text:
    Adolph Kahn v. Cyrus F. Cook and Hyman L. Seixas.

      Commencement of Suit — Demand Must be Due — Plea of Non Assumpsit — Sales—Instructions.
    1. A suit can not be maintained to recover a demand which is not due at the date of its commencement.
    2. The objection that the suit is prematurely brought is available under the plea of non assumpsit.

    3. In the case presented, it is held: That the burden of proving the maturity of the debt was upon the plaintiffs; and that there was error in giving and refusing instructions.
    [Opinion filed June 8, 1887.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Kraus, Mayer & Brackett, for plaintiff in error.
    Messrs. Weigley, Bulkley & Gray, for defendants in error.
   Bailey, J.

On the 2Sth day of October, 1884, Cyrus F. Cook and Hyman L. Seixas, copartners under the firm name of Cook & Seixas, brought suit in assumpsit against Adolph Kahn to recover the sum of $459.60, the amount of a bill of boots and shoes sold and delivered by the plaintiffs to the defendant, October 22, 1884. The declaration consisted of the common counts, to which the defendant pleaded non assumpsit. At the trial before the court and a jury, the issues were found for the plaintiffs and their damages assessed at $459.60, and for that sum and costs the plaintiffs had judgment.

The evidence is undisputed that on the said 22d day of October, 1884, the plaintiffs sold and delivered to the defendant said bill of boots and shoes, and the only controverted question at the trial was, whether the indebtedness for said goods was due at the date of the commencement of the suit. Both parties agree in their testimony that, at the time said goods were sold, nothing was said between them as to the terms of the sale. Cook, who personally made the sale, testifies, however, that the sale was for cash, and that all previous sales made by his firm to the defendant were cash sales. The defendant, on the other hand, testifies that he purchased said goods on thirty days’ credit; that he had been purchasing goods of the plaintiffs from time to time for several years under an agreement or arrangement that he was to pay for each purchase at the expiration of thirty days, and that he never bought goods of them on any other terms. On this evidence the court, at the instance of the plaintiffs, gave to the jury the following instructions:

“The court instructs the jury that the only issue for them to decide, is, whether or not the defendant, at the date of the commencement of this suit, was indebted to the plaintiffs, and if you find this issue for the plaintiffs, then you will assess the plaintiffs’ damages at whatever sum the evidence shows the defendant was indebted to them.
“The jury are instructed, as a matter of law, that when goods are sold, and nothing is said at the time of the sale as to the time when they are to be paid for, then the law presumes that they were sold for cash, and the burden of proof is on the party claiming the credit to show that such credit was given.”

The defendant asked the court to give to the jury the following instruction, which was refused, to wit:

“ The court instructs the jury that the plaintiffs in. this case can not recover unless when this suit was brought the debt was due; that the burden of proof rests upon the plaintiffs to prove by the preponderance of the evidence that the debt was due when the suit was brought, and if the evidence is evenly balanced as to whether the debt was so due, then the jury should find for the defendant.”

The defendant’s evidence tended to show that the indebtedness sned for was not due when the suit was brought. If there was a previous agreement or arrangement between the parties that the defendant’s purchases should be thirty days credit, and if their previous dealings had all been on that basis, the jury might properly infer that the purchase in question, which, as is conceded, was unaccompanied by any new agreement, was understood by the parties to be on the same credit. The suit was commenced only six days after the date of the purchase, and of course, if the defendant bought the goods on a credit of thirty days, the suit was prematurely brought.

The first instruction given for the plaintiffs was erroneous in ignoring the question as to whether the indebtedness sued for was due at the time the suit was commenced. It held that the only issue to be tried was whether at the time of the commencement of the suit, the defendant was indebted to the plaintiffs, and that if such indebtedness existed at that time, whether due or not, the plaintiffs were entitled to recover. That such is not the law seems to us to admit of no argument. A plaintiff’s cause of action arises only upon the fai1ure of his debtor to pay a debt at maturity, and an indebtedness not yet due constitutes no cause of action, and furnishes no ground for a recovery. As said in Nickerson v. Babcock, 29 Ill. 496, “ No rule of practice is more uniformly recognized than that a suit can not be maintained before a demand is due.” In Daniels v. Osborn, 71 Ill. 169, it is held that where goods are sold on a definite credit, and suit is brought for the price before the credit expires, it will be premature, and no recovery can be had. So, in Hamlin v. Race, 78 Ill. 422, where the suit was on a contract for the payment of money by installments, it was held that the plaintiff could recover only the amount that was due at the time the suit was brought, although at the time of the trial all the installments may have matured.

But it is claimed that, to avail himself of the defense that the suit was prematurely brought, the defendant should have pleaded that fact in abatement. This position is manifestly untenable. The fact that the demand was not due at the commencement of the suit, is not, properly speaking, a matter of defense, but it is incumbent on the plaintiff, in order to recover, to establish a demand which had matured at the time his suit was brought. The cause of action must exist at the time of the institution of the suit, and where the demand had not then matured an 1 the general issue is pleaded, the defendant may avail himself of the objection at the .trial. Collins v. Montemey, 3 Ill. App, 182. It is always proper to show, under the plea of non assumpsit,-that the plaintiff never hada cause of action. In Daniels v. Osborn and Hamlin v. Race, above cited, the plea was non assumpsit, and the objection that the suit was prematurely brought was allowed.

The second instruction given for the plaintiffs, as applied to the facts in this case, was erroneous and misleading. It held that where goods are sold and nothing is said at the time of the sale when they are to be paid for, the law presumes that they are sold for cash. This doubtless would be a correct rule where there have been no previous dealings between the parties from which a contrary presumption may properly arise. But in this case there is evidence tending to show a previous agreement that all purchases in the coarse of the dealings between the parties should be on thirty days credit, and that all their previous dealings had been on that basis. Under these circumstances, the fact that nothing was said at the time the goods in question were sold, as to when they are to be paid for, would raise a presumption that they are sold under the existing arrangement and upon the credit previously agreed upon.

We are also of the opinion that the instruction asked by the defendant should have been given. It is doubtless the law, as has already been stated, that under the pleadings the plaintiffs, were not entitled to recover unless the debt was due when the suit was brought. It was, therefore, incumbent upon the plaintiffs to prove a debt matured at the time of the institution of their suit in order to make out their case in chief. The burden of making such proof was therefore upon them, and it follows that if the evidence upon the issue was evenly balanced, they had failed to make out their case and were not entitled to recover.

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

Judgment reversed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Robert D. McFadon v. John McEwen.

      Practice — Appeals from County to Circuit Courts — Secs. 95 and 213, Ch. 37, R. S. — Constitution of 1870.

    1. In a common law case no appeal lies to the Circuit Court from a judgment rendered by the County Court.
    2. It seems that the Constitution of 1870 deprived County Judges of their powers as Justices of the Peace.
    [Opinion filed June 8, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Gardner, McFadon & Gardner, for appellant.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Bailey, J.

This was an action of assumpsit brought by the appellant against the appellee in the County Court, where a trial was had before the court and a jury resulting in a verdict and judgment for the defendant. The plaintiff thereupon prayed and was allowed an appeal to the Circuit Court which was duly perfected. In the Circuit Court the appeal was dismissed for want of jurisdiction, and from said judgment of dismissal the plaintiff has appealed to this court.

