text:
    Parnell Munson v. Charles B. Farwell et al.
    1. Verdict contrary to evidence. — As the evidence fails to sustain the verdict, the judgment is reversed and the cause remanded.
    2. Witness — Conclusions oe. — Where a witness, at the commencement of his testimony, swears thatthe defendant owes the plaintiffs §803.32, such statement is a mere conclusion of the witness, which the jury are not at liberty to consider.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. Chester Kinney, for plaintiff in error.
    Messrs. Flower, Remy & Gregory, for defendants in error.
   Bailey, J.

This action was assumpsit by Farwell and others against Munson. The declaration contains only the indebitatus assumpsit counts, for goods, wares and merchandise, sold and delivered by the plaintiffs to the defendant, and for money paid, laid out and expended by the plaintiffs for the defendant, at his request. The defendant pleaded non-assumpsit, and issue being thus joined, a trial -was afterward had before the court and a jury, in the absence of both the defendant and his counsel, and a verdict rendered in favor of the plaintiffs for §803.32. Judgment was entered upon this verdict for the plaintiffs, and afterward at the same term, the defendant appeared and moved to vacate the judgment and for anew trial, which motion was overruled, and the defendant having duly excepted to said decision, brings the record to this court by writ of error.

The bill of exceptions purports to contain all the evidence given at the trial, and the only question we deem it necessary to consider is, whether such evidence is sufficient to sustain the verdict. The only witness sworn was A. E. Campbell, whose testimony was as follows:

My name is Campbell. I am acquainted with the parties in this suit. Defendant Munson owes plaintiff $803.32 on account of his fro rata share of attorn eys’fees and disbursements in prosecution of several insurance companies on Sibley and Chester policies, assigned to plaintiffs by Sibley and Chester, as trustees. Plaintiffs and defendant and a number of other persons and firms, in 1877, were such creditors of Messrs. Sibley and Chester who had sustained loss by fire, whereby several insurance companies became liable to them by virtue of insurance policies made to Sibley and Chester, who had commenced suits against the companies upon such policies. Plaintiffs and defendant and other persons and firms, and Sibley and Chester, agreed together that plaintiffs be their trustees; that the insurance policies be assigned to plaintiffs, and that the plaintiffs continue the prosecution of these suits and realize the money if possible, and divide the same among such creditors and firms, and such person or firm was to pay his or its pro rata share on account of attorneys’ fees and costs, according to the amount of his or its demand against Sibley and Chester for prosecuting the insurance suits. Munson’s share of such expenses was $803.32. After they had been incurred, on several occasions he promised me to pay this sum. 1 was acting for the plaintiffs in endeavoring to collect it for them. The other parties liable have all paid except Mun-son.”

We think it very clear that the foregoing evidence wholly fails to sustain the only count of the declaration to which it applies, viz., the count for money paid, laid out and expended by the plaintiffs for the defendant. It neither shows nor tends to show the payment by the plaintiffs of any money whatever for the defendant. It shows an agreement or arrangement between the plaintiffs, the defendant and certain other parties, in pursuance of which the plaintiffs were to act as trustees for all concerned, and in that capacity to incur certain liabilities' for attorneys’ fees and disbursements in the prosecution, for the joint benefit of the several contracting parties, of certain suits then pending, but as to what was done under the arrangement, the evidence is very slight and unsatisfactory. The evidence does not say, in terms, that any liabilities or expenses were incurred, nor does he give any data from which the jury could determine the amount of such liabilities, or ascertain the share which the defendant, under the agreement, was liable to pay. He swears, it is true, that the defendant’s share was $803.32, but that manifestly is only the opinion or conclusion of the witness, and not a statement of the facts upon which such conclusion was based.

But the evidence at most only shows certain liabilities incurred by the plaintiffs, without attempting to show any payment by them. Nor is the plaintiffs’ case at all aided in this respect by the evidence of subsequent promises by the defendant. The witness merely swears that after the expenses were incurred the defendant promised him to pay said sum of $803.32. But he fails to state to whom the defendant promised to make such payment. He does not testify that the defendant promised to pay that sum to the plaintiffs, but merely that he promised to pay it; that is, to whoever was entitled to receive it. Unless the plaintiffs had paid out money for attorneys’ fees or other expenses in the prosecution of said suits, nothing was due from the defendant to them, either under the contract described by the witness, or under any rules of law applicable to the case. In such case the moneys coming from the defendant would equitably belong to the attorneys or other parties to whom the liability had been incurred.

It is true the witness, at the commencement of his testimony, swears that the defendant owes the plaintiffs $803.32, but, as we held in McGeoch v. Hooker, 11 Bradwell, 649, that statement is a mere conclusion of the witness, which the jury were not at liberty to consider. The rule there laid down is especially applicable to this case, where the witness, after stating his conclusion, attempts to detail the facts from which such conclusion was drawn, and merely succeeds in stating a case from which it can be seen that no such conclusion legitimately arises.

For the reason that the evidence fails to sustain the verdict, the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    Joseph Oswald v. Martina Sproehnle.
    1. Reformation of deed — Mistake.—To justify the reformation of a written instrument upon the ground of mere mistake, the alleged mistake must he one of fact and not of law, must be proved by clear and entirely satisfactory evidence, a mere preponderance of evidence not being sufficient, and the mistake must he mutual and common to both parties to the instrument.
    2. Mistake in construction of clause. — Where a clause in a deed was agreed upon by the parties, was put into the deed in terms as they agreed and directed it to be put in, and was then correctly read to and approved by them, but it did not bear the -'onstruction which one of the parties put upon it, or supposed at the time that it would bear. Held, that the mistake was in the construction of the clause, which is a mistake of law and not of fact, and affords no ground for the reformation of the deed.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed April 8, 1885.
    May 10, 1873, appellee sold and conveyed to appellant, by warranty deed, a piece of land described therein, situate in Cook county and within the assessment district for the South Park. The deed contained a covenant on the part of appellant, the grantee, that he would pay all taxes and assessments for the year 1873; also a covenant on the part of appellee, the grantor, that at the time of its execution, the premises conveyed were “ free and clear from all liens, taxes, assessments and incumbrances of any kind or nature whatsoever.” The appellant, at the time of the delivery of the deed, executed a trust deed to secure unpaid purchase money, for which he gave appellee several promissory notes, the last of which remaining due and unpaid, appellee, July 11,1883, filed her bill to foreclose said trust deed. Appellant answered the bill, setting up that at the time of the delivery of said deed from appellee to him, the premises were subject to a lien for a special assessment for said park, which had been levied in June, 1872, and then amounting to $649.72, payable in annual installments and drawing interest; that there was a valid lien on said premises, at the time of said conveyance, for all subsequently accruing installments, and which he had been compelled to pay to avoid sale of the land, and which sum should be deducted from his note. He also filed a cross-bill setting up the same matters. The appellant answered said cross-bill, and having obtained leave of the court, amended her original bill by setting up that at the time of the execution of her said deed to the defendant (appellant) “it was bargained, understood and agreed, by and between your oratrix and the said defendant, that all the taxes and assessments which were due and chargeable on said land for tbe year eighteen hundred and seventy-three and thereafter, including the second and subsequent installments of the assessment known as the South Park special assessment, which by its terms was payable in eight-annual installments, the second of which installments was due and payable after tbe 10th day of May, 1873, should be assumed and paid by the defendant, and that your oratrix should not be liable therefor or chargeable therewith. That your oratrix sought to embody the said contract in her said deed, but through ignorance, inadvertence and mistake, so provided therefor that the clause relating thereto is in the following words: ‘And the party of the second part agrees to pay all taxes and assessments for eighteen hundred and seventy-three,’ instead of being as was the agreement and intention of the parties to said deed, so as to relieve your oratrix from the obligation to pay said second and subsequently accruing installments' of the said South Park special assessment.” The prayer of the bill in this regard was, that the deed be reformed as to the clause last above mentioned, so that it may appear that said grantee therein assumed to pay the second and subsequently accruing installments of the South Park special assessment, etc.
    The case was heard upon pleadings and proofs, the complainant’s evidence showing that the fact of such park assessment was fully known to both parties at the time of the conveyance, that the deed was read over to, and its contents fully understood by both the parties, and they both expressed themselves satisfied with it before it was signed and delivered. There was no evidence given upon the hearing, tending .to sh'ow that there was any mistake of fact, or that the parties intended to insert any words in the deed which were omitted by mistake or accident, or that any words were inserted which they did not intend to have inserted. The appellee’s testimony tends to show that there was talk between the parties of a very indefinite character, about what taxes the appellant was to assume, which resulted in putting in the clause that appellant should pay all the taxes and assessments for 1873; but there was no evidence, on the part of the appellee, of any clear or satisfactory character, tending to prove that the parties made any such agreement as is set out in the amended bill, and appellant explicitly denies the making it, or anything to that effect. The court below found for appellee, decreed that the deed be reformed as prayed, dismissed appellant’s cross-bill, and ordered a foreclosure for the full amount of note and interest.
    Mr. Perry A. Hull, for appellant;
    that mistakes of law can not be relieved against, cited Beebe v. Swartwont, 3 Gilman, 178; Broadwell v. Broadwell, 1 Gilm. 605; Shafer v. Davis, 13 Ill. 397; Sibert v. McAvoy, 15 Ill. 106; Wood v. Price, 46 Ill. 440.
    Mr. Francis Lackner and Mr. Sidney C. Eastman, for appelees;
    as to when mistakes of law will be relieved against, cited 18 Central Law Journal, p. 8; Stockbridge v. Iron Co., 107 Mass. 290; Lanning v. Carpenter, 48 N. Y. 408; Pomeroy’s Eq., § 845; German v. Davis, 131 Mass. 316; Petesche v. Hambach, 48 Wis. 443; Zollman v. Moore, 21 Gratt. 313; Morgan v. Dod, 3 Col. 51; Canedy v. Marcy, 13 Gray, 373; Stone v. Godfrey, 5 De G., M. & G. 76.
   McAllister, J.

