author: Pillsbury, J.

text:
    John D. Cameron v. James Stratton.
    1. Attoeney and client — Authoeity ®f attoeney of eecoed.— In the absence of notice that the authority of an attorney, appearing as such upon the record of the cause, is limited, the presumption that he possesses all the general powers of an attorney implied by the law from the relation he sustains to the cause in court as appearing from the record, is conclusive in favor "of the party relying upon such evidence of the extent of his authority.
    2. Authoeity of attoeney not of eecoed, hieed foe specific woee. — When an attorney is only called upon to perform some specific service and does not identify himself with the record of the cause, and does only the particular work which he was retained to perform, his implied authority to bind his client would be limited to the proper conduct of the specific work intrusted to him. And a party dealing with such attorney outside of the particular service in which he is engaged, does so at the peril of being able to show express authority for the act done by him.
    3. Ratification. — Where an attorney, not of record, who had been hired to do some specific work in a case, had stepped outside of his authority and collected the amount of the judgment and costs and absconded, the fact that the party hiring him, being informed that he had collected such money, went to him to obtain it, could not be considered as a ratification of such attorney’s act in receiving it.
    Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Opinion filed February 29, 1884.
    Cannon, by his attorneys,'[Foster and Raum, commenced his action in the circuit court, against the defendant Stratton; Foster and Ranm were his only attorneys of record. Afterward he employed Mr. Edwards to assist them. When the cause was reached for trial, Foster and Raum, for some reason not shown by the record, could not try the cause, and Cannon thereupon made a special agreement witli one Loucks to assist Edwards in trying the cause before the court and jury for a fee of $20, which was then paid to him. Loucks’ name was not entered upon the records of the court as the attorney of Cannon. As between Cannon and Loucks the relation of attorney and client ceased when the cause was tried. A judgment was rendered for the plaintiff, and Mr. Edwards was authorized by the plaintiff to attend to its collection.
    About one month after the rendition of the judgment^ Loucks obtained from the clerk of the court a statement showing the amount of the judgment, costs and interest, to which was attached a request of the clerk that the defendant would satisfy the costs as soon as possible and avoid any further expense.
    This statement was taken by Loucks to J. A. Cameron, the attorney of the defendant, and obtained from him a written request to the defendant to pay Loucks the amount of the judgment. Stratton then paid to Loucks $253.50, the amount of judgment and costs, and took a receipt from him for the same signed by Loucks in the name of Loucks and Edwards, having, however, no authority to sign Edwards’ name. Loucks absconded without paying the money to Cannon, and Cannon, repudiating the action of Loucks, sued out execution on his judgment, and the court below, upon the motion of Stratton, quashed the writ, and Cannon appealed to this court.
    The only question presented is whether the payment to Loucks was a satisfaction of the judgment.
    Messrs. Quinn & Sheen, for appellant;
    as to agency, cited Butcher v. Beckwith, 45 Ill. 460; Thompson v. Emmert, 15 Ill. 416; Nolan v. Jackson, 16 Ill. 274; Trumbull v. Nicholson, 27 Ill. 150; Ruckman v. Alwood, 44 Ill. 185.
    Mr. James A. Cameron, for appellee.
   Pillsbury, J.

The defendant, in paying the money to Loucks, takes the burden of showing that Loucks was authorized to receive it. This authority may be expressed or implied. 3STo express authority being shown or claimed to exist, the question is whether from the facts and circumstances proven, the law will imply the authority to receive the money in satisfaction of the judgment.

All the cases agree that an attorney of record, retained to prosecute a suit at law for his client, has authority to receive the money recovered, and enter satisfaction of the judgment upon the records of the court, thus completing the judgment roll.

By thus retaining the attorney and allowing'him to'appear as such upon the records, he holds him out to the-defendant as having the authority conferred upon such attorneys, and the defendant will be justified in so dealing with him until he receives actual notice that such authority has been revoked, or is limited by the terms of his contract with his client.

In the absence of notice that the authority of an attorney, appearing as such upon the record of the cause, is limited, the presumption that he possesses all the general powers of an attorney implied by the law from the relation he sustains to the cause in court, as appearing from the record, is conclusive in favor of the party relying upon such evidence of the extent of his authority.®

Does the law, however, imply that a client invests his attorney with any such general power and authority when he is only employed to ,do some particular act in connection- with the cause in court, such as assisting the attorney of record in arguing a demurrer, a pending motion, or even in trying the cause before the jury? We have not been able to find any case that goes to this extent.

Indeed, when an attorney is only called upon to perform some specific service, and does notjidentify himself with the record of the cause, and does only the particular work which he was retained to perform, it would seem that his implied authority to bind his client would be limited to the proper conduct of the specific work intrusted to him.

The law certainly recognizes a distinction between the powers implied from a general retainer, to commence, prosecute and control a cause until judgment is rendered, and for special employment for a special purpose, and upon the full consideration of all the authorities that we can find, bearing upon the question, as well as the reasons upon which they are based, we think the line must be drawn between them as attorneys of record in the cause, and those not of record; that with the former the defendant may safely treat upon all matters within the scope of his apparent authority, until notice to the contrary; with the latter, outside of the particular service in which he is engaged, he deals at the peril of being able to show express authority for the act done by him.

This conclusion is believed to be fully sustained by the following cases: Succession of Bar, 8 La. An. 458; State, for use, etc., v. Hawkins, 28 Mo. 366; McCarver v. Nealey, 1 Green, Ia. 360; Seymour v. Haines, 104 Ill. 557; Weist v. Lee, 3 Yeates (Pa.), 47; Hill v. Mendenhall, 21 Wall. 454.

It is suggested that Cannon, when informed that Loucks had collected the money, went to him to obtain it, and that this was a ratification of his act in receiving the mqney.

We do not think this act can have the effect claimed.

Without doubt he would have taken the money from Loucks, or any one else who chose to pay it, but it can scarcely be said that calling upon Loucks to ascertain the-facts, and even asking him for the money, would make the payment to Loucks rightful, if otherwise it was wrongful.

From the best consideration we have been able to give the case, we are of the opinion that the court below should have overruled the motion to quash the execution, and as this was not done, the order of the court will be reversed and the cause remanded.

Order reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph White v. Frank Gale.
    1. Where no written pleadings are required, right to recoyer on dependant’s theory. — Where no written pleadings are required, there can he no valid objection in permitting a plaintiff to adopt the view of the defendant as to the terms of a contract and where the plaintiff has claimed an absolute contract, he may be allowed to establish a liability upon a conditional contract as made out by defendant’s theory of the case.
    2. Instructions. — An instruction that “the law requires the plaintiff to make clear and satisfactory proof of the contract, as claimed by him; therefore if you believe the evidence in this case is'such as to leave the real terms of the contract between the parties in doubt, the plaintiff can not recover.” Held, that the degree of proof required by this instruction in order to entitle plaintiff to recover is greater than required by law. If the preponderance of the evidence is in favor of plaintiff’s version of the contract, the jury should so find, although they may have had some doubt concerning it.
    Error to the County Court of Stephenson county; the Hon. Henry C. Hyde, Judge, presiding.
    Opinion filed February 29, 1884.
    This action was instituted by tbe plaintiff in error before a justice of the peace of Ogle county, to recover of the defendant in error damages for a failure to deliver his crop of clover seed raised in 1879, upon an alleged contract made in September, 1879. The plaintiff in error recovered before the justice and the defendant appealed to the County Court of Ogle comity. The venue was changed to the County Court of Stephenson county, and upon a trial before the court and jury, a verdict and judgment were rendered for the defendant, and the plaintiff appealed.
    The plaintiff gave evidence tending to prove that in September, 1879, the defendant sold and agreed to deliver to the plaintiff his crop of clover seed for $3.70 per bushel if delivered in September, or $3.60 per bushel if delivered during tbe month of October; that he was ready and willing to receive the same and able to pay for it, but tbe defendant refused to deliver it; and also the damages sustained by him. The defendant does not deny the contract of sale but claims, and introduced evidence tending to show, that a condition was attached to the contract to the effect that he would deliver the seed “ if he could get it hulled.” As an excuse for not delivering the seed, he claimed and gave evidence in support thereof, that he could not, by reasonable diligence, comply with the condition.
    Mr. J. O. Garver and Messrs. Mere & Stearns, for plaintiff in error;
    as to instructions, cited Evans v. George, 80 Ill. 51; Martin v. Johnson, 89 Ill. 537; Hatch v. Marsh, 71 Ill. 390; Chesney v. Meadows, 90 Ill. 430; Frame v. Badger, 79 Ill. 441; Ottawa, O. & F. R. V. R. R. Co. v. McMath, 4 Bradwell, 356; Herrick v. Gary, 83 Ill. 85.
    Mr. hi. O. Warner and Mr. J. O. Seyster, for defendant m error;
    that the plaintiff in error can not take inconsistent or contradictory positions, cited Thompson v. Howard, 31 Mich. 369; Jewett v. Pettit, 4 Mich. 508; Rodemund v. Clark, 46 N. Y. 354; Kellogg v. Turpie, 2 Bradwell, 61.
    Although written pleadings were not required in this case, still the proof must be confined to the demand set up: The People v. Oneida Co., 21 Wend. 21.
   Pillsbury, J.