By section 213, chapter 37 of the Revised Statutes, it is provided that appeals from the final judgments of the County Court in all common law cases shall be taken to the Supreme or Appellate Court. This is clearly a common law case and under the foregoing statute the appeal should have been taken to this court or to the Supreme Court.

Counsel for the appellant seek to derive their right of appeal to the Circuit Court from section 95 of the foregoing chapter of the Revised Statutes which provides that appeals from the County Judge, when sitting as a Justice of the Peace, shall be.taken to the Circuit Court. Prior to the adoption of the Constitution of 1870, County Judges, in addition to their functions as Judges of the County Court, were vested by law with the powers and jurisdiction of Justices of the Peace. The Constitution of 1870 seems to have taken from County Judges their powers as Justices of the Peace, but the General Assembly, acting as it is probable upon the mistaken notion that stich power still appertained to that office, provided that appeals from the County Judge, when acting in the capacity of a Justice of the Peace, should go to the Circuit Court.

But whatever may have been the theory upon which said section 95 was enacted, it is sufficient for the purposes of this case to say that the present judgment was rendered by the County Court in a common law case, and that it was not rendered by a County Judge, sitting as a Justice of the Peace. Whatever may have been the theory or purpose of section 95, it has no application to this case. The appeal did not. lie to the Circuit Court and it was therefore properly dismissed.

Judgment affirmed.


text:
    Kirk Bishop and William A. Babcock v. John Morris.

      Practice — Presumptions in Support of Judgments of Courts of Superior Jurisdiction- — Potice—-Stipulation.
    1. In support of the judgments of courts of superior jurisdiction resort may be had to every reasonable presumption and intendment not rebutted by the record itself.

      2. The court declines to consider the effect of a stipulation by the parties to try a cause on five days notice, upon the power of the court to take further steps in- the cause until such notice is given, the record presented being silent on the subject of notice.
    [Opinion filed June 8, 1887.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Jones & Lusk, for plaintiffs in error.
    An examination of the cases in this State, involving the trial or disposition of causes by agreement or stipulation of the parties, will show that such stipulations and agreements are sacredly enforced, and parties have been compelled to act in the utmost good faith with i espect to them, even when resting in parol. Toupin v. Gargnier, 12 Ill. 79; How v. Mortell, 28 Ill. 478 ; Coultas v. Green, 43 Ill. 277; McKinley v. Wilmington Star Mining Co., 7 Ill. App. 386; Teal v. Russell, 5 Scam. 319; Foote v. Despain, 87 Ill. 28.
    Mr. John M. Gartside, for defendant in error.
    All motions, and the decision of the court thereon, and all affidavits and evidence heard upon the motion, must be made a part of the record by a bill of exceptions. Hay v. Hayes, 56 Ill. 342; Snell v. Church Trustees, 58 Ill. 290; Gaddy v. McCleave, 59 Ill. 182; Thompson v. White, 64 Ill. 314; Douglass v. Parker, 43 Ill. 146.
    In the absence of a bill of exceptions, containing facts or proof to the contrary, the presumption is always and uniformly in favor of the regularity of the proceedings of the court below. Singer Mfg. Co. v. May, 86 Ill. 398 ; Bill v. Mulford, 80 Ill. 82; Cleaver v. Smith, 114 Ill. 114, 117; Buettner v. Horton Mfg. Co., 90 Ill. 415; Grundies v. Martin, 90 Ill. 552; Town of Mt. Vernon v. Patton, 94 Ill. 65.
    Stipulations between the parties must be preserved and be presented by bill of exceptions. The court will not examine the stipulation, although the clerk may have copied into the record what purports to be a stipulation. Wilson v. McDowell, 65 Ill. 522; Eureka Coal Co. v. Powers, 10 Ill. App. 61; S. C., 11 Ill. App. 81; Boyle v. Levings, 28 Ill. 814; Van Cott v. Sprague, 5 Ill. App. 99.
   Bailey, J.

This was a suit brought by Morris against Bishop and Babcock before a justice of the peace, where judgment was rendered in favor of the plaintiff for $100 and costs. The defendants having removed the cause to the Superior Court by appeal, a trial was had in that court at the' June term, 1882, resulting in a verdict in favor of the plaintiff for $100. That verdict was set aside and a new trial awarded on motion of the defendants, and thereupon, on the 14th day of September, 1882, by the agreement of the parties made in open court, the cause was submitted to the court for trial without a jury, upon five days notice. The next proceeding shown by the record is under date of October 5, 1885, when, as the record recites, the cause being called for trial, and defendants failing to prosecute their appeal, on motion of the plaintiff’s attorney, it was ordered that said appeal be dismissed for want of prosecution at the defendants’ costs, with a procedendo, and ten per cent, damages for delay. On the 7th day of June, 1886, the defendants appeared and entered their motion to set aside said order of dismissal, which motion was overruled, and they now bring the record to this court by writ of error.

The record contains no bill of exceptions, and so the grounds for the motion to set aside the order of dismissal are not shown, nor is any exception to the order of the court denying said motion properly preserved.

Even then if the court had the power at a subsequent term to vacate its judgment — and we are of the opinion that it had no such power — its decision in that behalf is not open to review-in this court.

The only question is whether the court, in dismissing the appeal, acted without jurisdiction. It is insisted that, under the order of September 14, 1882, the court had no power to try or dismiss the appeal except upon five days notice by one party or the other, and that as the record fails to show that any such notice was given, the order dismissing the appeal was without jurisdiction. Without pausing to consider carefully the effect of a stipulation by the parties to try a cause on five days notice upon the power of the court to take further .steps in the cause until such notice is given, we think that the ordinary presumptions in favor of the regularity of proceedings in courts of superior jurisdiction are sufficient-to sustain the judgment in this case. The record being silent on the subject of notice, it will be presumed that the court, before proceeding to dismiss the appeal, received competent and satisfactory evidence that the required notice had been given. It is a familiar rule that, in support of the judgments of the courts of superior jurisdiction, resort may be had to every reasonable presumption and intendment not rebutted by the record itself.

We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Michael Keating et al. v. Charles H. Stebbins, for use, etc.

      Practice — Evidence—Presumption.
    Where the bill of exceptions does not purport to contain all of the evidence it will be presumed that the finding of the court below was based upon sufficient evidence.
    [Opinion filed June 8, 1887.]
    Appeal from the County Court of Cook County; the Hon. Hichaud Peendeegast, Judge, presiding.
    Messrs. Williams & Abbott, for appellants.
    Mr. Ullman Strong, for appellee.
   Per Curiam.

This was a suit brought b,y Stebbins for the use of John S. Field against Keating and others, to recover upon an open account for ice sold and delivered by the plaintiff under and by virtue of a written contract between them. The cause was tried by the court, a jury being waived, and at such trial the court found the issues for the plaintiff and assessed his damages at §589.74, and judgment was rendered accordingly. Ko errors oí law are alleged, the only question being whether the evidence sustains the finding of the court. We have examined the evidence contained in the record and can see no reason for dissenting from the conclusions adopted by the court below.

But there is another reason why the judgment can not be disturbed. The bill of exceptions does not purport to contain all the evidence heard at the trial, and it must, therefore, be presumed that the finding of the court below was based upon sufficient evidence. The judgment will be affirmed.

Affirmed.


text:
    Matthew W. Pinkerton v. William Gilbert. William Gilbert v. Brighton Cotton Manufacturing Company.