This was an application to a court of equity to reform a deed, upon the ground of mere mistake. The law is well settled, that to justify the reformation of a written instrument upon that ground, the alleged mistake must be one of fact and not of law; secondly, such mistake must be proved by clear and entirely satisfactory evidence; a mere preponderance of evidence is not sufficient; thirdly, the mistake must be mutual and common to both parties to the instrument. Broadwell v. Broadwell, 1 Gilm. 599; Beebe v. Swartwout, 3 Gilm. 178; Shafer v. Davis, 13 Ill. 395; Sibert v. McAvoy, 15 Ill. 106; Shay v. Pettes, 35 Ill. 360; Wood v. Price, 46 Ill. 440; Emery v. Mohler, 69 Ill. 228; Sawyer v. Hovey, 3 Allen, 331; Andrews v. Essex Iris. Co., 3 Mason, 10; Stockbridge, etc., v. Hudson River Iron Works, 102 Mass. 48; Nevins v. Dunlap, 33 N. Y. 672.

There is no element of fraud or imposition in this case; nor is it one where the deed in question was prepared by a scrivener, and the parties had come to an oral agreement, some portion of which was omitted therefrom by mistake of the scrivener, or where he had put in terras which had not been agreed upon by like mistake. The deed was, in fact, prepared by a scrivener of appellee’s own choosing. He ivrote in it, while so preparing it, the clause sought to be reformed, viz.: “ And the party of the second part agrees to pay all taxes and assessments for eighteen hundred and seventy-three,” just as the parties to the instrument directed him to write it. Then he read the instrument over to the parties, before it was executed, correctly, and as it was written. They both declared themselves satisfied with it, and it was signed and delivered.

The deed contains an express covenant on the part of appellee, the grantor, that the premises were then free and clear from all taxes and assessments of every nature or kind. The fact of the then existence of the South Park special assessment upon the premises was well known to both of the parties. But the bill contains no allegation of any mistake relating to that express covenant. It stands, therefore, as a substantive and unassailed part of the instrument, which appellee is seeking to overcome by parol evidence. Emery v. Mohler, 69 Ill. 227.

-But we are of opinion that the appellee failed, upon the hearing, to show by evidence that can be regarded as clear and satisfactory, that appellant did, during any of their conversations before, or at the time of the execution of the deed, come to any such agreement with her as is alleged in her amended, bill. The upshot of the entire case is, that the clause first above mentioned was agreed upon by the parties; it was pnfc into the deed in terms as they agreed and directed it to be put in; it w"as afterward correctly read to and approved by them; but it turns out that it will not hear the construction which appellee put upon it, or supposed at the time that it would bear. The mistake then was in the construction of the clause, which is a mistake of law and not of feet, and which can afford no ground for the reformation of the deed.

The decree of the court below will he reversed and cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Wilson, P. J., dissents.


author: Bailey, J.

text:
    T. H. Traver v. Lebbeus H. Rogers.
    Assignment — Appeal.—A petition was filed in the county court, praying for an order to require the assignee of an insolvent estate to hand over to the petitioner certain property which the assignee claimed to hold under the assignment, but which the petitioner claimed belonged to him. Held, that an appeal will lie to the circuit court from an order of the county court granting such petition. Such proceeding can not be held to be a “ common law case,” under section 123 of the statute in relation to county courts.

      Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed April 8, 1885.
    Mr. H. H. C. Miller, for appellant.
    Mr. Charles F. White and Mr. M. L. Wheeler, for appellee;
    that the proceeding was in the meaning of the statute a common law action, cited Rawlings v. People, 102 Ill. 475; Potwin v. Johnson, 106 Ill. 582; Kilgour v. Drainage Com’rs, 17 Legal News, 108; Petition of Johnson, 104 Ill. 50.
   Bailey, J.

Rogers, the appellee, filed his petition in the County Court of Cook county in the matter of Cushing, Thomas & Co., insolvents, claiming the ownership of certain personal property then in possession of Travel*, the assignee, and praying for an order requiring the assignee to deliver said property to him. A hearing was had on said petition, and an order entered by the court finding that said property belonged to the petitioner, and directing the assignee to deliver the same to him. From this order an appeal was taken by the assignee to the circuit court. Rogers afterward appeared in that court and moved to dismiss the appeal for want of jurisdiction, which motion was sustained and the appeal dismissed. From this order the assignee has appealed to this court.

The only question presented is whether, in eases of this character, an appeal lies from the county court to the circuit court, or whether the appeal should be taken directly to this court.

The decision of this question depends upon the construction to be given to sections 122 and 123 of the statute in relation to county courts. Section 122 provides that “appeals may be taken from the final orders, judgments and decrees of county courts to the circuit courts of their respective counties in all matters except as provided in the following section.” Section 123 is as follows:

“ Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county-court to the Supreme Court or appellate court, in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer. Such appeals and writs of error shall, when not otherwise provided, be taken and prosecuted in the same manner as appeals from and writs of error to circuit courts.”

It is clear that, unless the present case is included in some one of the classes of cases enumerated in section 123, the appeal was properly taken to the circuit court. The only theory upon which the counsel for the appellee attempts to sustain the order of the circuit court dismissing the appeal is, that this case should be held to be a “common law case” within the meaning of the statute.

It needs no argument to show that it is not a case coming within any of the recognized classes or forms of common law actions. Neither in its pleadings nor its mode of procedure can it be classed as a common law action, nor as being analogous to any known proceeding at common law.

But, disregarding mere matters of form, is it in substance a common law case?

The jurisdiction of county courts in cases of voluntary assignments for the benefit of creditors, is a special statutory jurisdiction, and proceedings in that court in the exercise of that jurisdiction, though incapable of being enumerated in any proper sense as proceedings either at law or in chancery, are, in all their essential characteristics, much more nearly analogous to the latter than the former. Such proceedings are very similar, in their main features, to those adopted by courts of chancery in administering upon estates or property through the agency of receivers. The petition in this case is a mere summary application to a court exercising this statutory and quasi equitable jurisdiction, to release from its control and hand over to the petitioner certain property which its assignee claims to hold under the assignment, but which the petitioner claims belonged to him, and so did not pass by the assignment to the assignee. If one claiming property held by a receiver in chancery should intervene by his petition arid seek to obtain an order of the court sustaining his claim and ordering the receiver to deliver the property to him, we presume that no one skilled in legal science would for a moment insist that the petition and the proceedings under it constituted a common law case. True, the order of the court granting the petition and awarding the property to the petitioner might be as effectual an adjudication upon his legal rights as a verdict and judgment in an action of replevin would be, but it would nevertheless be an adjudication not of law but of equity forum. Upon closely analogous principles it must be held that in this case the county court, in granting the petition, was exercising a jurisdiction of an equitable rather than of a legal nature. The case may, without violence to legal distinctions, be denominated an equitable proceeding, but we know of no principle which would justify us in holding it to be a “common law case.”

The appeal was properly taken to the circuit court, and therefore the order dismissing the appeal was erroneous. The judgment will therefore be reversed and the cause remanded.

Judgment reversed.


text:
    Henrietta Blanchard v. Augustus J. Burbank et al.
    1. Pleading — Trespass.—In actions of trespass, matters in discharge or justification must be specially pleaded.
    2. Instructions— Imprisonment. — The court is of opinion that even if a proper plea of justification had been filed in this case, it is very doubtful whether the evidence was such as to warrant the court in submitting to the ju?y any hypothesis of a justification of the alleged trespass under the rule laid down in the instructions as to imprisonment of the insane.
    3. Instruction — Defendants in trespass. — An instruction, “ If any of the defendants are not guilty at all, or if any of them, though guilty ^ were acting separately and for themselves alone, without any concert with the others and without carrying out a common purpose, they ought to be acquitted, and those only found guilty who were acting jointly.” field erroneous. While a trespass may be joint, it is also in contemplation of law several, and a particular defendant maybe convicted as well when shown to have acted alone as when shown to have acted in concert with others.
    5. Damages. — If the evidence shows a violation of the plaintiff's rights, the law implies actual damages sufficient to sustain the action, and sufficient, also, to warrant the imposition of vindictive damages if it is further shown that such violation of her rights was willful, wanton or malicious. As the instructions submitted, made it necessary for plaintiff to prove actual damages to sustain her action, they were erroneous.
    5. Debts and accounts — Trespass.—While mere debts and accounts can not be adjusted or litigated in-an action of trespass, yet a plaintiff may recover in such action for money taken from her when such taking is a part of the trespass sued for.
    Error to the Superior Court of Cook county; the lion. Elliott Anthony, Judge, presiding.
    Opinion filed April 28, 1885.
    This was an action of trespass, for false imprisonment, brought, by Henrietta Blanchard against Augustus J. Burbank, Joshua W. Carr, Anna Ewart and the Washingtonian Home of Chicago. The declaration charges the defendants with assaulting the plaintiff and taking her forcibly and against her will from her residence in the city ofChicago to the Martha Washington Home, an asylum for distracted and inebriate persons, situated at Kavenswood in Cook county, and there detaining and imprisoning her, forcibly and against her will, and without the verdict of any jury or the order of any court, and keeping her there imprisoned for the space of four ■months, and taking and carrying away $500 of her money and converting the same to their own use.
    The defendants pleaded not guilty, and at the trial the jury found defendants Burbank and Carr guilty and assessed the plaintiff’s damages against them at $500, and found defendants Anna Ewart and the Washingtonian Home not guilty. Both the plaintiff and defendants Burbank and Carr moved for a new trial, but the court overruled said motions and rendered judgment on the verdict.
    The hill of exceptions does not purport to set forth the evidence given at the trial, but recites as follows:

      “ That on the trial the plaintiff, to maintain the issues on her part, gave evidence tending to show that she came to Chicago in September, 1882, leased a house, furnished the same, and resided therein until December 28, 1882; that defendants Burbank and Carr were house renting agents, and as such, leased said house to the plaintiff; that on or shortly before December 28, 1882, plaintiff was ill and at times delirious; that defendants Burbank and Can* were at plaintiff’s bouse December 28, 1882, and Burbank then said to plaintiff that he had a friend in the country near Chicago, who would take the plaintiff into her house for a short time and kindly treat and care for her, and advised the plaintiff to go to such place, and plaintiff, relying upon said statements, consented to do so; that said Washingtonian Home of Chicago at that time had and possessed certain buildings and premises near Ravenswood, two miles north of Chicago, known as the Martha Washington Home, in which inebriated and opium-eating women were kept and cared for; that between June 1, 1882, and January, 1883, forty-four women were received as patients into said Home, three of whom were received from the Bride-well or House of Correction of the city of Chicago, seven from the Reliobeth Mission, connected with the Chicago Police Court, ten from justices’courts of Cook county, and twenty-four by regular admission, without the order of any court, and that the plaintiff had no knowledge of the existence of any such institution until siie was received therein; that from December 28, 1882, to March, 1883, defendant Anna Ewart, was the matron of said Martha Washington Home.
    “That on the afternoon of December 28, 1882, defendants Carr and Burbank again came to plaintiff’s residence, and plaintiff, believing that she was to be taken to the private residence of the friend of Mr. Burbank, in the country, began to make preparations to go, but before such preparations were completed she became unconscious, and while so unconscious, and without her consent, was placed in a carriage by said Carr and taken to and placed in said Martha Washington Home, on the evening of December 28, 1882, while still unconscious and without her consent; that she was received into said Home by said Anna Ewart; that said Carr then said to said Anna Ewart that plaintiff was insane; that she was not taken before any court, and no order of any court was made for her commitment to said Martha Washington Home, and that she was kept and confined in said Martha Washington Home against her consent and will, from December 28,1883, to February 22, 1883; that she daily complained to said matron, Anna Ewart, of her confinement, and at times was violent by reason thereof.
    “That one evening,about.February 10,1883, said AnnaEwart went into the room where plaintiff was, and ordered plaintiff to take off and give her the dress plaintiff had on, which plaintiff refused to do; that said Anna Ewart, then being the matron and in charge of said Home, called a man servant of said Home and ordered him to take the plaintiff to the ‘padded room;’ that said servant then forcibly threw the plaintiff down, then picked her up in his arms and forcibly and against her will carried her into a vacant room known as a ‘padded room,’ and locked her therein alone; that said room was padded about the wall; that iron grates or netting were placed and fastened across the doors and windows; that said room was very dark, the only light in the same being the light from the hall through the iron gratinc; that plaintiff resisted to the utmost, the efforts of said man to place her in said room; that she was kept in said room forcibly and against her will nearly all night; that immediately after the arrival of the plaintiff at said Home her trunk was unpacked by order of said Anna Ewart; that her hat, muff and cloak were taken from her room to the room of said Anna Ewart, and placed in a closet and locked therein, and the key taken and carried by said matron, and said cloak, hat and muff were kept locked up by said Anna Ewart during all the time plaintiff was in said Home; that the plaintiff had upon her, when she was taken into said Home. $800 in currency; that a few days afterward all of said money was taken from her person by order of said Anna Ewart; that said Anna Ewart afterward claimed that the amount of money which plaintiff had on her person was $326 only, and not $800, and that the plaintiff was repaid the sum of $326 by said Anna, and no more.

      “That the defendants, to maintain the issues on their part, gave evidence tending to show that the plaintiff had for a long time prior to December 28, 1883, been in the habit of talcing chloral, and was then under its influence, ill, nervous, unfit to do business or properly care for herself, and without friends or relatives in Chicago; that at the request of plaintiff, defendant Burbank attempted to secure for her admission into St. Luke’s Hospital; that being refused, he called on Dr. Emma Gaston, the then physician of said Martha Washington Home, who visited the plaintiff and advised her to go to said Home as the best place to secure proper care and treatment; that plaintiff consented to go there; that an order for her admission was written by Dr. Gaston, and that no one said anything to the plaintiff about going or being taken to a friend of his in the country; that all the money plaintiff had when taken into the Home was §326, and that such money was safely kept, and, less the amount paid for plaintiff’s board, was repaid to her by the Washingtonian Home soon after she left said Home.
    “That the night plaintiff was placed in a padded room, she refused to go to bed at the hour for retiring under the rules of the Home; that the matron requested and insisted that she should undress and go to bed; that the plaintiff refused, became violent, screamed, threatened to kill herself, and finally said matron did order her taken to the padded room; that the man who took her to said room, put his arms around her and carried her to said room carefully, using no violence and no more force than was necessary to carry her there; that she was kept in said room only three or lour hours; that plaintiff was kindly and properly treated in said Home, and gained in health while there; that she had free access with the other inmates to all parts of the house; that she could at anjr time during the day have gone outside by unlocking the front or hall door, the key to which was kept in the lock.”
    Both the plaintiff and defendants Burbank and Carr have assigned errors and ask for a reversal of the judgment.
    Mr. Frank Baker and Mr. James G. Miller, for plaintiff in error;
    as to damages, cited Drohn v. Brewer, 77 Ill. 280; McNay v. Stratton, 9 Bradwell, 216; Sedgwick on Measure of Damages, 6th Ed. 35; Jasper v. Purnell, 67 Ill. 358; Johnson v. Camp, 51 Ill. 219; 2 Addison on Torts, Banks’ Ed. 699; Alcorn v. Mitchell, 63 Ill. 553.
    Messrs. Bangs & Kirkland and Mr. James Frake, for defendants in error.
   Bailey, J.

As the bill of exceptions does not purport to contain all the evidence given at the trial, it will be presumed that sufficient evidence was heard to sustain the verdict. The principal burden of the argument presented by the counsel for defendants Burbank and Carr is, to show that, as to their clients, the verdict is contrary to the evidence; but as the conclusive presumption of the law is against them on this proposition, it is unnecessary for us to consider the arguments by which they seek to support it.

They also urge that certain of the instructions given, as they claim, at the instance of their co-defendants, were erroneous and prejudicial to them, and that the judgment should be reversed for that reason. Some seventeen instructions were given for the defendants, and ibis now insisted that the first eight were given at the instance of defendants Anna Ewart and the Washingtonian Home, and the residue only, at the instance of said Burbank and Carr. The record, however, fails to show that such was the fact. The recitals in the bill of exceptions are to the effect that the entire seventeen instructions were given on .behalf of “ the defendants,” and there is no evidence that any requests for instructions were made on the part of the defense in which defendants Burbank and Carr did not join. But, however this may be, the record shows no exception on their part to either of the instructions of which they now com plain,'or to any other instiuction given on the part of the defense. It thus appears that they are now in no position to complain of either of the instructions criticized by their counsel. The errors assigned by defendants Burbank and Carr must therefore be overruled.

The plaintiff, however, preserved exceptions to each of the instructions given for the defendants, and the record is open to an inquiry at her instance, as to their correctness. The first instruction is as follows:

“The jury are instructed that any person may lawfully restrain a delirious or insane person, provided such restraint is necessary ro keep such insane or delirious person from injuring him or herself or others, and provided such restraint is continued only until a reasonable time and opportunity has happened within which an application may be made to the proper court to determine under the law as to the sanity of such insane or delirious person', and provided that such restraint is made in good faith.”

This instruction, though abstract in form, attempts to lay down the law applicable to a justification of the alleged trespass. It tells the jury that under certain circumstances, the trespass and imprisonment would be lawful. As no justification was pleaded, the only plea being not guilty, the defendants could notjustify the trespass. The ruléis well settled that in actions of trespass, matters in discharge or justification, must be specially pleaded. Halm v. Ritter, 12 Ill. 80; Olsen v. Upsahl, 69 Id. 273. The rule is laid down by Mr. Chitty, as follows: “The plea of not guilty is proper in trespass to persons, if the defendant committed no assault, battery or imprisonment; but in trespass to persons, son assault demesne, moderate correction of a servant, etc., molliter manus irnposuit to preserve the peace, or a justification in the defense of the possession of real or personal property, or by authority of law, without process, or as a private individual; or under civil process, either mesne or final, of superior, inferior or foreign courts, must always have been pleaded specially.” 1 Chitty’s Plead. 535. As the defendants were in no position to justify the trespass, an instruction as to the law governing the subject of justification could only mislead the jury. It is probable that under such an instruction they would be inclined to give the same effect to the evidence as though a proper plea of justification had been pleaded.

But even if a proper plea had been filed, we think it very doubtful whether the evidence was such as to warrant the court in submitting to the jury any hypothesis of a justification under the rule laid down in the instruction. The evidence tended to show that the plaintiff was restrained of her liberty from December 28, 1882, to February 22,1883, a period of fifty-seven days. The statute provides that, for the purpose of inquiring as to the insanity of persons alleged to be insane or distracted, the county court shall be considered as always open. With a tribunal at hand and always open to make inquisition as to the insanity of persons alleged to be insane, we can scarcely conceive of circumstances which would justify a person in holding another confined as an insane person fifty-seven days, without taking any measures to have the question "of his insanity subjected to judicial investigation. Mere good faith will not justify such an invasion of personal liberty.

