text:
    Catherine Christoffel et al., Plaintiffs in Error, v. George N. Lee, Intervenor, Defendant in Error.
    Gen. No. 14,938.
    1. Chancery—when jurisdiction lost. If the controversy involved in the original bill of complaint is settled so that thereafter there remains no ground upon which such hill can be maintained, jurisdiction is lost to appoint a receiver or to hear and determine a controversy presented by intervening petition.
    2. Parties—when decree reversed for insufficiency. A decree rendered pursuant to the prayer of an intervening petition will he reversed if a necessary party is omitted therefrom, and the rights of such party are essential to he determined in order to justify the relief awarded.
    3. Chattel mortgages—what defense may he urged against assignee. Chattel mortgages are not negotiable instruments, and to a foreclosure proceeding predicated upon a chattel mortgage all defenses which might have been urged against the mortgagee may he set up against his assignee.
    4. Chattel mortgages—what does not pass hy assignment of notes. A separate guarantee does not pass to the assignee of notes secured hy chattel mortgage.
    5. Decrees—what not appropriate upon intervening petition. Held, that the intervening petition in this case was not germane to the original hill and that its subject-matter would not have been cognizable by way of cross-bill in the cause; likewise, that under no rule or principle of equity practice can it be proper under an intervening petition to obtain the possession of property in the hands of a receiver, to decree foreclosure of a mortgage.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed March 18, 1910.
    Statement by the Court. September 12, 189 9, Catherine Christoffel and Peter Christoffel filed their bill in the Circuit Court against William Gf. Mason and the Snnnyside Express Company to enforce a vendor’s lien. The bill alleged that up to the 29th day of May, 1899, they were the owners in fee of lot seven in block three in Ingledew’s Addition to Bavenswood; that on the 29th day of May, 1899, they conveyed said property by warranty deed to William Gr. Mason, the said Mason to assume a mortgage thereon of $2,000; that as a part of the consideration for said transfer the said Mason, as president of the Sunnyside Express Company, agreed to sell and deliver to the grantors in said deed all of the stock and personal property of the said company, and that the said company was and would be free and clear of all indebtedness created by said company prior to the first day of June, 1899; that in consideration of the said Mason delivering the stock and property of the said company to the grantors they transferred and conveyed said real estate to the said Mason, and the said Mason transferred and turned over to the grantors the stock and personal property of the said company, and that they then went into possession of the business of the company and have carried on and transacted the business of the company at the place of business of the company ever since said time.
    They further show that after they had been in possession of the said company for two months they found that Mason had entirely disregarded his agreement with them and that he had not, nor had the company paid and discharged the obligations of' the company, which were at the time of the transfer owed by the company, and that the assets of the company were liable to be dissipated by the creditors for the purpose of satisfying their claims against the company.
    They further show that divers claimants have "presented bills against the company which were due and owing at the time of the transfer; that none of the bills have been paid; that there are divers other bills due and owing by the company for goods and labor furnished to the company prior to the first day of June, 1899, which remain unpaid, and that divers other persons have claims against the company for goods lost or stolen prior to the first day of June, 1899.
    They further show that the business of the company is in a precarious condition owing to the breach of contract of Mason; that the creditors are seeking payment of their bills and threatening litigation, and that they will be greatly injured in their business and credit unless relieved by the intervention of the court; that the amounts due the creditors of the company are liens in favor of complainants against the property conveyed to Mason, which property ought to be held to answer to the complainants for the debts of the company.
    The bill prays for answer, the appointment of a receiver with power to continue the business; that an account may be taken and that the debts of the company existing at and before the first day of June, 1899, may be paid by Mason.
    The bill prays for summons, and is signed and verified by Catherine Christoff el.
    The court appointed a receiver to take possession of the property of the Sunnyside Express Company, and authorized him to run the business of the company. The defendant Mason entered his appearance and on September 22, 1899, by agreement of the parties the bill was dismissed as to Mason, and as to the real estate therein described, the order reciting that the complainants had no lien, claim, or demand on the real estate described in the bill.
    On that date an agreement was entered into between Mason and Catherine Christoffel and the Sunny-side Express Company as follows:
    “Memorandum of agreement made and entered into this 22nd day of September, A. D. 1899, by and between William C. Mason, party of the first part, of the City of Chicago, County of Cook and State of Illinois, and I. W. Sutton, as attorney for Catherine Christoffel and the Sunnyside Express Company, party of the second part, of the City of Chicago, County of Cook and State of Illinois.
    “Witnesseth, that, whereas, the said William G-. Mason heretofore obtained by purchase or otherwise all of the stock, good will, chattels and business of the Sunnyside Express Company, and transferred the same to Catherine Christoffel, with the understanding and agreement that at the time of the transfer the Sunnyside Express Company was, or would be, free aud clear of all incumbrance on the first day of June, A. D. 1899, except a mortgage thereon for the sum of nineteen hundred and fifty ($1,950) dollars, which was assumed by the said Peter Christoffel and Catherine Christoffel;
    “And, whereas, the said Sunnyside Express Company was, on the 12th day of September, A- D. 1899, placed in the hands of a receiver, together with the property heretofore conveyed by Peter Christoffel and Catherine Christoffel to William G-. Mason;
    “And, whereas, it is desired by the party of the first part hereto to secure a release of the said property heretofore conveyed by Peter Christoffel and wife, described as Lot seven (7), Block three (3), Ingledew’s Addition to Ravenswood, from any lien herein;
    “Now, therefore, it is agreed by and between the parties to this agreement that the said William Gr, Mason for himself, and the said J. W. Sutton, acting for Catherine Christoffel and Peter Christoffel and The Sunnyside Express Company and the receiver, that the said William Gr. Mason shall assume and pay all the debts due and payable by the Sunnyside Express Company which accrued prior to the first day of June, A. D. 1899, and upon a final accounting as of the first day of June, A. D. 1899, the said Sunnyside Express Company agreed to pay all the debts found to be due to the said William Gr. Mason by reason of the purchase of the said business from the said William G-. Mason.
    “In consideration thereof, the said J. W. Sutton, as agent and attorney aforesaid, hereby agrees to release the said Lot seven (7) in Block three (3) in Ingledew’s Addition to Ravenswood from any lien ereated by said suit, and hereby also agrees to dismiss the bill herein as to the said William G. Mason.
    “It being the understanding and agreement between the parties hereto that all technicalities as to the form or right of agency be waived.
    (Signed) William G. Mason,
    J. W. Sutton.”
    On December 6, 1900, George N. Lee filed in the cause his verified intervening petition as follows:
    “In the Matter of the Sunny side Express Company, a Corporation, etc., Now. Pending in Said Court.
    “Tour petitioner, George N. Lee, respectfully represents unto your honors that on the 1st day of June, 1899, the said corporation made and executed and delivered its certain twenty-four (24) promissory notes, payable to the order of E. C. Sturgeon aggregating the sum of nineteen hundred and fifty ($1,950.00) dollars together with interest thereon at the rate of 6 per cent per annum, and that for the better securing of the payment of said notes, the said Sunnyside Express Company on the same day made, executed and delivered its certain chattel mortgage covering certain personal property of the said express company, which said notes and mortgage are ready to be produced in court on the hearing hereof; that thereafter your petitioner purchased the said mortgage for a valuable consideration, together with the notes secured thereby, and is now the legal holder and owner of the said notes and mortgage, and that the property so covered by the said chattel mortgage is now in the possession and under the control of one............................Haide; that since the date of the purchase of said mortgage by your petitioner, default has been made by the said company and by the said receiver in the payment of certain of the notes and the interest thereon secured by said mortgage and that therefore and according to the terms of said mortgage the whole of the same is now due and payable, and your petitioner therefore prays that an order may be entered directing the said receiver to turn over to him, your petitioner, all of the property described in the said mortgage.
    “Tour petitioner further shows unto the court that the said property is meager and scant security for the snm of money mentioned in the said notes and mortgage,- and that the Snnnyside Express Company is at the present time insolvent and totally unable to pay its just debts.
    “Wherefore your petitioner will ever pray, etc.
    (Signed) George N. Lee.”