      Trespass — False Imprisonment — Ageney—-Respondeat Superior — Execution — Levy—Duty of Constable — Evidence—Instructions.
    1. The doctrine of respondeat superior applies only to acts performed by an agent within the scope of his employment.
    2. In an action of trespass for false imprisonment, it is held: That the superintendent of the mills of defendant corporation was not authorized to institute or prosecute suits in its behalf; that the court properly instructed the jury to find the company not guilty, there being no evidence to charge it with any responsibility for the trespasses complained of; that the evidence of the complicity of another defendant, though conflicting, is clearly sufficient to sustain the verdict for the plaintiff; that the Constable’s duty first to levy the execution on the property of the defendant therein, did not depend upon the permission of said defendant; and that this court will not review the instructions in detail where the objection thereto is merely general.
    [Opinion filed June 9, 1887.]
    Appeal from and in error to the Circuit Court of Cook County; the Hon. Johh G. Rogers, Judge, presiding.
    Mr. Robert Hervey, for Matthew W. Pinkerton, appellant.
    Messrs. IV eigley, Bulkley & Gray, for William Gilbert, plaintiff in error and appellee.
    Messrs. Forrest & May, for Brighton Cotton Manufacturing Company, defendant in error.
   Bailey, J.

This was an action of trespass, brought by William Gilbert against the Brighton Cotton Manufacturing Company, Frank P.'Berry and Matthew W. Pinkerton, for false imprisonment. During the pendency of the suit Berry died and the suit was thereby abated as to him. At the trial the court, at the close of the plaintiff’s evidence, instructed the jury to find the Brighton Cotton Manufacturing Company not guilty, which was accordingly done, and the court, after overruling the plaintiff’s motion for a new trial, gave judgment in favor of said company for costs. Evidence in defense was offered on behalf of defendant Pinkerton, and the jury thereupon rendered a verdict, as to him finding him guilty, and assessing the plaintiff’s damages at $500, for which sum and costs the court, after overruling a motion by said Pinkerton for a new trial, gave judgment in favor of the plaintiff. The plaintiff brings the record to this court by writ of error, assigning for error the instruction to the jury to find the Brighton Cotton Manufacturing Company not guilty, and the overruling of the plaintiff’s motion for a new trial as to that company, and defendant Pinkerton also comes here by writ of error and assigns various errors.

It appears that for several years prior to the commission of the trespasses complained of, the plaintiff was a dealer in paper stock and materials, having his place of business in the City of Chicago, and -that said Brighton Cotton Manufacturing Company was a corporation organized under the laws of the State of Illinois, and owning and operating extensive cotton mills in Brighton near said city. Some time in October or the early part of November, 1884, one Bosie Kramer succeeded, by means of certain fraudulent artifices, in getting into her possession and taking away from said company’s mills a quantity of cotton waste without paying for it. Said property was afterward purchased from said Bosie Kramer or her husband by the plaintiff, such purchase being made by him in good faith and without knowledge on his part of the circumstances under which it was procured by the vendor. Soon after the disappearance of said goods, Atkins, who at the time was the superintendent of said mills, instructed Morgan, the foreman, to place the matter in the hands of said Pinkerton, the proprietor of a detective agency, which was done. Pinkerton succeeded in tracing said property into the plaintiff’s hands, and thereupon a suit in replevin was commenced by him in the name of said company against Bosie Kramer and the plaintiff before a Justice of the Peace, to recover possession of said property, the affidavit in replevin being made by Morgan and the replevin bond being signed by Atkins as surety. Defendants, Pinkerton and Berry, the latter being a Constable, went to the plaintiff’s store with the replevin writ and demanded possession of the property, and then for the first time the plaintiff learned the circumstances under which said property had been obtained from the company. The plaintiff thereupon told Pinkerton all the facts attending his purchase and showed him the entries in his books of the receipt of the same and the price paid, and also his entries of the sale of the property and the name of the purchaser. Pinkerton being apparently satisfied with the honesty of the plaintiff, told him that he wanted to find ont the whereabouts of Eosie Kramer, and the plaintiff, at his instance, promised to do everything in his power to aid him in the search and to give him any information he might obtain in relation thereto. The evidence tends to show that Pinkerton at the same time told the plaintiff that, under the circumstances, he did not desire to prosecute the suit as against him, and promised, in consideration of the plaintiff’s aiding him in the search for the Kramers, to have the suit continued from time to time until they should be found, and that when the trial should occur the plaintiff would be summoned as a witness; that in violation of this understanding, Pinkerton, while holding frequent consultations with the plaintiff in relation to the Kramers, caused judgment to be entered in said suit,*in trover, without the knowledge of the plaintiff, for the sum of §164.50 and costs, and that before the plaintiff became aware of the entry of said judgment, the time prescribed by law for taking an appeal therefrom had elapsed; that Pinkerton then caused an execution to be issued on said judgment commanding the Constable, of the goods and chattels of the plaintiff, to make the amount of the judgment, and for want of such goods and chattels to take the body of the plaintiff and convey and deliver him to the keeper of the county jail, and commanding the keeper of said jail to receive and keep the plaintiff in safe custody until said judgment should be paid and satisfied or the plaintiff should be discharged in due course of law.

The evidence further tends to show that Pinkerton, after placing said writ in the hands of Berry, the Constable, went with him to the plaintiff’s store where the plaintiff had goods and chattels which he was owing in his own right, of the value of many thousand dollars; that Pinkerton and the Constable demanded payment of the execution in money, threatening that if it was not so paid they would arrest him on the writ and take him to jail; that the plaintiff then pointed out to Pinkerton and the Constable, goods and chattels then present and of which he was the owner, of at least §5,000 in value, and told them to levy their execution thereon, but that the officer, acting under Pinkerton’s advice and direction, refused to make sucli levy and arrested the plaintiff and took him to the county jail and delivered him to the keeper of said jail. Many of the foregoing facts are disputed by Pinkerton’s evidence, especially those relating to the circumstances of the plaintifí’s arrest, his testimony being that the plaintiff refused to turn out property on the execution and forbid any levy thereon by the Constable, and that he, Pinkerton, gave no directions to the Constable and in no way interfered with his action in the premises. It appears that the plaintiff, the same day he was arrested, was discharged on habeas corpus.

The only question raised by the errors assigned on behalf of the plaintiff is, whether Atkins had authority from the Brighton Cotton Manufacturing Company to employ Pinker-, ton to institute ' and prosecute said replevin suit in its name and to issue execution and cause the arrest of the plaintiff thereon. His axithority is denied both in his own testimony and in that of all the witnesses who testify on that subject Was it within the scope of his authority as superintendent of said company’s mills? As superintendent he had general oversight of the operation of said mills, and was charged with the duty of employing and discharging operatives, and when expressly directed so to do by Mitchel, the secretary and treasurer, he was in the habit of buying and selling goods for the company. This, as the evidence shows without any contradiction, was the extent of his authority. It seems clear to us that this did not include an authority to institute or prosecute suits on behalf of the company. The duties of his office as superintendent had nothing to do with the fiscal concerns of the'cómpany. • They did not include the receipt or payment of money or the collection or enforcement of demands in favor of the company.

The doctrine of respondeat superior applies only to acts performed by an agent within the" scope of his employment. As Atkins’ authority, therefore, did not include within its scope the power to institute or prosecute suits, or to delegate to another the power to do so, the company was in no way responsible for the prosecution of said suit or for the imprisonment of the plaintiff on execution. There being no evidence in the case tending to charge said company with any responsibility for the trespasses complained of, the court properly instructed the jury to find said company not guilty.