The defendants’ fourth instruction was as follows:

“ If any of the defendants are not guilty at all, or if any of them, though guilty, were acting separately and for themselves alone, without any concert with the others, and without carrying out a common purpose, they ought to be acquitted, and those only found guilty who were acting jointly.”

For some reason this instruction was repeated in the same identical language, and appears again as the eleventh instruction. It is true that in an action of trespass where there are several defendants, in order to convict all, a trespass must be proved of which all are guilty. If part are shown to have committed one trespass and the residue another, all can not he convicted, and unless the plaintiff elects as to the particular trespass for which he will ask the verdict of the jury, it will be the duty of the jury to make the election, and find their verdict against those guilty of the trespass which they elect to punish, and to acquit the others. In the exercise of this discretion, the court has no right to control them. If two defendants are shown to be jointly guilty of one trespass, and one defendant is shown to be alone guilty of another distinct trespass, we can not see why, if both are equally within the purview of the declaration, the jury may not as properly convict the one and acquit the two, as to convict the two and acquit the one. While a trespass may be joint, it is also in contemplation of law several, and a particular defendant may be convicted as well when shown to have acted alone as when shown to have acted in concert with others.

The instruction, however, requires the jury to find no defendant guilty who is not shown to have committed a trespass jointly with some other defendant. If no such joint action had been shown, then, under the instruction, the jury would have been compelled to acquit all the defendants, however guilty one or more of them may have been individually. It being shown that Burbank and Carr acted jointly in conveying the plaintiff to the Martha Washington Home, the jury were limited to that particular trespass, however aggravated they may have believed the subsequent torts committed by one or both of the other defendants may have been.

The thirteenth and fourteenth instructions were as follows:

13. “Vindictive damages, or smart money, as it is sometimes called, can not lawfully be awarded by the jury in this case, unless the jury shall first have found, from the evidence, that plaintiff has sustained actual damage, nor unless the jury shall, from the evidence, find that the alleged trespasses, or some of them, were willful, wanton and malicious.

14. “The jury should not guess at, or merely presume or infer, the existence of any actual damages in this case, but they must find from the evidence that such actual damages have been duly shown and proved.”

In Webb v. The Portland Manufacturing Co., 3 Story, 189, Mr. Justice Story says: “Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no further inquiry than whether there has been the violation of a right.” And in the same case the learned justice cites from the opinion of Lord Holt, in Ashby v. White, the following language: “ It is impossible to imagine any such thing as injuria sine damno. Every injury imports damage in the nature of it.”

Mr. Justice Cooley, in his treatise on the Law of Torts, says: “ Although damage is a necessary element in an actionable wrong, it is sometimes damage implied or presumed, not damage shown. There are many eases in which, in point of fact, a showing of pecuniary damages is impossible, and some where it would be easy to show that none liad been sustained, in which, nevertheless, the law adjudges that a tort has been committed.” After other illustrations of the doctrine, the learned author proceeds: “A more simple case may he that of a man who has entered the field of another for the purpose of plunder, but has been frightened away before the mischief was accomplished. Assuming in such case the im possibility of showing the slightest actual injury, the trespasser is nevertheless held liable to pay damages. The ground of liability is, that from every distinct invasion of right some damage is presumed, and the law therefore makes 'some award, though no damages are proven, and none are susceptible of proof. If the reason for this is sought for, we are not left in perplexity or doubt. The method chosen for the protection of rights, being an action for the recovery of damages for their invasion, it is manifest that when a party is convicted of the invasion, the conviction must he followed by some consequences disagreeable to himself, or it could not possibly operate as a restraint.” Cooley on Torts, 62.

The fourteenth instruction is erroneous in holding that in this case actual damages must he proved, and can not be inferred or presumed, and the thirteenth instruction is also erroneous in holding that, in the absence of such proof of actual damages, vindictive damages can not be given. If the evidence shows a violation of the plaintiffs rights, the law implies actual damages sufficient to sustain the action, and sufficient also to warrant the imposition of vindictive damages if it is further shown that such violation of her rights was willful, wanton or malicious.

The fourteenth instruction is also inaccurate in holding that in order to justify the assessment of vindictive damages, it must appear that the trespass was willful, wanton and malicious. Proof that it was either is sufficient.

Upon the principles above laid down, it must be held that the defendant’s seventh instruction is also erroneous. That instruction was as follows:

“ The jury are instructed that this is an action brought to recover damages for an injury said to have been done by the wrongful act of the defendants toward the plaintiff; and although the jury may find that the plaintiff was improperly restrained of her liberty by the Washingtonian Home or Mrs. Ewart, yet she can not recover in this action only such damages as she shall have shown, by the evidence in this case, she actually suffered as the result of such wrongful and tortious act on the part of the defendants or the Washingtonian Home or Mrs. Ewart, if any such there was.”

The phraseology of this instruction is somewhat obscured by the use of the words “can not” for “can,” but the error, we think, is so obvious that any ordinary reader would readily make the correction. But the instruction, by confining the plaintiff’s recovery to such actual damages as she had been able to establish by affirmative proof, excluded by its very terms any recovery of exemplary damages. That there was evidence which in the opinion of the court might justify the assessment of exemplary damages is manifest from the fact that the question of such damages was submitted to the jury in several other of the instructions. Such being the case, it was error in this instruction to confine the plaintiff’s recovery to actual damages.

But this instruction, like the thirteenth and fourteenth, excluded also all damages which the law implies from the wrongful act itself, and required the plaintiff to establish her damages by evidence beyond and independent of her proof of the wrongful act. Under this rule, however gross or aggravated the wrong inflicted upon her might be, unless she could prove actual damages to herself resulting from it, her action would necessarily fail, as there would be nothing for her to recover.

We think the fifth and sixth instructions, in view of the facts appearing in evidence, were likely to mislead the jury, and should not have been given without further qualification. Those instructions were as follows:

5. “ The jury are instructed that it is immaterial, and they are not to take into consideration whether the plaintiff is indebted to any of the defendants, or the defendants all together, or any of them, are indebted to the plaintiff; the verdict and judgment in this action will not determine the rights of any of the parties to this suit as to such indebtedness, if any such there be; that notwithstanding any verdict or judgment that may be rendered in this case, another action may be maintained for such indebtedness if any there be.

6. “The jury are instructed that there can be in this case no adjustment of accounts between '.he parties to this suit, or any of them.”

As the record fails to bring up"all the evidence, we can not say what proof there may have been of indebtedness or mntual accounts between the parties. The declaration, however, alleges, as a part of the trespass for which the suit was brought, that the defendants took and carried away $800 of the money of the plaintiff, of which only a part was returned to her, and the evidence tended to prove that averment. So far as the record shows, there was no evidence tending to show any other indebtedness from the defendants, or any of them, to the plaintiff. It is undoubtedly true that mere debts and accounts' can not be adjusted or litigated in an action of trespass, but a plaintiff may recover in such action for money taken from her where such taking is a part of the trespass sued for.

The jury in this case may well have supposed that the money taken from 'the plaintiff and not returned to her, constituted a mere debt from the defendants to her, and they may therefore have understood the instructions as holding that no recovery could be had in respect to the money thus wrongfully taken from the plaintiff. The instructions should have been so modified as to guard against any misapprehension of this character.

For the errors in the instructions above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Chicago and Northwestern Railway Co. v. Eliza Hunerberg.
    1. Negligence. — Where, through culpable negligence of a railroad company in leaving a side track in a defective condition, some cars left the track, and the engineer kept the train backing until the end car went beyond defendant’s right of way, through the fence in front of plaintiffs house, and crashed into the porch, and the shock to plaintiffs nervous system, who was within the house, was so great as to cause a miscarriage. Held, that the rule that “ the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, rntist keep it in at his peril, and if he does not do so, is pruna facie answerable for all the damage which is the natural consequence of its escape, ” applies in this case.
    2. Torts. — The party guilty of a tort, may he liable for causing a miscarriage where no direct physical injury was inflicted upon the woman, if the miscarriage was a natural and probable consequence of the wrong.
    3. Instructions. — The first instruction for plaintiff was so erroneous and misleading, that, with the defect of the declaration, the court feels compelled to reverse the judgment. -
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed April 8, 1885.
    This was an action by appellee against appellant to recover damages for a personal injury to her. The trial resulted in a verdict and judgment against appellant for $3,000, to reverse which this appeal is prosecuted.
    It appears from the evidence that the plaintiff was the owner and resided in a house situated outside but contiguous to defendant’s right of way in the village of Palatine; that defendant had a side track in the vicinity of said house, one of the,tracks of which was in a bad and defective condition; that while defendant’s servants were backing a freight train down said side track, July 20, 1883, some of the cars left the track on account of said defect, but the engine driver, notwithstanding, kept the train backing until the end car went beyond defendant’s right of way, through the fence in front of plaintiff’s house, and with great force and violence struck tlio porch thereof and demolished it. These facts were shown without any conflicting testimony, and evidence was further given, showing that the plaintiff was at the time pregnant; that she was up stairs in the house with two young children with her; that the shock and fright were so great, that though this was on Friday, and her health had previously been good, by Sunday she had a miscarriage which seriously' injured her.
    The court below on behalf of plaintiff gave this instruction, amongst others, to the jury:
    1. The court instructs the jury that “ it is the duty of the defendant company to keep its tracks in reasonable and safe repair, and if you. believe from the evidence that the defendant company suffered and permitted one of the rails of its side tracks, at the village of Palatine, in Cook county, to become and remain for a long time out of repair and in an unsafe and dangerous condition, and that by reason thereof one of the trains of the said company became derailed and left said sido track, and struck the house where the plaintiff resided and where she then was, and thereby inflicted bodily injury upon the plaintiff through fright, then your verdict should be for the plaintiff, and in making up the amount of your verdict it is proper for you to consider any physical pain or sufferings which you may find from the evidence was undergone by the plaintiff, if any, resulting from said injury. And if you further believe from the evidence that such injury to the plaintiff, if any there be, is permanent or will extend into the future, your verdict, if such be the proof, should include all the damage which you find from the evidence the plaintiff has suffered, if any; and all the damage, if any, which you believe from the evidence the plaintiff will suffer in the future, if any, by reason of said injury.”
    Mr. B. C. Cook, for appellant;
    as to damages, cited 1 Sutherland on Damages, 57, 71; Bennett v. Lockwood, 20 Wend. 223; Craine v. Petrie, 6 Hill, 523; McGrew v. Stone, 53 Pa. 436; Fairbanks v. Kerr, 70 Pa. St. 86; People v. Mayor, 5 Lans. 524; Lewis v. F. & P. M. Ry. Co. 19 N. W. 744.
    Mr. DeWitt C. Jones, for appellee;
    that the judgment will not be reversed if it appears from the record that substantial justice has been done, cited H. F. & M. Ins. Co. v. Cormick, 24 Ill. 445; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Twining v. Martin, 65 Ill. 157; Dishon v. Schorr, 19 Ill. 59; Kendall v. Brown, 86 Ill. 387.
   McAllister, J.

