text:
    Charles C. P. Holden v. Emeretta A. Gibson.
    1. Party wall. — In case of party walls, the center of the wall, corresponding with the line between the lots, is the line dividing the estates of the adjoining proprietors and the instant the wall is built, each becomes the owner of his part to the center of the wall.
    2. Same — Right to compensation — Covenant personal to builder.— Where an owner of land builds a party wall under an agreement with the adjoining owner, that when the latter shall use it he will pay the expense of his portion of the wall, the right to compensation is personal to the builder and does not pass by a grant of his land. Under the parly wall agreement in this case, the covenant in question was personal to the builder.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed May 29, 1885.
    On the third day of July, 1872, Charles C. P. Holden and Thomas IÍ. Armstrong, the former being the owner in fee of lot twelve, and the latter of the adjoin "ng lot eleven in ¡Rogers’ subdivision, etc., in Chicago, executed, under their hands and seals, the following party wall agreement:
    “ This agreement, made this third day of July, A. D. 1872, between Charles C. P. Holden and Thomas IÍ. Armstrong, of the city of Chicago, in Cook county, in the State of Illinois, witnessetli, that, whereas, said Holden is the owner of lot twelve, and the said Armstrong is the owner of the adjoining lot ele- e i, in E. K. ¡Rogers’ subdivision of lots one and two, in block five, in Duncan’s addition to Chicago, and block one in the Canal Trustees’ subdivision of the west half and the west half of the northeast quarter of section seventeen, in township thirty-nine, north, range fourteen, east of the third principal meridian; and said Holden is about to erect a building upon his property, and said parties are anxious to have a party wall on the line of and resting one half thereof on the property of each of them.

      “ They therefore agree that said Holden may, in the erection of the improvements on said property, place one half in width of the wall of his building upon the property of said Armstrong; that said wall shall be suitable for a party wall, and shall continue to be a party wall forever.
    “ And the said Holden and Armstrong agree to keep, maintain, repair and rebuild said wall whenever necessary, at the equal joint expense of each. Said wall, when first built, is to be built and paid for by said Holden alone, and whenever said Armstrong uses all, or any part of said party wall, he shall first pay to said Holden the cost of one half of the part of said wall, such cost to be computed upon the basis of §15 per M. for brick, §20 per cord for rubble stone, §27 per cord second course dimension stone, and §32 per cord follower footing dimension stone, and eighty-eight cents per foot for coping laid in said wall.

      “ The quantity of each kind of material in the half of the said wall shall be fixed upon by the certificate of the architect and builder of said Holden, if he can produce the same; if not, then such quantities may be fixed upon by arbitrators, chosen by each party, but in all cases said Armstrong shall not use said wall, or any part thereof, until he has actually paid the said Holden for the one half thereof.
    “ The provisions of this agreement shall be deemed and taken to be covenants running with the land, and shall be binding upon the executors, heirs, devisees and assigns of said parties, and shall bind all persons having any interest or estate in said land.

      “In witness whereof we have hereunto set our hands and seals the day and year first above written.
    “ Charles C. P. Holder, [seal.]
    “ Trios. E. Armstrong, [seal.]”
    Shortly after the execution of said contract, Holden proceeded to erect said party wall and completed the same March 1, 1873. Two deeds of trust were afterward executed by Holden, conveying said lot twelve to a trustee as security for certain indebtedness, and on foreclosure of said deeds of trust, Emeretta A. Gibson, the appellee, became the purchaser and received a trustee’s deed conveying said lot to her, said deed bearing date May 17, 1876. By mesne conveyances the title to said lot eleven became vested in John II. ICedzie prior to the commencement of this suit.
    On the 11th day of December, 1883, Kedzie, desiring to erect a building on said lot eleven, and to use a portion of said wall according to said party wall agreement, filed his bill of interpleader alleging that both the appellee and Holden claimed the compensation to be paid by him, for the portion of the party wall which he desired to use, and offered to pay said money into court, and prayed that the appellee and Holden be required to interplead and litigate between themselves, the question as to which of them was entitled to receive said money.
    A decree was thereupon entered, requiring the appellee and Holden to interplead; and proper pleadings having been filed, the court found the amount to be paid by Kedzie, under the party wall agreement, for the portion of the party wall which he proposed to use, to be $1,378.28, and ordered that he be allowed to deposit that sum in court in full of his liability under the agreement, which was done.
    The cause afterward coming on to be heard as between the appellee and Holden, the court found that appellee was entitled to said money and entered a. decree ordering the payment of the sum to her. From that decree, Holden has appealed to this court.
    Mr. Charles F. White and Mr. M. L. Wheeler, for appellant;
    that the agreement for the payment of the money was not a covenant running with appellant’s lot as a benefit thereto, cited Bally v. Wells, 3 Wils. 29; Vernon v. Smith, 5 B. & Ald. 1; 2 Sugden on Vendors, 92; Spencer’s Case, 5 Rep. 16; 1 Washburn on Real Property, 436-8; 2 Washburn on Real Property, 263; Glenn v. Canby’s Ex’rs, 24 Md. 127; Keppel v. Bailey, 2 Mylne & K. 517; Masury v. Southwick, 9 Ohio St. 340; Cole v. Hughes, 54 N. Y. 444; Hart v. Lyon, 90 N. Y. 663; Bloch v. Isham, 28 Ind. 37; Joy v. Boston Penny Sav. Bank, 115 Mass. 60; Weld v. Nichols, 17 Pick. 543; Hurd v. Curtis, 19 Pick. 459; Wheeler v. Schad, 7 Nev. 204.]
    Each had title in severalty to the one half on his lot with an easement of support in the other half: Ingals v. Plamondon, 75 Ill. 118; Matts v. Hawkins, 5 Taunt. 20; Cubett v. Porter, 8 B. & C. 257; Bloch v. Isham, 28 Ind. 37; Ingals v. Plamondon, 75 Ill. 118; Hedricks v. Stark, 37 N. Y. 108; Eno v. Del Vecchio, 4 Duer, 61; Sherred v. Cisco, 4 Sandf. 480; Thompson v. Summerville, 16 Barb. 473; Partridge v. Gilbert, 15 N. Y. 614; Brooks v. Curtis, 50 N. Y. 639; Joy v. Boston Penny Sav. B’nk, 115 Mass. 60; Goodrich v. Lincoln, 93 Ill. 359.
    Messrs. King & Packard, for appellee;
    cited Roche v. Ullman, 104 Ill. 11; Maine v. Cumston, 98 Mass. 317; Keteltas v. Penfold, 4 E. D. Smith, 122; Weyman’s Ex. v. Ringold, 1 Bradford, 55; Burlock v. Peck, 2 Duer, 97; Hurd v. Curtis, 19 Pickering, 462; Platt v. Eggleston, 20 Ohio, 419; Brady v. Spurck, 27 Ill. 482; Sterling H. Co. v. Williams, 66 Ill. 397; Spencer’s Case, 1 Smith’s Leading Cases, Part 1,133; Savage v. Mason, 3 Cushing, Mass., 504; Butterfield v. Smith, 11 Ill. 486; Savage v. Mason, 3 Cushing, 504.
   Bailey, J.

The only question in this case is, whether, under the party wall agreement between Holden and Armstrong, the right to compensation for one half of the cost of the party wall was personal to'Holden, or passed by his grant of lot twelve to the appellee. There can be no doubt that the covenant to pay for one half of the wall before using it, was a covenant running with Armstrong’s lot, lot eleven, so as to become obligatory upon Kedzie, his grantee. This" is settled by the case of Roche v. Ullman, 104 Ill. 11, where this precise question was decided, and the rule there laid down is not questioned here, Kedzie having admitted his liability, and paid into court the sum of money found to be due from him under the covenant. But to sustain the decree, it must be held that the benefit secured to Holden by the covenant run with lot twelve, for otherwise there is no priority, either of contract or estate, between the appellee and Armstrong, or his grantee, Kedzie.

In form, at least, the covenant would seem to be personal to Holden. It provides that, “ whenever said Armstrong use-; all or any part of said party wall, he shall first pay to said Holden the cost of one half of the part of said wall,” etc.; and again, “ said Armstrong. shall not use said wall, or any part thereof, until he has actually paid said Holden for the one half thereof.” But reliance is placed upon the clause of the instrument which stipulates that the provisions of the agreement shall be deemed and taken to be covenants running with the land, and be binding upon the executors, heirs, devisees and assigns of the parties, and all persons having at any time any interest or estate in said land. "Whatever force may be given to this clause, we think it clear that it can only be held to have the effect of making each of the covenants contained in the instrument run with that portion of the land only to which they severally relate and apply. Thus, if a particular covenant relates only to lot eleven, said clause should not be so construed as to make such covenant run with lot twelve.

The covenant by Armstrong to pay Holden for onehalf of the party wall would seem tobe a covenant relating exclusively to lot eleven. The wall being one half on each lot, the half standing on lot eleven, the instant it was built being a permanent addition to that lot, became the property of Armstrong and passed to his grantees. It is well settled in this State, whatever may be the rule elsewhere, that in case of party walls, the center of the wall corresponding with the line between the lots is the line dividing the estates of the adjoining proprietors, and that the instant the wall is built, each becomes the owner of his part to the center of the wall. See Ingals v. Plamondon, 75 Ill. 118. Armstrong, then, in covenanting to pay for one half of the wall, covenanted merely to pay for a structure to be erected on his own lot, and of which the title, as soon as it was built, would be in him. The money to be paid had no reference to lot twelve, and was in no sense a consideration for any burden to which that -lot was to be subjected. It is true the owner of lot eleven obtained,.by virtue of the party wall agreement, an easement of support, that is, the right to have his building supported by means of the half of the wall standing on lot twelve, but no part of the money which Armstrong covenanted to pay was the consideration for that easement, as that was fully and exactly compensated by a corresponding easement acquired by the owner of lot twelve in lot eleven. While the covenant then, was clearly a covenant running with lot eleven, we see no principle upon which it can be held to run with lot twelve.

it is true that the decisions are far from being harmonious on this subject, but it will be found that most, if not all the cases which hold that the right of the covenantee to compensation runs with his land and passes to his grantee, are based upon th'e theory that, until compensation is made, the covenantee is the owner of the entire wall, which, of course, would pass to his grantee as appurtenant to his lot. On that theory, the structure for which the covenantor undertakes to make compensation, is, until paid for, a part of the covenantee’s lot, and his title or that of his grantee is only divested by the performance of the covenant. Under these circumstances, it would logically follow that the right to compensation should run with the title to the structure to be paid for.