The evidence as to the complicity of Pinkerton in the arrest and imprisonment of the plaintiff, though conflicting, is clearly sufficient to sustain the verdict of the jury against him. If we take the evidence of the plaintiff’s witnesses as true, it can not be doubted that said arrest and imprisonment were wrongful and illegal. The mandate of the writ authorized the imprisonment of the plaintiff only in case the officer was unable to find goods and chattels of the plaintiff in his county sufficient to satisfy the judgment. That the plaintiff had an abundance of personal property at hand for that purpose, the evidence establishes beyond controversy. It was the plain duty of the officer to levy his execution on said property and thus obtain satisfaction. The plaintiff and his witnesses testify that he offered said property to the Constable and demanded that he make the levy. But even if he had forbidden such levy, as Pinkerton testifies he did, we are inclined to think that the case would not have been different. The right and duty of the officer to levy did not depend upon the plaintiff’s permission. It was his duty to levy whether the defendant in the execution was willing that he should do so or not, and his power to take the body of the defendant, by the terms of his writ, could arise only in case he could find no property in 1ns county subject to levy sufficient to satisfy the writ.

The plaintiff’s evidence shows that the Constable, in what he did, was acting under the advice and direction of Pinkerton, and Pinkerton thus became a trespasser equally with the officer. It is true Pinkerton denies having in any way interfered with the officer in the execution of the writ, but the jury seem to have given credence to the testimony of the plaintiff’s witnesses, and we can not say that they were not warranted in so doing.

Counsel for Pinkerton claim that there was error in the giving and refusal of instructions to'the jury. Bfo attempt is made to point out wherein such error consists, and we shall therefore decline to review the instructions in detail, but content ourselves with merely saying that we perceive no error in the rulings of the court in that respect.

The judgment, both as to the Brighton Cotton Manufacturing Company andas to said Pinkerton, will be affirmed.

Judgment affirmed.


text:
    The Village of Desplaines v. Benjamin Poyer.

      Municipal Corporations — Public Picnic — Whether a, Nuisance — Second Appeal — -Res Ad judicata.
    1. Upon a second appeal this court will treat all rules of law established by its former decision as res adjudicata.

    2. In the case presented, this court declines to reconsider its former decision that a part of a village ordinance, declaring all public picnics to be nuisances regardless of their character, is invalid.
    [Opinion filed June 15, 1887.]
    Appeal from the Criminal Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. C. S. Cutting and Stiles & Lewis, for appellant.
    Mr. John Gibbons, for appellee.
   Bailey, J.

This case was before this court at the October term on appeal from a j ndgment in favor of the Village of Desplaines. On reversing that judgment, we held that so much of the ordinance under which the prosecution was instituted, as declares all public picnics and open air dances to be nuisances regardless of their character, is invalid. Poyer v. Village of Desplaines, 18 Ill. App. 225. The rules of law established by that decision must, in this court, be deemed to be res judicata in tliis suit and between these parties. Ogle v. Turpin, 8 Ill. App. 458; Ward v. Johnson, 5 Ill. App. 30; Oldershaw v. Knowles, 6 Ill. App. 325.

Another trial has now been had in the court below, resulting in a finding and judgment in favor of the defendant. On this trial the facts were all shown by stipulation, and are as follows, viz.: That the defendant did, on the 31st day of July, 1883, allow a certain tract or parcel of land situated within the Village of Desplaines, and owned and controlled at the time by him, to be used by certain parties for public picnic purposes ; that on that day a public picnic was held on said grounds with his consent arid for his profit, and that said grounds were on that day occupied by a large number of persons in attendance on said picnic, who came from the City of Chicago by rail or otherwise; that said grounds were used by the defendant for such picnic purposes during more than three years prior to said day; that on the 10th day of May, 1883, the Board of Trustees of said Village of Desplaines, in Cook County, Illinois, a corporation under the general law, passed said ordinance, being of the same ordinance set out m extenso in the report of our former decision of this case.

The foregoing are all the facts shown by the record, and it is manifest that the case comes within the rule established by this court on the former appeal. It does not appear that the picnic in question was in any degree riotous or disorderly, or that any disorderly persons were gathered in or about said village. Under these circumstances, a conviction could not be had without holding that part of said ordinance declaring all public picnics to be nuisances regardless of their character, to be valid, contrary to the principles already established in this case. The judgment is in accordance with the decision of this court on the former appeal, and must be affirmed.

Judgment affirmed.


text:
    Benjamin Poyer v. Village of Desplaines.

      Municipal Corporations — Potver of, to require Owners of Bozo Boats and Skiffs to Obtain Licenses — Ordinance of the Village of Desplaines— Whether Reasonable.

    1. The Village of Desplaines has authority, under the general statute in relation to the incorporation of cities and villages, to require the owners of skiffs and row boats, used within its limits, to obtain and pay for licenses before letting them for hire.
    2. The ordinance in question, in the case presented, is held not to be unreasonable, the price to be charged being wholly within the legislative discretion of the Board of Trustees of the village.
    [Opinion filed June 15, 1887.]
    Appeal from the Criminal Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement by Bailey, J. This was a prosecution for a violation of an ordinance of the village of Desplaines, brought by said village against Benjamin Poyer before a police magistrate, and afterward taken by appeal to the Criminal Court. The cause being tried in that court, by agreement of parties, without a jury, the defendant was found guilty and adjudged to paya fine of $15 and costs, and from that judgment he has appealed to this court. At the trial the Village of Desplaines introduced in evidence an ordinance of said village, passed June 7, 1886, as follows:
    “ Section 1. Ho person or persons shall hire out, keep or use for hire, or cause to be kept or used for hire, or for the carrying or conveying of persons within the Village of Desplaines for hire, any steamboat, sail-boat, row-boat, skiff, or other water craft of any description or name whatever, without a license so to do.
    “ Section 2. The President of the Board of Trustees is hereby authorized to license, under his hand, attested by the clerk and the seal of the village, any person or persons, residents of said village, over the age of twenty-one years, and being the owner or owners of any or either of the said boats or water-craft, to keep and use for hire and the conveyance of persons, any or either of said boats or water-craft, upon satisfactory proof being made by each applicant for license, that the boat, skiff, or water-craft for which a license is sought is safe and suitable for' the purpose intended,' and paying a license hereafter fixed.
    “ Section 3. It shall be the duty of the village clerk to keep a register of the names of persons to whom each license is granted, the date when issued, the number of the license, and the description of the boat or water-eraft licensed. All licenses granted under this section, shall, unless revoked, continue until the first day of May next after the date of issuing.
    “ Section 4. Every person so licensed shall forthwith cause the name of the owner and the number of his license to be plainly painted in letters at least one and a half inches in length, in a conspicuous place on the outside of each side, near the bow of each boat, skiff or water-craft, and shall keeptlie same plain and distinct at all times when used, during the continuance of such license, but upon the expiration or revocation of such license, such person shall immediately cause the said name and number to be erased from said boat, and shall not allow said boat to be used with said name and number thereon.