It is claimed by defendant in error that no recovery can be had by the plaintiff unless he establishes an absolute contract as claimed to exist by him, even though it should appear that the defendant was liable upon his owp theory of the case. In this we can not concur.

One of the objects of the statute in dispensing with written pleadings before justices of the peace, is to enable the parties to obtain a trial upon the merits of the case; and in cases thus commenced and prosecuted, all the evidence introduced bearing upon the real transaction claimed to exist between the parties should be considered, and if it shows a right of recovery, the plaintiff should not be defeated upon the mere technicality that the evidence of the defendant rather than that of the plaintiff establishes the true contract and its breach.

The cause of action is the failure by defendant to deliver his clover seed as agreed, and the mere fact that the plaintiff claims the contract was an absolute one would not deprive him of his action, if the whole evidence shows a right of recovery. Besides, where no written pleadings are required, there can be no valid objection in permitting a plaintiff to adopt the view of the defendant as to the terms of the contract, and to establish a liability upon the defendant’s theory of the case.

Tire eighth instruction given for the defendant is clearly erroneous, and scarcely defended by counsel. It is as follows:

“The law requires the plaintiff to make clear and satisfactory proof of the contract, as claimed by him; therefore, if you believe the evidence in this case is such as to leave the real terms of the contract between the parties in doubt, the plaintiff can not recover.”

The degree of proof required by this instruction in order to entitle the plaintiff to recover is greater than required by law. Under this instruction, if the jury entertain any doubt upon the terms of the contract, they were obliged to find for the defendant. If the preponderance of the evidence is in •favor of the plaintiff’s version of the contract, the jury should so find, although they may have some doubt concerning it.

Instructions of this character have been frequently condemned by the courts of this State. Ruff v. Jarrett, 94 Ill. 475; Protection Life Ins. Co. v. Dill, 91 Ill. 174.

The eleventh instruction for the defendant was calculated to mislead the jury, as it conveys to them the idea that certain statements of the defendant were made in casual conversation with the witnesses.

The jury should be left free to find from the evidence the character of such conversations, and the weight to be given to any statement proved to have been made by the defendant. Cutler v. Callison, 72 Ill. 113; Straubher v. Mohler, 80 Ill. 21.

Without expressing any opinion upon the weight of the evidence, we reverse the judgment of the county court, and remand the cause for the errors indicated.

Judgment reversed.


author: Pillsbuby, J.

text:
    Sheldon W. Allen v. A. Jacobi et al.
    1. Selling goods to minor on credit — Liability of father. — A merchant sells goods to a minor upon the credit of the father, at the risk of being able to show express authority in the child to make the particular purchase, or facts and circumstances from which the law will imply such authority or a promise to pay for them.
    2. Parent and child — Duty of parent. — A father is under the natural obligation to furnish his child with necessary and suitable wearing apparel if he be of sufficient ability, and if he neglect this duty, any one can supply the child, and the law in such case will imply a promise upon the part of the father to pay for such supplies and he will not be heard to allege the contrary. But if he has not been derelict in this duty no one has the right to charge the father with supplies for the child, which such person or the child may judge he needs, without authority from the parent so to do.
    Appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Opinion filed February 29, 1884.
    Fred, a minor son of appellant, living at home with his parents, but working «in the railroad shops and generally drawing his own pay, went to appellees, who were clothing merchants, and told them his father had sent 'him for a suit of clothes, and purchasing a suit worth $25, had them charged to his father. Two' or three days after, he went back and obtained a pair of shoulder braces for seventy-five cents, and these were also charged to appellant. The boy within a few days left his home without his father’s knowledge, taking the clothes with him.
    Upon being informed, about a month after, by Jacobi, of the purchase by his son upon his credit, the appellant repudiated the action of the boy, and refused to pay the amount charged against him, denying the authority of the boy to buy anything upon his credit.
    This suit was brought to collect the sum thus charged, and the appellees recovered in the court below, and defendant brings the case here by appeal.

      Messrs. Davis & Thompson, for appellant;
    that a father is bound to support his wife according to his means, but not his children, and it is only in a suit for goods sold a wife that a man?s financial condition is material and proper for the jury to know, cited 1 Parsons on Contracts, 305; Gordon v. Potter, 12 Vt. 350; Hunt v. Thompson, 3 Scam. 180; Gotts v. Clark, 78 Ill. 229; Clark v. Gotts, 1 Bradwell, 158.
    Messrs. MoKenzie & Calkins, for appellees;
    that slight circumstances will sometimes suffice to raise the presumption of an implied promise, cited Thayer v. White, 12 Met. 343; Miester v. Cleveland Dryer Co., 11 Bradwell, 227; Tyler on Infancy, 106; Dean v. Annis, 14 Me. 26; Clark v. Gotts, 1 Bradwell, 458.
   Pillsbuby, J.

The evidence in this record is entirely insufficient to establish the liability of the defendant below to pay the account charged to him.

Aside from the statement of the son that his father sent him for the clothes, there is no evidence that such was the fact. This statement was not competent evidence to prove authority to pledge his father’s credit, and his statement when he came after the braces, that his father was well pleased with the suit, was alike incompetent to prove the fact, it being mere hearsay.

The testimony of the defendant below is clear and undisputed that he never allowed his son to purchase anything upon his credit; that when any of the children were sent to buy any merchandise, the money was also sent to pay for it; that he fan no accounts with any one; that his son Pred was not sent to buy the goods in question, and that he never saw them until the return of his son from the west, when they were nearly worn out; that he kept Pred suitably and comfortably clad, and that the suit was not necessary for his comfort.

The appellee, Jacobi, admitted that appellant always paid cash when he bought anything of them; that this was the first charge they ever made against him, and that he sold the goods because he supposed Pred was telling the truth, and not because the boy was suffering for them.

A merchant sells goods to a minor upon the credit of the father, at the risk of being able to show express authority in the child to make the particular purchase, or such facts and circumstances from which the law will imply such authority, or a promise to pay for them.

The father is under the natural obligation to furnish his child with necessary and suitable wearing apparel, if he be of sufficient ability, and if he neglect this duty any one can supply the child, and the law in such case will imply a promise upon the part of the father to pay for them, and he will not be heard to allege the contrary; but if he has not been derelict in his duty, no one has the right to charge the father with supplies for the child that he or the child may judge that the child needs, without authority from the parent so to do. Hunt v. Thompson, 3 Scam. 160; Gotts v. Clark, 78 Ill. 227.

To hold that the parent is concluded by the fancied need of the child, or the judgment of the tradesman of his wants, without inquiry or investigation as to the real necessities of the minor, would be putting the father’s means at the disposition of those who might feel disposed to benefit themselves at his expense.

In this case the boy had no authority in fact to buy the goods; the necessities of the case were not such as justified the appellees in selling to the boy upon his father’s credit without such authority.

Having reached this conclusion it is unnecessary to notice the errors assigned upon the action of the court in admitting evidence, and the giving and refusing instructions. As there can be no recovery in this case, we reverse the judgment.

Judgment reversed.


text:
    George W. Foote v. The People, use, etc.
    1. Levy — Elements oe estoppel. — Where the officer levied upon certain goods packed in a box, as the goods of appellee’s mother, and the box contained some goods belonging to appellee, a minor, as well as the mother's goods. Held, that as there is no evidence in the record that appellee packed his goods with those of his mother with the fraudulent intent to mislead any one, or did any act to induce the officer to levy upon and sell the goods, the principal element of an estoppel is wanting. The officer levied upon the goods at the peril of showing they were the property of the defendant in the writ.
    2. Excessive damages. — The verdict in this case must be reversed, as the judgment exceeds the estimate of the value of the property as contained in appellee’s schedule.
    Appeal from the Circuit Court of Xu ox county; the Hon. Arthur A. Smith, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. W. C. Calkins, for appellant;
    that if the act of a party is calculated to mislead, and actually does mislead another acting upon it in good faith and exercising reasonable care and diligence under all circumstances, such party is estopped, cited Manfs. Bk. v. Hazard, 30 N. Y. 226; Amonett v. Young, 14 La. Ann. 175; Bigelow on Estoppel, 501; Hoxie v. Home Ins. Co., 32 Conn. 21; Noble v. Chrisman, 88 Ill. 186; Lloyd v. Lee, 45 Ill. 277; Brooks v. Record, 47 Ill. 30; Buckingham v. Hanna, 2 Ohio, 551.
    The verdict was against the weight of evidence: I. C. R. R. Co. v. Chambers, 71 Ill. 519; Harms v. Harms, 10 Bradwell, 543; McGregor v. McDevitt, 64 Ill. 261.
    Messrs. Willoughby & Dougherty and Mr. F. S. Murphy, for appellee;
    as to estoppel in the case of a minor, cited Bigelow on Estoppel, 486; Kane Co. v. Herrington, 50 Ill. 238; Schnell v. Chicago, 38 Ill. 382; Davidson v. Young, 38 Ill. 148.

      As to the liability of an officer on an execution against one person, seizing by mistake the goods of another: Davis v. Jenkins, 11 M. & W. 745; Screws v. Watson, 48 Ala. 628; Duke v. Vincent, 29 Ia. 308; Wintringham v. Lafoy, 7 Cow. 735; Wellman v. English, 38 Cal. 583; Jarvin v. Hooper, 6 M. & G. 827.
   Pillsbuby, J.

