretary of state issued a certificate of the complete organization of the company under his hand and the seal of state, said certificate bearing date said 7th day of February, 1881. Said certificate was filed for record and recorded in the office of the recorder of McLean county, where the principal office of the company was located, on the 30tli day of August, 1881.

Shortly after the date of said certificate, and before it was filed for record in the office of the recorder of McLean county, said company commenced doing business as a corporation, and continued to do business until its failure, some time in the year 1883, the defendants during all that time supposing that it was duly and properly incorporated.. The plaintiffs sold and delivered merchandise to said company on ere lit at various dates from May 31,1881, to October 31,1881. On the 14tli day of April, 1882, they brought suit against said company as a corporation, in the Circuit Court of McLean county, to recover the value of said merchandise, and obtained judgment for $606.20, the entire amount of their account. They afterward caused execution to be issued on said judgment to the sheriff of said county, and the same being returned wholly unsatisfied they instituted proceedings by way of garnishment against certain of the stockholders of the company to reach unpaid subscriptions to said capital stock, but it being shown that said subscriptions had been fully paid, said garnishee proceedings proved unavailing. Ho part of said judgment has been paid, or satisfied, and said judgment remains in full force, not vacated or appealed from.

The present suit was brought against the defendants as co-partners, to recover so much of the identical indebtedness upon which said judgment against the corporation was recovered as accrued prior to August 30,1881, the day on which the certificate of incorporation was filed in the recorder’s office. Part of the defendants were stockholders at the time said indebtedness accrued, but part of them, so far as the record shows, had no further connection with the company than merely joining in the execution of the original statement, and acting as commissioners to obtain subscriptions to the capital stock and to perfect the organization of the company.

It is not claimed that the corporation was not fully organized when the certificate of organization, issued by the secretary of state, was filed for record in the recorder’s office. The question is, whether upon the issuing of said certificate, the associates became a corporation de facto, so as to escape liability as partners, for debts created by them in the prosecution of the business of the association.

The existence of a corporation formed under a general statute requiring certain acts to be performed before the corporation can be considered in esse, must be proved by showing, at least, a substantial compliance with the requirements of the statute. In such case, any material omission will be fatal to the existence of the corporation, and may be taken advantage of collaterally in any form in wTticli the fact of incorporation can properly be called in question. Mokelumne Hill Canal and Min. Co. v. Woodbury, 14 Cal. 424; Bigelow v. Gregory, 73 Ill. 197. As held in Gent v. Manuf. & Merch. Mut. Ins. Co., 107 Ill. 652, a corporation must have a full and complete existence as an entity before it can enter into any kind of contract or transact any business. Until organized as authorized by its charter, there is not a corporation; nor does it possess franchises or faculties for it or others to exercise until it acquires a complete existence.

We must look, then, to the requirements of the statute to determine when the existence of the corporation here became full and complete, and the question does not seem to be a difficult one. Various steps are required to be taken to organize and bring into being a corporate existence, the last of which is, the recording of the certificate of complete organization issued by the secretary of state in the office of the recorder of deeds of the county where the principal office of the company is located, and it is then declared that upon the recording of such paper, “ the corporation shall be deemed fully organized and may proceed to business.” It -seems clear that the act of recording the certificate is the necessary and final act which gives to the organization its corporate life and endows it with its franchises and faculties. Until this is done, there is in fact no corporation in esse, capable of doing business or contracting liabilities.

But while the evidence fails to show a corporation fully organized at the time the indebtedness in question accrued, we think the plaintiffs are precluded from alleging that its organization was not then complete. They have elected to treat said indebtedness as an indebtedness of the corporation, and to sue the corporation and obtain judgment against it therefor. So far as they are concerned, all question on that subject should be deemed to have been foreclosed. The judgment having the effect of an admission by the plaintiffs in the most solemn form, that the claim for which it was recovered was the debt of a corporate body, and therefore a debt in respect to which the members of the association were exempted from liability as partners, it should be held to operate against the plaintiffs as an estoppel.