In Main v. Cumston, 98 Mass. 317, the grantee of a party who had built a wall under a party wall agreement, similar to the one in the case at bar, brought suit against the owner of the adjacent lot, for the cost of one half of the wall, and the court, in sustaining his right to bring the action, hold that the property in the whole wall passed to him by the deed under which he claimed title, and that he had a right to maintain the whole wall as a part of his house, until the owner of the adjacent lot made use of it. But in Joy v. Boston Penny Savings Bank, llo Mass. 60, where the party wall contract was not under seal, it was held that grantee of the party building the wall could not recover, the decision being placed upon the ground that, the contract not being under seal, the plaintiff’s grantor acquired no interest in the adjoining land, and retained no title in that part of the wall which extended be= yond his own line.

In blew York, several cases decided by courts of inferior jurisdiction are reported, in which it is held that under party wall agreements like the present, the right to compensation for one half of the cost of the wall runs with the land, and passes to the grantee of the covenantee. The case most nearly in point is that of Weyman’s Executors v. Eingold, 1 Bradford, 40, decided by the Surrogate Court of the city of Mew York. That decision rests upon the theory that the adjoining owners became tenants in common of the party wall, and the land on which the same was built, and it was held that as the covenantee, in conveying, “ passed all his title to the entire wall, the right to use the wall could be required of its owner, the assignee, only upon the terms of the covenant, payment of its value to the covenantee or his assigns.” In Burlock v. Peck, 2 Duer, 99, decided by the Superior Court of the city of Hew York, it was held that under a similar party wall agreement, the entire party wall, when built, became the sole property of the party building it, and as such, passed to his grantee, and that the owner of the adjoining lot could appropriate to his own use the grantee’s property in the wall only by paying him one half of its value.

Directly the contrary conclusion was reached in .blew York by the Commission of Appeals, in Cole v. Hughes, 54 N. Y. 444, in which it was held that, where an owner of land builds a party wall under an agreement with the adjoining owner, that, when the latter shall use it, he will pay the expense of his portion of the wall, the right to compensation is personal to the builder, and does not pass by a grant of his land. This same rule was again laid down by the Court of Appeals in Hart v. Lyon, 90 N. Y. 663, and thus seems now to be the settled law of that State.

We are of the opinion, both from reason and authority, that the covenant in question was personal to Holden, and that he alone is entitled to payment for one half of the cost of said party wall. The decree will therefore be reversed, with directions to the court below to enter a decree directing the payment to said Holden, of the money paid into court by said Kedzie, and that the appellee pay the costs of the suit.

Decree reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    George Catlin v. Charles Warren et al.
    1. Vendor and vendee. — Although a sale of goods is void as between the vendor and vendee, if the fraudulent vendee sell and deliver the goods to a bona fide purchaser without notice of the fraud, the sale will pass a good title.
    2. Trespass. — Trespass will not lie against one who came into possession of goods by delivery and without fault on his part, although it may turn out that the person who made the delivery had no title, and was a wrongdoer.
    3. Fraudulent vendee. — If a vendee purchase goods on credit with the preconceived design, or with the intention at the time never (o pay for them, the purchase is fraudulent. There must be a positive and predetermined intention entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods. As the instruction given was not in accordance with the above, it was erroneous.
    Appeal' from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed May 29, 1885.
    This action was replevin in the oepii, brought below by appellees, Warren & Co., against appellant, Catlin, and George By all. The declaration contains one count in replevin, as aforesaid, and one in trover. The defendants pleaded non Gejylt and property in Gatlin, to the count in replevin, and not guilty to that in trover; on which issue was taken. There was a trial resulting in a verdict under the issues upon the count in replevin, in favor of plaintiffs, finding property in them and one cent damages. Between the time of the verdict and judgment, plaintiff's dismissed as to Byall, and the court, overruling Gatlin’s motion for new trial, gave judgment on the verdict against Gatlin, from which he prosecutes this appeal.
    The evidence shows that Byall had been carrying on the business of druggist in the city of Chicago, and Warren & Co. were merchants in the city of Baltimore, Aid., but had an agent residing in Chicago; that Nov. 14, 1883, Byall bought of plaintiffs, through said agent, the goods in question, which were sent to the former from Baltimore; that some eleven days after said purchase, Gatlin, who had, so far as the evidence shows, no connection with or knowledge of said purchase, either before, or at the time it was made, bought of Byall the whole stock in his drug store, including the goods /so purchased of plaintiffs, which were invoiced at their fair value, and amounted to eight thousand dollars. It appears that Byall had previously borrowed three thousand dollars of Gatlin, without security, on which loan twelve hundred dollars remained unpaid. Byall had become then so financially embarrassed as to be unable to go on with his business. Judgments had been entered up against him in favor of different parties, aggregating some twelve thousand eight hundred dollars. So he gave Gatlin a note and warrant of attorney for the balance owing him, and judgment was' entered upon it, Gatlin then bought in all the other judgments against Byall and applied these, with 1ns own judgment, in payment of the purchase price of said stock, took a bill of sale of goods and possession, and was so in possession when the goods in question were taken from him by the writ of replevin in this case.
    There was i o evidence tending to show that Byall made any representations of any kind, or used any artifice or trick in making the purchase of plaintiffs, nor was there any evidence tending to show any circumstance attending the transaction, or tending to show that Ryall purchased the goods with a preconceived design, or with the intention of never paying for them. The court, at the instance of the plaintiffs, gave to the jury the following instructions:
    1. “ If a merchant buys goods upon credit without intending to pay for them, this is a fraud upon the seller and will entitle him to avoid the contract of sale, and bring an action of replevin in disaffirmance thereof, based on that fraud, unless the goods have been sold to a bona fide purchaser. And in determining whether or not such fraudulent intent existed, the jury have a right to consider all the circumstances relating to purchase which are shown in evidence; for while fraud must be proved and can not be presumed without proof, it may be proved by inference drawn from the facts and circumstances in evidence connected with the transaction and the parties to it, if such facts and circumstances tend to show such intent.
    2. “ A bona fide purchaser is protected only to the extent of the consideration paid or agreed to be paid when he became aware of the weakness of his vendor’s title. If, therefore, you find from the evidence that Ryall bought the goods in controversy with the fraudulent purpose of not paying for them, and sold them, with others, to Gatlin and that when they were taken from Gatlin by the sheriff, under the replevin writ, he had paid but about $1,700 on account of such sale to him, and that the said goods so purchased were worth more than the aggregate amount of the claim of Ilurlbut, IIvss & Co., Gatlin’s claim, and the value of the goods in controversj', then the plaintiffs are entitled to recover, unless you further find from the evidence that at the time the goods were so taken from Gatlin, he had become bound in law to pay such further sum or sums as would make the amount paid or agreed to be paid by him equal to the value of the goods so transferred to him.”
    Mr. A. M. McConouguey, for appellant;
    cited Mason v. Trustees, 11 Bradwell, 454; Pittman v. Sofley, 64 Ill. 155; Sugden on Vendors, 1040; Wade, Law of Notice, 16; Clubb v. Wise, 64 Ill. 157; Anderson v. Warner, 5 Bradwell, 420; Dudley v. Danforth, 61 N. Y. 626; Herkelrath v. Stookey, 63 Ill. 487.
    To impeach the sale of personal property it is necessary to show that both vendor and purchaser designed to delay creditors: Brown v. Riley, 22 Ill. 45; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Ewing v. Runkle, 20 Ill. 462.
    Messrs. Flower, Remy & Gregory and Mr. H. K. Tenney, for appellees;
    that where a merchant buys goods on credit Avithout intending to pay for them, this is a fraud which entitles the vendor to rescind the contract of sale, cited Hennequin v. Naylor, 24 N. Y. 139; Byrd v. Hull, 2 Keyes, 647; Johnson v. Monell, 2 Keyes, 655; Devoe v. Brandt, 53 N. Y. 462; Burrill v. Stevens, 73 Me. 395.
   McAllister, J.

There ivas no preponderance of evidence in this case, showing a demand upon Gatlin for the goods in question before suit brought. The only count in replevin contained in the declaration is in the cepit, and under that count alone the plaintiffs recovered. In Barrett v. Warren, 3 Hill (N. Y.), 348, the court, by Bronson, J., says: Replevin in the cajpit will only lie where trespass might have been brought, and the demand and refusal must therefore be laid out of view. The question is not whether there has been a conversion of the property, for which the plaintiff might have brought trover, or replevin in the detinet, but whether the ’defendant is chargeable with a tortious taking.”

The plaintiffs, in the case at bar, had sold and delivered the goods in question to Ryall. Gatlin had no participation in or connection ivith that sale. Afterward Ryall sold and delivered the same goods, with others, to Gatlin.

If the purchase by Ryall had been shown to have been fraudulent, it must be admitted that the plaintiffs Awmld be justified in treating it as a nullity so far as he was concerned; in which case they could maintain trespass or replevin in the cepit against him. This would be upon the theory that although the plaintiffs had delivered the goods to him with the intention of parting with their property therein, yet, because such sale and delivery were obtained by fraud on his part, his reception of the goods would be regarded as a tortious taking. But whether the doctrine is in consonance with correct principles or not, the law is well settled, that although the sale was void as between the vendor and vendee in such case, yet if such fraudulent vendee sell and deliver the goods to a bona fide purchaser without notice of the fraud, the sale will pass a good title. Mowry v. Walsh, 8 Cow. 238; Jennings v. Gage, 13 Ill. 610; Chitty on Contracts (10th Am. Ed.), 429, 430, and cases in notes.