This record shows that Mrs. Erancis Major, the mother of the J. it. Major for whose use this suit is brought, on or about October .4, 1877, moved from Warren county in this State to Ohio, and packed her goods in two boxes for the purpose of having the same shipped by rail to her destination, and delivered the goods to the railroad agent, marked to Levi Morgan, Bridgeport, Ohio. Mrs. Major being indebted to one Pay, he sued out an attachment writ from a justice of the peace, which was levied upon the two boxes of goods and sewing machine then in possession of the carrier. Judgment being obtained by Eay, sufficient of the goods were sold by the constable, Smith, to satisfy the judgment, and the remainder shipped to Morgan.

Mrs. Major, claiming the goods as exempt, sued this same appellant, who was security upon Smith’s official bond, and recovered in the circuit court, and her judgment was afterward reversed in this court: Foote v. The People, 12 Bradwell, 94; and then the son instituted this suit, claiming to be the owner of some of the articles in the two boxes seized by Smith.

A verdict was rendered in his favor, whereupon he entered a remittitur of $50 and the court entered judgment for the remainder, $205.50, and the surety, Eoote, appealed.

The evidence shows that Mr. Major resided with his mother in this State, and was at the time they removed but seventeen years old, and the question was made whether as a minor he had any ownership in the property claimed by him in this suit.

This issue was submitted to the jury under instructions, to which counsel urge no objection, and the verdict must be taken as settling that question in his favor.

The goods of the appellee, Major, were put in the same boxes with those of his mother for convenience in shipping, and it is insisted that the constable having a right to seize the goods of the attachment debtor, and he having no means of distinguishing the goods of the one from those of the other, the appellee, Major, ought to have notified the officer that he claimed the goods, and selected those owned by him, and as he did not do so he should be held estopped.

There is no evidence in the record that he packed his goods with those of the mother with a fraudulent intent to mislead any one, or did any act to induce the officer to levy upon and sell the goods, and in such case the principal element of an estoppel is wanting.

The officer levied upon the goods at the peril of showing they were the property of the defendant in the writ, as the writ could not justify him in seizing or selling those of a third party.

The judgment must, however, be reversed upon the ground that the damages are excessive.

The deposition of Major, taken in Ohio, has a schedule attached of every article put in the boxes that he claimed to own, with his estimate of the value of each item, which being added shows that the value of the entire property is less than the judgment by some eight dollars, which necessarily works a reversal of the judgment.

Besides, the evidence shows that some of the goods were shipped to their destination after the sale, and Major does not deny receiving them, and we think it but a fair presumption that he did get them, in which case the appellant should not be charged with their value.

The estimated value of the articles as made by Major appears to be extremely high and would scarcely justify a finding for such sums when the other evidence is taken into consideration.

So far as the act of the court is questioned in giving and refusing instructions, we find no ground of complaint; but it is suggested that upon another trial the second instruction in this case should not be given, as it tells the jury to find for the plaintiff, if he did no act to mislead the officer, without requiring any proof of the other facts necessary to a recovery.

For the reason stated the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Lavina L. Orvis v. M. H. Cole.
    1. Error in re-instating cause — Time to take advantage of.— Where orders re-instating a canse were entered in vacation and term time, after the term had passed at which the cause had been dismissed for want of prosecution, and defendant in error, after the cause was re-instated in term time, without any objection1 to such action of the court, applied for and obtained leave to withdraw his answer, theretofore filed, and interposed a demurrer, which the court sustained. Reid, that defendant in error, having treated the cause as still pending in the court below, can not now be heard in this court to urge an affirmance of the decree dismissing the bill, upon sustaining the demurrer, upon the ground that the cause was improperly reinstated.
    2. Irregularity in filingTsupplemental bill — How advantage should be taken of. — If there was any irregularity in this case in filing the supplemental bill and tbe amendment to the original bill, without leave of court, had in term time, advantage of it could not be taken by demurrer, but a motion should have been entered to strike it from the files. This not being done, when the cause was re-instated such supplement and amendment became a part of the record, the same as though the cause had not been out of court.
    8. Mortgage — Bill to foreclose — Necessary parties. — Where . complainant was the owner of a large part of certain premises and a deed of such premises, absolute on i's face, was made by her and her husband to defendant, but this conveyance was a mortgage and was so treated by defendant in bis bill to foreclose, and complainant was not made a party to such foreclosure proceedings, she could not be affected by any decree rendered in said cause. Her equity of redemption would still subsist, and if she offered to pay defendant the amount of tbe mortgage debt, which be refused to receive, she would be entitled to tbe interposition of a court of. equity.
    Error to the Circuit Court of McHenry county; the Hon. Charles Kellum, Judge, presiding.
    Opinion filed February 29, 1884.

      This bill in equity was filed by the plaintiff in error, the wife of Samuel 1. Orvis, against the appellees, praying for an injunction and for general and special relief.
    Briefly stated, the allegations of the bill are, that appellant was the owner by inheritance from her father, of the south 113 acres of a certain quarter section of land, and that she became the purchaser with her own means, of the north 49 acres of the same quarter, but the deed therefor was taken to herself and said Samuel, her husband, jointly. That for twelve years said premises had been the homestead of herself and family, and was still occupied as such. That on or about the 17th day of July, 1876, she and her husband conveyed said premises by deed absolute upon its face, but in reality, by way of mortgage to Miles H. Cole, to secure the payment of about $3,807.
    That said Cole, at the September term, 1878, of the McHenry Circuit Court, exhibited his bill to foreclose said mortgage, making the said Samuel the party defendant, and obtained a decree of foreclosure against him for $3,870.15, and an order for the sale of said premises. That the master in chancery sold the same under said decree to said Cole in full satisfaction of said decree, and not being redeemed, the master executed to Cole a deed for the premises.
    She then claims by her bill that the mortgage was paid by such sale, and her interest in the land discharged, and as she was not a party to the proceedings to foreclose, the decree is not binding upon her, and that as against her title the deed of the master is void, and should be removed as a cloud.
    Further shows that Cole procured a writ of assistance to issue in said proceedings to put him in possession of said premises, but as she was not a party such writ was practically useless to him, and he thereupon commenced a suit of forcible detainer against her and her husband before appellee Baldwin, a justice of the peace, and obtained judgment, and threatens to sue out a writ of possession and will do so unless enjoined. That the judgment against her and her husband before said justice was based upon a lease of said premises made by Cole to her husband after the execution of the deed to him.

      The judge of the circuit court refused an injunction upon the bill, and on the 29th of September, 1880, in term time, the complainant asked for and obtained leave to file an amended and supplemental bill. Cole filed his answer to the original bill, and the case was continued to the next term.
    At the next term of court the solicitor of complainant withdrew his appearance, and upon defendant’s motion the suit was dismissed for want of prosecution. In vacation after said term, the complainant applied to the judge of said court for an order re-instating said cause, and renewed her application to file amended and supplemental bill. An order was signed by the judge granting her application, which was filed with the clerk, and thereupon the complainant filed a supplemental bill and therein included certain amendments to her original bill. She alleges, by way of amendment, that said premises greatly exceeded in value the amount of said mortgage debt, and while still insisting that the debt was paid by sale of the interest of her husband therein, yet avers her readiness to redeem said premises, if the court should not find said debt paid; and that she has offered to pay said Cole the amount of said mortgage indebtedness, but he refuses to receive the same, denying her right to redeem.
    She also charges, by way of supplement to her original bill, that since she filed said bill, said Cole, by virtue of the proceedings before said justice, has obtained the possession of said premises, and is in the receipt of the rents and profits thereof, and prays that an accounting may be had and she be allowed to redeem upon paying the amount that may be found due him by final decree.
    The case was placed upon the docket, and at the September term, 1881, the defendant entered his motion to strike from the files the order made in vacation re-instating said cause. At the next term, the above motion was set down for hearing in vacation and the cause continued.
    At the May term a cross-motion was entered for an order re-instating said cause, which was also set down to be heard in vacation.
    Hothing further appears to have been done in said cause until the January term, 1883, when by consent the order reinstating said cause was vacated because entered in vacation; and thereupon, the complainant entered her motion to re-instate said cause, which was sustained, and also asked leave to file amended and supplemental bill.
    The defendant, Cole, thereupon asked and obtained leave to withdraw his answer and to file a demurrer to the bill, which was allowed, and the court sustained the demurrer and dismissed the bill, and the record is brought to this court by complainant by appeal.
    ' Messrs. Gentlemen & Floweb and Mr. O. B. Chapman for plaintiff in error;
    that in favor of the equity of redemption, a court of chancery will allow a deed absolute on its face to be shown to be a mortgage, cited DeWolf v. Strader, 26 Ill. 225; Bispham on Equity, § 155; Tillson v. Moulton, 23 Ill. 648; Price v. Karnes, 59 Ill. 276; Deven v. Blake, 44 Ill. 135: Parmclee v. Lawrence, 44 Ill. 405.
    Once a mortgage, always a mortgage: Bispham on Equity, § 153; Newcomb v. Bonham, 1 Vern. 7; Price v. Perrie, 2 Freem. 258; Willet v. Winnell, 1 Vern. 488; Jones on Mortgages, §7.
    On a bill to foreclose a mortgage, the mortgagor is an indispensable party: Lane v. Erskine, 13 Ill. 501; Harvey v. Thornton, 14 Ill. 217; Gilbert v. Maggord, 1 Scam. 471; Ohling v. Luitjens, 32 Ill. 23; Walsh v. Truesdell, 1 Bradwell, 126; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Michigan Ins. Co. v. Brown, 11 Mich. 265; Worthington v. Lee, 2 Bland (Md.), 678; Moore v. Starke, 1 Ohio, 369; DeLeon v. Hignera, 19 Ala. 200; Hall v. Nelson, 23 Barb. 88.
    When a sale on execution would cast a cloud upon title, equity will interfere by injunction: Groves v. Webber, 72 Ill. 606; Christie v. Hale, 46 Ill. 117.
    Leave to amend pleadings necessary to- present an issue on the merits of a cause is no longer discretionary with the court, but is the legal right of the party: Drake v. Drake, 83 Ill. 525; Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70; Empire Fire Ins. Co. v. Heal Estate Trust Co.,1 Bradwell, 391.