    Complainant, Catherine Christoffel, filed her answer to the petition in which she admits the existence of a paper purporting to be a chattel mortgage signed by the company by William G. Mason, president, attest Edgar Steele, secretary, but denies that on the date of its execution the said Mason was president or the said Steele secretary of the company, or that either of them had any power by virtue of their reputed offices, or by virtue of any power conferred upon them by the board of directors of the company to execute or deliver the chattel mortgage; admits that at the time of the execution of the mortgage certain reputed notes were executed by said Mason and Steele, reputed to be secured by the mortgage, but denies that they had any right or authority to bind the company or to sign the name of the corporation to the notes; denies that Lee purchased the mortgage and notes for a valuable consideration, and is now the legal owner and holder thereof, but alleges that Lee obtained the same, if at all, entirely without consideration; that Lee obtained the notes and mortgage from Grant Newell, former counsel of William G. Mason, who delivered the same to Newell for safekeeping, and therefore the said Newell was the gratuitous bailee of Mason, and at the time of the delivery of the mortgage and notes to Newell by Mason all equities exising between the defendants and Mason had been paid in full, and that the said Newell and Lee had knowledge thereof; admits that the Snnnyside Express Company was placed in the hands of a receiver on the 12th day of September, 1899, but that in the year 1903 the Secretary of State of the State of Illinois canceled the charter of said company, since which time the company ceased to do business as a corporation, but that the defendant carried on the business as an individual; that neither the notes nor mortgage are exhibited in the intervening petition, but upon information the defendant states that the mortgage was not properly acknowledged and recorded, nor were the notes secured thereby properly executed as required by the statute; that for a long time prior to the first day of June, 1899, the Sunnyside Express Company had ceased to be a corporation. While the stock book of the company may have disclosed stock in the names of divers persons, as a matter of fact all of the stock was owned by Mason, who was the president, secretary, board of directors and stockholders of the company; that no meeting of the board of directors was ever held authorizing the president and secretary to execute the mortgage, and even if said authorization had been properly made it was ultra vires and void as being in contravention of the powers of the board under the charter of the corporation; that all the stock, good will and property of the company were turned over by Mason to the Christoffels on the first day of June, 1899, and therefore at the time of the execution of the mortgage neither Mason nor Steele had any stock in the company, and therefore neither of them could act as president or secretary of the company, nor could they legally bind the company by contract or otherwise; that immediately after the filing of the intervening petition, a motion was filed to strike the intervening petition from the files, which motion was denied, and a demurrer was then filed to the intervening petition on the 29th day of December, 1900; that the defendant expended large sums of money to pay off numerous debts incurred by the company before the time it was sold to defendant, which debts Mason had, before that time, agreed to pay; that upon an accounting with Mason it was agreed between the parties that in consideration of the payment by defendant of debts outstanding against the company before the first day of June, 1899, the mortgage should be canceled, and thereupon Mason executed and delivered a receipt in full for all moneys due on account of said transaction, which was intended by the parties to cover the chattel mortgage; that defendant then devoted all her time to the management of the business, hiring and discharging employes, making contracts, buying horses to replace dead ones, adding new horses and wagons to the business as it increased by her efforts, rebuilding the barn which had collapsed, and devoting all her time and energy to the maintenance and upbuilding of the business, until now it is in a flourishing condition; that defendant increased the business by her energy, thinking any claim by reason of the mortgage had been fully paid and satisfied; that she was lulled into security by reason of the fact never since the 29th day of December, 1900, has the intervenor pressed his claim; that this delay of over four years was laches on the part of the intervenor, and defendant was lead to and did believe that the intervenor had knowledge and acquiesced in the settlement heretofore made between her and Mason, and therefore by reason of such delay and laches the intervenor ought in equity to be barred from any action on the notes and mortgage; that the notes were made without consideration; that E. 0. Sturgeon, the payee in the notes, never paid any money consideration therefor, nor did the company receive benefits of value as a consideration therefor; but that Sturgeon was a mere figurehead, and in reality the notes and mortgage were made by the reputed president of the company, William G-. Mason, to E. C. Sturgeon, and immediately endorsed by Sturgeon, no money or other valuable thing passing to Mason, the real effect being the execution of the mortgage and notes by the president of the company to the president of the company, which in law and equity rendered the whole transaction void; neither admits nor denies any allegations not specifically admitted or denied, but calls for strict proof; prays that the answer may stand as the answer of all defendants, and prays the same advantage as if demurrer had been filed.
    The default of Peter GhristofEel for want of answer to the petition was entered; and the petitioner filed a replication to the answer of Catherine Christoffel On May 12, 1905, the cause was referred to a master “to take proof of all the material allegations in the said bill contained and report the same to this court with his opinion on the law and the evidence.”
    The master reported making the following findings of facts and conclusions of law:
    “1st. That on the first day of June, 1899, the Sunnyside Express Company, by its president and secretary, executed twenty-four promissory notes payable to B. C. Sturgeon, twenty-three being for $60 each and payable in twenty-three consecutive months, and one note for the sum of $570, payable twenty-four months after date, all bearing interest at the rate of six per cent per annum, the interest being evidenced by four interest notes for $53.10, $42.30, $31.50 and $20.70, respectively, and payable in six, twelve, eighteen and twenty-four months after date.
    “2nd. That to secure the payment of these notes the company, by its president and secretary, by its chattel mortgage sold to B. C. Sturgeon the chattels of the company, said mortgage being acknowledged before John A. Mahoney, a Justice of the Peace, on the first day of June, 1899, and recorded in the recorder’s office of Cook county on the same day.
    “3rd. That in default of the payment of any of the notes secured by the said mortgage the whole amount should become due at the option of the mortgagee, and the mortgaged goods sold at public or private sale, with or without notice, the surplus, if any, after paying the mortgage debt, to be paid to the mortgagor or its legal representatives.
    “4th. That notes No. 3 and 4 for $60 each, No. 7 for $53.10, Nos. 9 and 11 for $60 each, No. 21 for $31.50, Nos. 22, 23, 24, 25 and 26 for $60 each, No. 27 for $570 and No. 28 for $20.70 are unpaid.
    “5th. That George N. Lee, the intervening petitioner, is the legal holder and owner of the notes and chattel mortgage.
    “6th. That the Sunnyside Express Company is indebted to the intervening petitioner, Lee, on account of said notes and accrued interest in the sum of $1,900.95.
    “7th. That William G. Mason was originally the hgal holder and owner of said notes and mortgage, but that he became involved in litigation and required the services of Grant Newell, a lawyer, and to secure the fees of said Newell, Mason delivered the mortgage and notes to Newell, who accepted them on account of legal services.-
    “8th. That Newell tried to collect the same, and after assuring himself that they were bona fide, sold t he mortgage and notes to George N. Lee, the intervening petitioner, for $750 in cash.
    “9th. That Grant Newell rendered legal services to William G. Mason, and upon a subsequent accounting Newell made an allowance to Mason for the notes and mortgage, and also received a balance in cash from said Mason on account of legal services.
    “10th. That defendant’s allegation that the notes and mortgage were issued illegally and without consideration is not sustained by the evidence. -
    “11th. That the evidence does not support the various allegations of the defendant’s answer.
    “Master’s Conclusions oe Law.
    “My conclusions of law are, first, that there is now due to George N. Lee, as legal holder and owner of said notes and mortgage, the sum of $1,900.95, as principal and interest, evidenced by said notes, and that the mortgage is a first and superior lien upon the chattels mentioned in the mortgage.
    “Second. That if the Sunnyside Express Company or some one of the defendants do not pay said amount to the petitioner within such time as the court may direct that said property he sold, the proceeds of the sale to be applied to the satisfaction of the amount due Lee, ‘and that the said Lee may have such other and further relief herein as he may be entitled to.’ ”
    Objections were made to the master’s report, and by order of court they were ordered to stand as exceptions thereto. On hearing of the report on exceptions the following decree was entered:
    “That the allegations of the intervening petition are true; that the court has jurisdiction of the parties and subject matter; that the equities are with the intervening petitioner; that Catherine and Peter Christoffel bought all the property covered by the chattel mortgage from the Sunnyside Express Company, and agreed to pay the debts secured by the mortgage; that there is due from the Sunnyside Express Company and Catherine and Peter Christoffel to the intervening petitioner for principal and interest the sum of $2,142.67.
    “It is therefore ordered that the Master’s report be approved and the exceptions taken by the defendants thereto be overruled.
    “It is further ordered that the Sunnyside Express Company and Catherine Christoffel and Peter Christoffel pay to George N. Lee, within five days, the sum of $2,142.67, with lawful interest from this date until paid, and the costs.
    “It is further ordered that in default of payment being made as aforesaid, the property mentioned in the mortgage be sold at public sale to the highest and best bidder; Wm. F. Cooper is hereby appointed Special Master to execute the decree; that he give notice of the time and place of sale; and that the receiver turn over to the purchaser or purchasers all of the property purchased by them; out of the proceeds he shall retain his fees, pay the costs of court, and out of the remainder pay the intervening petitioner $2,142.67, with interest; if the remainder shall not be sufficient to pay petitioner he shall apply it to the extent it will reach; if the property shall sell for more than sufficient to pay these amounts the surplus shall be turned into court to abide the further order thereof.
    “It is further ordered that if the moneys derived from the sale shall be insufficient to pay the amounts due, the Master shall report the deficiency to the court and thereupon the Sunnyside Express Company and Catherine Christoffel shall pay petitioner the amount of the deficiency with interest, and that he shall have execution therefor.”
    This writ of error is prosecuted to reverse the decree.
    J. W. Sutton, for plaintiffs in error.
    William English, for defendent in error.
   Mr. Justice Smith