      “ Section 5. Any person who shall keep or let any boat, skiff or water craft of any kind for the conveyance of persons within the Village of Desplaines for hire or reward, without being licensed as aforesaid, shall be liable to a fine of not less than $15 nor more than $25 for each and every such offense.
    “ Section 6. There shall be charged and paid to the Village Clerk for the use of the village, on issuing each of said licenses, by the party to whom granted, the following sums: For each sail or steam-boat, the sum of $25 per annum. For each skiff or row-boat, $5 per annum. For each water-craft not enumerated above, $5 per annum.”

      The remaining facts in the case were shown by stipulation, and were as follows: Benjamin Poyer is the ow ner and keeps for hire certain skiffs which are propelled by the use of oars on the Desplaines River, within the corporate limits of the Village of Desplaines. Said skiffs are hired out by him to persons applying to him for the same, to be used for the purpose of pleasure only, and said Poyer keeps them only to be hired by the hour, to be used by the person who hires the same for the purpose of paddling the same up and down the Desplaines River. On the-day of July, 1886, said defend-
    ant rented to one John Brown a skiff, at the Village of Desplaines, to be used by him for one hour, and charged and received from said John Brown, for the use of the skiff, the sum of 25 cents. Said defendant did not have nor did he attempt to procure a license from the Village of Desplaines for the privilege of so renting said skiff. The Village of Desplaines is a village of about 700 inhabitants, and the place where the defendant beeps his boats is about forty rods from the village proper, but within the corporate limits thereof. Ro steam-boat, sail-boat, row-boat, water-craft or any other vessel known to the carrying trade of the country ever visits, touches at, anchors in front of or lands at any landing place within the Village of Desplaines, except little skiffs that are paddled by oars, and no landing place is maintained by the village except as aforesaid. Benjamin Poyer, the defendant, is a resident of said village.
    Mr. John Gibbons, for appellant.
    Messrs. O. S. Cutting and Stiles & Lewis, for appellee.
   Bailey, J.

The evidence shows the passage by the Village of Desplaines of the ordinance in question, and we are of the opinion that the facts admitted by the stipulation of the parties show, beyond controversy, that the defendant is guilty of a breach of its provisions and is liable to the fine which the court imposed, unless we are compelled to hold that the ordinance itself is invalid. The defendant challenges the validity of the ordinance upon the grounds, first, that the village had no power under its charter, to pass it, and second, that its provisions are unreasonable.

The Tillage of Desplaines is a corporation organized under the general statute in relation to the incorporation of cities and villages, and among the powers granted by that statute to the President and Board of Trustees of villages incorporated thereunder, are the following: “To control and regulate the anchorage, moorage and landing of all water-craft and their cargoes within the jurisdiction of the corporation. To license, regulate and prohibit wharf-boats, tugs and other boats used about the harbor or within such jurisdiction.” R. S. Chap. 21, Sec. 62, Subdivisions 31, 35. While it is true that there is no harbor, properly so called, within the boundaries of said village, the Desplaines River, a stream of sufficient size to admit of being navigated by skiffs and row-boats and purposes of pleasure and recreation, runs through the village, and boats of that character are being used upon it. It seems scarcely to admit of question that the language of the statute above quoted is sufficiently broad to include all such boats. It appears that wharf-boats, tugs and other boats, without limitation as to their character or size, used within"the jurisdiction of the corporation, are included. That the skiffs in question are boats used within the Tillage of Desplaines is admitted, and the power of the Tillage of Desplaines to require the owner of such skiffs to obtain and pay for a license before letting them for hire or reward within the village seems to us to admit of no reasonable controversy.

Ror are we able to see that the 'ordinance is in any respect unreasonable. It imposes a license fee of §5 per annum, and requires the owner to obtain a license for each skiff and cause his name and the number of his license to be painted thereon before using it. There is certainly nothing unreasonable in this unless it is the price charged for a license, and there is nothing in the record from which it can be seen that such price is not entirely fair and just. The amount to be charged for a license is a matter wholly within the legislative discretion of the Board of Trustees of the village, and we are not prepared to say that the courts would be at liberty to refuse to enforce the ordinance, whatever might be the amount of the license fee charged. If it were so large as to be practically prohibitory, the statute empowers the Board of Trustees not only to license but to prohibit the use of boats within its jurisdiction.

We are of the opinion that the judgment of the court below is warranted by the evidence, and it will therefore be affirmed.

Judgment affirmed.


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    Lewis Umlauf v. Victoria Umlauf.

      Divorce — Alimony Pendente Lite — Discretion—Allowance for Support of Children — Custody of Children — ’Practice.
    1. Under Sec. 15, .Chap. 40, R. S., the allowance of alimony to the wife for her support, pending a suit for divorce, and to enable her to maintain or defend the suit, is discretionary with the trial court, and this court will not interfere on the ground that the allowance is excessive, unless the difference in judgment is strong and decided.
    2. In the exercise of such discretion, especially when the wife is defendant and the fact of marriage is not. in controversy, the determining considerations are the necessities of the wife and the financial ability and circumstances of the husband.
    3. The court has power to include in the award such sum as is reasonably necessary for the support of the minor children of the parties remaining in the custody of the wife.
    4. This court can not consider an assignment of error to the effect that the court below refused or neglected to award the custody of the children to the complainant, when the only allusion to the matter in the record is a request or suggestion of relief in his answer to the defendant’s petition for alimony, and it does not.appear that the question was considered or passed upon by the court below.
    [Opinion filed June 15, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Gwtnn Garnett, Judge, presiding.

      Mr. E. S. Holbrook, for appellant.
    Messrs. Blanks & Chytraus, for appellee.
   Bailey, J.

On the 12th day of February, 1883, Lewis Umlauf, the appellant, filed his bill in the Superior Court of Cook County against Victoria Umlauf, the appellee, for a divorce on the ground of desertion. Issues were formed upon said bill by answer and replication, and on the 22d day of October, 1883, the cause was heard on pleadings and proofs, and a decree rendered in accordance with the prayer of said bill. On appeal to this0 court said decree was affirmed, but on a further appeal to the Supreme Court the decree was reversed and the cause remanded to the Superior Court for a re-hearing. On the 20th day of December, 1886, said cause being still pending in the Superior Court, the defendant filed in that court her sworn petition for the allowance to her of. alimony pendente lite, sufficient in amount for the support of herself and her two children, and also a sum of money for her solicitors’ fees. The complainant filed a sworn answer to the petition, and upon hearing, an order was entered requiring the complainant to pay the defendant $20 by Saturday, December 25, 1886, and $10 per week thereafter until the further order of the court, and that he also pay the defendant’s solicitors the sum of $100 before the final hearing of the cause. From this decree the complainant has appealed to this court.

The marriage of the parties is not in controversy. The defendant’s averment in her sworn petition that she has no money or property of her own wherewith to support herself and children, or to pay the fees of her solicitors, is not denied. The only attempt to meet such averment is the statement of the complainant in his answer, that he is informed and believes that the defendant lives by herself in a two-story house well furnished and Ct that she has a backer in her acts of conspiracy who is well fixed financially, and who gives her assistance,” and such statement does not, even if such information is true, establish the fact that s"he is the owner of said house and furniture, or that she has any property or means of support of her own.

That the complainant is a man of some means is admitted, the only controversy being as to the amount of his property, the defendant placing it at from §20,000 to §25,000 while the complainant swears that it does not exceed §5,000 over and above all his debts and liabilities. In addition to owning said property, he is engaged in business the avails of which, as he virtually admits, are nearly or quite sufficient for the support of himself and those depending upon him.