It is clear, therefore, that the mere circumstance, if established by the evidence, that By all’s purchase was fraudulent, would not constitute the reception of the goods by Catlin, under the sale and delivery by Byall to him, a tortious taking from the possession of the plaintiffs. The general rule is that trespass will not lie against one who came into possession of the goods by delivery, and without fault on his part, although it may turn out that the person who made the delivery had no title, and was a wrong-doer. Barrett v. Warren, supra, and authorities there cited; Nash v. Mosher, 19 Wend. 431.

There was no evidence tending to show that Catlin. had any complicity with Byall in making the purchase of plaintiffs, or that, if there was any fraud in that purchase on the part of Byall, that Catlin had any notice of it. But what evidence was there that Byall’s purchase was fraudulent? Hot a cir•cumstance attending the sale was shown. There was no evidence of any false representation, of any trick or artifice on his part, or of any conspiracy between him and Catlin. The case rested solely upon evidence of circumstances tending to show insolvency. If the evidence was sufficient to go to the jury, the latter should have been accurately instructed. We think the first and second instructions for plaintiffs calculated to mislead the jury. By the first they were told as matter of law that, if a merchant buys goods upon credit, without intending to fay for them, this is a fraud upon the seller, and will entitle him to avoid the contract of sale and bring an action of replevin in disaffirmance thereof, based on that fraud, unless the goods have been sold to a bona fide purchaser.

And in determining whether or not such fraudulent intent existed, the jury have a right to consider all the circumstances relating to the purchase which are shown in evidence.

As to the last clause it will suffice to say that no circumstances attending the sale were shown in evidence. There being no such evidence, it was error to submit the matter to the jury. As to the first branch of the instruction, we regard the rule there laid down as a substantial departure from the true principle of the rule as recognized by the prevailing current of decisions upon the question. The instruction says that “ if a merchant buys goods upon credit, without intending to pay for them, this is a fraud.” Whereas the rule, which we conceive to be the correct one, is, that if any vendee purchase goods with the preconceived design, or with the intention at the time, never to pay for them, the purchase is fraudulent. By that embraced in the instruction, a mere negative or indifferent state of mind as respects payment, constitutes the sale fraudulent; while by the other, there must be a positive and predetermined intention never to pay for the goods. The distinction can not be better illustrated than by quoting from the opinion of the court in Burrill v. Stevens, 73 Maine, 395, cited by the appellee’s counsel: “ To constitute fraud, there must be a preconceived design never to pay for the goods. A mere intent not to pay for the goods when the debt becomes due is not enough. A design not to pay according to the contract is not equivalent to an intention never to pay for the goods, and does not amount to an intention to defraud the seller outright, although it may be evidence of such contemplated fraud. Bor is it enough to constitute the fraud that the buyer is insolvent, and knows himself to be so, at the time of the purchase, and conceals the fact from the seller, and has no reasonable expectations that he can ever pay the debt.

“The only intent that renders the sale fraudulent, is a positive and predetermined intention entertained and acted upon at the time of going through the forms of an apparent sale, never to pay for the goods.” Citing Cross v. Peters, 1 Greenlf. R. 378; Biggs v. Barry, 2 Curtis, C. C. R. 259; Rowley v. Bigelow, 12 Pick. 306. To which may be added, Noble v. Adams, 7 Taunt. 59; Bristol v. Wilsmore, 1 B. & C. 514; Kilby v. Wilson, R. & H. 178; Ferguson v. Carrington, 9 B. & C. 59; Stewart v. Emerson, 52 N. H. 301; Bidault v. Wales, 19 Mo. 36; S. C. 20 Mo. 546; Wiggins v. Day, 9 Gray, 97; Thompson v. Rose, 16 Conn. 71; Morrill v. Corbin, 13 Bradwell, 84.

The second instruction is bad and misleading in two particulars. First, by the first clause of it, the weakness or defect of Ryall’s title, when he sold to Catlin, is assumed by the court. Secondly, the jury are told in substance and effect, that if Ryall bought the goods of plaintiffs with the fraudulent purpose of not payingfor them, and sold them with other goods to Catlin, then the plaintiffs were entitled to recover of Catlin, unless he had paid or become bound to pay to Ryall a sum equal to the value of the goods. There is no hypothesis in the instruction, as to whether Catlin was a bona fide purchaser, or had notice of the fraud or not. Ror is there any hypothesis upon which Catlin could be held chargeable, as for a tortious taking of the goods, which was indispensable to a recovery in replevin for a wrongful taking.

For the errors indicated, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Bailey, J.

text:
    Lake Shore & Michigan Southern Railway Co. v. Melson J. Davis et al.
    1. Bill of lading - Shipper’s assent. — Whether a shipper knew of the terms and conditions of the bill of lading, and whether he assented thereto, are questions of fact to be determined by the jury from the evidence.
    2. Same — How proved. — In attempting to prove the shipper’s knowledge of, or assent to the terms of the bill of lading, the carrier is not limited to evidence of any one particular fact, but may prove all the circumstances surrounding the transaction which have any legitimate tende..cy to establish the shipper’s knowledge or assent.

      h 3. Instruction — Shipping directions as evidence. — Where, at the time of the delivery of freight for transportation, the shipper gave to the carrier certain shipping directions in which were contained the same identical terms and conditions limiting the carrier’s common law liability as were inserted by the carrier in the bill of lading. Held, that ihe shipping directions are evidence strongly tending to prove knowledge on the part of the shipper of the terms of the hill of lading as well as his assent thereto, and an instruction which held that unless the shipper’s attention was called to the terms of the bill of lading at the time he received it, he was not bound by them, and which ignored the effect of the shipping directions as evidence of knowledge and assent was erroneous.
    4. Same. — The third instruction was erroneous in that it only limited the carrier’s exemption to damages arising from the plaintiff’s negligence, the act of God, the p.iblic enemy and mob violence, and ignored some of the exemptions contained in the bill of lading.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 29, 1885.
    This was an action on the case, brought by Melson J. Davis and others, copartners doing business under the firm name of Davis Brothers & Porter, against the Lake Shore and Michigan Southern Bailway Company, to recover damages for the loss of certain oil by leakage, during its transportation from Buffalo to Chicago over the defendant’s railroad. The leakage complained of resulted from delay in the transportation, which delay, as the defendant claims, was occasioned by a general strike of the switchmen employed upon the different railroads centering in Chicago. The principal facts in the case, excepting those relating to said strike, are admitted by stipulation, and are, in substance, as follows:
    On the 28lh day of April, 1881, the Atlas Refining Company, of Buffalo, IN'. Y., delivered to the defendant eighty barrels of refined oil for transportation, consigned to the plaintiffs, at Milwaukee, Wis., said oil being at that time in apparent good order, and with no apparent leakage; that on the 20th day of May, 1881, said oil was delivered by the defendant to the Chicago, Milwaukee and St. Paul Railway Company, to be shipped from Chicago to Milwaukee, and when so delivered, one barrel was entirely empty, and all the other barrels leaking more or less and in a leaky condition; that on the day following, the last named railway company delivered said oil to the plaintiffs at Milwaukee; that the loss by said leakage was $141.20; that the plaintiffs used due diligence on their part, and that the loss of said oil was occasioned by shrinkage of the barrels during the delay in transportation on the line of the defendant’s railroad. It is further stipulated that said oil" was shipped on the following bill of lading:
    “ Form 73. Buffalo, A pi. 28, 1881.
    “ Received of Atlas Refining Co., by the Lake Shore and Mich. Southern Railway, the following property in apparent good order (except as noted), marked and consigned as in the margin, which they agree to deliver, with as reasonable dispatch as their genera! business will permit, subject to the conditions mentioned below, in like good order (the dangers incident to railroad transportation, loss or damage by fire while at the depots or stations, loss or damage of combustible articles by fire while in transit, and unavoidable accidents excepted), at Chicago station, upon payment of charges.
    “The company further agree to forward the property to the place of destination as per margin, but are not to be held liable on account thereof, after the same shall be delivered as above. The company, however, guarantee the through rate of freight as designated below.