delivered the opinion of the court.

The record before us presents an unusual jumble of pleadings, orders and practice. It shows that ten days after the bill was filed, September 22, 1899; the controversy involved In the original bill of complaint was settled, and that there remained thereafter no ground upon which the bill could be maintained, or upon which it could serve any legal purpose. Yet, a receiver of all the property of the Sunnyside Express Company was continued in charge of the property and business .of the company for years thereafter. After the vendors’ lien of the complainants was settled and adjusted, and the property upon which the complainants asserted the lien was released by an agreed order of court, and the bill was dismissed as against the defendant Mason, it apparently was maintained as a stockholders’ bill to protect the company and its property against the creditors of the company. The case thus fell under the condemnation of The People v. Weigley, 155 Ill. 491, and the court was without jurisdiction to entertain the case. True, we have nothing to do with the main case on this appeal further than to pass upon the decree on the intervening petition, but, if the court had no cause before it over which it had jurisdiction, the intervening petition did not give the court jurisdiction to hear and determine anything.

The order of reference to the master was, “to take proof of all the material allegations in the said bill contained and report,” etc. On the hearing before the master no evidence was offered in support of the bill. The hearing before the master was upon the intervening petition, which had not been referred to the master. The master’s report was upon the claim of the intervening petitioner, and the decree followed the report.

The intervening petition names no parties defendant. It sets up the purchase and ownership of the notes and chattel mortgage securing the same by the petitioner, and that the property covered by the mortgage is in the possession of one Heide, not describing him as receiver or otherwise, and that there had been a default in the payment of certain of the notes since petitioner purchased them; and according to the terms of the mortgage the whole sum represented by the notes was due and payable; and prays for an order on the receiver to turn over to the petitioner the property. No rule was entered requiring any one except Catherine and Peter Christoffel, who had filed a demurrer to the petition, to answer the petition, and no answer was filed by anyone except Catherine Christoffel, who did not have possession of the property. The Sunnyside Express Company was not a party to the petition, and its rights to the property referred to in the petition were not litigated or settled. It necessarily follows that as to the Sunnyside Express, Company the decree is erroneous and must be reversed. But, beyond that no consideration appears in the record moving to the company for the notes secured by the chattel mortgage. The notes and mortgage were executed by W. Gr. Mason as president, and Edgar B. Steele as secretary of the corporation, to B. C. Sturgeon, but it does not appear that the company was indebted to Sturgeon or Mason or that these instruments were executed and delivered in the ordinary course of the business of the express company. The only inference from what appears in the record is that the notes were executed in connection with, and for the purposes of, the sale of the real estate described in the bill of complaint from complainants to Mason. The notes appear to have been endorsed over at once without recourse by Sturgeon to Mason. They were made to represent, apparently, an indebtedness between the Christoffels and Mason in the trade between them, of May 29, 1899. There is no evidence that the company owed Mason this indebtedness or any part of it. No actual consideration is claimed in argument. The facts shown warrant the conclusion that there was no consideration for the notes and mortgage and this would be available by the company as a defense against the mortgage either in a foreclosure of the mortgage or in a proceeding to obtain possession of the property under the mortgage for the purpose of foreclosing. The express company was, therefore, vitally interested in the proceedings under the intervening petition, and should have been made a party to the petition and jurisdiction obtained over it.

The petitioner Lee took the chattel mortgage subject to all defenses in favor of the express company. C. D. & V. Ry. Co. v. Loewenthal, 93 Ill. 433.

The assignment of the notes secured by the mortgage did not carry an assignment of the separate guarantee or assumption of Catherine Christoffel and contained in the agreement of September 22, 1899, to the petitioner Lee or for his benefit. We know of no authority for holding upon the facts in this case that the separate assumption or guarantee passed by the mere assignment of the notes so as to make Mrs. Christoffel liable for the payment of the mortgage indebtedness in a proceeding of this character. Nor do we think Mrs. Christoffel or the Sunnyside Express Company in any event liable by estoppel for any deficiency in the sale of the property for the payment of the mortgage debt in this proceeding. Hence the decree in providing for the payment by Mrs. Christoffel and the Sunnyside Express Company of the amount of the deficiency with interest is erroneous.

The petition properly prays for an order directing the receiver to turn over to the petitioner the property described in the mortgage. It does not ask for any other or further relief. It does not pray for a foreclosure of the mortgage. Such relief was not germane to the original bill and would not have been proper under a formal cross-bill filed for that purpose for that reason. Under no rule or principle of equity practice could it be proper under an intervening petition to obtain the possession of property in the hands of a receiver to decree foreclosure of a mortgage. The decree doe's not answer or respond to any pleading in the cause which was or could be properly filed. Rosenbleet v. Rosenbleet, 122 Ill. App. 408; Bremer v. C. & C. Canal & Dock Co., 123 Ill. 104.

The decree is reversed and the cause is remanded with directions to dismiss the intervening petition, but without prejudice to the right of the intervenor to proceed at law or in equity for relief respecting his rights, if any.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Julius F. Taylor, Plaintiff in Error, v. Frank Marshall, Defendant in Error.
    Gen. No. 15,620.
    1. Jttoqments—what does not affect Men upon leasehold interest in real estate. A leasehold interest in real estate which has a longer period than five years to run is real estate and if the lien of a judgment attaches thereto a surrender of such leasehold interest by the judgment debtor does not affect such lien.

      2. Bankruptcy—what discharge does not affect. A judgment obtained in an action for malicious prosecution is not affected by a discharge in bankruptcy.
    3. Bankruptcy—what discharge does not affect. A discharge in bankruptcy does not affect a lien upon an interest in real estate if such lien was obtained more than four months prior to the adjudication in bankruptcy.
    4. Forcible entry and detainer—who may maintain. A person who has succeeded to the rights of the lessor in a five year leasehold interest, through a judgment and sale followed by deed (redemption having expired), may maintain forcible entry and detainer against the assignees of the lessee.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed February 15, 1910.
    Rehearing allowed March 8, 1910.
    Opinion refiled April 8, 1910.
    A. D. Gash, for plaintiff in error.
    Edward H. Morris, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Julius F. Taylor instituted a forcible detainer suit against Frank Marshall to recover possession of premises known as Nos. 171 to 175 Twenty-first street, Chicago. The court found the defendant not guilty and gave judgment against the plaintiff who prosecutes this proceeding in error to reverse the judgment.

The evidence offered by the plaintiff tended to show that one Elnoria H. Fowler leased the premises to Poney Moore by a lease dated July 15, 1905, for a term commencing August 1, 1905, and expiring April 30, 1915, at an annual rental of $1,200 payable in equal monthly instalments in advance. Among other things the lease provided as follows:

“It is expressly agreed between the parties hereto that if default be made in the payment of the rent above reserved, it shall be lawful for the party of the first part without notice to declare said term ended, to re-enter said premises and to expel party of the second part, and the said premises again to repossess and enjoy.”

On November 18, 1905, by a lease bearing that date Moore sublet the same premises to Joseph Marshall for the balance of the term of the original lease, or to April 30, 1915, at a rental of $150 per month, payable in advance on the first day of each month; and on November 9, 1906, Joseph Marshall, by a written assignment endorsed on the lease, assigned it to the defendant, Frank Marshall.

The evidence further shows that on January 17, 1907, the plaintiff, Julius F. Taylor, recovered a judgment in the Circuit Court of Cook County, Illinois, in an action on the case for malicious prosecution and wilful and malicious injury against Poney Moore for $18,000; and that on October 1, 1907, the plaintiff caused an execution issued on the judgment to be levied on Moore’s interest in the premises under the lease from Mrs. Fowler to him as real estate under section 3 of chapter 77 of the Revised Statutes, which provides that leasehold estates, when the unexpired term exceeds five years, are real estate as the term is used in that act. The estate was sold under the execution to the plaintiff, and after the period of redemption had expired, and on February 1, 1909, the plaintiff received a sheriff’s deed of Moore’s interest in the property.

On that date the plaintiff served a notice on the defendant that the plaintiff was the owner of Moore’s interest in the property by means of the sheriff’s deed (a copy of which was also served on the defendant) and that the defendant should pay the rent of $150 per month to the plaintiff. On February 2, 1909, the rent not having been paid, the plaintiff served on the defendant the usual landlord’s five days notice, notifying the defendant-that unless $150 rent of said premises for February, 1909, was paid within five days defendant’s lease would be terminated.

The evidence also tended to show that the defendant was in possession of the property.

The defendant’s evidence tended to show that on Hay 23, 1907, Moore surrendered his lease from Mrs. Fowler, and on the same day Mrs. Fowler leased the premises to one William Blunk. Moore notified Joseph Marshall by a letter dated June 4, 1907, that he had surrendered his lease to the owner, and directed him to see Blunk, stating he was in charge of the property. Following this, the agents of Mrs. Fowler on July 2, 1907, delivered a note or order to the defendant Marshall, addressed to Joseph Marshall and Frank Marshall, stating in substance that she had made a lease of the premises to Blunk and directing them to pay the rent of $150 per month to him. After this defendant Marshall paid his rent to Blunk.