We are of the opinion that the case is one in which the court below was justified in the exercise of its discretion to award alimony pendente lite and solicitors’ fees.

The statute provides that., “ in all cases of divorce, the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable hev to maintain or defend the suit; and in every suit for divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit.” R. S. Chap. 40, Sec. 15. Under this statute, as well as at common law, the allowance of alimony to a wife for. her support pending a suit for divorce, and to enable her to maintain or defend the suit, is discretionary. Foss v. Foss, 100 Ill. 576. In exercising such discretion, especially in cases where the wife is defendant, and where the fact of marriage is not in controversy, the determining considerations are, the necessities of the wife and the financial ability and circumstances of the husband. The merits of the controversy between the parties, if to be cotisidered at all, are of secondary and minor importance. Here the wife is shown to be without means of her own, and the litigation has been and is likely to be protracted and expensive. The. husband is shown to have property and resources to such amount as will enable him to pay to the wife a reasonable allowance during the litigation.

We can not say that the amount of the alimony awarded is too large. The defendant has the custody and is supporting two small children, the fruit of her marriage with the complainant. While the order granting alimony makes no allusion to said children, the question of their support was presented both by the defendant’s petition and the complainant’s answer thereto, and we may well presume that the necessary expense of their support was considered by the court in determining the amount of the alimony. That the court had power to include in the award such sum as was reasonably necessary for their support, is well settled. Foss v. Foss, supra; R. S. Chap. 40, Sec. 13.

The order as to alimony pendente lite will remain during the pendency of the suit subject to the control of the court below, and if it should prove to be too burdensome to the complainant, it will be within the power of that court to modify it; and for that reason, as well as for the reason that the amount of alimony is discretionary with the court below, this court should not reverse the decree on the ground that the amount awarded is excessive, unless the difference in jxidgment between this court and the court below is strong and decided. Such however is not the case.

Error is assigned upon the refusal or neglect of the court to enter an order in this proceeding awarding the custody of said children to the complainant. It does not appear that the complainant interposed any motion to have the custody of said children committed to him, and the only allusion in the entire record to that subject is a request or suggestion in his answer to the defendant’s petition for alimony, that said children be placed in his custody pendente lite. We are of the opinion that affirmative relief can no more be obtained upon answer in this proceeding than in ordinary proceedings in chancery. Further than this, no evidence was offered from which the court could determine whether the custody of said children ought to be given to the complainant; and as the decree makes no allusion to that subject, we may well presume that it was not called to the attention of the court below, and that it was not considered or passed upon.

We find no error in the record, and the decree will therefore be affirmed.

Decree affirmed.


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    Benjamin Poyer v. Village of Desplaines.

      Municipal Corporations — Picnic Grounds — License—Evidence.
    In a prosecution under a village ordinance, forbidding any person without a license to permit any grove or other grounds within the limits of the village to be used for picnic purposes for a compensation to the owner, it is held: That the agreed statement of facts fails to show that, on any occasion, subsequent to the passage of the ordinance, the defendant actually received compensation for the use of his picnic grounds, the mere reservation of the right to sell refreshments and thus obtain compensation without an admission that such right was exercised being insufficient.
    [Opinion filed June 28, 1887.]
    Appeal from the Criminal Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement by Bailey, J. This was a prosecution by the Village of Desplaines against Benjamin Poyer for a breach of the following ordinance of said village:
    ‘•Section 1. Uo person shall pursue the occupation of hawker or peddler, or shall conduct or manage any theatrical or other exhibition to which an admission fee is charged, or other show or amusement within the Village of Desplaines, without a license therefor, duly signed by the clerk of said village, and sealed with the corporate seal thereof, and the using, renting or permitting to be used of any yard, grounds, grove or other real estate within said village for picnic parties or other assemblies for amusement, where either directly or indirectly through the sale of refreshments or otherwise, a compensation for such renting or use shall be obtained by the owner, manager or person in charge thereof, shall be considered the conducting or managing of an amusement within the meaning of this ordinance.
    “ Section 2. Every license issued under the provisions of this ordinance shall be at the following rates, the same to be collected by the village clerk in advance on issuing said license; for each peddler or hawker’s license the sum of 50 cents each day or $10 per month.
    “ Section 3. For each license to conduct or manage any theatrical or other exhibition to which an admission fee is charged, $10 for each exhibition. For license to conduct or manage any other show or amusement, including the renting, using or permitting to be used of any yard, ground, grove or other real estate as set out in section 1 of this ordinance, §35 per day.
    “ Section 4. It shall be unlawful for any person to exercise any of the occupations-or callings, or do or perform any of the acts mentioned in this ordinance for which a license is required, without first procuring such license. Any person who shall carry on the business of a peddler or hawker within the Village of Desplaines and who shall refuse or neglect to obtain a license as provided in section 2 of this ordinance, shall be subject to a fine of not less than $15 nor more than $25 for each violation thereof. Any person or persons who shall conduct or manage any theatrical or other exhibition to which an admission fee is charged, or conduct or manage any other show or amusement, including the renting, using or permitting to be used of any yard, grounds, grove or other real estate as set out in section 1 of this ordinance, within the Village of Desplaines, and shall refuse or neglect to obtain a license therefor, as provided in section 3 of this ordinance, shall be subject to a fine of not. less than $75 nor more than $100 for each violation thereof.
    “Section 5. The license of anyone, issued under this ordinance, shall be subject to revocation at any time by the Board of Trustees, when it shall appear to its satisfaction that the party so licensed shall have violated any provision of this or any other ordinance of this village.”
    The suit was commenced before a Police Magistrate and afterward taken by appeal to the Criminal Court where a trial was had before the court, a jury being waived, resulting in a conviction of the defendant and the imposition ot a fine of $75, and from that judgment the defendant has appealed to this court.

      At the trial the plaintiff read m evidence the foregoing ordinance, it appearing that said ordinance was duly passed by the Board of Trustees of said village, on the 7th day of June, 1886. The plaintiff also introduced the following agreed statement of facts:

      “First. It is admitted that Benjamin Poyer is the owner of a grove within the corporate limits of the Village of "Desplaines which he permits to be used by church,.Sunday-school, temperance and other societies for picnic purposes, but does not permit or allow the nse or sale of intoxicating liquqrs at said picnics, and no license for the sale of intoxicating liquors was held by said Poyer at the time of the violation of said ordinance.

      “ Second. Said grove has been fitted up by defendant as a place for holding picnics, and during the summer season of 1886 and previous years, picnics have been held therein at frequent intervals, to which from 200 to upwards of 1,000 people resort at a time, for pleasure or amusement, coming by train loads from the City of Chicago, which is seventeen miles distant therefrom. Said Poyer does not charge the society or others who rent the grove any direct money compensation therefor, and does not exact from persons using said grounds an admission fee of any kind, but reserves to himself the right to sell refreshments, such as ice-cream, candy, coffee, tea, etc., to the picnic parties, and from such source receives his compensation for such use of said grounds.
    “ Third. That on the — day of July, 1886, said defendant permitted bis grove to be used for picnic purposes under the conditions and circumstances stated in the second item of this stipulation without having applied for or received from said village any license as provided for in said ordinance.

      “Fourth. That the Village of Desplaines, a village of about 700 inhabitants, has no theater, opera house or place of amusement of like nature, fitted up specially for entertainments, except public halls which are rented to traveling, theatrical and other troups, and said picnic grounds are about forty rods from the thickly inhabited portion of said village, but within the corporate limits thereof.”
    The foregoing was all the evidence heard at the trial.