      “ Conditions: The company do not agree to carry the property by any particular train, or in time for any particular market. Oils and all other liquids, whether carried in packages or tanks furnished by shippers or by the company, to be at owner’s risk of leakage. Liquids in glass or earthen, drugs and medicines in boxes, glass and glassware in boxes, looking-glasses, marble, stoves, stove-plates and light castings, earthen or queens ware, at owner’s risk of breakage. Agricultural implements, cabinetware, and furniture not boxed, carriages, at owner’s risk of breakage or damage by chafing. Oysters, poultry, dressed hogs, fresh meat and provisions of all kinds, trees, shrubbery, fruit and all perishable property at owner’s risk of decay.
    " It is a part of this agreement that all other carriers transporting the property herein receipted for as part of the through line, shall be entitled to the benefit of all the exceptions and conditions above mentioned; and if a carrier by water, he is to be entitled to the further benefit of exemption from loss or damage arising from collision, and all other damages incident to lake and river navigation.
    “ Grindstones and wooden bowls entirely at owner’s risk of breaking or chipping.
    “ Davis Brothers & Porter, ) D. 55(59. “Milwaukee, > 80 brls. refined oil. “ Wis. ) 80 c. brl.
    “ Via M. & St. P. B. B., O. K. L.
    “ C. M. Shattuok, Agt.
    “ April 28, ’81.”
    It is further stipulated that the Atlas Defining Company, on delivering said oil to the defendant for transportation, gave to the defendant certain shipping directions, said shipping directions being a document of substantially the same terms, and containing each of the several conditions and stipulations appearing in said bill of lading.
    The defendant gave evidence tending to show that said oil arrived at LaPorte, Indiana, sixty miles east of Chicago, on the 2d day of May, and was detained there in consequence of a strike of the switchmen in the employ of the defendant and the other railroads terminating in Chicago, which commenced that day at noon; that the striking switchmen, after leaving the employ of said railroads, with the help of various other persons, forcibly and violently stopped the business of the defendant’s road, thus compelling an entire suspension of its transportation of property; that said strike ended on the evening of May 17 th, and on the following day the car containing the oil left LaPorte, and was delivered to the Chicago, Milwaukee & St. Paul Railway Company May 20th, and that said oil was delivered by that company to the plaintiffs May 21st; that the oil was transported from Buffalo to LaPorte, and at the conclusion of the strike, was transported from LaPorte to the point of delivery, to the Chicago, Milwaukee & St. Paul Railway Company, in a reasonable time; that at the commencement of the strike the defendant immediately employed double the usual force of men, and made every effort to move its trains and transact its business during the period of the strike, but its efforts were defeated by mobs of men collected in large number’s, who overpowered the defendant’s employes with force and violence, which the defendant could not overcome, thus compelling a complete suspension of the business of the road; and that for this cause and none other the oil was delayed.
    The jury found the issues for the plaintiffs, and assessed their damages at $141.20, for which sum and costs the plaintiffs had judgment.
    Mr. Cyrus D. Roys and Mr. Pliny B. Smith, for appellant;
    as to instructions, cited E. T. Co. v. Wallace, 68 Pa. St. 302; 1. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Prescott v. Maxwell, 48 Ill. 82; South Evanston v. Lynch, 1 Bradwell, 63; Stein v. Kendall, 1 Bradwell, 103; Leake v. Brown, 43 Ill. 372; Harriet v. Thompson, 46 Ill. 460; M. D. T. Co. v. Moore, 88 Ill. 136.
   Bailey, J.

One of the questions at the trial was, whether the plaintiffs were bound by the terms and conditions of the bill of lading, and on that question the court gave to the jury the following instruction;

“ The court instructs the jury that the printed notice printed upon the receipt of the terms and conditions upon which the defendant received and carried the goods in question is not binding upon the plaintiff, unless the jury find from the evidence that his attention was particularly called to that notice when he took the receipt, and that he expressly assented to the terms and conditions therein contained. The fact alone that the plaintiff accepted the receipt is no evidence that he assented to the terms of said notice.”

A common carrier of property has an undoubted right to limit, to a certain extent, his common law liability, by an express contract with the shipper, but the rule is too well settled to admit of discussion that a clause in a receipt or bill of lading, exempting the carrier from such liability, is not binding on the shipper unless the latter knew of and assented to such exemption. Whether the shipper, however, knew of the terms and conditions of the bill of lading, and whether he assented thereto, are questions of fact to be determined by the jury, from the evidence.

In attempting to prove the shipper’s knowledge of or assent to the terms of the bill of lading, the carrier is not limited to evidence of any one particular fact, hut may prove all the circumstances surrounding the transaction which have any legitimate tendency to establish the shipper’s knowledge or assent. Such facts may be shown, it is true, by direct evidence of express notice and assent at the time, but that is by no means the only evidence by which they may be established. They may be shown, presumptively, by evidence of a long course of previous dealings between the parties of a like character, or by previous proposals by the shipper to the carrier as to the terms and conditions upon which the shipment should be made. Indeed, it would be difficult to enumerate all the facts and circumstances which might have a tendency to prove the shipper’s assent to the bill of lading.

The foregoing instruction, however, holds that unless the shippers’ attention was called to the terms of the bill of lading at the time they received it, they are not bound by them. Whether their attention was called to them at that time does not appear, but it does appear and is admitted that, at the time of the delivery of the oil to the defendant for transportation, the shippers gave to the defendant certain shipping directions, in which were contained the same identical terms and conditions, limiting and qualifying the defendant’s common law liability, which were inserted by the defendant in its bill of lading. The shipping directions were in the nature of a proposition for a contract, and we see no difficulty in holding that, when assented to by the defendant, they became binding on the shippers, so as to require no further assent or ratification on their part. But whether conclusive or not, the shipping directions are evidence strongly tending to prove knowledge on the part of the shippers of the terms of the bill of lading, as well as their assent thereto. It follows, necessarily, that the instruction was erroneous in ignoring their effect as evidence on those questions.

We are also of the opinion that the third instruction given to the jury at the instance of the plaintiffs, was erroneous. That instruction is as follows:

“The jury are instructed that the bill of lading offered in evidence recites that the goods were in apparent good order and condition when received by the defendant, and by said bill of lading the defendant contracted to deliver said goods in like good order and condition, at Milwaukee, Wis., and if the jury believe from the evidence that the goods were not delivered in as good order and condition as when received by defendant, ordinary wear and tear and ordinary deterioration excepted, and that the plaintiff was injured and has sustained damage thereby, then the plaintiff is entitled to recover,.unless the jury believe from the evidence that the damage or injury to such goods resulted from some fault or negligence of the plaintiff, or from the act of God, the public enemy, or an irresistible and lawless mob.”

By this instruction a portion, at least, of the conditions of the bill of lading, limiting and qualifying the defendant’s common law liability, seem to have been ignored. By those conditions the defendant was exempted from liability for loss arising from dangers incident to railroad transportation, including, in case of oils, the risk of leakage. If said conditions were assented to by the shippers, and that, as we have' remarked, was a question of fact for the jury, the defendant was not chargeable with damages arising, without gross negligence on its part, from any of these excepted causes. The instruction, however, limits the exemption to damages arising from the plaintiff’s negligence, the act of God, the public enemy and mob violence. It should have laid down a rule of exemption as broad as the one established by the parties in their contract.

For the error in giving the foregoing instructions the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Mary L. Lambert et al. v. James U. Borden.
    1. Premises wrongfully withheld — Interest.—The judgment in the forcible detainer proceedings being conclusive evidence that the tenants were treated by the landlord as trespassers, it was therefore proper for the court to direct the jury that they might allow interest on the rental value of the premises wrongfully withheld.
    2. Instruction — Estoppel.—As the instruction on estoppel given in this case contained no hypothesis that the acts or conduct of A, from which the equitable estoppel was to arise, were willful, or that they were designed on her part to mislead B in the premises, or even that they were of such a nature or character as to be calculated or likely to mislead him, or that misleading him, as was supposed in the instruction, was a natural or probable consequence of such acts or conduct, it was erroneous.
    Error to the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed May 29, 1885.
    Mr. C. M. Hardy, for plaintiff in error;
    that the rental value was unliquidated damages, upon which interest can not be allowed, cited R. S. 1874, Title “ Interest,” § 2; Buck-master v Grundy, 3 Gilm. 626; Summers v. Clark, 13 Ill. 544; Hitt v. Allen, 13 Ill. 592; I. C. R. R. Co. v. Cobb, 72 Ill. 148; Kilderhouse v. Loveland, 1 Bradwell, 65; Holiday v. Marshall, 7 Marshall, 210.
    Mr. Lewis H. Mitchell, for defendant in error.
   McAllister, J.

This action was debt brought by Borden, as plaintiff below, against Rudolph and Mary L. Lambert and one Schott, as defendants, upon two bonds given in forcible detainer proceedings by Borden against the Lamberts, to recover possession of a certain house, which the former had rented to the latter, and which they wrongfully withheld after the expiration of their lease. There was a count upon each bond, to each of which there was a plea of nil debet by all the defendants, and non est factum by said Mary, verified by her affidavit. There was a trial, resulting in a verdict and judgment for the plaintiff below, and the defendants bring error to this court.

The question has been made here that the court below improperly directed the jury that they might allow interest on the rental value of the premises wrongfully withheld. In the absence of evidence to the contrary, the presumption is that if a tenant holds over after the expiration of his lease, it is wrongful. Brown v. Keller, 32 Ill. 151. A tenant thus holding over is a wrongdoer, and ejectment will lie against him. Den v. Adams, 12 N. Y. L. 99. A landlord may treat a te'ant holding over, after his term has expired, as a tenant from year to year, or as a trespasser at his election. Hemphill v. Flynn, 2 Penn. St. 144. The judgment in the forcible detainer proceedings was conclusive upon the question that the tenants here were treated by the landlord as trespassers, and they are to be so regarded. That being the case the plaintiff was entitled to interest. Bradley v. Geiselman, 22 Ill. 494; Railway Co. v. Ames, 40 Ill. 249; Northern Trans. Co. v. Selleck, 52 Ill. 249; Railway Co. v. Schultz, 55 Ill. 421. We think there was no error, therefore, in giving the plaintiff’s second instruction.

Upon the question whether or not said Mary L. Lambert executed the bonds or cither of them in suit, the evidence was directly conflicting, so that it is doubtful which way the jury ought to find. There was some evidence upon which the doctrine of estoppelzu yxm might be predicated, but it was very slight and unsatisfactory.

The court, at the instance of plaintiff’s counsel, gave to the jury this instruction: “ If the jury believe from the evidence that the defendant, Mary L. Lambert, knew she was a defendant in the forcible detainer suit, in which the bonds in question were filed, and by reason of such bonds being so filed, received and had the benefit of the appeal of said forcible detainer suit, and enjoyed the occupation of the premises in controversy in said suit, and by her acts and conduct induced the plaintiff to believe that she was one of the parties defending in said suit after such appeal taken, and one of the parties executing the appeal bonds in controversy, and that the plaintiff had no means of knowing that she did not execute said bonds or either of them, other than by her acts and conduct in the premises, and that by such belief on the part of the plaintiff he was prevented from either obtaining valid and sufficient bonds, or from obtaining possession of the premises sued for, then the jury are instructed that the said Mary L. Lambert is estopped from denying that she signed the appeal bonds upon which this suit is brought.”

That instruction is substantially defective, and, as the case stood upon the evidence, must have been misleading.