It further appears that the lease from Fowler to Blunk was assigned to one Blackburn on January 8, 1908. Moore was adjudged a bankrupt August 12, 1907, and a trustee of bis estate was appointed. The plaintiff filed his claim, based on his judgment, in the bankruptcy court and it was allowed.

In our opinion the judgment of the plaintiff was a lien upon the leasehold estate in the premises of Poney Moore, and that by the sale of that estate under the execution levied thereon, the plaintiff became the legal owner of the leasehold estate. The surrender of the lease by Moore did not affect the judgment lien on the leasehold estate. Dobschuetz v. Holliday, 82 Ill. 371, 374; 15 Am. & Eng. Ency. of Law, 21.

It appears from the evidence that the defendant was still in the possession of the premises at the time the demand for the payment of rent and the notice were served, and at the time of the trial, as the owner of the lease and under the lease. As against the defendant the evidence shows a right to possession in the plaintiff at the time of the commencement of the action, and that the defendant was unlawfully withholding the possession from the plaintiff.

The bankruptcy proceedings are not a bar to the plaintiff’s right of action for two reasons: First, the judgment under which the leasehold was sold was obtained more than four months prior to the adjudication in bankruptcy, and it was a lien which the adjudication in bankruptcy did not divest or affect in any way; and second, the judgment was of a character which the bankruptcy law does not discharge.

The judgment of the trial court is clearly erroneous. The judgment is therefore reversed, and judgment is entered in this court in favor of the plaintiff for the possession of the premises against the defendant.

Reversed and judgment in this court.


author: Mr. Presiding Justice Holdom

text:
    Ella L. Aldrich, Defendant in Error, v. Lillie B. Maher, Plaintiff in Error.
    Gen. No. 14,768.
    1. Accounting—when exclusion of account erroneous. An account stated by a party cannot be disregarded in toto merely because the items set forth are not as to each and every of such Items supported by vouchers.
    2. Decrees—when scope cannot be enlarged. If a decree has been affirmed by the Supreme Court it fixes the rights and interests of the parties to the controversy and unless conditions occurring since that decree inject new matter, not then known, or which did not then exist, there can be no departure from it.
    3. Contempt—when error to adjudge party in, for failure to attend as witness. It is error to adjudge a party in contempt for failing to appear as a witness before a master and submit to a viva voce examination touching an account rendered in a cause, where such party is a non-resident. No statute of this state gives the courts of this state any authority to compel a non-resident to come personally within the jurisdiction of this state for examination as a witness nor to punish such non-resident as for contempt of court for failure to personally appear.
    4. Interest—when allowance proper against trustee de son tort. Interest is properly chargeable upon the corpus of a trust in an action against a trustee who has been held to have dissipated the estate.
    5. Pleading—when supplemental hill improperly filed. It is error to allow the filing of a supplemental bill in an action in which the rights and interests of the parties have been finally adjudicated by the Supreme Court.
    6. Costs—what not taxable. Solicitor’s fees under no circumstances, aside from the agreement of the parties, can be allowed or taxed as costs.
    7. Costs—what not taxable. The traveling expenses of solicitors incurred while journeying to a point outside of the state for the purpose of examining the adverse party, are not taxable as costs.
    8. Costs—when master’s fees should not he taxed. Master’s fees upon a reference made upon an issue which was wholly unauthorized should not be taxed against the defeated party.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Richard W. Clhteobd, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 31, 1910.
    Rehearing denied April 10, 1910.
    Hamlin & Boyden and Louis M. Greeley, for plaintiff in error.
    Arba N. Waterman, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The original decree in this cause was before the Supreme Court in Maher v. Aldrich, 205 Ill. 242, to the opinion in which case we refer for all matters involved in the cause antecedent to that landmark in this case. The opinion of the Supreme Court settled the trust question in dispute between the parties and sent the cause back to the trial court for an accounting, to commence with September 24, 1898. The court concludes its opinion with the following direction: “We are therefore of the opinion that date”—September 24, 1898—“should be taken as the date from which Mrs. Maher should be required to account for the rents and interest derived by her from said trust fund whether held by her in money, securities or invested in real estate. ’ ’

- The record is somewhat voluminous and cannot, and indeed need not, be here recited. The arguments are lengthy, discussing many matters which are res adjudicata under the decision of the Supreme Court and not now subject to challenge by the parties or to interference by this court. What formed the corpus of the trust estate was settled by the former decree and its affirmance by the court of dernier ressort establishes it so firmly that no power short of that court on any further review, if any should be had before it, can in the slightest degree disturb it. The trial court proceeded upon the assumption that it was a fixed fact that the corpus of the estate chargeable to Lillie B. Maher as trustee was the Lake avenue property, $8,000 proceeds of the sale of the Oakwood Boulevard property, $2,000 forfeited by J. Frank Aldrich under an option for a lease of the Lake avenue property, and $8,500 of the $9,000 loan on the Sumner note, which was exchanged for the St. Botolph street, Boston, property, and lost by Mrs. Maher under a mortgage given thereon by her to secure a loan of $4,000. The only part of the trust property remaining in kind is the Lake avenue property and a charge against Mrs. Maher for the residue, found by the Master to be $18,500. To the.proceedings subsequent to the affirmance by the Supreme Court of the original decree is our review of the record confined. This court has concluded that the decree must be reversed for the reason that the accounting made by Mrs. Ma-her was excluded; that she was erroneously adjudged to be in contempt of court; that the supplemental bill has no place in the record; that the appointment of the new trustee to supplant Mrs. Maher in virtue of the supplemental bill was unwarranted; and that $6,500 for complainant’s solicitor’s fees ordered to be paid by Mrs. Maher, as well as the Master’s fees taxed against her on a reference to • ascertain the amount to be allowed, was contrary to law.

That the accounting of Mrs. Maher was entirely .excluded is too plain to need discussion to demonstrate, notwithstanding the recitation in the fourteenth paragraph of the decree that Mrs. Maher’s account and the deposition of herself, her husband and McCafferty were considered by the Master in stating the account. They were not considered. That they should have been considered defendants in error seemingly admit by the subtle endeavor made to avoid the inequitable and wrongful exclusion of the accounts and the depositions of Mrs. Maher and her witnesses. The findings of the master bear strong integral evidence that all of the foregoing evidence was excluded and intentionally so, after due deliberation. On May 24, 1904, the chancellor among other things ordered the master to disregard all of the papers and documents filed with him “in the name and nature of the account ordered and directed by the decree of the court to be made by her, the said Lillie B. Maher,” and in obedience to this order the master did disregard all of Mrs. Maher’s accounts and the depositions supporting them. If he had not done so he could not have reached the conclusions he did. This fact is further emphasized by the finding of the first clause of the decree, from the legal consequences of which it is idle to attempt to escape. This is the clause: “First. That the said Lillie B. Maher a's trustee has failed, neglected and refused to file any account as such trustee or otherwise, pursuant to the decree of this court and in compliance with the law and practice in such a case and in compliance with the order entered in this cause.” An examination of the accounts justified no such conclusion. The master ruled (and the chancellor sanctioned such ruling in the decree entered) that Mrs. Maher must state an account, together with vouchers supporting each of its items, before the same could be considered. We think this ruling inequitable and uncalled for in the light of the former relationship of the interested parties, and that the account was in the first instance sufficient to permit defendants in error to surcharge and falsify it as to any item, but that there was no authority for disregarding it in toto. It follows, therefore, that the conclusions of the master being based upon false premises are erroneous. The Sumner note and mortgage were merged in the St. Botolph street property, so that the latter came under the ruling of the Supreme Court and formed a part of the trust property in the place of the Sumner investment. The master should, therefore, have proceeded to ascertain the value of the St. Botolph street property as of September 24, 1898, and to have charged Mrs. Maher with the income received by her from, that date until its sale under a mortgage given by her to C. G-. .Way, after crediting her with all proper disbursements chargeable to its maintenance, and thereafter charging her with interest on its ascertained value. Such action would have been in accord with the original bill as amended before the entry of the decree reviewed by the Supreme Court. There can be no enlargement of the scope of the case as fixed by the decree affirmed by the Supreme Court. That decree fixed the rights of the parties and unless conditions occurring since that decree inject new matter, not then known, or which did not then exist, there can be no departure from it.