      Mr. Jora Gibbons, for appellant.
    Messrs. C. S. Cutting and Stiles & Lewis, for appellee.
   Bailey, J.

It is urged by the defendant that the ordinance under which this prosecution was instituted is invalid, and the arguments of counsel have been directed to that point alone. Before we can be called upon, however, to pass upon the validity of said ordinance, a case must be made out by the evidence tending to show some breach of its provisions. We are of the opinion that the evidence wholly fails to show any such breach.

The provision of the ordinance which it is claimed has been violated, is the one which forbids any person without a license to permit any grove or other grounds within the Village of Desplaines to be used for picnic purposes where a compensation therefor shall be obtained by the owner, manager or person in charge thereof, through the sale of refreshments or otherwise. The ordinance was passed June 7, 1886, and it is admitted that the defendant is the owner of a grove within the corporate limits of said village which he permits various societies to use for picnic purposes; that during the summer of 1886, and previous years, picnics have been held therein at frequent intervals, the defendant not charging any direct money compensation therefor, but reserving to himself the right to sell refreshments, etc., to the picnic parties, and from such source receiving his compensation for such use of said grounds. So far no breach of the ordinance is shown, as it does not appear that the defendant permitted his grounds to be so used after the ordinance was passed. During the summer of 1886, and previous years, does not necessarily include any occasion subsequent to June 7, 1886. Nor does it appear from this admission that the defendant actually received any compensation for the use of said grounds. It simply appears that he reserved the right to sell refreshments, etc., and thus obtain compensation, but it is not admitted that he in fact exercised such right or actually received any compensation by its exercise.

bior does the case seem to be aided by the admission that in July, 1886, the defendant permitted his grove to be used for picnic purposes under the conditions and circumstances in the stipulation previously mentioned. Those conditions and circumstances were merely the right to sell refreshments, etc., to the picnic parties, and receiving his compensation for the use of his grounds from that source. It thus fails to appear that on the occasion of the picnic in July, 1886, the defendant did anything more than reserve-to himself the right to sell refreshments, there being no admission that he did actually so sell them or that he did actually obtain any compensation for the use of his grounds on that occasion.

Permitting the nse of grounds within the village for picnic purposes is not forbidden by the ordinance, unless the owner, manager or person in charge, either directly or indirectly, through the sale of refreshments or otherwise, obtains some-compensation for the renting or use of the same. The evidence wholly fails to show that on any occasion subsequent to the passage of the ordinance the defendant did actually receive such compensation, and it therefore fails to show any breach of the ordinance.

The judgment is unsupported by the evidence, and it will therefore be reversed and the cause remanded.

Judgment reversed.


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    John A. Rice v. J. C. Van Ackere.

      Sales — Fraudulent Representations — Negotiable Paper — Failure of Consideration — Note—What Establishes Negotiable Character of — Fraud In Obtaining — Practice—Ref au It.

    1. To render representations fraudulent the person making them must know or have reason to-believe them to be false.

      2. A person selling property in good faith, and without any knowledge that it is defective, and who makes no warranty as to its quality, is guilty oí no wrong, and the fact that it is not what the purchaser supposed it was, dues not constitute a failure of consideration.
    3. The character of a promissory note as negotiable paper is established when it is acquired by a bona fide holder before maturity, and notice of original defects does not aifect subsequent holders either before or after maturity.
    4. It seems that in this State the fraud in obtaining a note, which, when proved, throws upon the holder the burden of proving that he obtained it for a valuable consideration, is fraud in obtaining the making and execution thereof, and not fraud in the consideration.
    [Opinion filed June 16, 1887.]
    Appeal from tlie Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Asay, Asay & Rice, for appellant.
    Mr. Philip Steih, for appellee.
   Bailey, J.

This is an appeal from the decision of the Superior Court refusing to set aside a judgment by default and to give to defendant leave to plead. The action was assumpsit, brought by Ackere against Rice, the declaration consisting of the common counts, and a special count in which the plaintiff declares upon a promissory note for §730, bearing date June 9, 1885, executed by the defendant, payable to the order of one I. Rubens, eighteen months after date, and by said Rubens indorsed to one A. Cohn, and by him indorsed to the plaintiff.

The affidavit of the defendant, read in support of his motion to set aside the default, by way of attempting to show a meritorious defense to said note, states that the note in suit herein was given, together with other notes and valuable considerations, for certain laces, to the original payee of the note in suit herein, said laces being by said payee to the affiant represented as of great value and intrinsic worth, and of the kind and species of lace known as point lace ; that this affiant was not skilled in merchandise of this character, so informed said vendor and original payee, and was therefore forced to rely and did rely wholly upon said vendor’s and original payee’s statements and representations in regard to all of said laces, and bought them and gave his notes and other valuable consideration, among which was the note sued upon herein, for point lace, and for no other kind whatsoever; that this affiant shortly after such sale and delivery to him of said alleged point lace, learned that in fact all the laces sold to him by said original payee, delivered as aforesaid, were none of them of the kind and quality known as point lace, but were cheaper, inferior and of a comparatively valueless kind, and were really imitations of point lace, well calculated to deceive.” The affidavit further states that the defendant had paid to said vendor more than the real value of said laces in money. It also alleges'that the plaintiff in this suit was cognizant of and a participant in the transaction which resulted in the execution of said note, and that the note was indorsed to him after maturity and without consideration. ¡No reference is made in the affidavit to the lirst indorsee, nor is any attempt made to charge him with notice of said defense, or to show in any way that he was not an innocent assignee of the note before maturity for value.

We are of the opinion that the facts thus alleged do not constitute a defense to the note. The defense sought to be set up is a failure of the consideration of the note by means of false and fraudulent representations as to the character and quality of the goods sold and for which the note was given. There is an entire failure, however, to allege any knowledge on the part of the vendor that such representations were false. So far as appears the vendor may have represented said goods to be point lace in perfect good faith, believing them to be such. To render representations fraudulent, the person making them must know or have reason to believe them to be false. Richards v. Betzer, 53 Ill. 466. In Owings v. Thompson, 3 Scam. 502, which was a suit on certain promissory notes given for land, the defense being false and fraudulent representations as to the title to said land, the court, after reviewing previous cases say: It is no matter what representations were made at the time of the purchase, so that they were made in good faith and the transaction was not tainted with fraud, where there is no express agreement on the subject.” So in Bicharás v. Betzer, supt'a, where the defense of a failure of consideration was set up to a suit upon certain notes given for a flock of sheep, the court say: To constitute a failure of consideration of a note, there must be a warranty of the property, or a false and fraudulent representation of the thing sold. A person selling property in good faith, and without any knowledge that it is defective, and who makes no warranty as to its quality, is guilty of no wrong, and the-fact that it is not what the purchaser supposed it was, does not constitute a failure of consideration ; but where false and fraudulent representations are made, or a warranty given which is broken, there is a failure of consideration to the extent of the injury sustained.”

The principle that, in order to render re presentations fraudulent, they must not only be false, but there must be on the part of the person making them, a knowledge of their falsity, or at least reason to believe them to be false, is supported by numerous authorities. Tone v. Wilson, 81 Ill. 52); While Watkins, 23 Ill. 480; Mitchell v. Deeds, 49 Ill. 416; Sims v. Klein, Breese, 302; McBean v. Fox, 1 Ill. App. 177; Keely v. Turbeville, 11 Lea (Tenn.), 339: Furman v. Titus, 40 N. Y. Sup. Ct. 284; Kimball v. Moreland, 55 Ga. 164.