The counsel for appellant, defendant below, insists that inasmuch as appellee, plaintiff below, was not hit upon her person by or thrown against anything, or upon the floor, and her only injury being from the fact of her pregnancy and miscarriage, caused by mere shock to her nerves, and fright, there was no such proximate connection between the negligence of the defendant, in respect to a rail of the switch being in a bad and defective condition, and the injury to the plaintiff, as would entitle her to recover for that injury, the damages being too remote.

As we analyze this case from the evidence, we regard it as essentially different in its controlling characteristics, from what the counsel for the defendant seems to consider it to be, and different from the case of Phillips v. Dickerson, 85 Ill. 12, said to be exactly in point.

The plaintiff testified, without contradiction, that she, herself, owned the house where she was at the time it was struck by the end car of defendant’s train; but that fact is not averred in the declaration.

It appears from the plat of Palatine in evidence, and' the locality of the alleged accident, that said house was wholly outside of the defendant’s right of way. That fact is not averred in the declaration, but, inasmuch as it is one which can not be changed by evidence, we shall regard it as part of the case. Concisely stated then, the case is this: The plaintiff with two young children by her side, one of them her own, is in the chamber of a house (no definite description of which is given in the evidence) which is upon land lying entirely outside the defendant’s right of way. There is a dooryard in front of the house, with trees in it and inclosed by a fence. While the plaintiff is thus in the chamber of her own home, and being about two months gone in pregnancy, she sees a portion of the freight train in question has left the side track, and is coming with great force and violence toward her house; she sees and hears the end car crash through her dooryard fence, and striking trees which fail to arrest its course, it comes against the house and tears away the porch belonging to it. The lives and limbs of herself and the children there were in imminent peril from such a frightful invasion of her premises and home, and she was overcome by a natural and reasonable fear. The shock to her nervous system was so overwhelming, that though previously healthy she was thereby made sick, and the' second day thereafter suffered a miscarriage, which is the injury for which she brought this suit.

The invasion of the premises, in the way described, was not the result of inevitable accident; there was fault, culpable negligence on the part of'the defendant’s servants having the management of the train. Such invasion was, therefore, unlawful; it was a trespass committed under circumstances wherein mischief and injury were likely to befall somebody;] in that house. And in such case, intention and design to do that mischief were not indispensable to liability therefor. Bullock v. Babcock, 3 Wend. 340; Welch v. Durand, 36 Conn. 182.

There is a total want of evidence tending to show inevitable accident; and t ere was evidence tending to show negligence, not only as to the track, but as to the management of the train after the cars left the track.

But it was not necessary for the plaintiff to introduce evidence in the first instance that the escape of these cars from the defendant’s right of way, and upon the promises where plaintiff resided, was the result of negligence. It is a well settled rule of the common law, that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is primafacie answerable for all the damage which is the natural consequence of its escape." Fletcher v. Ryland, L. R., 1 Ex. 265, 279; affirmed in same case in L. R. 3 H. L. 330; Gorham v. Gross, 125 Mass. 232, and cases there cited.

We can perceive nothing in reason or in the circumstances of this case to derogate from the application of that doctrine in this case. Every element involved in the rule is present.

The act of in vading the premises in ..question was under the circumstances an unlawful act, and was one which was likely to prove injurious to the occupants of the dwelling where plaintiff was, and there was evidence tending to prove that it was the result of gross negligence and recklessness. Upon these facts, if established, the defendant was liable to the plaintiff for the injury she suffered in consequence, if such injury was the natural and probable consequence of the wrong committed, and this irrespective of whether those guilty of the negligence knew she was in the house or not, or of her condition as respects pregnancy.

In Vandenburgh v. Truax, 4 Denio, 465, the rule in such cases was carefully formulated by Bronson, J., as follows: " It may be laid down as a general rule, that when one does an illegal or mischievous act which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable for all the consequences which may directly and naturally result from his conduct, and in many cases he is answerable criminally as well as civilly. It is not necessary that he should intend to do the particular injury which follows." Scott v. Shepherd, 2 W. Bl. 892; Guille v. Swan, 19 Johns. 381; Brown v. Milwaukee & St. P. Railway Co., 54 Wis. 342; S. C., 41 Am. R. 41; Ehrgott v. Mayor, 96 N. Y. 280; S. C. 43 Am. R. 480.

The case of Brown v. Milwaukee Railway Co., supra, fully sustains the position that the party guilty of a tort may be liable for causing a miscarriage, where no direct physical injury was inflicted upon the woman, if the miscarriage was a natural and probable consequence of the wrong. Oliver v. La Valle, 36 Wis. 592, is to the same effect.

The first instruction for plaintiff was, however, so erroneous and misleading, that, with the defect, of the declaration, we feel compelled ,to reverse the judgment. That instruction purports to comprehend all the necessary elements of a right of recovery, but in the hypothesis as to the wrong on the part of defendant, nothing is embraced but the negligence as to the rail of the side track. It appears to us to be very doubtful if there was such a proximate connection between that .negligence and the plaintiff’s injury as to warrant a recovery. The question of that connection was not submitted to the jury, or whether the injury was the natural and probable consequence of that negligence. The case shows that between said defective rail, whereat the ears left the track to run upon the ground, and the premises where plaintiff was at the time, there was a space of one hundred and fifty feet, overall which distance the engine driver and those in charge of the train permitted it to go, and drove it with great force and violence into the yard and against the house in question, causing, naturally and reasonably, the great fright and shock which plaintiff experienced. How, it is not difficult to perceive that between that unlawful invasion of the premises and the injury to plaintiff, there might be sufficient proximate connection to warrant a recovery. But that element is wholly omitted from the instruction. The judgment will be reversed and the canse remanded fur a new trial.-

Judgment reversed.


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    Henry Gillett v. Sarah Ann Hickling, Ex., etc.
    1. Trusts — Equity jurisdiction. — Where A acquired and held the title to certain real estate in trust, fi.sfc, as security for his debí, and second, to render to B. the equitable owner, any surplus remaining after such indebtedness should be paid, and, in accordance with an agreement B procured a purchaser to whom A sold the premises for a sum sufficient to pay the indebtedness and leave a surplus (such surplus being a security not yet collected). Held that trusts of this character are enforcible in equ'ty. The agreement, after the sale, entered into for the purpose of limiting the trust to a specific installment of the purchase money, did not change the trust relation of the parties.
    2. Debtor and creditor — Agreement.—Where an agreement between debtor and creditor not only provides for the payment of the debt out of a specific fund coming to the debtor, hut limits the creditor to such fund, and provides that if t.hat fund fails the debt shall be extinguished, such agreement would operate as an equitable assignment pro tanto of the fund.
    3. Trust — Non-feasance op trustee. — A court of equity will not permit a trust to fail by reason of the non-fessance or misfeasance of the trustee, but on proper application will take the execution of the trust into its own hands, and afford relief to the cestui que trust according to the equities of the case. The fact that the trustee may be amenable to an action at law for his negligence will not prevent a court of equity from assuming jurisd.ction,
    4. Deceased trustee — Probate court. — Where a bill seeks to enforce certain equitable rights, which the complainant claims in a specific security which was held by the decedent in his lifetime, and'which is now-in the hands of his executrix and devisee, such bill is not within the rules applicable to the presentation and allowance of claims against the estate of deceased persons in the probate court.
    5. Parties. — In suits in chancery all persons whose interests may be affected by the decree should be made parties.
    Error to the Superior Court of Cook county; the lion. George Gardner, Judge, presiding.
    Opinion filed April 8, 1885.
    The writ of error in this case brings up for review a decree sustaining a demurrer to a hill in chancery brought by Henrj’-Gillett against Sarah Ann Hickling, executrix of the last will and testament of William Hickling, deceased, and others, and. dismissing the hill for want of equity. The hill alleges in substance, that in the early part of 1878 complainant was the equitable owner of lot 9, etc., in Ellis’ West addition to Chicago, and occupied the same as a residence; that William Hickling then held the complainant’s note for $4,000 secured by a deed of trust on said premises, and that a considerable amount of interest was due on the note; that a contract, in writing was thereupon entered into between the complainant and Hickling, in which it was agreed that Hickling should cause said premises to be sold by the trustee under the deed of trust, and that he should buy the same at such sale; that the amount due on the deed of trust, including the costs of sale, should be ascertained, and that complainant should retain possession of the premises, paying Hickling interest on the amount found due, and that he should have the right at any time within three years to buy the premises from Hick-ling for the amount so found due and interest, or, if he could find a purchaser, to sell the same and retain the residue of the purchase money, after paying Hickling the amount due him and interest.
    That pursuant to said agreement, said premises were sold by the trustee to Hickling, and that upon an accounting between the parties there was found due from the complainant to Hickling, on the first day of May, 1878, including the costs of the sale, the sum of $4,955.59; that complainant remained in possession up to May 1, 1880, paying during all that time interest on said sum, and taxes and insurance, and in all things carried out said agreement; that February 1, 1880, while the agreement was in full force, one McCurdy agreed with the complainant to purchase said premises for $6,000; that by said agreement McCurdy was to pay Hick-ling interest from that date, and to pay taxes and insurance, and of the purchase money to pay $1,000 on or before May 1, 1881, at which time he was to take a deed of the premises from Hickling and give Hickling his notes, one for $1,000, due on or before May 1, 1889, one for $9,000, due on or before May 1,1883, and one for $9,000, due on or before May 1,1884, all with interest at seven per cent, per annum, and secure said notes by a deed of trust on said premises; that afterward, on March 1, 1880, Hickling entered into a contract.with McCurdy for the sale of said premises upon the terms above set forth, and that an accounting was then had between the complainant and Hickling, by which it was ascertained and agreed that there would be due to complainant, out of the purchase money to be paid by McCurdy, the sum of $983; aud that at the same time and as a part of the same transaction, the following agreement was entered into between the complainant and Hickling:

      “The undersigned, William Hiclding, having sold the premises described as lot 9, etc., of Ellis’ West Addition to Chicago, to Albert McCurdy, for the sum of $6,000, to be paid as follows: $1,000 on or before May 1, 1880, $1,000 on or before two years, from May 1, 1880, or as per agreement with Albert McCurdy: [ hereby agree to pay' Henry Gillett, his heirs, executors or assigns, as commissions, etc., the sum of $983, out of the principal and interest to be paid by said Albert McCurdy, on or before May 1, 1882, and out of said second payment so to be made by said Albert McCurdy only is said Gillett to receive anything. But it is further expressly understood and agreed, and made an essential part of this agreement, that, in case of the destruction of the buildings now situated on said premises, by fire or otherwise, or in case said Albert McCurdy shall fail to carry out the agreement for the purchase of the premises on his part, and to make the above mentioned payment, then this agreement shall become and be absolutely null and void, and said William Hiclding shall be released from all liability' of any' kind or nature whatever, under or by virtue of this agreement, or of anything herein contained.
    W. IItckling.
    II. Gillett.”
    That pursuant to said agreement, the complainant, on the 1st day of May, 1880, surrendered possession of said premises to McCurdy', and that the latter, on the 30tli day of A pril, 1881, paid Hiclding $1,000 principal, and the interest on said $6,000; that Hiclding and wife thereupon conveyed said premises to McCurdy, and said McCurdy executed to Ilickling his three notes of that date, one for $1,000, due May' 1, 1882; one for $2,000, due May 1, 1883; and one for $2,000, due May 1, 188-1; and also interest notes for the several installments of interest, and secured said notes by a deed of trust on said premises; that said Hiclding died August 25, 1881, leaving a will by which he devised and bequeathed to his wife, Sarah Ann Hiclding, nearly all his estate, worth more than a half million of dollars, over and above his debts, and appointed her his executrix; that said Sarah Ann Hick-ling thereupon took possession of said notes and deed of trust and still holds possession thereof; that said McCurdy has paid said executrix all the interest on said notes up to May 1, 1884; that under said contract, the complainant has an interest in or lien on said note for $1,000, falling due May 1,1882, to the amount of $983 and interest, and that said note was taken and held by said executrix subject to said interest.
    That said Sarah Ann ITickling should, in equity and good conscience, have made reasonable efforts to collect said note and pay complainant his $983 therefrom, and that with reasonable efforts she might have collected the same; that in violation of her duty toward complainant, she has not only failed to use efforts to collect said note, but, combining and confederating with said McCurdy to keep complainant out of said money, she has refused ,to receive the principal of said note from McCurdy, and said to him that she did not want him to pay the principal, but only the interest thereon, and that she has refused to account to complainant for the interest collected on said note; that complainant has applied to said Sarah Ann Hiclding to collect said note and also for his proportion of the interest collected by her thereon, but she lias refused to act or account, and denies that he has any interest therein; that he has applied to her to transfer said note to him, offering to pay her the amount duo thereon, less bis $983 and interest, which she refused to do; that the whole of the principal sum secured by the deed of trust is due; that the complainant has requested said Sarah Ann Hi deling to foreclose said deed of trust, or to join the complainant in a bill for that purpose, but she refuses so to do, or to take any steps to collect said money from said McCurdy.
    The bill prays that the interest of the complainant in said note may be ascertained; that an account may be taken of the amount due from McCurdy on said notes and trust deed, and of the amount of interest collected by said Sarah Ann Hick-ling on said $1,000 note, and of the amount due on said contract; that McCurdy be decreed to pay the amount due from him, and in default of such payment, that said premises may be sold to pay the same, and that the complainant may be decreed to have a lien 'on said premises, and also a general prayer for relief.
    Mr. Frank Baker, for plaintiff in error;
    as to agreement between debtor and creditor that the debt shall be paid ont of a specified fund, cited Rodick v. Gandell, 1 De G. Mc. & G. 763; Riccard v. Pritchard, 1 Kay & J. 279; Buck v. Swazey, 35 Me. 41; Neaze v. Copehard, 8 W. Va. 95.
    As to jurisdiction of equity: Bradley v. Luce, 99 Ill. 243; Lake v. Freer, 11 Bradwell, 576; Jenckes v. Cook, 9 R. I. 520; Coates v. Woodworth, 13 Ill. 654; Johnson v. Johnson, 120 Mass. 461; Davis v. Coburn, 128 Mass. 382; 1st Cong’l So. v. Trustees, 21 Peck. 153; Cooper v. McClun, 16 Ill. 443; Jenkins v. Doolittle, 69 Ill. 402; Trustees v. Gleason, 15 Fla. 384; Jones v. Dougherty, 10 Ga. 289.
    The death of the trustee did not oust chancery of its jurisdiction nor compel complainant to seek his remedy in the probate court: Clapp v. Emery, 98 Ill. 523; Atty. Gen. v. Ill. Agl. Coll. 85 Ill. 520; Allen v. Russell, 78 Ky. 105; Bank v. Brocke, 71 Pa. S. 216; Perry on Trusts, § 38; Curtis v. Smith, 6 Blackf. 543; R. S. Ch. 3,. §70; Farelly v. Ladd, 10 Allen (Mass.) 128.
    Mr. Lyman Trumbull and Mr. H. B. B. Wickersham, for defendants in error;
    that the bill is multifarious, cited Story’s Eq. Pl. §§ 271, 272.
    Where the complainant seeks to recover the value óf a supposed interest in certain property upon an alleged contract by the defendant to pay the same to him, his remedy is at law and not in equity: Stewart v. Mumford, 80 Ill. 192; Douglas v. Martin, 103 Ill. 26; Story’s Eq. Jur. 794.
    If complainant has any claim against the estate of the deceased, having failed to exhibit it to the probate court within two years from the time of granting letters testamentary, the claim is forever barred: R. S. Ch. 3, § 70, p. 7; Harris v. Douglass, 64 Ill. 466; Armstrong v. Cooper, 11 Ill. 561; Freeland v. Dazey, 25 Ill. 296; People v. White, 11 Ill. 341; Reitzell v. Miller, 25 Ill. 64; Wingate v. Pool, 25 Ill. 118; Hall v. Hoxsey, 84 Ill. 616.
   Bailey, J.

According to the case made by the bill, Hick-ling, being the holder of a deed of trust upon certain premises of which the complainant owned the equity of redemption and which he occupied as a residence, entered into a written agreement with him, by which Hickling agreed to have the premises sold under the deed of trust and to become the purchaser, and to allow the complainant to retain possession by paying interest on the incumbrance, with the right, at any time within three years, to redeem the premises by paying the incumbrance and costs of sale; or, if during that time he could find a purchaser, to retain the surplus of the purchase money, after paying said incumbrance and costs. Hickling having obtained title in the manner proposed, the complainant continued in possession for two years, paying interest as agreed, and at the end of that period succeeded in negotiating a sale of the property for a sum sufficient to extinguish Hickling’s claim and have a surplus of $983. This sale being satisfactory to Hickling, was agreed to by him, and the first installment of the purchase money being afterward paid, the premises were conveyed by Hickling to the purchaser, and a deed of trust taken, securing the residue of the purchase money. Of the notes secured by said deed of trust, was one for $1,000, maturing May 1, 1882.

At the time of making the sale Hickling and the complainant executed a second contract, by which Hickling agreed to pay the complainant said sum of $983 out of the principal and interest of the installment of purchase money, payable May 1, 1882, and out of that installment only; and it was also provided that, in case of the failure or refusal of the purchaser to consummate the purchase or to pay that installment, Hick-ling should be released from the payment of said sum to the complainant.

If we consider first, the relations of the parties as they existed prior to the execution of the last mentioned contract, it can not be doubted that Hickling, in becoming the purchaser of the premises at the trustee’s sale under the arrangement alleged in the bill, assumed a trust relation to the complainant. He acquired and held the title in trust, first, as security for his debt, and secondly, to render to the complainant any surplus remaining after such indebtedness should be paid. If the complainant had paid the indebtedness in the manner provided in the first agreement, equity would unquestionably have compelled a conveyance of the premises to him. But having procured a purchaser instead, to whom Hickling sold the premises for a sum sufficient to pay the indebtedness and leave a surplus, Hickling held the surplus in trust for the complainant. Trusts of this character are enforcible in equity.