Mrs. Maher should not have been adjudged in contempt of court because of her failure to conform to an order to appear before the master at his office in Chicago for examination. Mrs. Maher for several years prior to and at the time of the commencement of this suit resided with her husband in Boston. Before she had given testimony at Boston in this case, where counsel for defendants in error attended and cross-examined, their travelling expenses being allowed by the court and taxed as costs against Mrs. Maher, she was ruled to attend before the master for viva voce examination touching her accounts rendered in the cause. She failed to attend, claiming ill health prevented. The chancellor ordered Mrs. Maher to appear before the master in accord with a rule of the Circuit Court, which inter alia provided, “All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor, and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon oral or written interrogatories, in the master’s office, as the master may direct.” This rule did not require the master to compel an accounting party to appear in his office for viva voce examination, and if it did, it did not operate to repeal the statute on evidence and depositions, which provides how a nonresident witness may be examined. No statute of this state, known to us, gives the courts of this state any authority to compel a nonresident to come personally within the jurisdiction of this state for examination as a witness, nor to punish such nonresident as for contempt of court for failure to personally appear. The Evidence and Deposition Statute provides the appropriate method of taking the testimony of nonresidents, be they parties or witnesses. For failure to comply with this illegal order, Mrs. Maher was in effect outlawed. She was adjudged in contempt, her accounts and depositions rejected and she was adjudged to owe money for which she was not liable. Such proceeding was unconscionable and would not be tolerated even by the strict rules of the common law, much less by the course of procedure in a court of conscience. The decree by the ninth clause specifically finds that Mrs. Maher and her husband are nonresidents of this state. This fact was notice to the court and all concerned that Mrs. Maher could not be brought within this jurisdiction against her will for any civil purpose. If her evidence was needed for any purpose, recourse could have been had, as in one instance, by procuring the same by deposition. It does seem to us the contempt proceeding was uncalled for and oppressive, because when the opportunity presented itself for Mrs. Maher’s examination in Boston counsel did not avail of it, but contended themselves with a very limited examination. There is nothing in this record from which any inference may be indulged that Mrs. Maher was unwilling to answer any question which any of the parties might see fit to put to her at any time. The decree affirmed by the Supreme Court found that the $2,000 forfeit money paid by J. Frank Aldrich to Mrs. Maher was a part of the corpus of the trust estate. She is therefore chargeable with interest thereon from September 24, 1898. Mrs. Maher is entitled to credit for all disbursements made to, for, or on account of defendants in error since September 24, 1898, including the furniture, valued at $1,500, sent by Mrs. Maher to Mrs. Stevens December 30, 1898.

The supplemental bill was improperly allowed to be filed. No new matter occurring since the filing of the original bill and not within the knowledge of the parties or accessible to them at the time of its filing was alleged in the supplemental bill. The dissipation of the trust property by Mrs. Maher appears from the bill as first filed, as also her repudiation of the trust and contention that the property claimed was her own. The reversionary right of King, if alive, or, if dead, of his personal .representatives, in the property, was known ’to complainants at the time they instituted this proceeding, or at least such knowledge is imputable to them from the averments of their original bill, so that making the devisee of King, who created the trust, a party, did not constitute a new element of the case arising since the filing of the original bill. If complainants were entitled to the additional relief sought by the supplemental bill at the time these proceedings were commenced, then they lost that right by not claiming it before taking the decree originally entered adjudicating their rights. As said in Hood v. Green, 42 Ill. App. 664: “No reason is given in the supplemental bill why the facts relied upon to sustain it were not put in the original bill by amendment.” The rule is as stated in Story’s Eq. Pl. sec. 422: “If, therefore, the party proceeds to a decree, after a discovery of - the facts upon which the new claim is founded, he will not be permitted afterward to file a supplemental bill, in the nature of a bill of review founded on these facts, for it was his own laches not to have brought them forward at an earlier stage of the cause.” The affirmed decree settled the rights of the parties, and that decree cannot be enlarged by adding thereto any additional right existing at the entry of the former decree. Neither can a decree be amended after the term at which it was entered. Adam v. Gill, 158 Ill. 190. The so-called supplemental bill is not by its averment of fact such a pleading; if anything, it would be an amendment to the original bill, because its averments are as to facts existing at the time the original bill was filed. The following-statement from Bauer v. Zelle, 172 Ill. 407, is in point: “The allegation of this additional pleading related to matters which occurred prior to the institution of the suit, and therefore the pleading denominated a supplemental bill was but an amended bill, and the rules of pleading applicable to it are to be determined, not by the mere name given to it by the pleader, but by its real nature as disclosed by its allegations. Burke v. Smith, 15 Ill. 158.” The removal of Mrs. Maher as trustee and the appointment of the Boyal Trust Company in her place as trustee, and the impounding of her interest in the Lake avenue property being grounded on the allegations of the so-called supplemental bill and not within the terms of the affirmed decree, are without warrant of law and erroneous. As Miss Aldrich’s, as well as Mrs. Maher’s share in the income of the trust estate was increased from one-third to one-half by the death of Mrs. Stevens, the realignment of interest was within the scope of the original bill and the affirmed decree, and therefore permissible. The death of Mrs. Stevens was an event which occurred after the entry of the affirmed decree, and might have been made to appear by averment in a supplemental bill supported by proof, if deemed necessary.

The taxing of costs in this state is regulated and controlled by statute. Solicitor’s fees under no circumstances, aside from the agreement of the parties, can be allowed or taxed as costs in the cause. Wilson v. Clayburgh, 215 Ill. 506. They are not taxable against a party to the cause. The extreme, on this proposition, to which the courts of this state have gone, is the allowance of solicitor’s and attorney’s fees out of trust funds, where such funds have been the object of protection through litigation eventuating in the decree for judgment in the cause. The decisions of courts outside of this jurisdiction have no weight in determining this question. The rule as to costs is controlled by the statutes of the several states and varies in each. Counsel for defendants in error have cited three Illinois cases. They are Waterman v. Alden, 144 Ill. 90; Abend v. Endowment Fund, 174 ib. 96; and Lewis v. Sedgwick, 223 ib. 213. In the Waterman case no solicitor’s fees of an adversary party are charged against or ordered to be paid by the defeated trustees out of their own pockets. Certain costs, such as are usually taxable are ordered paid out of certain funds, which also embraced amounts covered by the stipulation of the parties. In the Abend case certain solicitor’s fees were directed to be paid out of the funds involved in the litigation, and the court say: “A trust may be lawfully required to bear the necessary expenses of its own preservation. The claim to this fund set up and pressed by appellant made the services of solicitors necessary to a preservation of any part of it to its proper use, and the allowance of reasonable solicitor’s fees to be paid out of the fund, under such circumstances, is neither error nor a diversion of the fund.” In the Lewis case the allowance of $500 for solicitor’s fees was ordered to be paid by the executor as such, and of course such amount was payable from the estate of the testator. The will, attacked by the widow, who had renounced the provisions made in it for her, was sustained. The executor was in no wise derelict in his duty, so that what he was ordered to pay as solicit- or’s fees was payable out of the estate. This was not a case of adversary solicitor’s fees. The order that Mrs. Maher pay $6,500 adversary solicitor’s fees being erroneous, the master’s fees on a reference to ascertain the amount of such fees cannot be taxed against her. Neither are we aware of any authority making Mrs. Maher liable to pay the travelling expenses of defendants in error’s solicitors, in journeying to Boston to attend on the examination of Mrs. Maher or her witnesses. That allowance must also be excluded as a charge against Mrs. Maher. -

The decree of the Circuit Court appealed from is reversed and the cause remanded for such further proceedings conformable to the views expressed in this opinion, and whatever accounting may be had shall be upon the lines above indicated.

Reversed and remanded.


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    Louis Treptow, Jr., Appellee, v. Montgomery Ward & Company, Appellant.
    Gen. No. 15,011.
    1. Mauciotts peoseoution—when malice presumed. Malice will not be inferred unless probable cause exists; but where there is an entire lack of probable cause malice may be presumed to have been the motive actuating the prosecution.
    2. Evidence—when admission of improper, will not reverse. If improper evidence has been admitted without objection and is immediately upon motion stricken out, no complaint can be urged on appeal.
    3'. Evidence—when admission of improper, will not reverse. If the evidence which was improper did not add anything to the issues before the jury, no harm is deemed to have resulted and a reversal will not be ordered.
    4. Instructions—need not repeat. The refusal of a correct instruction is not error if its substance is contained in another instruction given.
    5. Instructions—effect of failure to present. Before error can be successfully urged upon the refusal of the court to give an instruction, it must appear that such instruction was tendered to the trial judge.
    6. Instructions—when reference to ad damnum will not reverse. Held, that the reference to the ad damnum in an instruction given in this case, which was one for malicious prosecution, circumscribed as it was by the language employed, was not such error as would reverse.
    7. Verdicts—when not excessive. Held, under the evidence in this case, which was one instituted for malicious prosecution, that a verdict of $4,000 was not excessive.
    Action for malicious prosecution. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    Rehearing denied April 14, 1910.
    George P. Merrick, for appellant; William; C. McHenry, of counsel.
    A. J. Hanlon, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action for malicious prosecution resulted in the trial court favorable to plaintiff, the jury finding defendant guilty, assessing damages at the sum of $4,000 by their verdict. After overruling a motion for a new trial a judgment was entered upon the verdict and this appeal seeks our review of the record and a reversal of the judgment.

Defendant’s argument in its essence challenges the verdict as being manifestly contrary to the evidence contending that there was probable cause for the arrest and that malice is lacking; that there was error in the admission of evidence and in instructions upon the law to the jury; and failure to mark either “given” or “refused” an instruction found among the files, which was not read to the jury.