      Mr. T. D. Murphy and Mr. A. B. Cook, Jr., for defendants in error;
    that as this is in chancery, it is the right of defendants to avail themselves of any errors apparent to the court upon a full inspection of the record, the same in all respects as if error had been formally assigned in apt time, cited Carter v. Moses, 40 Ill. 55; Pool v. Docker, 92 Ill. 508.
   Pillsbury, J.

It is now insisted by the appellee, Cole, that the orders re-instating said cause, entered both in vacation and in term time, were void, for the reason that the term had passed at which it had been dismissed for want of prosecution.

That many of the orders and proceedings had in this case were irregular can not well be doubted, but it is quite clear that the appellee is not in a position to avail himself of any error or irregularity of the court in this regard.

The defendant, after the cause was re-instated in term time, and without any objection to such action of the court, applied for and obtained leave to withdraw his answer theretofore filed, for the purpose of interposing a demurrer, which could only have the effect of raising the question whether the complainant was entitled to any relief upon the facts alleged, and having taken this action, he must be held to have acquiesced in the action of the court in re-instating the cause.

The dismissal of the cause for want of prosecution would not prevent the complainant from filing a new bill, setting up the same facts averred by her in her original and supplemental bill, and having this right, at the time the cause was re-instated, it would be very unjust to permit the defendant to obtain a decree dismissing the bill for want of equity, the effect of which decree might be difficult for the complainant to avoid if pleaded in bar to a new bill asking the same relief.

Having treated the cause as still pending in the court below, he can not now be heard in this court to urge an affirmance of the decree dismissing the bill, upon sustaining the demurrer upon the ground that the cause was improperly re-instated. Herrington v. McCullum, 73 Ill. 476; McCarthy v. Neu, 91 Ill. 127; Miere v. Brush, 3 Scam. 21; Vasey v. Trustees, 59 Ill. 188.

The case, then, at the time' the demurrer was filed and decision thereon rendered, was in the same condition as though it had never been dismissed for want of prosecution and the question is, whether there is any equity in the bill.

The irregularity in filing the supplemental bill and the amendment to the original bill, if there be any, without leave of court had in term time, can not be taken advantage of by demurrer, but a motion should have been entered to strike it from the files. This not being done, where the cause was re-instated, such supplement and amendment became a part of the record, the same as though the cause had not been out of court.

It had then been on file for several terms, and not being stricken from the files, was to be considered as a part of complainant’s bill, and the demurrer of the defendant went to that as well as the original bill.

The bill shows that the complainant was the owner of a large part of the premises, and that the conveyance to Cole was but a mortgage and was so treated by him in his bill to foreclose.

She not being a party to the foreclosure proceedings, it requires no citation of authorities to show that she is not affected by any decree rendered in said cause. Her equity of redemption "still subsists, and as she has offered to pay Cole the amount of the mortgage debt, which he refuses to receive, no reason is perceived why she is not entitled to the interposition of a court of equity in her behalf, and to have a decree for redemption upon paying the amount found due upon the mortgage, after the account shall be adjusted upon equitable principles. •

To this extent, at least, if she sustains by proof the case made by her bill, she is entitled to relief.

The motion of the complainant entered at the January term, 1883, to amend the bill, seems not to have been passed unon by the court,¿which is also assigned as error. It does not appear from the record, that any amendment was presented to the court showing in what manner it was proposed to amend, and we can not, therefore, say there was error in not disposing of the motion before acting upon the demurrer; and as to the motion made to file a supplemental bill not being determined by the court, no harm was done the complainant, as no leave of court is necessary to be obtained in order to bring to the attention of the court, by supplemental bill, material facts which have occurred since filing the original bill.

For the error in sustaining the demurrer to the bill, the decree of the court will be reversed and the cause remanded, with leave to the complainant to amend her bill if she shall be so advised, and for such further proceedings in the cause as equity may require.

Decree reversed.


text:
    J. B. Balohradsky v. N. S. Carlisle et al.
    1. Evidence. — Where the issue was upon the point whether, in fact, there had been a purchase or a payment of certain notes and mortgages, evidence of all the negotiations which finally culminated in the transfer or surrender of them to the attorney of appellant was competent, as tending to show the character of the transaction and the understanding and intention of the parties when it was finally concluded.
    2. Instructions. — Where the issue was whether there had been a purchase or a payment of certain notes and mortgages, and the introduction of the notes and mortgages indorsed to appellant made out a prima facie case entitling him to the possession of the property, an instruction which allowed the jury to infer from the fact that the amount due on said notes and mortgages was figured up and paid to the mortgagee, that such transaction was a payment and not a sale, thus practically withdrawing from their consideration the prima facie ease made by the indorsement of the notes and assignment of the mortgage to appellant, was erroneous.
    3 Degree of proof. — In a civil cause it is error to instruct that a party must prove to the satisfaction of the jury, etc. The law does not require such a high degree of proof for the maintenance of an issue in a civil cause.
    4. Attachment — Proof as to fraud. — The averment in an affidavit of a fraudulent conveyance hy the debtor, as a basis for the writ of attachment, is incompetent to prove the issue of fraud upon the trial against the officer for taking the property.

      Appeal from the Circuit Court of Kane county; the lion. C. W. Upton, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. R. N. Botsford, and Messrs. Rubens, McGaffey & Ames, for appellant;
    as to admission of evidence, cited Greenleaf on Ev., § 108; Allen v. Duncan, 11 Pick. 308; McFarland v. Lewis, 2 Scam. 344; Boyden v. Moore, 11 Pick. 362; Milford v. Bellingame, 16 Mass. 108.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. Charles Wheaton, for appellees;
    that it is necessary to constitute a transaction a sale that both parties should then expressly or impliedly agree, one to sell and the other to purchase the paper, cited 2 Daniel on negotiable Instruments, §1221; Lancey v. Clark, 64 N. Y. 209; Eastman v. Plummer, 32 N. H. 238; Burr v. Smith, 21 Barb. 262; Dougherty v. Deeney, 45 Ia. 443.
   Pillsbury, J.

Action of replevin commenced by the appellant to recover possession of certain personal property seized by appellee Carlisle, sheriff of Kane county, under a writ of attachment sued out by one Watson against his debtor, Joseph Geller. The other appellees were the custodians of the sheriff.

The appellant claims ownership of the property by virtue of two chattel mortgages executed by Geller, thus making the present controversy one between a mortgagee and an attaching creditor.

Both mortgages were executed and recorded before the writ of attachment was levied hence the priority of the plaintiff’s claim to the property depends upon the validity of the two mortgages through which he asserts title.

As to the older chattel mortgage, it appears that on the 25 th day of April, 1882, one Stephen Beach and said Joseph Geller purchased the property in question, of one George Sutphen, and to secure a portion of the purchase money executed their two notes for $325 each, one payable in castings from the foundry, when required, and the other payable in six months from date, with eight per cent, interest, and secured both of said notes by -the chattel mortgage mentioned above.

The other mortgage was dated October 4, 1882, and executed by Geller to secure four notes signed by him and made payable to appellant, one dated April 25, 1882, for $300, one for the same amount dated June 3, 1882, one for $200, dated August 21, 1882, and one dated September 25,1882, for $500, each of said notes becoming due one year after date thereof. This mortgage was recorded on the 5th day of October, 1882. The attachment writ was issued on the 11th day of October, and the levy made thereunder on the 16th by the appellee, Carlisle.

It seems that on the day of the levy, Sntphen, who then owned the mortgage first above mentioned, became advised that the sheriff was about to seize the property at the suit of Watson, and informed them of his mortgage, and as he claims, took possession of the property, and the levy was made subject to his mortgage.

The appellant claims that after Sutphen had taken possession of the property, and the levy had been made under Watson’s writ, he, in order to protect his mortgage, had his attorney, Blanchard, purchase the Sutphen notes and mortgage, and had them assigned to him by Sutphen. That the Sutphen notes were valid and the mortgage securing them a prior lien upon the property while in Sutphen’s hands, is not denied by counsel for appellee, but they claim the notes were paid by Geller through Blanchard.

On the trial at the circuit court the appellant introduced the Sutphen notes with an assignment indorsed upon them as follows: “ Pay to J. B. Belohradsky.” “ George E. Sutphen.” And the mortgage, with the following indorsement: “ Aurora, 10-26-82. I assign the within mortgage to J. B. Belohradsky, for and in consideration of $445, by him to me paid.” The introduction of these notes and mortgage, thus indorsed to appellant, made out a prima, facie ease entitling him to the possession of the property, and the burden of proof was then cast upon the defendants to show that the notes and mortgage were not valid obligations in his hands.