The case of Pochelu v. Kemper, 14 La. An. 308, is in point. There the holder of a promissory note purporting to have been executed by the Hew Orleans Bone Black Company, instituted suit and recovered judgment thereon against said company as a corporation. Execution on said judgment having been returned unsatisfied, the plaintiff brought another suit for the same cause of action against a member of the association, alleging that the association was . composed of certain persons who were jointly and severally liable to him for the payment of the note and judgment. The plaintiff recovered, in the court below, but on appeal said judgment was reversed, it being held, that by treating the note as an obligation of a corporation and not of a partnership, and by bringing suit and obtaining judgment against the association as a corporation, the plaintiff was estojiped from denying that' it was a corporation. See also Lombard v. Sinai Congregation, 64 Ill. 477.

A judgment for the defendants was the proper judgment upon the facts appearing in this record, and it will accordingly he affirmed.

Judginent affirmed.


text:
    Ferdinand Darmstædter v. Philip D. Armour et al.
    1. Certiorari.—Ho reason being shown why the appellant did not take an appeal from the justice in the ordinary way, the writ of certiorari held to have been properly quashed.
    2. Practice—Certiorari.—The fact that the transcript from the justice had not been filed and the appearance of the appellee entered ten days before the term is no obstacle in the way of quashing and vacating a writ of certiorari which the court has improvidently issued.
    Appeal from the Circuit Court of Cook county; the Hon. Loimsr C. Collins, Judge, presiding.
    Opinion filed December 16, 1885.
    Mr. William A. Schonfeld, for appellant;
    that the circuit court has no jurisdiction to dismiss an appeal unless the transcript from the justice of the peace has been filed ten days before the term, cited Faas v. O’Conner, 6 Bradwell, 593; Camp v. Hogan, 73 Ill. 228; Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 Ill. 477; Pratt v. Bryant, 2 Bradwell, 314; Robinson v. Allen, 11 Bradwell, 574; McManus v. v. McDonough et al., 4 Bradwell, 180.
    Messrs. Clieeoed, Anthony & Paulsen, for appellees;
    as to what a petition for certiorari must show, cited Hurd’s Rev. Stat. 1885, Sec. 76, Chap. 79; Cushman v. Rice, 1 Scam. 566; Gallimore v. Dazey, 12 Ill. 144; Murray v. Murphy, 16 Ill. 277; Russell v. Pickering, 17 Ill. 31; Clifford v. Waldrop, 23 Ill. 337; First Nat. Bank v. Beresford, 78 Ill. 392.
   Bailey, P. J.

This case was an appeal from an order of the circuit court quashing a writ of certiorari, by which the appellant sought to remove a cause into that court from before a justice of the peace. We are of opinion that the writ was properly quashed.

To entitle a party to a certiorari it must appear from his petition, 1, that the judgment before the justice of the peace was not the result of negligence on his part; 2, that the judgment is unjust and erroneous; and 3, that it was not in the power of the petitioner to take an appeal in the ordinary way. As to the first and third of these requisites, the appellant’s petition is clearly insufficient, and as to the second, we are inclined to the opinion that no such injustice or error is shown as would entitle the petitioner to the writ.

It appears from the justice’s transcript attached to the petition, that the judgment was for $174.62 and costs, and that it was rendered upon a demand in favor of the appellees for goods fraudulently obtained from them by the appellant and by him wrongfully converted to his own use. The petition admits an indebtedness to the appellees for about the amount of the judgment, for goods sold and delivered, but denies obtaining any goods from the appellees by fraud or in a tortious manner; and the only injustice, or error alleged is, that the recovery was had in an action in the form of trover rather than of assumpsit. So long as the recovery is for no more than is justly due the appellees, it is difficult to see how the appellant has suffered any substantial injustice growing out of the mere form of action in which the recovery was had.