It contains no hypothesis that the acts or conduct of Mrs. Lambert, from which the equitable estoppel was to arise, were willful, or that they were designed on her part to mislead ‘Borden in the premises; or even that they were of such a nature or character as to be calculated or likely to mislead him; or that misleading him, as supposed in the instruction, was a natural orprobable consequence of such acts or conduct. Davidson v. Young, 38 Ill. 145; Talcott v. Brackett, 5 Bradwell, 69, and cases there cited; Preston v. Mann, 25 Conn. 118; Bank v. Hazard, 30 N. Y. 226.

For the giving that instruction, we are required to reverse the judgment and remand the cause for a new trial.

Judgment reversed.


text:
    Thomas Lord et al. v. George Babel et al.
    1. Attachment — Jurisdiction.—Jurisdiction can alone be acquired, in attachment proceedings, in the absence of personal service or voluntary appearance in the county where the suit is brought, by the finding in that county of property rights or credits of the defendant.
    2. Attachment — Plea in abatement. — In attachment proceedings against a defendant not residing in Cook county, where supposed creditors of the defendant debtor, who reside in Cook county, are served with garnishment process, jurisdiction of the trial court depends upon whether the garnishees, or any of them, have effects, dioses in action, or credits, in then-possession or power, belonging to the defendant, and a plea in abatement to the jurisdiction of the court by the defendant in person setting up the facts of his non-residence, service in foreign county, etc.., without averring that there were no property rights, credits or choses in action in the possession or power of the g .rnishees who had been served in Cook county, is bad, and a demurrer to such plea should be sustained,
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed May 29, 1885.
    The appellants, Lord & Co., being creditors of G-eorge Babel, sued out of the Superior Court of Go ok county, October 25, 1883, an attachment against the latter, directed to the sheriff of that county. Babel was not found, but one F. F,. Pettit was summoned as garnishee, and return made accordingly. Thereupon Lord & Co. caused another writ of attachment to be issued against said Babel as defendant, and one Adam Babel as garnishee, directed to the sheriff of Kankakee county, which was returned Oct. 27, 1883, by said sheriff, as served upon both defendant and garnishee. Hovember 15, 1883, the plaintiffs in attachment filed written interrogatories in the cause, addressed to said Pettit and Adam Babel, respectively. Pettit answered, admitting that he had funds in his hands which were derived from property sent him by said Adam Babel to sell on commission, but neither admitted nor denied that said funds belonged to the defendant, George Babel. But Adam Babel, in his answer, claimed that said funds belonged exclusively to him, and that said George had no interest therein. The plaintiffs, by replication, took issue upon the point whether said funds belonged to George Babel or Adam, they averring that they belonged, in fact, to the former.
    ¡November 21, 1883, George Babel, in person, filed a plea ■which, after the proper title and commencement, averred that before and at the time of the commencement of said action, he, the said George Babel, was, and from thence hitherto has been and still is, residing in the county of Kankakee, in the State of Blinois, and not in the said county of Cook; and that he, said George Babel, was not found and served with process in the said action in said county of Cook, but was found and served with process in the said action in the said county of Kankakee, and this he was ready to verity; wherefore he prayed judgment if the court here would take cognizance of the action aforesaid.
    The plea contained no averment that there were no property rights or credits belonging to the defendant in the hands of Pettit, the garnishee. To this plea the plaintiffs filed a demurrer, and afterward, Dec. 12,1881, there having been no trial of the said issue, upon the answers of the garnishees, Pettit and Adam Babel, the court below overruled the said demurrer, and thereupon rendered judgment against the plaintiffs and for costs, and they prosecute this appeal.
    Mr. John H. Hamline, for appellants.
    Messrs. Gary, Cody & Gary, for garnishee; cited Pierce v. Carleton, 12 Ill. 363; R. S., Ch. 62, § 10.
   McAllister, J.

The court below sustained the plea in abatement interposed by the defendant in the attachment, by overruling the plaintiffs’ demurrer thereto and turning the latter out of court, as a consequence, before they had opportunity to try the issue upon the point as to the actual ownership of assets in the hands of Pettit, a garnishee summoned in the county of Cook, that being the county in which the suit was brought.

It seems to us entirely clear, that under the provisions of section thirteen of the Attachment Act the court could not be properly ousted of jurisdiction because of the issuance of an attachment to Kankakee county and personal service upon the defendant-there, if there were property rights or credits in the hands of Pettit which actually belonged to the defendant. That section reads: “ The creditor may, at the same time, or at any time before judgment, cause an attachment writ to be issued to any other county in the State, where the debtor may have property liable to be attached, which shall be levied as other attachment writs: Provided, that if no property rights or credits of the debtor are found in the county in which suit is brought, and no defendant is served with summons or makes appearance, the creditor shall not be entitled to judgmen t.”

Section thirty-one of the Attachment Act in the Revised Statutes of 1815 contained a similar provision as to the issuing writs to other counties. But in Ilinman v. Rushtnore, 27 111 509, the court held that it was never designed by that section to enable the court to acquire jurisdiction by virtue of service of such other writs. We think the same may be properly said of section thirteen of the present act. Jurisdiction can alone be acquired in the absence of personal service or voluntary appearance, in the county where the suit is brought, by the finding in that county of property rights or credits of the defendant. Plato v. Turrill, 18 Ill. 273; Fuller v. Langford, 31 Ill. 248; Haywood v. McCrory, 33 Ill. 459; Clymore v. Williams, 77 Ill. 618. In the latter case the court said: “It is indispensable, to give the court jurisdiction in attachment proceedings where there is no personal service, that it should appear that the writ was either levied upon property or served upon garnishees having effects, choses in action, or credits in their possession, or power, belonging to the defendant. Neither appears in the present case. No proceedings having been had against the garnishees, it can not be known whether they had effects, etc., in their possession or power, belonging to the defendant.” In the case at bar, a garnishee was summoned in the county of the suit, proceedings were had against him, resulting in his admitting effects in his possession which belonged either to Adam Babel or the defendant, George Babel; and an issue whether they belonged to the latter was regularly formed. If that issue had been determined in favor of the plaintiffs below, then the court had jurisdiction; if against them, it had not. The plea in this case must be regarded as a plea to the jurisdiction, and is unlike those in the class of cases where in ordinary suits at law the defendant is sued in a county where he does not reside or is not found, and to be good the plea should, by proper averments, have negatived all the facts upon which jurisdiction might depend. But it tendered no issue upon the question whether the property or effects in the hands of Pettit, the garnishee, belonged to the defendant or not. So that, by sustaining that plea by overruling the demurrer to it, the plaintiffs were turned ont of court without an opportunity to try the issne'upon that point made upon the answers of the garnishees, when, for aught we know, they might have been able to establish it in their favor by evidence. Such a result must necessarily be wrong; and for that error the judgment should be reversed and the canse remanded.

Reversed and remanded.


text:
    Lazarus Silverman v. Frederick Bush et al.
    1, Agent — Pledging property of principal. — Agent or factor may-pledge the goods of his principal for his own security with notice of his lien; and such a change of the lien does not divest the factor of his right, for it is in eifect a continuance of his possession.

      2. Same. — But if the factor gives the pledgee no notice of his lien, or of the facts which gave rise to it, but pawns his principal’s goods as his own, such pledging is in the eyes of the law tortious, and replevin or trover will lie against the pledgee without previous demand for the goods.
    3. Trover — Sale subsequent to suit brought. — A sale of the goods in question by defendant in an action in trover for their conversion, made subsequent to the commencement of the suit, can have no legitimate effect upon the rights of the parties.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed May 29, 1885.
    This action was trover, brought by appellees, who were manufacturers of hosiery goods at Kalamazoo, Mich., against the appellant, who was a banker in the city of Chicago, to recover for an alleged wrongful conversion ‘ by appellant, -of divers quantities of said goods. The case was tried by the court without a jury, the trial resulting in a judgment against appellant for $4,522.13 damages.
    It appears from the record that one Crain was engaged in selling goods in Chicago on commission, and that the plaintiffs below made arrangements with him to sell their goods as a commission merchant or factor; that the goods in question had been consigned to him for that purpose and had by him been put in a warehouse in Chicago, for which divers warehouse receipts had been issued to him; that it was agreed between plaintiffs and Crain that he should, from time to time, make advances to the plaintiffs on account of the goods shipped to him; that the plaintiffs requested him to advance to them the sum of three thousand dollars; that in order to to do so, he had to borrow the amount of the defendant and told him for what purpose he borrowed it; that the money was paid to the plaintiffs; that to secure the defendant he, Crain, assigned to him warehouse receipts covering the goods in question in this snit. There was no evidence which legitimately tends to show any demand upon or refusal by the defendant, to deliver the warehouse receipts or the goods to the plaintiffs before bringing the snit; but there was evidence that the defendant, after the commencement of the suit, had sold the goods to another party. There was also evidence tending to show that the plaintiffs, before bringing the suit, had knowledge of all the facts relevant to the pledging by Crain of said warehouse receipts, and that with such knowledge they ratified the acts of Crain in that behalf.
    Mr. John N. Jewett and Messrs. Holzheimer & Eliel, for appellant;
    as to lien of factor, cited Pal. on Agency, (Lloyd,) 128, 129; 2 Kent’s Com. 41, p.640 (4th Ed.); 2 Livermore on Agency, p. 38 (Ed. 1818); 3 Chitty on Com. & Manuf., 544-546; Kruger v. Wilcox, Ambler, 252; Hudson v. Granger, 5 B. & Ald., 22, 32; Godin v. London Assur. Co., 1 W. Bl. 104; Jarvis v. Rogers, 15 Mass., 389, 396; Peiseh v. Dixon, 1 Mason, 10; Burril v. Phillips, 1 Gall. 360; 2 Bell Com. §§799, 800 (4th Ed.), pp. 114-118 (5th Ed.); Colebrooke on Collateral Seeurites, § 408.
    As to right of factor to pledge for amount of lien: Paley on Agency (Lloyd), 142-144; 3 Chitty on Com. and Manuf. 519, 550, 554, 555; Sweet v. Pym, 1 Enst, 4; Colebrooke on Collateral Securities,§ 407; Mann v. Sheffner, 2 East, 523; McCombie v. Davis, 7 East, 6; Urquhart v. McIver, 4 Johns. 103; Rodriquez v. Hefferman, 5 Johns. Ch. 429.
    As to the relation of a factor who has made advances on the goods intrusted to him: Beadles v. Hartmus, 7 Baxter, (Tenn.) 476; Cotton v. Hiller, 52 Miss. 7; Reed v. Adams, 37 Conn. 378; Jordan v. James, 5 Ohio, 88; Whitney v. Wyman, 24 Ind. 131; Parker v. Braucker, 22 Pick. 40; Yonng v. Thurber, 91 N. Y. 391; Brown v. McGraw, 14 Pet. 479; Pultney v. Keymer, 3 Esp. 182; Urquhart v. McIver, 4 John. 103; McCombie v. Davis, 7 East, 5; Paley on Agency (Lloyd); 165; 2 Kent’s Com. 41; Sally v. Rathbone, 2 M. & S. 298; Story on Bailments, §§ 325-327.
    Messrs. Abbott & Johnson, for appellees;
    as to the right of a factor to pledge the goods of his principal to the extent of his lien, cited Gray v. Agnew, 95 Ill. 315; Graham v. Dyster, 2 Starkie, 19; Warner v. Martin, 11 How. (U. S.) 224; Bensley v. Rhodes, 18 Mo. 147; McCombie v. Davis, 7 East, 5; Holly v. Huggerford, 8 Pick. 73; Paley on Agency (Lloyd) 216; 2 Kent (12th El.) 626; Merchants’ Bk. v. Trenhohn, 12 Heisk. 525.
   McAllister, J.