A careful reading of the evidence convinces ou-r minds that the verdict of the jury logically came about by a discriminating solution of the evidence heard by the jury, and that the verdict finds ample support in the evidence. Under well settled rules of law a court of review, so minded, has no right to interfere with such a verdict. What, in brief, are the evidential facts? Plaintiff was an employe of defendant as a packer. At the time of his arrest he was engaged in packing jewelry. He worked in connection with others, among whom was one Brophy. Pour watches were purloined, three of which had passed through plaintiff’s hands, but all of them were equally accessible to Brophy and others engaged in that department after leaving the hands of plaintiff. Aside from the fact that the missing watches had been handled by plaintiff, there was not a suspicious circumstance tending to connect him with their theft. His reputation for honesty to that time was not questioned. He did all he reasonably could to solve the mystery of the disappearance of the watches. He voluntarily accompanied defendant’s detectives wherever they suggested he should go, and in fact it was his suggestion which resulted in the apprehension of Brophy. There never was, in the' whole investigation by the detectives of defendant, any circumstance which constituted even a suspicion of probable cause that plaintiff stole the watches. Candor characterized every act of plaintiff at every stage of the proceeding. His arrest was entirely unwarranted and uncalled for from every viewpoint of his conduct and character. The detectives were overzealous. What they lacked in good sense and honest purpose they made up in misdirected zeal. Their actions and conduct are attributable to defendant, who cannot escape the penalty of responsibility therefor to plaintiff. Not content with arresting plaintiff without a warrant and without the existence of any probable cause of guilt, defendant’s detectives attempted to extort a confession from plaintiff of a crime he was not guilty of committing. When defendant’s agents must have known .that there was no evidence obtainable connecting plaintiff with the theft, they applied for and obtained a continuance of the hearing before the committing magistrate, which resulted, as they knew it must, in imprisoning in the Cook County jail for several days this young man, who was innocent in the eyes of the law and in fact of stealing the missing watches. Malice will not be inferred where probable cause exists, but where there is an entire lack of probable cause malice may be presumed to have been the motive actuating the prosecution. Roy v. Goings, 112 Ill. 656. To constitute probable cause there must be reasonable grounds for suspicion, supported by circumstances sufficiently strong to warrant in a cautious man belief of guilt. Parmalee v. Griffin, 136 Ill. App. 307. The Parmalee case on the facts bears not the slightest resemblance to the the facts in this record, for in the Parmalee case probable cause was manifest; here it is absent. But the law announced in the Parmalee case is of as much controlling force in this as in that case and in no respect in conflict with our holding.

Having disposed of the merits of the case we will briefly discuss the errors of procedure urged as grounds for reversal. To the contention that the question put to and answered by plaintiff in the negative, as to whether he “had taken or stolen a watch from that firm,” it may be said that conceding that the question was improper, it was not objected to, and the motion afterwards made to strike it out being allowed may be regarded as a sufficient curative. In no case can such error, if error it was, be held to be so harmful as to constitute cause for reversal, because in law and fact plaintiff stood before the jury with the presumption of innocence in Ms favor, and not having been convicted and there being no probable cause at any time justifying a suspicion of his guilt, his stating that he was not guilty did not inject an element into the case wMch was not already before the jury. This case is not at all like Tumalty v. Parker, 100 Ill. App. 382, in which the element of probable cause existed, as' the court found. The erroneous ruling of the court m the Tumalty case consisted not m attempting to prove the plaintiff’s innocence, but in showing that an attorney tried to induce defendant to let plaintiff “come out on bonds” or “to reduce the bonds.” TMs evidence was admitted over objection of defendant, although afterwards stricken out and the court held that this evidence was of such an injurious character that the evil result flowing from its admission was not cured by afterwards striking it out. Moreover, plamtiff testified on his direct examination, without objection, that he told Townsend when charged with stealing a watch that he never stole anything from defendant or any one else. The effect of the answer to the question now objected to was purely negative and therefore harmless.

While it is hut fair to say that Mstruction 13 proffered by defendant and refused by the court contained accurate statements of the law applicable to the state of the proof, and might have been given by the trial judge without committing error, yet it is just as fair to remark that every material element of this refused instruction was embodied in instructions 5 and 9 given at the request of defendant, and that nothing material in instruction 13 was omitted in 5 and 9. If Mstruction 13 had been given, it would certainly have had a marked tendency to confuse the jury as to the law of the case stated in these three instructions in varying form. Instruction 13 was properly refused.

Complaint is made that the following instruction was not read to the jury:

“The court instructs the jury, as a matter of law, that the burden of proof in this case is upon the plaintiff, and if the jury find from the evidence that the evidence bearing upon the plaintiff’s case is evenly balanced, or that it preponderates in favor of the defendant, then plaintiff cannot recover and you should find for the defendant.”

This instruction is not found in the main bill of exceptions, but in an addenda thereto signed by the trial judge. It is certified that the instruction was, after the trial, discovered by counsel for defendant, marked with the file mark of the clerk; that it was not given to the jury and the court had no recollection of its being tendered. No duty rested upon the trial judg-e to examine or mark the instruction until tendered to him by counsel. We are not therefore called upon, in this condition of the record, to pass upon the question as to whether it should have been given or refused. Presentation of an instruction to the court is indispensable to action thereon by the court.

The following instruction, given at the instance of plaintiff, is said to be erroneous, viz:

“You are further instructed that if you believe from the evidence that the defendants by their servants maliciously caused the arrest and imprisonment of the plaintiff without probable cause, as alleged in the plaintiff’s declaration, you will find for the plaintiff and may assess his damages at such sum as you may think proper from the facts and circumstances of the case, not exceeding the sum of ten thousand dollars.”

The error is claimed to lie in the words italicized. Counsel city many cases in support of their contention, but none of them are pertinent. The cases cited arose in death claims and claims for personal injuries, where the damages recoverable are compensatory only and where exemplary damages are not permitted to be considered as an element of damage. Plaintiff was entitled to an award of exemplary as well as compensatory damages for the wrongs suffered in being-prosecuted for a crime of which there was no fact or circumstance constituting probable cause of guilt. While the jury were told to assess the damages within the limit of the ad damnum, yet it was further circumscribed by confining such assessment to “the facts and circumstances of the case,” which was tantamount to saying, “as shown by the evidence.” While this instruction may be of doubtful propriety, in view of the award of damages, we do not regard it as misleading or as calling for a reversal.

The cause was submitted to the jury, as it should have been, notwithstanding defendant’s motion to the contrary. To the jury’s finding of fact we accord our assent. We do not regard the assessment of damages as excessive. Plaintiff was submitted to great indignity. He was incarcerated in a cell at the police station for three days and afterwards for several days in the county jail. He was told by defendant’s agents that he was a thief and efforts were made to compel him to confess his criminality. His mother was appealed to, to use her motherly influence to procuré from him a confession of guilt. His feelings were naturally shocked at the treatment accorded him. He was a young man on the threshold of the duties of life. His arrest was not only humiliating, but likely to affect his opportunities of advancement in life, which his ability, coupled with the essential of a good character for honesty and probity, justified him in anticipating. Lacking character for honesty would blast his hopes of preferment and his arrest on a charge of stealing and detention in prison were calculated to hinder him in attaining to the position in life in which his character and ability unsmirched might place him. We cannot, with these conditions in mind, say that $4,000 is an excessive award of damages, or that prejudice or passion on the part of the jury entered into their assessment.

There is no error in this record calling for our interference, and the judgment of the Superior Court is affirmed.

Affirmed.


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    Mildred Kenney, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,019.

      Verdicts—when not disturbed. A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurelt, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    Franklin B. Hussey and Watson J. Ferry, for appellant; John B. Harrington, of counsel.
    Miles J. Devine, for appellee; John T. Murray, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff, a minor of the age of about ten years, claiming to have been injured while a passenger on a ear of defendant, brought this action by her next friend to recover compensation. A trial before the court and jury resulted in a verdict and judgment for $1,750, and defendant prosecutes this appeal seeking a reversal of that judgment, and argues that the verdict is against the manifest weight of the evidence and that the damages are excessive.

The declaration of one count charges that on November 10, 1906, plaintiff was a passenger on defendant’s car, and while attempting to alight therefrom at the intersection of 52nd and Halsted streets, Chicago, the car having stopped for that purpose, the defendant carelessly and negligently caused the car to be suddenly and violently started and that the plaintiff was thereby thrown with great force from the car to the ground and injured.