The appellant, though duly served Avith summons, did not appear or attempt to interpose any defense. The summons was in the usual form, requiring him to answer the complaint of the appellees for a failure to pay them a certain demand not exceeding íavo hundred dollars, but did not indicate whether the demand sued for Avas in assumpsit or trover. The only excuse for not appearing sliOAvn by the petition is, that the appellee had then lately failed in business and become insolvent, OAving debts to various parties, among which was the indebiness to the appellees; that he had no defense to said indebtedness, and not being in a condition to make any payment, he had no occasion to appear, and therefore did not appear at the trial, but Avas perfectly willing that the appellees'should obtain a judgment in assumpsit against him for the amount of their claim; that after the service of the summons he consulted an attorney in relation to the suit, who, after examining the summons, advised him that it was an ordinary summons in assumpsit, and that the appellees could only recover a judgment against him in that form of action, and that it was useless to make a defense, as he owed the claim.

Ho reason is shown why the appellant did not take an appeal in the ordinary Avay. It does not appear that he gave the matter of the judgment the slightest attention from the day it was rendered until the time allowed by laAV for perfecting an appeal had expired. On the contrary, the petition states that he had no knowledge or information as to the nature of the judgment until more than twenty days had elapsed, and then not until he was arrested on a ca. sa. issued thereon and committed to jail.

It is clear from this shoAving that if the judgment is in any degree unjust or erroneous, it is the result of the appellant’s own negligence, and that there was no obstacle whatever to prevent his taking an appeal in the ordinary way. The summons Avas one under Avhich the appellees were entitled to recover in any form of action within the jurisdiction of a justice of the peace, and it was incumbent upon the appellant to appear and contest any claim to which he had a defense or abide the consequences of his neglect. He was not misled, unless by the advice of his attorney, but seems to have relied for his protection upon his insolvency, and his ability to defeat the collection of any judgment the appellees might recover against him, and he does not appear to have become impressed with the importance of having the suit properly defended, until his body was taken in execution on a ca. sa., issued long after his right to an appeal had expired. The petition was clearly insufficient, and a writ of certiorari having been improvidently awarded thereon, was properly quashed.

The fact that the transcript from the justice had not been filed and the appearance of the appellees entered ten days be- • fore the term, was no obstacle in the way of quashing and vas ■ eating a writ which the court had improvidently issued, and the authorities cited, which hold that an appeal from a justice of the peace, when once properly perfected, can not be dismissed unless the transcript has been filed and the appearance of the appellees entered ten days before the term, have no application.

It was not improper for the court, on quashing the certiorari, ■ to award a procedendo to the justice. The execution of the justice’s judgmenthad been suspended and superseded by the certiorari, and the procedendo was merely a notification to the justice that the supersedeas had been vacated, and that he was authorized to proceed with the execution of his judgment.

There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Bailey, J.