The rules of law dedncible from the numerous authorities cited by the counsel for the respective parties, are, so far as applicable to one branch of this case, accurately stated by Chancellor Kent in his Commentaries, to this effect: Though the factor can not pledge the goods of his principal as his own, yet he may deliver them to a third person for his own security, with notice of his lien, and as his agent to keep possession for him. Such a change of the lien does not divest the factor of his right, for it is in effect a continuance of the factor’s possession. 2 Com. *p. 626; McCombie v. Davis, 7 East, 11; Urquhart v. McIver, 4 Johns. 103; Nash v. Mosher, 19 Wend. 430.

The evidence tended to prove a state of facts from which the court, sitting as and in the place of a jury, for the determination of facts, and as a court to apply the law to them, might have found that Crain, the factor, had acquired a lien on the goods in question for advances made by him to his principals, to the sum of three thousand dollars at their special request. But whether the court so found, we can not from the record and the manner in which the case was tried, ascertain. Assuming, however, that the court did so find, because the evidence justified it, then the next step in an attempt to analyze the case would naturally be to get at the nature of the transaction between Crain, the factor, and Silverman, the banker, and defendant in the case, in respect to the goods, for the wrongful conversion of which by him, this suit was brought and a recovery had. If Crain gave Silverman notice of his lien and merely placed the goods in his possession to hold to the extent of that lien, and as a substitute for him (Crain), we are of opinion that such transfer or change of lien was lawful, and Crain’s right was not thereby divested. But if, on the contrary, Crain gave Silverman notice of his' lien, or of the facts that gave rise to it, but pawned the goods of his principals as his own goods, then no matter how innocent Silverman’s intentions might have been, such pledging was» in the eye of the law, a tortious act, and the principals could maintain trover against Silverman without any previous demand upon him for the goods. McGombie v. Davis, 6 East; 538.

We fail to discover from anythingpnJfiia-reeoKiriLe-wiewtmL theory upon which fhe ’case was tried as regards the points just adverted to. The plaintiffs below were permitted, without any objection on the part of the defendant, to prove that defendant, after the commencement of this suit, had sold the goods in question to another party.. We are strongly inclined to believe from an examination of the record, that such sale was relied upon by plaintiffs’ counsel, and regarded by the court, as constituting a wrongful conversion of the goods, whatever might have been the conclusion as to the nature of the transaction between Crain and Silverman, and even though the plaintiffs had with full knowledge ratified the acts of Crain in pledging the goods. The fact of such sale, after the commencement of the suit, could have no legitimate effect upon the rights of the parties, and should not have been brought into the case at all. Storm v. Livingston, 6 Johns. Ft. 44. Excluding from the case that fact, and we are of opinion that the finding the defendant guilty of a wrongful conversion of the goods in question was against what we conceive to be the clear weight and preponderance of the evidence, upon the defense of ratification by the plaintiffs, of the acts of their agent, Crain, in the premises. Robbins, one of the plaintiffs, was the manager of their business. S)mething more than a week before this suit was brought, he became cognizant of all material facts in respect to the borrowing money of Silverman and pledging the warehouse receipts to him by Crain. The latter had, before this, borrowed money with which to make advances to his principals, of another banking house, and pledged other warehouse receipts for goods belonging to said principals as security therefor. Robbins, on being fully informed of this latter transaction, had fully approved of Crain’s acts, repaid the money so borrowed and redeemed the pledge. On the heels of that transaction came this matter with Silver-man, and Robbins, having inquired into the matter to some extent, and become aware of the material facts in respect thereto, told Crain that he would pay what had been borrowed of Silverman, and redeem the goods.

He accordingly, in a short time afterward, went to Silver-man, undoubtedly for the purpose of carrying into effect what he had told Crain he would do. He wanted to see all the papers and know all about the transaction, both as to amount borrowed and the quantity, etc., of the goods held in pledge. After getting this information he told Silverman he was going to pay up and wanted the goods.

How, here there was full knowledge of all material facts; the acts to be ratified were of a character capable of ratification. The plaintiffs had received the money for which the goods were pledged. It was obtained at their urgent request) and for the purpose alone of accommodating them. In such a case the acts of the principal are to be construed liberally in favor of the adoption of the acts of an agent: Codwin v. Hacker, 1 Caine’s R. 526; Dunlap’s Paley on Ag. 171. Slight circumstances and small matters will sometimes suffice to raise the presumption of ratification. Story on Ag. § 253, and cases in notes; Cairo & St. L. R. R. v. Mahoney, 82 Ill. 73.

If the principal ratifies and adopts the agent’s acts even for a moment, he is bound by them: Ewell’s Evans on Ag. 85; Smith v. Cadogan, in note in 2 Term R. 189.

We think thp ends of justice require that there should be a new trial in this case. The judgment will therefore be reversed and cause remanded.

Judgment reversed.


author: Bailey, J,

text:
    Jesse S. Hildrup et al. v. Lorenzo Brentano et al.
    1. Allegations and proof. — An individual expenditure of money by one of several persons does not sustain an allegation of a joint expenditure by all.
    2. Injunction bond — Damages.—Where an injunction bond was conditioned for the payment to the plaintiffs, their heirs, executors, administrators or assigns of all such costs and damages as should be awarded against 1 he complainant in case the injunction should be dissolved. Held, not to apply to damages sustained individually by one of the obligees.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Opinion filed May 29, 1885.
    Mr. R. A. Childs and Mr. S. Whipple Gehr, for appellants;
    that the damages proved are not within the condition of the bond, cited Rees v. Peltzer, 1 Bradwell, 315; Ovington v. Smith, 78 Ill. 250; Safford v. Miller, 59 Ill. 205; Railroad Co. v. Coultas, 33 Ill. 190.
    Messrs. Anderson & Brentano, for appellees;
    as to damages, cited Hibbard v. McKindley,.28 Ill. 240; King v. Drew, 31 Ill. 418; Mix v. Vail, 86 Ill. 40; Bardil v. School Trustees, 4 Bradwell, 95; Linington v. Strong, 8 Bradwell, 384; Gorton v. Brown, 27 Ill. 489.
   Bailey, J,

This was an action of debt, brought by Lorenzo Brentano, Adolph Loeb and Theodore C. Brentano, against Jesse S. Hildrup and Robert A. Childs, on an injunction bond executed by the defendants to the plaintiffs in a suit in equity brought against the plaintiffs by defendant Hildrup, said bond being conditioned for the payment to the plaintiffs, their heirs, executors, administrators or assigns, of all such costs and damages as should be awarded against the complainant in case the injunction should be dissolved.

The only breach of the condition of the bond in relation to which evidence was offered at the trial, was the one which alleges that, by reason of the injunction, the plaintiffs were compelled to and did pay, lay out and expend, and became liable to pay, divers sums of money, amounting to $500, for necessary fees and charges of solicitors and counsel, and other charges for drawing up affidavits, answers, notices and other documents, and other expenses in and about their defense against said injunction.

The evidence offered was to the effect that the law firm of which Theodore 0. Brentano was a member was retained and employed by Lorenzo Brentano, who, as it seems, was the principal defendant in the injunction suit, to procure a dissolution of the injunction, and that in pursuance of such retainer, said firm performed certain services by way of preparing the necessary papers, and making and arguing a motion to dissolve the injunction, for which they charged $200. This sum was paid them by Lorenzo Brentano, and the evidence tends to show that it was reasonable. There was no evidence that any counsel was employed or any other expense incurred by the other defendants to the injunction suit or either' of them, or by all of them, defendants, jointly.

The court, at the instance of the plaintiffs, gave to the jury the following instruction:

“The jury are instructed on the part of the plaintiffs that if they find for the plaintiffs they will assess the damages at snch sum, if any, as they believe from the evidence the plaintiffs, or either of them, have sustained by reason of such injunction; the measure of which damages is such reasonable sum as they may believe, from the evidence, the plaintiffs or either of them to have necessarily incurred and paid out, if any, for necessary solicitor's fees in procuring the dissolution of the injunction.”