The case, so far as this question is concerned, is very similar to that of Coates v. Woodworth, 13 Ill. 654. There Wood-worth, being indebted to Tarbox in the sum of 8100, deeded to him certain lands as security for such debt. To pay said indebtedness, Woodworth afterward obtained a loan from Coates and had Tarbox convey the lands to him as security therefor. This loan not being paid at maturity, Coates sold the land for $400 and refused to pay over to Woodworth the surplus after satisfying the loan. Woodworth proceeded in equity against Coates to recover said surplus, and it was held that he was at liberty to pursue his remedy in that forum. On this point the court say: “ It is objected that a court of chancery has no jurisdiction, for the reason that the complainant could have recovered the amount due him in an action at law, for money had and received. Admitting that he might have maintained snch action in this case, that would not deprive this court of its jurisdiction. Chancery always has jurisdiction to enforce a trust, and that is the object of this bill.” We had occasion to examine this question somewhat elaborately in Hubbard v. U. S. Mortgage Co., 14 Bradwell, 40, where a very similar state of facts was presented, and we there reached the same conclusion as to the jurisdiction of equity above announced.

The present case presents stronger grounds for equitable interference than either of the cases above cited. In each of those cases the trustee had reduced the subject of his trust to money, and nothing remained but the payment of the same over to his eestui que trust, and it was not clear in either case that the party had not an adequate remedy at law, by an action for money had and received. But in the present cnse, with the exception of a small amount of interest, no money appears to have come into the hands of the trustee, but the subject of the trust is a security not yet collected. It is manifest, then, that here an action for money had and received would not afford the complainant an adequate remedy.

We are unable to see that the relations of the parties were changed, so as to materially affect this question by the second agreement. That agreement was entered into immediately after the consummation of the contract of sale, and an accounting between the parties to ascertain the amount of the surplus coming to the complainant. It was not an abrogation of the trust relation between the parties, but rather an admission and affirmation of that relation, and it seems to have been entered into principally for the purpose of limiting the trust to a specific installment of the purchase money and of declaring that the trust should be extinguished if that particular installment should fail.

There are very respectable authorities which would justify us in holding that the last mentioned agreement of itself, without reference to the previous relations between the parties, operated as an equitable assignment fro tanto, of the installment of purchase money maturing Hay 1,1889. Thus in Rodick v. Gandell, 1 DeG., M. & G. 736, it is held that an agreement between a debtor and creditor that the debt owin'? should be paid out of a specific fund coming to the debtor, would operate as an equitable assignment of such fund, or as an equitable charge thereon. The same rule is followed in Riccard v. Prichard, 1 Kay & John. 277. Whether this rule is applicable to all cases need not he determined here, but where, as in this case, the agreement not only provides for the payment of the debt out of a specific fund coming to the debtor, but limits the creditor to such fund, and provides that if that fund fails the debt shall be extinguished, it would seem scarcely open to question that the agreement should be held to operate as an equitable assignment, pro tanto, of the fund.

In any view of the case, then, it is clear that Hiclding, at the time of his death, held the note maturing May 1, 1881, and the deed of trust securing the same, in trust for the complainant, and said note and deed of trust having come info the hands of defendant Sarah Ann Hickling, it is equally clear that she thereby became charged with the same trust, whether she holds said securities as executrix or devisee of her deceased husband. It became her duty as such trustee, to perform the trust fairly and in good faith. The bill, however, alleges that instead of doing so, she has colluded with the maker of the note to prevent his paying it, and thus deprived the complainant of his equitable rights therein.

It was the duty of Sarah Ann Hickling to use reasonable diligence in making collection of said note, and paying over the proceeds to the complainant to the extent of his interest therein. This she has wholly failed to do. A court of equity will not permit a trust to fail by reason of the non-feasance or misfeasance of the trustee, but on proper application will take the execution of the .trust into its own hands, and affords relief to the cestui que trust according to the equities of his case. The present bill is framed with a view to such equitable interposition, and there is no reason apparent to us why the case thereby made is not sufficient to warrant the court in taking jurisdiction and administering its relief according to the rights of the parties.

It is claimed that a court of equity should not take jurisdiction because the complainant is entitled to bring his action on the case against the trustee to recover damages for her negligence in not performing the duties of the trust, and thus obtain relief. Without pausing to consider whether such an action would lie, or whether it wou'd furnish the complainant the relief to which he is entitled, it is sufficient to sav that it is not'the law that courts of equity are powerless to enforce and execute trusts which the trustee neglects or refuses to perform, because the trustee may be amenable to an action at law for his negligence. On the other hand, the negligence of the trustee is the very ground upon which courts of equity 'assume jurisdiction to interpose and execute the trust.

Again, it is urged that the bill seeks to enforce a claim against the estate of William Hickling, deceased, and that such claim has never been presented or proved against his estate in the probate court, and is now barred from being allowed by that court by the Statute of Limitations. This point is sufficiently answered, by saying that the bill does not seek to enforce a claim against said estate, and is not within the rules applicable to the presentation and allowance of claims against the estates of deceased persons in the probate court. The bill merely seeks to enforce certain equitable rights, which the complainant claims in a specific security which was held by the decedent in his lifetime, and which is now in the hands of his executrix and devisee.

It is further objected that Sarah Ann Hickling ought not to have been made defendant both as executrix and in her own right; and also that McCurdy and wife, the makers of the note and deed of trust, were improperly-made defendants. The general rule is, that in suits in chancery all persons whose interests may be affected by the decree should be made parties. It is clear that a decree sustaining the complainant’s equitable rights to the note and deed of trust to the extent claimed, would affect the rights of Sarah Ann Hickling both as executrix and devisee; and it is also clear that the makers of a deed of trust are necessary parties to any proceeding in chancery to enforce such security. All of said parties are necessary parties to the bill.

We are of the opinion that the court erred in sustaining the demurrer to the bill, and the decree will therefore be reversed and the cause remanded to the court below, with directions to overrule the demurrer and for further proceedings.

Decree reversed.


author: Wilson, P. J.

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    John N. Wisner et al. v. William M. Kelley.
    1. Attachment writ — Evidence.—As there is no evidence in the record to support the allegations in the affidavit for the attachment, the case is reversed.
    2. Practice. — An objection in this court that no bill of exceptions was filed or tendered until several terms after the trial of the attachment issue, comes too late when the bill of exceptions, containing all the evidence, appears in the record, and no motion was made to strike it out.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed May 29, 1885.
    Mr. T. L. Humphreville, for appellants.
    Mr. E. B. Sherburne, for appellee.
   Wilson, P. J.

This is an appeal from a judgment rendered in favor of appellee against appellants in an attachment suit, for $649. The causes set out in the affidavit for the attachment were (1), that the defendants were about to remove their property from the State, to the injury of the plaintiff, and that they were about to depart from the State with the intention of having their effects removed therefrom; (2) that they were about to fraudulently conceal or assign or otherwise to dispose of their property or effects so as to hinder or delay their creditors.

The defendants pleaded in abatement to the attachment, traversing the allegations of the affidavit, on which issue was joined. To the declaration, which was in assumpsit for an alleged indebtedness by the defendants to the plaintiff, they pleaded the general issue, with notice of set-off. These issues were tried separately. On the issue of indebtedness the plaintiff had a verdict and judgment for $649.

As to the issue of indebtedness, it is sufficient to say we have carefully examined the record, and we are uuable to say that the verdict is not supported by a preponderance of the evidence. Appellee’s claim was for rent of barn, boarding and stabling horses, wages, and money loaned at different times. Appellants claimed offsets for money paid at various times, for injury to appellant’s horse while in appellee’s possession, etc. The true state of the account between the parties was an appropriate subject for the jury to adjust under the evidence, and we are not inclined to disturb their finding. The judgment on that issue is affirmed.

There were four trials of the attachment issue, in the second of which the jury disagreed, and in the other three there W'ere verdicts for the plaintiff, of which the court set aside two, on motion of the defendants, and refused a new trial in the fourth. It is insisted by counsel for appellee that, under section 56 of the Practice Act, which provides that no more than two new trials upon the same grounds shall be granted to the same party in the same cause, the circuit court having already granted two new trials on appellants’ motion, properly denied the third. It is sufficient to say that the record nowhere discloses the grounds upon which the two former new trials w'ere allowed. For aught that appears, they may have been allowed for errors in the admission or rejection of evidence, or misdirections to the jury, or for other errors. We can not assume that the grounds were the same as those relied upon in support of the last motion for a new trial.

As to the attachment issue, we have searched the record in vain for any evidence to support the allegations of the affidavit. There was no evidence tending to show that the defendants were about to depart the State with the intention of having their effects removed therefrom, nor that they were about to depart the State. The plaintiff and one Jacobs were the only witnesses sworn on the part of the plaintiff, but neither of them gave any testimony tending to prove that allegation.

Equally barren of proof was the allegation that the defendants were about to fraudulently conceal, assign, or otherwise dispose of their property, to hinder or delay their creditors. It appears that, desiring to go out of the livery business, the defendants were looking about for a place to get board for their horses, to be kept until they could sell them. At the suggestion of appellee they wrote to a Mr. Merrill, of Crown Point, Ind., requesting him to ascertain what he could get them kept for per week, and have them so fed as to keep them in selling condition, Receiving no answer to this letter, appellants sent Jacobs to Prospect Park, a few miles from the city, to see if an arrangement could be made with Mr. Stacey for their keeping. The day before the attachment was issued, Jacobs reported to appellants that he had arranged with Mr. Stacey for the keeping of the horses. In all this there was no attempt at concealment, and everything appears to have been done with the knowledge and consent of appellee. It further appeared that appellants were the owners of unincumbered real estate in the county of Cook, which was ample to have satisfied appellee’s demand.