text:
    George D. Colburn et al. v. Mark D. Shay et al.
    Creditor’s bird—Assignment—Jurisdiction. — A creditor’s bill brought by judgment creditors to reach assets alleged to have been disposed of in fraud of creditors, where the property had been sold and the proceeds distributed before the execution of the assignment under the statute in relation to voluntary assignments. Held, that the circuit court had jurisdiction of the bill.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed December 4, 1885.
    This was a creditor’s bill, brought by various judgment creditors of Mark D. Shay against said Shay and others, to reach certain assets alleged to have been disposed of by said Shay in fraud of his creditors, and to subject the same to the payment of their judgments.
    The bill alleges the recovery by the complainants of six several judgments against Shay, four on the 14th day of July, 1884, and two on the 24th day of February, 1885, amounting in the aggregate to $7,511.94, the issuing of executions thereon, and a return of the same wholly unsatisfied, and that said judgments were recovered upon indebtedness incurred by Shay prior to May 1, 1884. Also that on June 2, 1884, said Shay, being insolvent at the time, confessed four judgments in favor of four of the defendants, amounting in the aggregate to $24,700; that Shay and the parties in whose favor said judgments were confessed, caused executions to be issued thereon immediately, and levied upon a stock of merchandise belonging to Shay, and caused said merchandise to he sold by the sheriff on the 21st day of June, 1884, for the sum of $15,-727.78, over and above the costs of sale, and that said money was distributed and paid over by the sheriff to the plaintiffs in said executions in part satisfaction thereof.
    The bill further alleges that on said 2d day of June. 1884, said Sliay transferred and delivered to two other of the defendants, for the benefit of said four judgment creditors, certain notes and accounts, amounting to §8,000, of which they had collected §5,000 and paid the same over to said judgment creditors ; that said judgments were confessed and said notes and accounts transferred without any good or valuable consideration, said Shay not being then indebted to the plaintiffs in said judgments, but that said judgments were so confessed, said executions issued, said sale made and said notes and accounts transferred for the purpose of hindering and delaying the complainants in the collection of their said debts, and of concealing the assets of said Shay, and that said judgments were fraudulent and void as against the rights of the complainants. The bill prays that said judgments and transfer of said notes and accounts be declared fraudulent and void as against the rights of the complainants, and that the defendants be directed to pay over the moneys so received by them respectively, and for a receiver.
    The answers admit the recovery of said four judgments by confession, the executions, levies and sale thereunder, and the transfer by said Shay of said notes and accounts, but aver that said merchandise was bought in at said execution sale by two of the defendants, as trustees for them >el ves and the other defendants. They also admit the receipt of §3,000, collected on said notes and accounts. The answers deny that said judgments were fraudulent, or that they were confessed, or said notes and accounts transferred without consideration, or for the purpose of hindering or delaying the complainants in the collection of their claims, but that said judgments were for divers items of indebtedness justly and in good faith due and owing by said Shay.
    Eeplications were filed, and the cause afterward came on for hearing on pleading and proofs, and at said hearing the complainants introduced evidence tending to support the allegations of their bill, and the defendants also introduced evidence tending to support the allegations of their answers. Among other things the defendants were permitted to read in evidence, against the objections of the complainants, a certain deed of assignment, dated July 9,1884, executed by said Shay under the provisions of the act concerning voluntary assignments, approved May 22, 1877, by which he assigned and transferred all his property and estate to one Richard H. Stebbins for the benefit of his creditors.
    The court thereupon, as appears from the certificate of evidence, refused to fully hear and consider the evidence in the case, because it was of the opinion that, by reason of said assignment, it had no jurisdiction of the subject-matter of the suit. A decree was accordingly entered, finding that, after said execution sale and after said transfer of the notes and accounts, Shay executed said assignment to Stebbins in conformity with the statute. The decree then, after reciting that the court was of opinion that, by reason of said assignment, it had no jurisdiction to proceed to the final hearing of the cause, ordered that the bill be dismissed at the cost of the complainants, for want of jurisdiction of the subject-matter thereof, without prejudice, etc.
    From this decree the complainants have appealed to this court, and assigned for error the refusal of the court to hear the cause upon the merits, and the dismissal of the bill for want of jurisdiction.
    Messrs. Trumbull, Washburn & Robbins, for appellants;
    cited O’Hara v. Jones, 46 Ill. 292; Hardin v. Osborne, 94 Ill. 575; Willis v. Henderson, 4 Scammon 13; Choteau v. Jones, 11 Ill. 319; Lund v. Skanes, 96 Ill. 183; Brownell v. Curtis, 10 Paige, 218; Storm v. Davenport, 1 Sandf. Ch. 135; Leach v. Kelsey, 7 Barb. 470; Estabrook v. Messersmith, 18 Wis. 551; Flower v. Cornish, 25 Minn. 473; Van Dyke v. Christ, 7 S. & R. 374; Wakeman v. Burrows, 41 Mich. 363; Mark’s Appeal, 85 Pa. St. 233; Heinrichs v. Wood, 7 Mo. App. 236; Stewart v. Platt, 101 U. S. 736; Laws of New York, 1858, Ch. 314, § 1; Laws of Indiana, 1859, § 15; Laws of Maryland, 1854, Ch. 193 § 7; Laws of Minn., 1877, Ch. 142, § 1; Laws of Michigan, 1879, § 3.
    The right to file this bill did not, by the assignment, vest in the assignee: Phelps v. Curts, 80 Ill. 118; Porter v. Douglass, 27 Miss. 396; Strong v. Goldman, 8 Biss. 554; Eames v. Mayo, 6 Bradwell, 338; Hahn v. Salmon, 20 Fed. Rep. 801.
    Mr. William J. Manning and Mr. Percy V. Castle, for appellees,
    cited Freydendall v. Baldwin, 103 Ill. 325.
   Bailey, J.