To do this they made Sutphen a witness, who testified that on the 26th day of October, Blanchard and G-eller came to his office and wanted the notes, and after some figuring to ascertain the amounts due upon the notes, the sum of $445 was finally agreed upon, and Blanchard paid him that sum, and then asked him if he had any objection to indorsing the notes and mortgage to Belohradsky, and he replied he had not, then wrote the indorsements as they appear upon the notes and mortgage. Witness further stated that he did not intend to sell the notes, and did not understand that he had done so; that he supposed that he wanted to pay them off, and he received the money as payment.

In rebuttal the plaintiff called Blanchard, who testified that he was acting for appellant in obtaining the Sutphen mortgage; that he saw Sutphen three or four days before he finally paid the money, and at the time he had some conversation with Sutphen about appellant’s second mortgage, and about purchasing his mortgage for the appellant.

. The witness was then asked to state what was then said about the purchase of the mortgage by Belohradsky, but upon objection by the defendants, the court refused to permit the witness to answer the question, and the appellant excepted. He wasjalso asked whether on that occasion he informed Sutphen for whom he was acting, but was not allowed to answer the question. In this we think the court committed error.

The issue was upon this point: whether, in fact, there had been a purchase or a payment of the notes and mortgages; and evidence of all the negotiations which finally culminated in the transfer or surrender of them to Blanchard was competent as tending to show the character of the transaction and the understanding and intention of the parties when it was finally concluded.

Suppose nothing was said at the time of the transfer of the notes about the appellant purchasing them, yet from prior negotiations, Sutphen knew that the object of Blanchard in paying the money due upon them was to obtain an assignment of them for the purpose of protecting the junior lien of appellant, and after he had received the money he indorsed them as requested; could it he'successfully urged that such transaction would not be a sale of the securities, because at that time Sutphen secretly intended to treat it as a payment? It would seem, in such case, that Sutphen ought not to be heard to say, after he received the appellant’s money with the knowledge that the appellant was paying it upon a purchase of the notes, and indorsing them as shown, that he, without notice to the agent of appellant of his design, elected to treat the transaction as a payment and not a sale.

In this view, we think, the following instruction given for defendants below should have been refused:

“ If the jury believe from the evidence that on the 26th day of October last, or thereabouts, the mortgagor, Geller, with Blanchard, an attorney, met with Sutphen, the mortgagee in said chattel mortgage, and figured up the amount due on said mortgage, or the notes secured thereby, together with other indebtedness of said Geller to said Sutphen, and that upon finding the amount of such indebtedness, the amount thereof, including the amount due on said notes and mortgage, was paid to said Sutphen then and there, then the jury have a right to infer therefrom that such payment was a payment and satisfaction of said notes and mortgage, and not a sale of the same, unless it is shown to their satisfaction from the evidence and by preponderance of proof that Sutphen, the mortgagee, understood at the time that it was not a payment and satisfaction thereof, but that it was then understood or intended by said mortgagee that it was to be taken and treated as a sale and assignment of said notes and mortgage.”

By this instruction the jury are allowed to infer from the fact that the amount was figured up and paid to Sutphen; that such transaction was a payment and not a sale of the notes, thus, practically withdrawing from their consideration the prima facie case made by the indorsement of the notes and assignment of the mortgage.

There is no dispute that the amount due to Sutphen was ascertained and the money paid by Blanchard, but these facts are not inconsistent with the claimed purchase, especially when considered in connection with the assignment of the notes by Sutphen. The notes being properly indorsed by the payee to appellant the presumption arises that they were purchased by him, and this presumption is not rebutted by the fact alone that in determining the amount to be paid,-the amount due upon them was figured up before the money was paid.

The instruction is also wrong in that it requires the appellant to prove to the satisfaction of the jury that Sutphen understood or intended a sale of the notes. As we have seen the presentation of the notes by appellant properly indorsed to him, made out a case for him upon this point, and the burden of proof was then cast upon the defendants to establish their claim that the transaction was a payment and not a sale.

Besides, the instruction, even if the burden of proof as to the intention of Sutphen rested upon appellant, requires a higher degree of proof than does the law for the maintenance of an issue in a civil cause. Ruff v. Jarrett, 94 Ill. 475

The appellant was the only witness who testified concerning the mortgage given by Geller to him. He says that he advanced the money to Geller, for which the^ four notes were given on the days the notes respectively bear date; that originally he held four other notes • bearing same dates and for same amounts, which were secured by trust deed upon Geller’s homestead, and about the 26th day of September, 1882, Mrs. Geller, who, he knew, furnished the money to purchase the homestead, desired him to”take a mortgage upon the personal property to secure him and let her have the real estate, and he consented to do so, and Geller and his wife conveyed the real estate to him and he to Mrs. Geller, at which time he gave up the trust deed and notes, and afterward took the chattel mortgage in question, and the notes- were drawn corresponding with the former ones; that he never was paid a cent upon his indebtedness and the transaction was but a change of securities, and so intended.

It is not perceived how such transaction operated as a satisfaction of the original indebtedness, nor that the taking of the chattel mortgage and the new notes can be said to be in any sense a revival of an old, extinguished indebtedness, as some of the instructions given for defendants seem to assume, and therefore invalid against the existing creditors.

If the former notes and trust deed were given to secure existing indebtedness,'the parties would have an undoubted right to change security as against any one not having a present lien on the property mortgaged.

We find no such evidence in the record tending to show payment of the debt secured by those notes and mortgages as would authorize the submission of that question to the jury. The only evidence shows a change merely of securities for the same debt, and the instructions in treating the transaction as a revival of a debt once paid were calculated to mislead the jury, and in our opinion should not have been given.

It is also objected that the court permitted the defendants to read in evidence the affidavit for attachment. In this we see no error. The property having been seized upon by mesne process, there was no judgment which established the relation of debtor and creditor between Geller and Watson, and as the sheriff could not attack the mortgages for fraud, except by proving that Watson was an attaching creditor, it was proper to allow the affidavit to be read in evidence as tending to prove such fact, and also as showing that the court was acting within its statutory jurisdiction in issuing the writ.

The averment in the affidavit of a fraudulent conveyance by the debtor as a basis for the writ of attachment is incompetent to prove the issue of fraud upon the trial against the officer for taking the property, and the jury, should be cautioned against so considering it.

For the reasons stated the judgment , will be reversed and the cause remanded.

Judgment reversed.


text:
    The People v. Charles C. Warren et al.
    1. Interest op town in prosecution op offenders — Attorney’s pees. — Where a town has a special interest in the prosecution of offenders, beyond that of the general public, in that it receives all fines imposed, such town may order its attorney to assist the State’s attorney in such prosecutions, and may pay him therefor.
    2. State’s attorney — Payment op fines. — Where the statute required the State’s attorney to pay certain fines to the town treasurer, and under a resolution of the town council he paid a portion of them to the town attorney, who had 'assisted him in the prosecutions from which the fines were derived. Held, that such payment by the State’s attorney was a breach of his bond being in contravention of the statute, but the town having indirectly received the benefit of the money and the application of it, being by its request in discharge of a claim against it, allowed by its council, and being in a case where it could lawfully direct the payment out of funds of the town, the town can recover upon this breach of the bond nominal damages only.
    3. Satisfying judgment — Liability.—Where the State’s attorney entered satisfaction of certain judgments, and showed no authority from the town council or resolution or order of the board of trustees remitting such fines or directing him to satisfy the judgments, and he charged commissions for collecting the whole amount, and his report to the court, required by statute, showed that be had collected it. Held, that he and his sureties are bound to account for it. . *

      4. State’s attorneys’ pees. — The statute providing what shall be the fees of State’s attorneys, makes the character of the crime the criterion by which the fee is determined, and has reference to the general provision of the criminal code, where the punishment is prescribed, and not to a particular offender who may commit it.
    5. Funds op town and county to be kept separate — Where pines collected will not oancel pees. — The State’s attorney should keep the funds of the town and county separate so long as the fines collected will cancel fees, hut where such is not the case, he will be allowed to pay his earned, uncollectible fees out of any funds in his hands arising from fines and forfeitures collected by him.
    Appeal from tlie Circuit Court of Bureau county; the Hon. J. MoRoberts, Judge, presiding.
    Opinion filed February 29, 1884.