The jury found the issues for the plaintiffs, and assessed their debt at the penalty of the bond, and their damages at $150, and the court, after overruling the defendant’s motion for a new trial, gave judgment on the verdict. -

The judgment is erroneous and must be reversed for several reasons. First, the evidence fails to sustain the averments of the declaration. The breach under which the recovery was had alleges that the plaintiffs were compelled to pay and become liable for certain moneys for counsel fees, etc., in their defense against the injunction, while the evidence shows that said money was paid, and said liabilities incurred by one of the plaintiffs individually and on his own account. An individual expenditure of money by one of several persons does not sustain an allegation of a joint expenditure by all.

Again, an individual expenditure by one of the plaintiffs is not within the condition of the bond. In Ovington v. Smith, 78 Ill. 250, an injunction bond with precisely the same condition was held not to apply to damages sustained individually by one of the obligees. In Safford v. Miller, 59 Ill. 205, where the bond was conditioned for the payment of all such damages as the obligees might sustain by reason of the injunction, and also all such costs and damages as might be awarded against the principal obligor in case the injunction should be dissolved, it was held that damages accruing to one of the obligees individually were not within the condition. See, also, Rees v. Peltzer, 1 Bradwell, 315.

Not only, then, did the evidence fail to establish a right to damages, but the court erred in instructing the jury to assess in favor of the plaintiffs, such damages as they or either of them had sustained by reason of the injunction.

Various other errors are assigned which we need not notice, but for the reasons above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Wilson, P. J.

text:
    Ansel B. Cook v. James Phillips.
    1. Partnership — Construction on contract. — A provision in a partnership agreement that one partner shall have the sum of live dollars per day, and in addition to said per diem shall receive a one-fourth part of the net profits of the firm, construed to mean that the five dollars per diem shall be charged to expense and not to the other partner individually.
    2. Same — Copartner can not charge nor personal services. — In the absence of an agreement to that effect, one partner can not charge his co-partner for services rendered about the partnership business, even when the services of the respective partners have been very unequal.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed June 30, 1885.
    This was a bill in equity, brought by appellee against appellant, for an accounting of partnership dealings. Prior to April 2, 1883, appellant had been doing business as a contractor and builder in the city of Chicago. Appellee was a mason and during that year had acted as foreman for appellant. At the date last mentioned appellant and appellee entered into partnership under written articles of agreement which, among other provisions, contained the following:
    “ That for and in consideration of the services of said Phillips in the past, and the promised good services in the future, that he will with his best endeavor promote the business in which said Cook is engaged, viz., that of a contractor and builder, that he, the said Cook, admits him as special partner, and for the purposes herein named, to wit, the said Phillips is to have the sum of five dollars per day (Sundays and holidays excepted) from the date hereof until the dissolution of this partnership as hereinafter provided. And in addition to the abovejyer diem, the said Phillips is to receive a one-fourth part of the net profits of the business of said firm. The said Cook is to furnish all the capital, tools and machinery necessary to conduct the same.”.

      The agreement further provided that Cook should conduct the business and control the same as if no partnership existed, should have the sole power to sign checks, contracts and receipts, and might terminate the partnership at his pleasure, with or without notice and with or without cause, upon paying or tendering to Phillips what might be due to him on account of wages and profits.
    The master to whom the case was referred to take proofs and report upon the facts and law of the ease, found that appellant was indebted to appellee in the sum of §844.72, and the court rendered a decree accordingly.
    Cook appealed to this court.
    Messrs. Trumbull, Washburne & Robbins, for appellant;
    cited Maver v. Upton, 7 Iredell (N. C.), 459; Hills v. Bailey, 27 Vt. 550; Fuller v. Miller, 105 Mass. 103.
    Mr. Frank A. Johnson, for appellee;
    cited Selz v. Buel, 105 Ill. 122.
   Wilson, P. J.

It appears from the master’s report, that in ascertaining the amount of the net profits he excluded from expense account appellee’s per diem, and charged the same to appellant individually. As appellee’s share of the profits, calculated upon this basis, would be materially increased, it is essential to determine whether this mode of computation is warranted by the partnership agreement. The agreement provides that “ said Phillips is to have the sum of five dollars per day,” etc., but it does not say, in terms, from whom he is to have it, nor does it otherwise define how the net profits are to be computed. The fact that provision is made in the contract for the per diem allowance, furnishes, of itself, no evidence that it is to be paid by appellant individually. It is a familiar principle that, in the absence of an agreement to that effect, one partner can not charge his co-partner for services rendered about the partnership business. Even when the services of the respective partners have been very unequal, or are all rendered by one partner, if there be no agreement that such services shall be remunerated, no charge in respect to them can be allowed in taking the partnership account. 1 Lindley on Part. 774; Par. on Part. 229; Lewis v. Moffett, 11 Ill. 392; Roach v. Perry, 16 Id. 37; 7 Paige, 483. The provision for the per diem was doubtless inserted to avoid the effect of the principle just stated, and this was its only office. Without it appellee would not have been entitled to any remuneration for his labor beyond his share of the profits of the business.

To whom, then, was appellee to look for hisyoer diem pay? We think the partnership agreement in that respect is susceptible of but one construction. The services were rendered, not for appellant individually, but for the firm, and the natural, indeed the only legitimate inference is that they were to be paid for by the party for whom they were rendered, it not being otherwise provided for in the contract. The case is simply that of a partnership in which one partner furnishes the capital and the other his labor, with a stipulation that he is to be paid therefor by the firm. Whatever is paid by the firm for materials or labor, is chargeable to expense account, and must be deducted from the gross earnings of the business, when computing the net profits.

To adopt the construction contended for by appellee, is to ignore the existence of the partnership, and make Phillips a mere employe of Cook. That there was a partnership is not disputed. Appellee in his bill, and appellant in his answer so allege, and the agreement in express words creates the partnership relation. The fact that appellant had the excl usive management of the business, that he alone was authorized to draw checks, and had the right to dissolve the 'partnership at his pleas uz’e', is not inconsistent with the existence of a partnership. The parties had the right to fix upon whatever terms and conditions they saw fit.

The case of Selz et al. v. Buel, 105 Ill. 122, is not, as we understand the opinion of the court, in conflict with the views here expressed. That was a suit, not by a partner, but by azi employe of the firm, to recover for services rendered under a special contract, by the terms of which the plaintiff was to receive - as salary or compensation a sum equal to one fifth of the net profits of the business, which sum the firm guaranteed should be not less than §7.500 per year. The contract pointed out the manner in which the profits were to be calculated, and the court held that, under the provisions of the contract, to treat the amount guaranteed as a factor in ascertaining the amount of the net profits, would be, in effect, to compel the employe to contribute toward the payment of the amount guaranteed; in other words, that Buel’s compensation should not be charged to expense account, in determining what his share of the profits was. In the present case, the language of the partnership agreement does not require such a construction. On the contrary, we think the language of the agreement must be held to manifest an intention that the net profits should be computed upon the basis of charging appellee’s per diem to expense account.

As to the Ilolmes job, no reason is perceived for applying to it any other or different rule than that applicable to the other partnership transactions. Whatever was received from Ilolmes, whether in the form of commissions, or for appellee’s day’s work, belonged to the firm, and constituted a firm fund, to be accounted for and divided on the same basis as the other partnership earnings. The proofs tended to show that Holmes paid as commissions, $1,175, and §550 for appellee’s labor, making the gross earnings $1,725; but as the §550 must be treated as a firm expense, and chargeable to expense account, there remains as net profit on that transaction, §1,175.

The evidence as to the date of the termination of the partnership, was conflicting. The master found that the date was March 22, 1884, and we can not say that the finding in that particular is not supported by the proofs. ■

The decree is reversed and the cause remanded to the court below for further proceedings not inconsistent with the views herein expressed.

¡Reversed and remanded.


text:
    Simon Simon v. Nicholas Blocks.
    1. Mechanic’s lien — Time oe payment. — Payment for material and labor furnished in the erection of a house can not be enforced by a mechanic’s lien proceeding where the written contract under which the house was built, provided that the owner should make his last payment by a note due two years after the completion of the house, as the statute prohibits a lien under an expressed contract where the time of payment is beyond one year from the time stipulated for the completion thereof.
    2. Same — Depends upon contract. — The question of lien or no lien depends upon the contract as made originally, and not upon what may happen in the execution of it.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Moran, Judge, presiding.
    Opinion filed June 30, 1885.
    This was a petition, under the statute, by Blocks against Simon, for a mechanic’s lien, and sets out a contract in writing between the parties dated Feb. 1, 1881, whereby the former agreed to furnish the materials and build a house for the latter, according to specifications, upon a lot of the latter in Iiavensvvood, and have the whole work completed by the first day of May, 1881, for which Simon agreed to pay the sum of $1,545, as follows: $500 on commencing the house; $300 when the house is completed for plastering; $247 when all the work is done; one note for $250 on the first day of May, 1882, and the balance of $250 by note due the first of May, 1883, with seven per cent, interest. The petition averred the completion of the house about June 15,1881, and alleged that the delay was due to changes and additions ordered by Simon; that the sum of $547.50 was unpaid of the contract price, and $111.50 for extra work, and prayed for a lien, etc. Simon answered, denying the allegation of performance, and set out various particulars of non-performance of the contract, claiming damage, and denied the right to a lien. Beplication was filed, the case heard upon pleadings and proofs, and a decree passed in favor of Blocks for §566.50, declaring the lien and ordering sale of premises, from which Simon took this appeal,
    Mr. Hervey H. Astderson, for appellant;
    as to mechanic’s lien, cited Phillips on Mechanic’s Lien, § 220; Crowl v. Nagle, 86 Ill. 439; McCarthy v. Nea, 93 Ill. 455.
    Mr. Arthur Schroeder, for appellee;
    as to waiver of contract, cited Eyster v. Parrot , 83 Ill. 517; Nibbe v. Brauhn, 24 Ill. 268; White v. Wakefield, 39 Ill. 509; Smith v. Brown, 5 Ill. 309.
   McAllister, J.