The only question presented by this appeal is whether the court below had jurisdiction of the subject-matter of the suit. The complainants, who are judgment creditors of Mark D. Shay, seek by their bill to reach certain assets which, as they allege, have been fraudulently transferred by Shay to the defendants, and subject the same to the payment of their judgments. These assets consist of the proceeds of a stock of merchandise sold by the defendants under execution, and of moneys collected on certain notes and accounts placed by Shay in the hands of trustees to be applied on the defendants’ judgments, it being alleged that said judgments were fraudulent and without consideration, and were confessed for the mere purpose of hindering and delaying the complainants in the collection of their debts, and of fraudulently placing Shay’s property beyond the reach of his creditors. It will thus be seen that, upon the face of the bill, the case is one which is peculiarly within the jurisdiction of a court of chancery.

It is insisted, however, and the court seems to have held, that the mere production upon the hearing, of a general assignment by Shay for the benefit of his creditors, though executed subsequently to the consummation of the fraudulent transfer of property complained of, with proof of the acceptance by the assignee of the trust, ousted the court of chancery of all jurisdiction and necessitated a dismissal of the bill on that ground. It is claimed that this necessarily results from the rule that, by the assignment, the exclusive jurisdiction over the property thereby conveyed to the assignee was vested by law in the county court.

The rule seems to be well settled, that the jurisdiction of the county court over an assignee, and over the fund placed in Ills hands'by the assignment, is exclusive; but the question arises whether property fraudulently disposed of by the debtor, prior to the assignment, passes to the assignee, so as to come within the jurisdiction of the county court. This must depend upon the construction tobe placed upon provisions of the statute in relation to voluntary assignments.

The first section of the statute requires that the debtor, on executing an assignment, shall annex thereto an inventory, under oath, of his estate, real and personal, according to his best knowledge, and also a list of his creditors, etc., and the amount of their respective demands; and it is provided that such inventory shall not be conclusive as to the amount of the debtor’s estate, but that the assignment shall vest in the assignee the title “ to any other property, not exempt by law, belonging to the debtor at the time of making the assignment, and comprehended within the general terms of the same.”

The eleventh section provides that the assignee, “ shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of the assignment, and to sue for and recover, in the name of such assignee, everything belonging or appertaining to said estate, real or personal, and generally, to act and do whatsoever said debtor might have done in the premises.”

It seems too clear to admit of controversy, that a voluntary assignment, executed in accordance with the provisions of this statute, passes to the assignee the estate, real and personal, belonging to the debtor at the time of its execution, and nothing more. The assignment is voluntary and is so denominated in the statute, and as such it is the mere act of the debtor; and as a legal consequence it passes only that over which the debtor, at the time, has the power of disposition.

¡Nor does the statute, in any of its provisions, assume to deal with anything beyond that. The first section provides that the assignment shall vest in the assignee the title to all the property of the debtor, not exempt from execution, belonging to him at the time of its execution, if comprehended within the general terms of the assignment, notwithstanding the omission of a part of it from the inventory; but no attempt is made to include property already disposed of by the debtor, although such disposition, by reason of fraud, may, as to creditors, be voidable, so as to leave the property still within their reach and subject to their debts.