      This action is brought upon the official bond of appellee, Warren, as State’s attorney of Bureau county, and the breach alleged is his failure to pay into the treasury of the town the fines collected by him from offenders against the criminal code, for crimes committed within the corporate limits of said town.
    A trial was had before the court, a jury being waived, and a finding and judgment for the defendants, from which this appeal is prosecuted. It appears that Warren reported that he had collected fines to the amount of $574.85, which, under the charter of said town, should be paid by him into the town treasury, less the fees and commissions that, under the statute, he was authorized to retain out of it, and the contention is, whether he has properly accounted for all of said sum.
    Mr. Owen G. Lovejoy, for appellants;
    that the statute allows municipal corporations to appeal without giving bond, cited R. S., Ch. 110, § 71; Emerson v. Clark, 2 Scam. 490; Caton v. Harmon, 1 Scam. 581; Brockway v. Rowley, 66 Ill. 99.
    Payment of the fines to Kyle was a breach of the bond, and defendants are liable for the $198, unless they can show that the town received the money, and for nominal damages at least: People v. Yeazel, 84 Ill. 540; George v. Bischoff, 68 Ill. 237; Dehler v. Held, 50 Ill. 491.
    As the charter and ordinances of the town directed that the fines should be paid to the treasurer, the resolution directing the payment to Kyle contravened the charter, and was therefore void: 1 Dillon on Municipal Corporations, § 251; City of Placerville v. Wilcox, 35 Cal. 21; McCormick v. Bay City, 23 Mich. 462; Daniels v. Mun. Council, 10 Upp. Can. Q. B. R. 80.
    The town may plead ultra vires: 1 Dillon on Municipal Corporations, § 381; Cumberland Co. v. Edwards, 76 Ill. 545.
    The State’s attorney and his sureties are concluded by his receipts upon the record of the court and his reports under oath, as required by law: Gage v. Chicago, 2 Bradwell, 333; Morley v. Metamora, 78 Ill. 394; R. S. 1874, Ch. 53, § 9; People v. Christerson, 59 Ill. 157; Simmons v. Bradford, 15 Mass. 83.

      Messrs. Eckles & Kyle and Messrs. Farwell & Warren, for appellees;
    that the doctrine of estoppel in pais is applicable to municipal corporations, and a plea of ultra vires will not ayail after performance, and when the other party can not be placed in statu quo, cited Logan Co. v. City of Lincoln, 81 Ill. 156; Bradley v. Ballard, 55 Ill. 113; Chicago Building So. v. Crowell, 65 Ill. 453; West v. Madison Co., 82 Ill. 205; Darst v. Gale, 83 Ill. 136; East St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415; P. & S. R. R. Co. v. Thompson, 103 Ill. 187.
    Technical breach without injury does not authorize suit for the town, and if the town received, though in an indirect way, all it was entitled to, it can not recover it again: R. S., Ch. 14, § 1; People v. Yeazel, 84 Ill. 539.
    The presumption is that all public officers in the discharge of official duties pursue the course pointed out bylaw; hence the court must presume that there was some sufficient reason why the money was paid to the town attorney and not to the treasurer: Todemier v. Aspinwall, 43 Ill. 106; People v. Auditor, 2 Seam. 567; Ballance v. Underhill, 3 Scam. 153; People v. Walsh, 96 Ill. 232.
   Pillsbury, J.

Objections have been taken by both parties to the action of the court below in its judgments upon the pleadings of the respective parties, but, as all the evidence was heard in the case that could have been introduced under the proposed pleadings, we shall confine ourselves to a discussion of the effect of the evidence upon the rights of the parties.

By section 17, Art. 7 of the charter of the town of Princeton, Sess. L. 1857, p. 1415, “All fines and penalties recoverable by indictment or action for any offenses committed within the limits of said town and which are now required by law to be paid unto the county treasurer or the school commissioner of said county, shall hereafter be paid unto the town treasurer for the use of said town.”

As to such fines and penalties, the parties concede that it became the official duty of Warren to pay them to the town treasurer under such provision of the charter.

It is objected that the court below credited "Warren with $198, one half of certain fines collected by him, and which he paid to one John T. Kyle, then town attorney, for his services in assisting the State’s attorney in the prosecutions in the circuit court from which the fines were derived, upon the ground that the town had no authority to order its attorney to assist Warren in such cases.

The town of Princeton is authorized to appoint an attorney to attend to its legal business, and it having a special interest in the prosecution of offenders, beyond that of the general public, as it receives all fines imposed, no reason is perceived why it may not order its attorney to assist the State’s attorney in such prosecutions and pay him therefor.

The question does not arise here whether the town would be authorized to employ counsel to assist the State’s attorney and pay him out of corporate funds where the town had on different interest than the general public in the enforcement of the criminal code, and we decline the discussion of such question.

In these cases the town had a direct pecuniary interest in the successful prosecution of them, and we must conclude that the town council deemed the causes of sufficient importance to the town to pay additional counsel, and we are not aware wherein it exceeded its powers or violated any law in so doing..

It sufficiently appears from the record that Mi-. Warren, while consenting to the employment and assistance of Mr: Kyle in such prosecutions, still retained the general control of them, and so far as shown, neglected no duty that he owed to the public.

Warren having collected the fines, the town council, by resolution, directed him to pay one half thereof to Mr. Kyle as compensation for his services, and he did so, taking Kyle’s receipt, and the court allowed this amount, $198, to him as payment upon the fines.

The statute required Warren to pay these fines to the town treasurer, and it could be no justification to him for not .doing so, that the council requested him to pay them to a third party. This duty was defined by a statute of greater force than any direction of the town council.

• He Was not an officer of the town, nor under the control of its council. His payment, therefore, to Kyle, was unauthorized and a breach of his bond; but the town having indirectly received the benefit of the money and the application of it, being by its request in discharge of a claim against it, allowed by its council, and in a case where, as we have seen, it could lawfully direet the payment out of the funds of the town, the amount paid was properly allowed in reduction of damages, and it can recover upon this breach of the bond nominal damages only. People, etc., v. Yeazel, 84 Ill. 540.

Warren entered satisfaction of record upon judgments against various parties for $100 fines imposed, and reported to the court that he had collected the same, and that after taking out his fees for convictions where the finés could not be collected, the balance of $45 had been paid to the treasurer of the town.

He figured his commission upon the whole $100 at ten per cent., and added thereto his uncollected fees of $45, and paid the treasurer $4.65, amounting in all to $59.65, the sum as now claimed by him that actually was collected, the treasurer, however, giving him a receipt for $45.

It is now claimed by him that the town did.not desire the balance of the fines, $40.35, collected from the defendants, and the receipt was taken for the $45 to balance his account.

There- does not seem to be any authority from the town council justifying him in entering satisfaction of the judgment, even if it be conceded that the council could thus remit the fines imposed. He has shown no resolution, or order, of the board of trustees remitting such fines, or directing him to satisfy the judgments. He charges commissions for collecting the whole amount, and his report to the court, required by the statute, shows that he had collected it, and under such circumstances, it seems that, under the decisions of our Supreme Court, he and his sureties must be held bound to account for it. Morley v. Metamora, 78 Ill. 394; Chicago v. Gage, 95 Ill. 593.

It appears that he obtained a conviction of two boys under eighteen years of age upon indictment charging them with assault with intent to rob, and they were sentenced to the county jail, and another boy under sixteen years of age was sentenced to the reform school for burglary and larceny, and in adjusting his accounts with the town, he retained upon each of said convictions the sum of $15, which was allowed him by the court below.

The appellants object to the allowance of these items upon the ground alone, that the statute in such cases limits his fees to five dollars upon each conviction.

The statute provides that the State’s attorney shall be allowed as fees: “On each conviction where the crime is punished by death or confinement in the penitentiary fifteen dollars, and five dollars each on all other convictions.” This statute makes the character of the crime the criterion by which the fee is determined and evidently has reference to the general provisions of the criminal code where the punishment for the crime is prescribed, and not to a particular offender who may commit it.

We see no error in the action of the court below in this regard.

A question has also been made whether the State’s attorney of Bureau county has the right to appropriate the fines collected by him, and which under the charter should be paid into the town treasury, to the payment of fees due him for conviction of offenders where the crime was committed without the limits of the town, and where such fines can not be collected from the defendants.

The general statutes authorize the State’s attorney to pay his uncollectible fees out of any fines collected, and we think he had the right to thus apply any fines due the town if he has not collected enough from business outside the city to pay him.

The charter of the town considered in connection with the general statutes seems to require the State’s attorney to keep two separate accounts, one for the county and the other for the town, and it would seem equitable that the collected fines belonging to either town or county should first be applied to the fees of the attorney due in cases where he can not collect the fines due to such fund.

The State’s attorney should keep the funds separate so long as the fines collected will cancel fees, hat where such is not the case, he will be allowed to pay his earned uncollectible fees out of any funds in his hands arising from fines and forfeitures collected by him.

For the reason stated, the judgment of the court below will he reversed and the cause remanded with leave to either party to amend their pleadings, if they be so advised.

Judgment reversed.


author: Pleasants, J.

text:
    George Ball v. Lenora Schaffer.
    1. Dower — When improvements are made. — Where a party acquires title in the husband’s life-time and makes improvements before it is in his power to assign dower, he would be entitled to the exclusive benefit of such improvements and they should not be estimated as a part of the widow’s dower.
    2. Title acquired after dower right becomes vested. — Where a party acquires title after the dower right becomes vested, through an administrator’s sale, which is, under our statute, the same as a conveyance by the heirs, the widow is endowed of the premises, or their yearly value, as at the time of the assignment. If such party before assigning chooses to repair and improve, he does so at his peri).
    3. Damages for detention of dower. — It is error for a court, without hearing evidence specially upon the subject, to award a widow damages for the detention of her dower from the time of its demand, upon the basis of the yearly value of the dower as found by the jury.
    Appeal from the Circuit Court of Marshall county; the Hon. H. M. Laws, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. O. 0. Jones and Messrs. Barnes & Muir, for appellant;
    that the widow is entitled to dower in the premises in the condition they were at the time of her husband’s death, cited Stookey v. Stookey, 89 Ill. 40; Walker v. Walker, 5 Bradwell, 289; Walsh v. Reis, 50 Ill. 477; Scammon v. Campbell, 75 Ill. 223; Bunner v. Peterson, 44 Ill. 253.
    The jury must assess damages as well as yearly value: T. P. & W. R. R. Co. v. Curtenius, 65 Ill. 120.
    Mr. Fred. S. Potter, for appellee;
    that as the husband died seized, and appellant having purchased of the administrator, it was his duty to assign dower, and having made improvements before assigning, he did so at bis peril, cited Selb v. Montague, 102 Ill. 446; 1 Washburn on Real Property, 3d ed., 271; 3 Sutherland on Damages, 350; Peyton v. Jeffries, 50 Ill.148.
   Pleasants, J.