The remedy sought by this proceeding is exclusively the creature of statute, deriving its existence only from positive enactment, and not arising out of, or the essence of, the contract for labor, or dependent on the motives which suggest its being enforced. Phil, on Mech. Liens, § 9, and cases in notes. In McCarthy v. New, 93 Ill. 455, the court, speaking through Mr. Justice Scott, says, “Proceedings to establish a mechanic’s lien are against the property affected. Such proceedings are strictly statutory, and, without the aid of the statute, can not be maintained.” And that court has repeatedly applied the doctrine that the statute being in derogation of common right it must be strictly construed, and that a party seeking the benefit of the statute, must, by his pleadings and proofs, bring himself strictly within its terms. Crowl v. Nagle, 86 Ill. 437.

Has the appellee done so in this case? Instead of having brought himself clearljT within the terms of the statute, it seems to us that he is seeking the benefit of it against one of its express prohibitions. It is provided in § 3, that, “When the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof.

Four fifths of the amount of the decree was for work and materials done and furnished under the written contract set out in the petition, wherein the time stipulated for the completion of the furnishing materials and the work was fixed for May 1, 1881. But, by the same instrument, it was stipulated that a credit should be given appellant as to a part of the sum he was to pay appellee — two hundred and fifty dollars — until May 1, 1883, a period of two years beyond the time stipulated for the completion of the work. It is true that appellant was to give his promissory note, on the completion of the work, for that sum to appellee, which he did not do, because, as he claimed, appellee had not completed the work contracted for, and we think he is sustained in that position by a clear preponderance of the evidence. The contract does not provide that if appellant -failed to give the note the amount should be immediately due (Beasley v. Webster, 64 Ill. 458), but it gives a credit of two years as to the sum of two hundred and fifty dollars. The question of lien or no lien depends upon the contract as made originally, and not upon what may happen in the execution of it. In Cook et al. v. Heald et al., 21 Ill. 425, the dburt said: “The second section limits the time of performance of the contract to three years, and the payment for the labor and materials to one year from the time of its completion. This provision obviously requires that the time for its performance and the payment of the money shall be determined at the time when the contract is entered into, and not by alterations and changes which may be made in the agreement after it is entered into. * * The lien is given by statute, and is in derogation of the common law, and is opposed to common right and (the statute) should be strictly construed.”

We are of opinion that, as respects the amount claimed by appellee to be due under the written contract, there was no lien, and for that reason the decree of the court below must-be reversed and the cause remanded.

Decree reversed.


author: Pleasants, P. J.

text:
    F. L. Roberts, Adm’r, v. John Lawrence et al.
    1. Debt — Security follows. — Extinguishment of a debt, the Principal, involves the security, its mcicient, in the same fate; but a mere ctiange in the form or evidence of the debt as to renewal note or judgment, will not discharge or impair the security umess a is so intended.
    2. Meruer. — The lien of a mortgage is not merged in the decree for its foreclosure.
    Appeal from the Circuit Court of Whiteside county; the Hon. J. V. Eustace, Judge, presiding.
    Opinion filed May 23, 1885.
    Messrs. Manahan & Ward, for appellant;
    that the mortgage remains as security for the debts secured thereby, whatever changes may subsequently be made in the form of such indebtedness, cited Flower v. Ellwood, 66 Ill. 446; Worcester Nat. Bk. v. Cheeney, 87 Ill. 603; Darst v. Bates, 95 Ill. 493; Wyman v. Cochrane, 35 Ill. 155.
    A decree for the payment of money on the foreclosure of a mortgage is substantially of the same effect as a judgment at law: Eames v. Germania, 74 Ill. 56; R. S. 1845, § 14, p. 95; R. S. 1874, § 44, p. 203.

      The merger of a note in a judgment does not extinguish the debt, and the mortgage continues the lien until it is satisfied or the judgment is barred by the Statute of Limitations: Hendershott v. Ping, 24 Ia. 134; Tousey v. Cook, 116 Mass. 163; Priest v. Wheelock, 58 Ill. 114; Darst v. Bates, 51 Ill. 439; Hamilton v. Quimby, 46 Ill. 90; Applegate v. Mason, 13 Ind. 75; Peck’s Appeal, 31 Conn. 215; Emory v. Keighan, 88 Ill. 485.
    Mr. J. E. McPheeran, for appellee;
    that when an action upon a note is barred by the statute no foreclosure can be had of a mortgage given to secure its payment, cited March v. Mayers, 85 Ill. 177.
    A bar of the statute at law forms a bar in equity, and equity follows the law in allowing the Statute of Limitations as a defense: Pollock v. Maison, 41 Ill. 516; Locke v. Caldwell, 91 Ill. 417.
   Pleasants, P. J.

On August 16,1859, David C. Cushman and Eliza, his wife, executed to Edward H. Kirk a mortgage oflot 9, in block 60, of the town of Sterling (the title to which and five others, together constituting their homestead, was in said Eliza), to secure a note of said David of that date for one hundred dollars, due in two years, with mterest at eight per cent, per annum, which was duly recorded on the 18th day of the same month.

On May 27, 1865, said Kirk having died and the note remaining unpaid, his administratrix obtained against the mortgagors, upon personal service of process, a decree of foreclosure, finding the amount then due and directing the master, in default of its payment by the time therein limited, to sell said lot, saving to Mrs. Cushman the proper porportion of her homestead interest therein.

The decree was never executed, but was sold and assigned by the administratrix, under authority, to nay in part a debt of the estate to Saz-ah T. Eoberts, appellant’s decedent.

On June 12, 387 Mrs. Cushman, then a widow, executed a mortgage of the six lots referred to for the purpose of securing a debt of §890.92 to Jaznes D. Bingham.

November 20, 1879, after the death of Mrs. Cushman, Mrs. Roberts filed the bill herein against the Cushman heirs and said Bingham, to carry her said decree into effect and foreclose the mortgage upon which it had been rendered.

In May, 1881, the executor of Bingham, then deceased, also filed a hill against said heirs to foreclose the mortgage made to him, but without making Mrs. Roberts a party and under the decree thereon the master made sale of said six lots, his certificate of which was assigned to appellee Lawrence, who obtained a deed in pursuance thereof.

Pending the proceedings upon the bill Mrs. Roberts died? and appellant, her administratrix,was substituted as complainant. Appellee alone contested her right to the relief sought, on the sole ground that the lien of the former decree having been lost by neglect to issue execution thereon within a year (Eames v. Germania Turn Verein, 74 Ill. 54), and the original note barred by the Statute of Limitations, the mortgage itself was also barred. The Circuit Court sustaining this defense dismissed the bill, and complainant appealed.

To recapitulate: the mortgage note became due in August, 1831, the decree was made in May, 1865, and this bill was filed in November, 1879. The question is whether at the time last mentioned the mortgage was barred by the Statute of Limitations.

It is settled that when a debt, which is the principal, is extinguished, discharged, or barred by limitation, the security, which is the incident, is involved in the same fate; and the debt is barred when there is no competent evidence to show it a subsisting liability within the period of the statute next before suit is brought. But it is as well settled that no mere change in the form or evidence of the debt, as to a renewal note or to a judgment, will discharge or impair the security unless it is so intended. Flower v. Ellwood, 66 Ill. 446, and cases there cited; Darst v. Bates, 95 Id. 509.

Now it is not claimed that the debt in this case has been in fact paid or otherwise discharged except by presumption of the statute from lapse of time. Had the original note remained in legal existence as the form and evidence of it, unaffected except by time, until the 19fch day of August, 1877, that presumption would apply. But the note itself was never barred by the statute. On May 27, 1835, its legal existence became merged in the higher form of a personal decree against the maker. That decree, as evidence, showed an obligation not Jess clear and more lasting than a renewal note, to pay the debt then found due, and also identified that debt as the same that had previously been evidenced by the note then merged. Tue fact that the new form contained also the quality of alien which the old did not, could not affect its power as evidence to show for twenty years the continuance of the obligation thereby found. That period not having expired, the'original debt ife by the evidence shown to be still subsisting, and therefore the mortgage given to secure its payment should continue to have the effect intended, unless something has occurred since to destroy it. There is no pretense of any such thing, unless it be the acquisition by the creditor of another lien in the form of a money decree. But this he acquired from the law, which gave it exclusively for his own benefit. His neglect to avail himself of it ought not to work the forfeiture of another, to the advantage of the debtor, who is still fully bound to pay. Hor do we see on what principle, or by what analogy, the lien of the mortgage can be maimed to have merged in that of the decree. The mortgage was of record as well as the decree, and so would support a scire facias. It operated as a present conveyance of the mortgaged, premises, defeasible by payment of the debt; while the decree. not being for a strict foreclosure, only authorized proceedings which would eventuate in such payment or a conveyance. Here are too much likeness in dignity, and too little in nature and operation to admit of the merger.

But whether the reason be sound or not, we think the conclusion is sustained by the authority of the Supreme Court in the cases cited above, and still more specifically in Priest v. Wheelock, 58 Ill. 114. Of the other cases cited we refer only to Hendershott v. Ping, 24 Iowa, 134, which is closely in point.

In Eames v. Germania Turn Verein, 74 Ill. 54, relied on by appellee, the question here presented was not and could not he raised, because there had been no mortgage or other specific lien upon the premises there involved. A decree against E.imes grantor to enforce a specific lien upon other premises authorized execution for any deficiency remaining after the sale of them, and there was a deficiency. The case decided that as to such deficiency it was a money decree, and, like a judgment, a general lien upon all other real estate of the defendant, which then included the premises in question, hut that this lien was lost by the failure to sue out execution within a year. These are the only points that arose or were decided, and manifestly they have no bearing upon the case in hand.

For the reasons above given we hold it was error to dismiss the bill. The decree is therefore reversed and the cause remanded for farther proceedings in conformity with this opinion.

^Reversed and remanded.