Moreover, on the day preceding the issue of the attachment the parties were endeavoring to adjust their matters, and appellants offered to turn over to appellee the horses in question? together with some oilier property, in payment of his demand, but they disagreed as to the valuation put upon the property by appellee; whereupon appellee, on the following morning, sued out the writ. This is a brief summary of the evidence, and we are wholly at a loss to perceive in it any foundation for the attachment.

We also find numerous errors in the giving and refusing of instructions, which it is unnecessary to consider.

It is objected by appellee that no bill of exceptions was filed or tendered until several terms after the trial of the attachment issue. It is enough to say that the bill of exceptions, containing all the evidence, appears in the record, and no motion was made to strike it out. The objection comes too late.

The judgment of the circuit court on the attachment issue is reversed.

Reversed.


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    Mrs. E. Marsh v. James B. Dingman.
    Appeal — Jurisdiction.—The circuit court has no jurisdiction to dismiss an appeal in tne absence of a transcript from the justice, without the consent of the appellant, and such jurisdiction is hot acquired by ruling the appellant to file the transcript within a designated time.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 29, 1885.
    Mr. Lyman H. Paine, for appellant;
    as to jurisdiction, cited Camp v. Hogan, 73 Ill. 228; O. F. B. Soc. v. Alt, 12 Bradwell, 570; Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 Ill. 477; McMullen v. Graham, 6 Bradwell, 239; Steinborn v. Thomas, 8 Bradwell, 515; Schmidt v. Skelly, 10 Bradwell, 564; Andrews v. Esher, 14 Bradwell, 67.
   Wilson, P. J.

The plaintiff below, James B. Dingman, recovered a judgment against the defendant, Mrs. E. Marsh, before a justice of the peace, for the sum of $48.30 and costs, from which judgment the defendant took an appeal to the circuit court by filing her appeal bond in the office of the clerk of that court. Ho appeal summons was issued by the clerk, nor was any transcript of the proceedings before the justice filed in the circuit court. Several terms after the filing of the appeal bond, the plaintiff entered his appearance in writing in the circuit court, and on his motion the defendant was ruled to file the appeal papers in the circuit court within ten days. The defendant having failed to comply with the rule, the court, on motion of the plaintiff, dismissed the appeal at the defendant’s costs, and awarded a jprocedendo to the justice of the peace.

We have repeatedly held that the circuit court has no jurisdiction to dismiss an appeal in the absence of a transcript from the justice, without the consent of the appellant, and that such jurisdiction is not acquired by ruling the appellant to file the transcript within a designated time. Schmidt v. Skelly, 10 Bradwell, 564; Bonfield v. McGreavy, Id. 577; Andrews v. Esher, 14 Id. 68. And such has been the uniform ruling of the Supreme Court. Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 Ill. 477.

The present case falls directly within the rule announced in those cases.

The judgment below is reversed and the case remanded for further proceedings.

Reversed and remanded.


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    Seth F. Hanchett v. George C. Mansfield et al.
    1. Assumption of facts — Instruction.—The assumption by the court in an instruction of the existence of a particular, material but controverted fact, is prejudicial error.
    2. Sale — Fraud.—The purchase of goods with the intention, at the time, not to pay for them, is fraudulent, and such intent may be found from the acts of the purchaser after the sale.
    3. Instructions. — Where the court instructed the jury that certain acts subsequent to the sale, which were specified, were fraudulent, and entitled the plaintiffs to rescind a previously made contract of sale. Held, erroneous. To constitute the fraud there must be a preconceived design never to pay for the goods.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 29, 1885.
    Tins was replevin by Mansfield & Co., appellees, merchants doing business at Johnson’s Creek, in the State of Wisconsin, against appellant as sheriff of Cook county, to recover a quantity of cheese which the former had sold and shipped from their place of business in Wisconsin, to Fay & Conkey, then wholesale grocers doing business in the city of Chicago, and which had been seized by the said sheriff under writs of fi.fa. against said Fav & Conkey. Issues were joined on the pleas of non cepit, property in Fay & Conkey and of justification under said writs. On the trial the plaintiffs gave evidence tending to show that before the sale of the cheese Con-key had represented that liis firm was worth one hundred thousand dollars; that on the faith of it, November 15,1882, the plaintiffs sold the firm one hundred and fifty cheese which were shipped and delivered Nov. 21,1882; that Dec. 15, 1882,' the plaintiffs sold them one hundred and fifty more cheese, which were shipped in two lots, one January 15,1883, and the other January 17, 1883, none of which was paid for; that the said representation by Conkey was false, and the firm was, in fact, insolvent when it was made. Conkey denied making that or any such representation. The court gave, amongst others, the following instructions to the jury:
    3. “The jury are further instructed on the part of the plaintiffs, that if they believe from the evidence Fay & Con-key, at the time they received the cheese at the railroad depot in Chicago, and took them to their store and placed them therein with their other goods, knew that they were then unable to pay for them, this would constitute such a fraud, under the circumstances, that would enable the plaintiffs to rescind the contract of sale to defendants and recover in this action, although said Fay & Conkey might have thought they were able to pay for said goods at the time they made said contract of purchase and representations that they were able to pay for them.”
    4. “ And if the jury find from the evidence that at the time Fay & Conkey received the first shipments of the cheese, they thought they were able to, and expected to, pay for them but that at the time they received and placed in their store the last shipment of the cheese in controversy, they knew they could not pay for that shipment, or did not intend to pay for that shipment, then the jury may find for the plaintiffs as to any of the cheese in that shipment which they find to have been taken by the plaintiffs under the replevin writ in this case, even though they should find in favor of defendants as to part or all of the cheese received by them in prior shipments.”
    The jury found the issues for the plaintiffs, and the court gave judgment on the verdict.
    Messrs. Flower, Remy & Gregory, and Mr. H. K. Tenney, for appellant;
    that there must be a preconceived design not to pay for the goods, cited Burrill v. Stevens, 73 Me. 395; Nichols v. Pinner, 18 N. Y. 295; Wright v. Brown, 67 N. Y. 1; Talcott v. Henderson, 31 Ohio St. 162; Garbutt v. Bank of Prair e du Chien, 22 Wis. 384; Henshaw v. Bryant, 4 Scam. 97; Johnson v. Monell, 2 Keyes, 655; Devoe v. Brandt, 53 N. Y. 462.
    Messrs. McCoy, Pope & McCoy, for appellees;
    cited Lockridge v. Foster, 4 Scam. 573; Mitchell v. McDougall, 62 Ill. 498; Thorne v. Prentiss, 83 Ill. 101; Ruff v. Jarrett, 94 Ill. 479; Holdom v. Ayer, 110 Ill. 452; Allen v. Hart, 72 Ill. 104; Mervin v. Arbuckle, 81 Ill. 501; Linington v. Strong, 111 Ill. 160; Kerr on Fraud, p. 55, (Bump’s Ed.); 2 Benjamin on Sales, p. 736, § 853; Stone v. Denney, 4 Met. 158.
   McAllister, J.

It was a controverted, material question of fact upon the trial, whether or not Conkey made the false representation as to the ability of his firm to pay for the cheese which plaintiffs below claimed that he did make, and which induced the sale. But, by the third instruction given to the jury at the instance of the plaintiffs, the court is made to assume as fact, the making of such representation. Such assumption by the court, in an instruction, of the existence of a particular, material, but controverted fact, has been so repeatedly condemned by the Supreme Court, that it is needless to cite the cases. That of itself must be regarded as prejudicial error. But the instruction announces the rule of law, that if the purchasers of the cheese had, 'after the sale, become insolvent and unable to pay for them, but that if, with knowledge of such insolvency and inability to pay for them, they received the cheese at the railroad depot, took them to and placed them in their store with their other goods, this would constitute such a fraud as would enable the plaintiffs to rescind the contract of sale and recover the goods in replevin.

The fourth instruction is, in substance, that if Fay & Con-key, at the time they received the first shipments of the cheese, thought they were able to, and expected to pay for them, but that at the time they received and placed in their store the last shipment in controversy, they knew they could not pay for that shipment, or did not intend to pay for that shipment,- then the jury might find 'for the plaintiffs as to that shipment, even if they found for the defendants as to prior shipments.

The plaintiffs’ own evidence shows that all these shipments were made under, and in pursuance of previous contracts of sale between them and Fay & Conkey.

Ho authorities have been cited in support of the rule embodied in either of these instructions, and we venture the assertion that none can be found.

In Catlin v. Warren et al., at this term, the question was before us as to the true rule in such case, and we found from the cases, that to constitute the fraud there must be a preconceived design never to pay for the goods. That 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 form of an apparent sale. Burrill v. Stevens, 73 Maine, 395. Or, as the rule is stated by some'courts, the purchase of goods with the intention, at the time, not to pay for them, is fraudulent, and such intent may be found from the acts of the purchaser after the sale. Bowen v. Schuler, 41 Ill. 192. Had the instructions in the case at bar directed the jury that they might take into consideration the acts of Fay & Conkey, after the sale which was referred to, in determining the question whether, at the time of the sale, they had a preconceived design never to pay for the cheese, or whether they bought the same with the intention, at the time of the sale, not to pay for them, the instructions would have been correct. But as they were given, the acts subsequent to the sale, which were specified, were declared by the court to he fraudulent and to entitle the plaintiffs to rescind a previously made contract of sale. For the giving these instructions, the judgment must he reversed and the cause remanded.

Judgment reversed.