Appellee filed her petition September 21, 1882, for assignment of her dower in a lot and the building thereon in the city of Henry. Her husband had died intestate, May 26, 1875, seized of the premises in question. They were sold by his administrator to pay debts, November 26, 1876, and possession was immediately given to the purchaser, and by conveyance his title came to appellant, who took possession April 3, 1878. He paid appellee, from month to month, different sums which she accepted as her share of the rents (after deducting all that he claimed as her porportion of the amount expended for taxes, insurance and repairs,) which amounted latterly to five dollars, until August, 1882, when he refused to pay her anything, and she thereupon filed this petition.

Her right to dower having been determined and the premises reported by the commissoners not susceptible of division without injury to the interests involved, the cause was referred to a jury to ascertain the yearly value of the premises; who found, upon evidence which we think warranted it, the one third of the annual value to be $128.50. The court refused to set aside the finding on motion of appellant, and decreed that he 'pay her the sum so found on June 12, 1884, and the same amount yearly thereafter, and also awarded her the sum of $93.60 as her damages for the detention of her dower from time of filing the petition, and costs.

Defendant brings the case here by appeal, and insists that the circuit court erred in refusing to admit evidence offered as to the value of the premises at the time of the husband’s death, and of improvements and repairs . thereafter made, under what he maintains was an erroneous impression that his claim for such improvements and repairs had been settled between the parties.

'We think the ruling was right, and the reason given for it by the circuit court is immaterial. The evidence was improper. No objection on specific grounds could have been obviated so as to justify its admission. If appellant had acquired title in the husband’s life-time, and made improvements before it was in his power to assign dower, then under the rule generally prevailing in the United States, and fully recognized here, he would have been entitled to the exclusive benefit of them, and they should not have been estimated in finding the yearly value of which the widow was to be endowed. 2 Scribner on Dower, Ch. 22, Sec. 18, Walsh v. Reis, 50 Ill. 477; Scammon v. Campbell, 75 Id. 223; Stookey v. Stookey, 89 Id. 40.

But in this case the husband died seized. Appellant acqhired title after the dower right became vested, through the administrator’s sale, which under our statute is equivalent to a conveyance by the heirs. Selb v. Montague, 102 Ill. 451. As against the heir and his grantee, the widow is endowed of the premises or their yearly value as at the time of assignment. Since he might have proceeded at once to make it, and it was his duty to do so as soon as practicable, but he chose first to repair and improve, he did it at his peril. 2 Scribner on Dower, Ch. 21, Secs. 30, 32, and Ch. 22, Secs. 22, 23; 1 Washb. on Real Est., 2d ed., Ch. 22, p. 238. That this rule obtains in Illinois is clearly implied by the cases of Summers v. Babb, 13 Ill. 486 aud Stookey v. Stookey, supra.

But after the finding of the net annual value of the premises by the jury, as above stated, the court awarded her damages for the detention of her dower from the timé of its demand, without hearing evidence specifically upon that subject, at the same yearly rate. The recital in the decree is that this matter was heard “ upon the verdict and the evidence to the court in open court given,” but it is manifest from the certificate of the evidence and from the sum awarded for the time that the evidence here referred to was only that which had been produced to the jury upon the question of the net annual value of the premises. And this we must hold, upon the authority of T. P. & W. R. R. Co. v. Curtenius, 65 Ill. 130, was error, the subsequent change in the statute being regarded as not affecting this question. In this particular, therefore, the decree is reversed, but in all others affirmed. The cause is remanded for further proceedings in conformity herewith. The costs of this court will be equally divided between the parties.

Affirmed in part and reversed in part and remanded.


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    Thomas Grady v. Joseph T. Smith.
    Chattel mortgage — Evidence.—A team, harness and two cows were taken by the appellant mortgagee, and sold under the provision in a chattel mortgage that the mortgagee might sell at any time before the maturity of the debt if he “ felt himself unsafe or insecure, etc.” Appellee, the mortgagor, brought an action of trespass for thp taking of such property. Held, that it was error for the court to exclude evidence which tended to show the actual peril of appellant’s claim and the necessity of enforcing the mortgage provisions in order to secure it, and it was error to admit evidence as to the condition of appellee’s family, as such evidence was calculated to arouse the sympathy of the jury and had no tendency to prove either the wrong or the damage.
    Appeal from the Circuit Court of De Kalb county; the Hon. Charles Kelltjm, J udge, presiding.
    Opinion filed February 29, 1884.
    Messrs. Jones & Bishop, for appellant;
    cited Russell v. Butterfield, 21 Wend. 300; Story on Bailments, 204; Lyle v. Barker, 5 Bin. 460; Herman on Mortgages, 211.

      Messrs. Lawell & Caenes, for appellee.
   Pleasants, J.

Appellee brought this action of trespass to October term, 1882, against appellant and one Timothy Hinds, a constable, for wrongfully taking two mares, two cows, and one set of double harness. The plea of the general issue was filed, with a stipulation that all defenses which the evidence should tend to support should be considered filed, with proper replications thereto. The suit was dismissed as to Hinds, and the trial resulted in a verdict and judgment against appellant for $184.28, damages. A motion by defendant for a new trial was overruled and judgment entered on the verdict for the damages so found and for costs, from which he took this appeal.

The property mentioned, with some other, was embraced in a chattel mortgage from appellee to appellant, of January 3, 1882, to secure a note for $434 with interest at eight per cent, per annum, payable on January 1,1884, and containing the common provision that if the mortgagee at any time before maturity of the debt “ felt himself unsafe or insecure ” with respect thereto, he might take possession and sell as in case of default in payment. Under this provision appellant caused the constable, Hinds, to take possession for him and to sell the property so taken, which realized the sum of $145.72, less than its value, by reason of appellee’s public declaration before the sale that he would contest its validity.

Appellee was of doubtful responsibility — a farm renter. One Peleg Sweet, a former landlord, from whom he had gotten one of the mares, had taken and then held possession of her, claiming that she was his until paid for by appellee; the other mare had been removed with appellee’s consent to the county of Lee; and he was himself about to remove and take with him the other stock and property mentioned to the same county where he had just rented a farm.

Under these circumstances the property was taken by the appellant, mortgagee, under the provision of the mortgage above stated; and we think in the light of legitimate testimony produced, that they justified him in so doing. Fox v. Kitton, 19 Ill. 519; Bailey v. Godfrey, 54 Ill. 507; Lewis v. D’Arcy, 71 Ill. 648; Roy v. Goings, 96 Ill. 361. That the jury did not so regard it, may very probably be due in large part to the refusal of the court to admit the evidence offered, that, by the agreement between appellee and Sweet the mare taken by the latter was, as between them, to be his until paid for by appellee, and that she was never so paid for, and to the admission of evidence, over appellant’s objection, that appellee’s family consisted of a wife and two children; that the latter were of the ages respectively of three years and eighteen months and that appellant knew that appellee’s wife and children “ had no other milk to keep them” than that obtained from the two cows taken, and that appellee “ had no other team and harness to do his work with.” ¥e are of opinion that the court erred in respect both to that so excluded and to that so admitted. The former tended to show actual insecurity of appellant’s claim and the necessity of enforcing the mortgage provision in order to secure it. The latter was well calculated to arouse the sympathy of the jury in behalf of the plaintiff, but had no tendency to prove either a wrongful or a specially malicious taking or the amount of the damage sustained. The presumption must be that the market value of the cows taken, which would not be affected by these circumstances, would replace them with others as milky. It is manifest that the jury did not regard it as ground for vindictive damage, because their verdict as to the amount was strictly based upon the testimony of Gordon Davis, the only witness on that subject besides the plaintiff and his brother, and who estimates the value of the property taken at §330, being §70 less than their estimate which agreed on $400. Deducting the proceeds of the mortgage sale, $145.72, as expressly instructed by the court to do in case they should find for the plaintiff, a balance was left of $184.28, the precise amount of the damages found. But that they were influenced by these rulings to find for the plaintiff what they understood to be the actual damages there is much reason to believe.

Appellant’s counsel also argues that the court erred in its second instruction to the jury, which was to the effect that the total amount of damages found, whether punitive or actual, if any, would be subject to a deduction of the amount indorsed on the note as the proceeds of the sale of the property in question under the mortgage, being $145.72; and that they should have been instructed to allow, by way of recoupment, the full amount of the mortgage debt remaining unsatisfied at the time of the taking. We can not consider this point as ground for reversal, for the reason that the third instruction asked by and given for the defendant himself was of precisely the same tenor, He can not, therefore, be heard to complain of it.