The cause of plaintiff was maintained by her own testimony and that of one Thomas Minnick, who swore that he was an eye witness of the accident, having left the car while it was in motion and before plaintiff started to alight, and that he looked toward the car after reaching the grouild and witnessed the occurrence. The motorman and conductor of the car disclaimed any knowledge of the occurrence and therefore did not report it to the company, and counsel say that this is therefore what is known among street car men as a “blind case.” That the plaintiff fell and was injured is not denied, although the manner in which the accident occurred is not, defendant insists, attributable to its negligence. It is patent that the testimony of plaintiff and Minnick, standing in the record without challenge, would be sufficient to charge defendant with the negligence alleged as the procuring cause of the accident. After the admission of countervailing proof, it was for the jury to settle the disputes and reconcile the conflict in the testimony by their verdict. But defendant’s counsel insist with much fervor and apparent sincerity, that the testimony of plaintiff is so inherently improbable that both herself and her witnesses are unworthy of belief. Singular, among other instances, is the ■ fact, that several members of plaintiff’s family, including the father, mother, sister and brother of plaintiff had suffered from personal injuries and some of them had been engaged in litigation with defendant and the city of Chicago in relation thereto. This is a remarkable history of the misfortunes of one family, comparable to the troubles so graphically depicted by Goldsmith in the “Vicar of Wakefield.” Counsel insinuates that the claims of these members of plaintiff’s family must have been without merit and manufactured for the purpose of illegally procuring compensation for damages for injuries which they did not suffer; that they are professional personal injury claimants, and therefore plaintiff is not entitled to recover. However, aside from the fact that so many members óf one family have made claims for personal injuries, which fact may tend to justify or arouse a suspicion of their merit, there is nothing in the evidence tending to prove that any of the claims were not genuine. The medical witnesses for both parties testified. Dr. Learning attended plaintiff the day after the accident. He claims he made a thorough physical examination of plaintiff and failed to find that she was suffering from any physical difficulties or maladies of a serious character; while the mother and sister of plaintiff testified to the effect that his examination was merely superficial. If Dr. Learning failed to discover' that plaintiff was suffering from any serious injury, whether upon a thorough or a superficial examination, there is the testimony of Dr. John D. McGregor, who had charge of plaintiff’s case from the inception of her difficulties, to the purport that she was very seriously and painfully injured. He swore plaintiff suffered from an injury to her left shoulder, neck, and right hip; that she also suffered from shock; that she was a healthy, rosy little girl before the accident, and after it became weak, thin and nervous; that at the time of the trial she had not recovered from her nervousness, and that she was then suffering from synovitis, and that the motion of her right leg was somewhat impaired. The jury had all these witnesses before them and were cognizant of their manner when upon the witness stand, could observe their fairness or bias, whichever was made to appear, their intelligence or lack of it, if such was made manifest—privileges denied us, and were therefore, as we have often said before, in like cases, better able than we are to say which witnesses were the most credible and worthy of belief, and to find their verdict accordingly. Between Dr. Learning and Dr. McGregor the medical witnesses for each side, it became the duty of the jury to say which was the most worthy of belief, and especially is this so from the fact that some of plaintiff’s lay witnesses testified in contradiction of Dr. Learning. The determination of the jury as to .the veracity of these several witnesses is not to be nullified by this court unless we can say, the whole testimony considered, that the verdict is manifestly contrary to its weight. We do not feel that we are justified in reaching such a conclusion and consequently we cannot disturb the verdict which the jury rendered and which the court sanctioned as meeting his views of probative force, by denying defendant’s motion for a new trial and giving a judgment upon the verdict.

It was likewise the duty of the jury to measure the damages which should be awarded for the injuries suffered by plaintiff as a result of the negligence charged in the declaration, so far as they might believe such injuries were substantiated by the proofs. If they believed Dr. McGregor’s account of such injuries in preference to Dr. Learning’s, 'which they evidently did, we are not only unable to say that the damages are excessive, but on the contrary we are inclined to the opinion that they are moderate.

The record has no reversible error in it, and the judgment of the Superior Court is affirmed.

Affirmed.


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    John Koenig, Appellee, v. The Peoples Gas Light & Coke Company, Appellant.
    Gen. No. 15,026.

      Dubess—what essential to recover money paid under. In order to recover for money paid under duress, not only must the duress be established but it is essential that it appear from the evidence that the defendant, who received the money, ought not in equity and in good conscience be allowed to retain it.
    Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Mabous Kavajtagh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 31, 1910.

      Sears, Meagher & Whitney, for appellant; Fred L. Blackinton, of counsel.
    Huttmann, Butters & Carr, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellant claimed that appellee was indebted to it in the sum of $144.60 for gas consumed but not registered through a punctured meter. Demand was made for payment, in virtue of a contract for gas between the parties,, and refused. Appellant subsequently threatened to cut off the supply of gas at a place occupied by appellee" other than the place where the gas in dispute was consumed, to avoid which appellee paid the claim by check under protest. This suit is brought to recover back the payment so made on the legal theory that it is money which appellant in equity and good conscience has no right to retain.

A trial before the court and the jury resulted in a verdict and judgment for the amount of the claim.

Appellant contends that there was no duress; that the payment was voluntary; that the verdict is manifestly contrary to the probative force of the evidence; and that the refusal of certain instructions proffered by appellant was reversible error.

Appellee’s counsel made an opening statement to the jury, in which he stated the facts upon which he based the right of recovery. After stating somewhat in detail the relations of the parties and the occurrences which led up to the demand for $144.60 and appellee’s refusal to pay, appellee’s counsel said, “What was said there will be testified to by Mr. Koenig and I guess by the other witnesses. I do not recollect just what it was, but there was some words between them and soon after that two men came there with tools and appliances and prepared * * * to take out the meter. He at that time got a check—and he was informed that his gas would be taken out, the meter would be taken out where he was then in business, unless he submitted to the payment of this money and paid the money then and there. He. took a check, wrote out a check, and wrote on the check ‘paid under protest,’ or words to that effect—the check will be shown you—and paid the bill under protest, and now brings this suit to recover it back, claiming, as he has a right to, that he was compelled to pay that bill by a sort of moral duress and that he has a right to recover it back.” Counsel for appellant announced that he desired to reserve his opening statement, but the learned trial judge told him that he “had better go ahead,” and he did. In his statement counsel for appellant among other things said: “The attorney for the plaintiff has stated in a general way what the case is about and his statement is on the whole true.” Upon this the court assumed that there was no contention between the parties as to appellee’s proof, which, as outlined by his counsel, made a prima facie case which, uncontradicted, would sustain a verdict. In this conclusion the court was in error. Counsel predicated the right to recover upon the fact that the money was paid under protest and there was “a sort of moral duress” which coerced the payment. The contention of counsel for appellee being admitted, showed no cause of action and no right of recovery. The right to recover rested upon appellee’s showing by his proofs that the money sued for was money which appellant in equity and good conscience had no right to retain. Such is the trend of all the cases cited on behalf of appellee. In LaSalle Co. v. Simmons, 10 Ill. 313, in which the county wrongfully exacted a fee for the operation of a ferry, the court say: “The illegal conduct of the commissioners put the plaintiff in their power, and taking advantage of their peculiar situation, they obtained money from him to which the county had not the shadow of right.” City of Chicago v. N. W. M. L. I. Co., 218 Ill. 40, was an action brought to recover money illegally exacted for water supplied to premises owned by the company, but which it was not liable to pay, and the court say: “It is the well-settled rule of this state that where one is compelled to make payment of money which the party demanding has no legal right to receive # * ’ ’ such payment is made under duress and may be recovered back. In the quotation from C. & A. v. Chicago, etc., Coal Co., 79 Ill. 130, made in News Publishing Co. v. Associated Press, 114 Ill. App. 241, the court say: “They were under a sort of moral duress by submitting to which appellants have received money from them which in equity and good conscience they ought not to retain.” Duress and protest may be present when the money sued for is parted with, but these conditions in themselves are not sufficient to warrant its being recovered back. It must be made to appear that the money received ought not in equity and good conscience to be retained. If the money was rightfully due, the fact that the elements of protest and duress were present when it was paid vests no right to recover it back. To recover it must affirmatively appear that the money so paid ought not in equity and good conscience to be retained. The evidence here is silent as to there being any contract between the parties for gas at the new place of business of appellee or as to his having a meter or burning gas, or as to there being any pipes of appellant upon appellee’s premises to disconnect. The jury were left to assume appellee was burning gas supplied by appellant at the time the threat was made to cut off the gas when payment for unregistered gas claimed to have been consumed at 10 East Madison street was demanded. If appellee had such a contract with appellant, and it was similar in its conditions to the one in evidence, then appellant would have had the right not only to threaten but actually to cut off the supply of gas at the new place of business for refusal to pay the amount due for gas consumed under the prior contract. Furthermore, notwithstanding appellant is a public utility corporation, exercising its franchise, impressed with a duty to the public, it might have refused to supply gas to appellee at his new premises until he had liquidated the amount due under the old contract. The averment that the money sought to be recovered back was money which in equity and good conscience should not be retained, is not a negative averment. It is affirmative and vital and cannot be dispensed with in actions of this character, and must be sustained by proof. While in this case there are no written pleadings, because none are necessary in suits before justices of the peace, in which tribunal this case • was originally brought, yet proof of the fact is just as essential to warrant a recovery as if the fact was necessarily averred in an appropriate pleading.