The power given to the assignee, by the eleventh section, is declared to be the same that the debtor had at the time of the assignment, and farther on, so that no doubt might arise from any general language employed, it is again declared that the assignee shall have power, generally, to act "and do whatever the debtor might have done in the premises.

It is clear that, at the time of the execution of the assignment, Shay, the debtor, had no power of disposition over the property sought to be reached by the bill, as that had already been applied to the satisfaction of the defendant’s judgments against him. "Whatever may have been the fact, he was estopped by said judgments from alleging that the indebtedness represented thereby was not legally and justly owing from him to the defendants, and if there was any fraud in their recovery to which he was a party—and that is the theory of the bill—no rule of law is better settled than that which precluded him from setting up or taking advantage of such fraud. Harmon v. Harmon, 63 Ill. 512; Ward v. Enders, 29 Id. 519; Horner v. Zimmerman, 45 Id. 14; Choteau v. Jones, 11 Id. 300; Lyon v. Robbins, 46 Id. 276; Upton v. Craig, 57 Id. 257; Fitzgerald v. Forristal, 48 Id. 228; Beebe v. Saulter, 87 Id. 518; Campbell v. Whitson, 68 Id. 240; White v. Russell, 79 Id. 155; Rappleye v. International Bank, 93 Id. 396. As the property sought to be reached by the bill did not belong to Shay, and as he had no power over it at the time he executed the assignment, the conclusion seems to us to be irresistible that it did not pass to the assignee and did not constitute any part of the fund, the administration of which the county court was empowered to supervise. It thus appears that it was not brought within the jurisdiction of that court, and that the execution of the assignment constituted no obstacle whatever to the interposition of a court of equity, at the suit of creditors, to set aside a prior fraudulent disposition of tlie property and apply such property to judgments in favor of such creditors.

To sustain the decree the counsel for the appellees seem to rely upon the case of Freydendall v. Baldwin, 103 111. 325. That was a bill in chancery, brought by judgment creditors, to set aside, as fraudulent, a voluntary assignment, made by their judgment debtors, and incidentally to set aside certain judgments against said debtors in favor of various other parties, as well as a number of conveyances of real estate made by said debtors, on the ground of fraud. It appeared that said judgments had all been recovered prior to the assignment and executions issued thereon, and that when the assignee went to take possession of the property, a deputy sheriff had made, or was about to make, a levy on the goods of the judgment debtors, under the executions in his hands; that an arrangement was thereupon made between the assignee and the sheriff, with the consent of the execution creditors, to the effect that if the county court would permit the same to be done, the assignee should take possession of and sell the goods at private sale, and pay the proceeds to the sheriff until the exe= cutions should be satisfied. This arrangement being approved by the county court, the assignee took possession of and sold the goods, and paid over the proceeds, amounting to a large Run) of money, to the sheriff. At the hearing the coiyt set aside three of the judgments as fraudulent, and dismissed the bill so far as it asked other relief.

On appeal to the appellate court, the decree, so far as it set aside said judgments, was reversed, and that part of the bill which asked relief as to them was dismissed, and in all other respects the decree of the circuit court was affirmed. The judgment of the Appellate Court was, on appeal, affirmed by the Supreme Court. The case, as decided by the appellate court, is reported as Baldwin v. Freydendall, 10 Bradwell, 106.

It appears from the report of the case as decided both by the Appellate and Supreme Courts, that the case was heard in the circuit court, on the merits, and that the bill was dismissed in part by the circuit court, and as to the residue by the Appellate Court solely because the evidence failed to establish any title on the part of the complainants to any portion of the relief prayed for. hfo suggestion seems to have been made in either court that the. bill should have been dismissed for want of jurisdiction.