But since the judgment must be reversed for other reasons above given and the cause be tried again, the circuit court will doubtless carefully consider upon this question the cases of Stow v. Yarwood, 14 Ill. 426; Hubbard v. Rogers, 64 Ill. 434; Belelen v. Perkins, 78 M. 453, and of Russell v. Butterfield, 21 Wend. 300, and the authorities there cited.

For the errors above noted, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


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    G. M. Kime v. W. W. Dale.

      1. Trover. — To maintain trover against one who came lawfully into possession, a proper demand upon him and his refusal to deliver must be shown, unless there is proof of such actual appropriation or change in the condition of the property made by him, as would make a demand for it in specie unavailing.
    2. Refusal upon demand — Evidence.—Refusal upon such demand is not per se a conversion, but only evidence of it. Such evidence is open to explanation and rebuttal by proof of facts justifying the refusal, and it is for the jury to determine, not only whether there has been in fact a refusal, but also whether, if any, it is of such a character as to constitute proof of conversion, and, with that, view, to consider all the evidence bearing upon the question.
    Appeal from the Oircuit Court oí Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed February 29, 1884.

      Mr. R. S. McIlduff, for appellant;
    that refusal to deliver property is not per se a conversion, cited Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Boaman v. Eaton, 21 Barb. (N. Y.) 582; Whitney v. Slanson, 30 Id. 278; Wellington v. Wentworth, 8 Metcalf, 548; 1 Chitty Pl., 14th Am. ed., *p. 160; Gilmore v. Newton, 9 Allen, 171; Kelsey v. Griswold, 6 Barb. 136; Packard v. Getman, 16 Am. Dec. 175; 6 Cowen, 757; Hallenbake v. Fish, 21 Id. 88, 8 Wendell, 517; Carroll v. Mix, 51 Barb. 212; Fletcher v. Fletcher, 7 N. H. 152.
    Messrs. Wallace & Terry, for appellee.
   Pleasants, J.

Appellant was a grain and stock buyer at Emington, in Livingston county, where he had two cribs. Appellee was a resident of Pennsylvania, but owned a large body of land in the neighborhood, in charge of one John Ferguson, as his agent, and leased in parcels to different tenants. He brought this suit before a justice of the peace to recover damages for the detention of seventy-five bushels and twenty-five pounds of corn stored in one of these cribs, and on appeal to the circuit court obtained a verdict for $20, upon which, after a motion for new trial overruled, judgment was entered. Defendant appealed and assigns for error divers rulings upon the admission of evidence and giving and refusing instructions, to which exception was at the time duly taken.

It was treated throughout by court and parties as an action of trover. There is no dispute as to the quantity, value or ownership of the corn; but the issue made was upon the alleged conversion, to maintain which, on his part, the plaintiff relied solely upon proof of defendant’s refusal to deliver it upon demand made and storage tendered.

Defendant introduced evidence, showing more fully the occasion, circumstances and character of this refusal, tending to prove that it was not absolute nor at all in denial of plaintitf’s right of property or possession, but only for a reasonable time stated, in order to avoid inconvenience which otherwise would have arisen through plaintiff’s negligence and to which therefore he was not bound to submit. From this testimony it would appear that for the storage of plaintiff’s corn until the following summer Ferguson had engaged one of defendant’s cribs, to be ready by Dec. 1, 1881, and which was in fact made ready by the 20th of November preceding. The three ■loads in question, however, were hauled in as early as the 9th, and were allowed by defendant, as an accommodation, to be put in the south end of the other crib, which he was filling from the north with corn of his own, as he purchased from day to day, but with the express understanding that it should be removed by plaintiff before he needed the room. , When the one so engaged was ready, and repeatedly afterward, before the demand and refusal shown and when access to it from the nearest door was unobstructed, Ferguson was notified that he must remove it out of the way of defendant’s corn which was coming in. This he promised to do, but took no steps to that end until Feb. 2, 1882, when it had become impracticable to do so without making a new opening in the crib, or first removing a considerable quantity of defendant’s corn which then filled it from the north end, past the door referred to, and overlaid a portion of plaintiff’s. To prevent admixture, defendant had taken the trouble to lay some boards over the latter, and to clear the way from it back,to the door had been shelling out his own that lay next, but his slieller had broken down and he was waiting for new castings that had been ordered. This was the situation when on the day last above mentioned Ferguson appeared, with men, teams, and imple.ments, proposing to remove the three loads in -controversy, by taking out the door and displacing a portion of defendant’s corn. He was then told that if it had not been for the accident mentioned the latter would by that time have been out of the way, and that if he would come again in two days it would-be and he could then ta,ke out the plaintiff’s. Ferguson refused to wait and peremptorily declared his intention to proceed immediately as stated. This the defendant forbade, threatening to resist by force any attempt to open the crib at that time. Ferguson thereupon went away and commenced this suit. When it was tried, which was at the May term, 1883, the plaintiff’s corn remained in the crib just as it was át the time of the difficulty.

There were other circumstances in evidence which may be claimed to have modified, to some extent, the effect of those above stated. But it was for the jury to find how far, and whether, upon all the evidence, there was or was not a conversion, which is an unauthorized assumption or exercise of the right of ownership over personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner’s rights. Bouvier’s Law Die., title “ Conversion ” — at law, and cases there cited.

To maintain trover against one who came lawfully into possession, a proper demand upon him and his refusal to deliver must be shown, unless there is proof of such actual appropriation or change in the condition of the property made by him, as would make a demand for it in specie unavailing; because otherwise there would be no evidence of an assumption of right excluding that of the owner.

Refusal upon such demand is not per se a conversion but only evidence of it. Johnson v. Howe, 2 Gilm. 342; Bonner v. Dyball, 42 Ill. 34. It is such evidence because prima facie it imports such an assumption of adverse right. But from its nature it can not be conclusive, since one might refuse or fail to deliver for many reasons that would justify or excuse it, without questioning the owner’s right; as that he honestly and reasonably doubted the identity of the person making the demand as owner, or the authority of one making it as agent, or was unable to deliver if he would, or that he refused unless upon a condition which he had a right to impose^ or the like. In short, to constitute such evidence, it must be unconditional or with a condition which he had no right to impose, and not a reasonable excuse. That this evidence is open to explanation and rebuttal by proof of any such fact, is so clear upon principle and fully established by authority that excepting the cases from our own State of Ingalls v. Buckley, 13 Ill. 315, S. C. in 15 Id. 224, and Northern Trans. Co. v. Sellick, 52 Id. 249, we refer only to text books, where many others are cited: Bouvier, ubi supra, 3 and 4; 1 Ch. Pl. 14th Am. ed., 160; 2 Hilliard on Torts, Ch. 16, Sec. 13, p. 264 et seq. and notes.

It was for the jury to find, not only whether there was in fact a refusal, but also whether, if any, it was of such a charr acter as to constitute proof of conversion; and with that view to consider all the testimony tending to prove the facts above set forth, and the effect of those facts if found to be proved.

But this was withdrawn from their consideration by the instructions given for the plaintiff, the first of which was: “That if the jury believe, from the evidence, that the corn in controversy was received by the defendant for the purpose of storage, and if the plaintiff afterward demanded the corn of the defendant, and tendered to and offered to pay him the price agreed upon for the storage thereof, and the defendant upon such demand refused to allow the plaintiff to take the same away, such demand and refusal is evidence of the conversion of said corn, and the defendant would be liable in such sum as the evidence satisfies your minds the corn was worth at the time of such demand and refusal.” This makes the refusal upon demand and tender of storage conclusive evidence of conversion, admitting of no rebuttal or explanation. "Whatever they might have found as to its character, or the excuse or reason for it, they were required to return a verdict for the plaintiff. Such is not the law. ■

The second was as follows: “If you believe from the evidence that the defendant took the corn in question for the purpose of storing the same, that the fact that he, or others for him, may have stored his (defendant’s) corn with that of the plaintiff in the same crib, thereby making it difficult or inconvenient to take plaintiff’s corn therefrom, still such inconvenience to separate the same from the corn of the defendant would not justify him in a refusal to allow plaintiff to take the corn in question from said crib; and if you believe from the evidence that after tender to the defendant of the amount due him for such storage, he did refuse to allow plaintiff to remove his corn from said crib, in such case you will find defendant guilty.” The “ inconvenience” here referred to is that to which the defendant would be subjected. Whether it would justify him in the refusal or not we think would depend somewhat on the extent of it and perhaps more on whose was the fault that presented the alternative. According to the evidence thus withdrawn from the consideration of the jury, that alternative was that plaintiff should wait two days before removing liis corn, or defendant should suffer some of his to be displaced or a new opening in the crib to be made. If plaintiff’s corn was stored there wholly for his accommodation, upon condition that he should remove it before this alternative could be presented, and he neglected, notwithstanding repeated requests, to perform that condition, he was in no position to demand any further favor in respect to it; and in that case the inconvenience to defendant referred to might justify him in refusing to allow its removal just at the time and in the manner proposed. "Whether it did, was for the jury to determine upon all the evidence of the circumstances. These instructions disregarded the whole theory of the defense, with all the testimony in support of it, and determined as matter of law what were pure questions of fact. The court consistently refused the only one asked by defendent — number 2 — which presented that theory, and we think was substantially proper.

We discover no other serious errors in the record to be corrected with reference to another trial, but for those above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.