Counsel for appellee did not in his opening statement state facts sufficient to justify a recovery. A motion to instruct a verdict at that time, on failure of appellee to fortify counsel’s statement with other proof, if made, should have been granted. As the evidence stood at the close of all the proofs, it may be said it was for the jury to say by their verdict whether the money sued for was illegally exacted, and therefore in equity and good conscience ought not to be retained. But this right of the jury must be environed with instructions correctly stating the legal principle which should guide them in arriving at a conclusion as to the fact.

Appellant tendered and the court refused to give this instruction:

4 4 The court instructs the jury that the burden of proof is on the plaintiff to prove that he did not owe the defendant the amount which he paid the defendant, and if you believe from' the evidence that the plaintiff owed the defendant substantially the amount paid by the said plaintiff then your verdict should be for the defendant, The Peoples Gas Light and Coke Company, even though the payment was made by the plaintiff under protest and compelled by the fear that his gas would be shut off.”

This instruction should have been given, and its refusal was reversible error. The principle is clearly stated in City of Chicago v. Malkan, 119 Ill. App. 542, in which Mr. Justice Ball wrote: “The right to recover payments made under duress in assumpsit is unknown to the common law, and therefore in order to justify a recovery appellee must show, not only that such payment was made under legal compulsion, but also that it is against equity and good conscience for appellant to retain the money. Watson v. Woolverton, 41 Ill. 242.” So the Supreme Court said in Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535: “In order to be relieved from its contract and to recover back a portion of the moneys paid, the plaintiff assumed the burden of establishing, by the evidence, facts from which the law would draw the conclusion that the defendant had received money which in justice belonged to the plaintiff and ought to be returned.” McVane v. Williams, 50 Conn. 548; Briggs v. Boyd, 56 N. Y. 289; Richolson v. Moloney, 96 Ill. App. 254.

For the errors indicated the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles H. Wilcox, Appellee, v. J. Elliott Jennings et al., Appellants. Appeal of Anna L. Berkowitz.
    Gen. No. 16,354.

      Injunctions—when appropriate to restrain action at law. If the bill of complaint shows that an accounting with respect to the subject-matter is essential and that a multiplicity of suits will be avoided by equity taking jurisdiction, an injunction restraining an attachment suit will be sustained; and the fact that the attachment creditor, through his diligence, may be entitled to preference over other creditors interested in the subject-matter of the litigation is immaterial, as equity follows the law and can preserve to such creditor the advantage of his diligence if he is entitled thereto.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed March 31, 1910.
    Elmer H. Adams, Dwight S. Bobb, and Asa G. Adams, for appellant.
    Felsenthal, Foreman & Beckwith, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from an interlocutory order denying the motion of appellant to dissolve the temporary injunction issued on notice to all the parties in interest after a hearing before a master, who recommended the chancellor to grant the writ.

With the merits of the cause and the ultimate rights of the parties we are not concerned at this time. All these matters have been more or less presented in argument, but in the condition in which we find the record the only questions pertinent to our decision is, does the bill state a case of which equity should take cognizance, and is the injunctional order providently issued within the discretion reposed by the law in such cases in a chancellor.

Wilcox, who filed the bill, made a contract with the defendant, Jennings, to purchase 100 shares of the stock of the Jennings Beal Estate and Trust Company, and to pay therefor $90,000 in certain installments. The contract contained inter alia a provision that if Wilcox discovered upon an investigation that the assets of the Jennings Company were not worth full par value, then Wilcox and Jennings were to stand the loss in equal parts. In the third paragraph of the contract “second part” is inserted where “first part,” it is said, was intended. The bill avers that Jennings - assigned this contract to the defendant California Beal Estate Loan Company; that the name of the Jennings Company has been changed to the United States Trust Company; that by a resolution of the stockholders Ira M. Cobe and John W. McKinnon were appointed to liquidate its affairs; that appellant started and is maintaining in the Municipal Court of Chicago an attachment suit against the California Beal Estate Loan Company, and that complainant Wilcox was in that suit summoned as garnishee, and that the cause is still pending and the issues undetermined in the Municipal Court. The bill prays that the contract of sale above referred to between Wilcox and Jennings be reformed in the particulars above set out, that an accounting be had between certain of the parties, that the defendants having claims may inter-plead, so that the amount due them may be ascertained, and for an injunction restraining appellant from prosecuting her suit in the Municipal Court.

We think it plainly appears from the averments of the bill, which for this purpose must be taken as admitted, that an accounting is necessary to be had in order to determine the amount due under the contract between Wilcox and Jennings and payable to the California Beal Estate Loan Company, the assignee of Jennings. This can be more accurately arrived at through the machinery of a court of chancery than in the Municipal Court with its restricted powers. A court of chancery can proceed to hear and adjudicate upon the rights of all the parties in interest and settle all the conflicting claims. This cannot be so satisfactorily done by the Municipal Court in appellant’s attachment suit. Neither can the rights of all the claimants be conserved in the latter tribunal. Unless a court of equity takes jurisdiction a multiplicity of suits will necessarily arise in disposing of the rights of the several claimants to the amount due under the Wilcox-Jennings contract, and the taking of proof in a court of law to establish the amount due under it, to say the least, may be fraught with much difficulty. On the question of accounting and to prevent a multiplicity of suits, if for no other reason, we think a ®court of chancery may assume jurisdiction. But it is argued that appellant may be deprived of the advantage inuring to her from having been the first claimant to sue for the fund, and that as a diligent creditor she is entitled to the preference which the law accords for her diligence. Be this as it may, we see no reason why a court of equity cannot preserve to appellant whatever preference she may have gained by her diligence in commencing the attachment suit. Equity follows the law, and if her advantage has been conscionably gained she should be able to maintain it and to enforce it in the chancery cause. We think City of Chicago v. Collins, 175 Ill. 445, and Williamson v. Warfield-Pratt-Howell Co., 136 Ill. App. 168, are authority supporting the contention that in this case the chancellor had the right to take jurisdiction to avoid a multiplicity of suits between the parties having rights under the Wilcox-Jennings contract. It follows that the injunctional order was not improvidently granted and that the chancellor did not err in declining to dissolve the injunction on appellant’s motion grounded on a general demurrer which she interposed to the bill.

The interlocutory order of the Circuit Court appealed from is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    James R. Ward, Appellee, v. Frank H. Schafer et al., Appellants.
    Gen. No. 15,008.
    Negotiable instbuments—how want of consideration pleaded. By section 9 of chapter 98, which was not repealed by the Negotiable Instrument Act of 1907, the defense of want of consideration must be specially pleaded in an action of special assumpsit on a note.

      Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    William J. Stapleton, for appellants.
    James R. Ward, for appellee;
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal of the defendants from a judgment on a directed verdict for the plaintiff in an action of assumpsit. The declaration consisted of a special count on a promissory note of the defendants payable to the order of the plaintiff, and the common counts, and with the declaration was filed a copy of the note on which the action was brought. The only plea was non assumpsit. On this state of the pleadings the defendants could not question the consideration of the note. Dickinson v. Citizens National Bank, 70 Ill. App. 405, and cases there cited.

The evidence offered by defendants showed that the check for $400 delivered by defendants to plaintiff was applied as directed by the defendants. The amount due on the note was agreed on by the parties in open court. There being no controverted question of fact, a verdict for the plaintiff for the amount so agreed to be due on the note was properly directed, and the judgment is affirmed.

Affirmed.


text:
    Mary Doll, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 15,013.

      Instructions—approved form, of, referring to comments of judge during trial. An instruction upon this subject as follows, approved:
    “The jury should not understand by anything the court has said during the progress of the trial, or by anything contained in these instructions, that the court has any opinion or has expressed any opinion concerning the facts in this case.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    John A. Rose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    S. F. Lynn and Clifford G. Roe, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $2,500 and the defendant appealed.

Two grounds of reversal are stated in the brief for appellant: “1. The verdict is not supported by, but is against the evidence. 2. Plaintiff’s instruction 7 is erroneous.”

The' original declaration and the second additional count alleged that plaintiff was a passenger, etc., and that the car stopped at Third avenue, Maywood, to permit her to alight; that while she was in the act of alighting, etc., the defendant negligently started the car forward, whereby plaintiff was thrown from the car and injured.

Plaintiff and Miss Dempsey, a witness called by her, testified that the car stopped at Third avenue and was started forward as plaintiff was stepping from the car, and that thereby plaintiff was thrown from, the car. Joadwine, a witness for plaintiff, testified that the car came to a stop, or almost to a stop, he would not be certain which, and as plaintiff stepped off the car jerked forward and plaintiff fell. The defendant called but one witness to the accident, Bife, the motorman. He testified that plaintiff fell from the car before it came to a stop at Third avenue and before the car reached the usual stopping place at that avenue. On the evidence in the case, the contention of appellant above stated is without merit.

Plaintiff’s instruction 7 is as follows:

“The jury should not understand by anything the court has said during the progress of the trial, or by anything contained in these instructions, that the court has any opinion or has expressed any opinion concerning the facts in this case.”

The substance of this instruction has been given in a great number of cases, both civil and criminal. We are unable to see anything improper or erroneous in the instruction.

The judgment of the Superior Court is affirmed.

Affirmed.