In the opinion of the Appellate Court it is held that the rights vested in the sheriff by the levy did not pass to the assignee by the assignment, but solely by the delivery thereof to him by the sheriff with the consent of the lienholders, and that he thereby assumed a trust for their benefit which had no connection with the assignment or its duties, or the rights of the creditors thereunder, except that it was the only available means of getting control of the property assigned for the benefit of the creditors.

The Supreme Court, without noticing the point above stated or expressing any view in relation thereto, laid down the rule, in general terms, that all the property the insolvent debtors had at the time of the assignment passed to and became vested in the assignee under the statute, and should be administered by him under the supervision of the county court; that the whole management of the estates of insolvent debtors, under voluntary assignments, is committed to the jurisdiction of county courts; and that courts of chancery will not assume jurisdiction to interfere and direct how the county court shall distribute a trust fund over which it has full and complete jurisdiction by positive statute, unless under special circumstances.

If the language of the opinion of the Supreme Court should be deemed to overrule the view taken by the appellate court, as above stated, it is still very easy to see that there is a clear and wide distinction between that case and the one now before us. There, at the time the assignment was executed, the proceedings under the execution were still in fieri, and the execution creditors had merely perfected a prior lien on the property. Such being the case, by agreement of all the parties concerned, the property was placed in the hands of the assignee to be sold and the proceeds distributed by him. The interests of all the parties were thus by their own voluntary act and agreement, placed under the jurisdiction of the county court, to be administered by its officer and under its control. Ho such facts appear in the present case. Here the property had been sold and the proceeds distributed before the execution of the assignment. They had then passed irrevocably from the debtor on judgments confessed by him, so that he could not place them within the control of the county court by any act of his, and the creditors, to whom they had been distributed, never turned them over to the assignee, or submitted them to the jurisdiction of the county court. They were not at the date of the assignment, nor have they since been, a part of the estate of the insolvent debtor, within the meaning of the statute in relation to voluntary assignments.

We are of the opinion that the court belowliad jurisdiction, and that it should have proceeded with the hearing, and, after considering all the evidence adduced, have rendered a decree upon the merits, as upon the whole case they were made to ap. pear.

It is insisted by counsel for the appellees that, as the certificate of evidence does not embody all the evidence heard in extenuó, it will be presumed that no sufficient evidence was beard to warrant a decree for the complainants, and that the bill might properly have been dismissed for want of equity. Apart from the consideration that the presumption in respect to the sufficiency of the evidence heard, which obtains in support of a judgment at law, dues not prevail in case of a decree in chancery, sufficient appears to show that evidence was introduced by the parties tending to support the allegations of their respective pleadings, but that the court, without proceeding with the hearing, or considering fully the evidence, dismissed the bill for want of jurisdiction. This is sufficient to present upon the record the error complained of, and to entitle the complainant to a reversal of the decree.

The decree being erroneous, it will be reversed and the cause remanded for further proceedings.

Decree reversed.


author: Pillsbury, P. J.

text:
    W. Scott Marshall v. Christian Yoos.
    Judgment in vacation—Appeal.—Where do judgment is entered in the court of a finding of the judge in vacation, there can be no appeal.
    Appeal from the Circuit .Court of Marion county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed September 24, 1885.
    Messrs. W. and E. L. Stoker, for appellant.
    Messrs. Casey & Dwight, for appellee.
   Pillsbury, P. J.

¡Replevin instituted before a justice of the peace to recover possession of a cow, and after trial appealed to circuit court, where, at the August term, 1884, a trial was had before the court, a jury being waived. The court took the matter under advisement, and as appears from the bill of exceptions, on the 29th day of December, 1884, in vacation, found the issues for the defendant, from which the plaintiff was allowed an appeal. On examination the record discloses the fact that no judgment has ever been entered in the circuit court upon such finding of the judge in vacation. Hntil such judgment be entered there is nothing to appeal from, the finding of the court in vacation not being a final judgment within the statute authorizing an appeal. Owens v. Crossett, 104 Ill. 468; Hook v. Richeson, 106 Ill. 392. The appeal must be dismissed.”

Appeal dismissed.