But there is another and still more serious difficulty with the defense alleged in the affidavit. The title of Cohn, the first indorsee of the note, is in no way impeached. In the absence of any proof to the contrary, it will be presumed that he became the assignee of the note in the due course of trade, and before maturity, and for value and bona fide. Depuy v. Schuyler, 45 Ill. 306; Comstock v. Hannah, 76 Ill. 530; Wightman v. Hart, 37 Ill. 123; Mobley v. Ryan, 14 Ill. 51.

The note having come into the plaintiff’s hands by indorsement from Cohn, the plaintiff acquired the same title that Cohn had, and the fact that the plaintiff obtained the note after maturity, or without consideration, or with notice of the alleged defense, is immaterial. It is a well settled principle of law, that where a party holds a promissory note from one who acquired it before maturity, and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held, although it was overdue and dishonored at the time of the transfer. As soon as the paper comes into the hands of a holder, unaffected by any defect, its character as a negotiable security is established; and the power of transferring it to others, with the same immunity which attaches in his hands, is incident to his legal right and necessary to sustain the character and value of the instrument as property, and to protect the bona fide holder in its enjoyment. Commissioners v. Clark, 94 U. S. 278; Cromwell v. County of Sec, 96 U. S. 51; Riley v. Sehawacker, 50 Ind. 592; Mornyer v. Cooper, 35 Iowa, 357; Simon v. Merritt, 33 Iowa, 537, Story on Promissory Motes, Sec. 191; Daniel on Megotiable Instruments, Secs. 726 and 803, and authorities cited. Whatever may be the rule in other States, it seems to be held in this State that the fraud" in obtaining the note which, when proved, throws upon the holder the burden of proving that he obtained it for a valuable consideration, is fraud in obtaining the making and execution of the note, and not fraud in the consideration. Such is plainly the rule laid down in Dupuy v. Schuyler, supra.

The defendant having failed to show any meritorious defense to the note, was not entitled to have the default set aside, and his motion to set it aside was therefore properly overruled. The judgment will be affirmed

Judgment affirmed.


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    Ossian Guthrie and Wardell Guthrie v. Patrick Doud.

      Action to Recover Damages for Diverting Water Course — Practice—• Conflict of Evidence — Questionfor Jury.

    Where the issue depends upon questions of fact and the evidence is conflicting, this court will not interfere with the verdict of the jury.
    [Opinion filed June 22, 1887.]

      Ik error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. C. M. Hardy, for plaintiffs in error.
    Mr. F. W. Becker, for defendant in error.
   Per Curiam.

This was an action on the case brought in September, 1880, by the appellee against the appellants, to recover damages alleged to have been caused to the plaintiff’s lands by the wrongful erection by appellants of a dyke and dams along and across the Desplaines river near said lands, by means of which the water was diverted from its usual and natural channel and forced upon plaintiff’s lands, thereby injuring the same and grass and crops which might otherwise have grown thereon. There was a trial under a plea of the general issue terminating in a verdict and judgments for §1,200 damages exclusive of costs, from which the defendants brought this appeal.

This case has been tried four times in the court below, and two former appeals in it have been taken to this court. There is-no question of law presented by the record, and the only point made for reversal is that the court erred in overruling the defendants’ motion for a new trial for the reason, as it is alleged, that the verdict was unsupported by the evidence, or rather that it is against the clear weight and preponderance of the evidence. A great mass of testimony is incorporated into the bill of exceptions, showing considerable conflict as respects the most material elements of the case. The ease was one where the principles of law applicable to it were few and simple, so that it may be said to have depended wholly upon questions of fact, which it was the peculiar province of the jury to settle. The jury has passed upon the testimony and found the facts as sustaining the plaintiff’s cause of action, and we are unable to perceive any reason for disturbing that finding. The judgment below will, therefore, be affirmed.

Affirmed.


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    The People, for use, etc., v. Jane A. Brooks.

      Action of Debt on Guardian's Bond — When Cause of Action Arises— Administration — Limitation of Txoo Years — Sec. 70 of Statute — Statute of Frauds — Sec. 12 — -Conflict of Evidence.

    1. A guardian’s trust expires the instant his ward attains his majority, and it becomes his immediate duty to settle with the ward, and to pay and deliver over all money or property in his hands belonging to him. A failure to-make such settlement and payment is a breach of the guardian’s bond upon which a cause of action at once arises against the sureties under the statute.
    2. The limitation prescribed by Sec. 70, of the statute in relation to the administration of estates, is available as a defense by the heirs and other distributees of the testator or intestate as well as by the executor or administrator.
    3. Where, at the date of letters testamentary, a claimant is under the disability of infancy, he has two years after such disability is removed within which to present his claim. If not presented within that time, the claim will be barred as to the assets inventoried or accounted for by the executors prior to the expiration of the period of limitation.
    4. The judgment of the Probate Court, awarding distribution, is a judgment in rein, and is binding on all creditors and others who had an opportunity to be heard.
    5. Suits by creditors of an estate against heirs or devisees, in respect to personal estate distributed to them, are unauthorized by statute in this Slate. Such suits seem to be forbidden, at least by implication, by Sec. 12 of the Statute of Frauds.
    6. Where the evidence is sharply conflicting very great deference should be paid to the finding of the court below.
    [Opinion filed June 22, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Swett, Gbossohp & Swett and B. W. Pike, for appellant.
    Messrs. Wm. H. Swift and C. H. & C. B. Wood, for appellee.
   Bailey, J.

This was debt on a guardian’s bond, brought by the people, for the use of Sexton, against Jane A. Brooks, the widow and heir at law of Joseph P. Brooks, one of the sureties on the bond. A former judgment in favor of the plaintiffs was reversed by this court on writ of error • at the October term, 1884, on the ground that the evidence, as it then stood, failed to show a delivery of the bond during the lifetime of said Brooks. Brooks v. People, 15 Ill. App. 570. A new trial has now been had in the court below before the court, a jury being waived, resulting in a finding and judgment in favor of the defendant, and from that judgment the plaintiffs have appealed to this court.

The defendant insists that the present judgment may be sustained on either of the three following grounds, viz.:

1. That the pontiffs’ action’is barred by the provisions of the 7th subdivision of section 70. chapter 3, of the Revised Statutes.

2. That, as no real estate descended to the defendant as the heir of Joseph P. Brooks, and as said Brooks left personal property sufficient to discharge all just claims against his estate, no action can be maintained against the defendant.

3. That the evidence fails to show a delivery of the bond in question in the lifetime of said Brooks.

We will consider each of these propositions in their order.

Joseph P. Brooks died testate and without issue, June 2d, 1873, leaving him surviving the defendant, his widow, and leaving an estate consisting wholly of personal property. On the 17th day of July, 1873, the will of said Brooks was admitted to probate, and on that day letters testamentary thereon were issued to the defendant and one ■ Lyman J. Gage. Stanley B. Sexton arrived at his majority August 25, 1874. On the 23d day of June, 1874, the defendant filed to the Probate Court her renunciation of all benefit of any legacy under said will, and her election to take in lieu thereof her dower and legal share of the estate of her husband. No claim against said estate was filed in the Probate Court at any time by or on behalf of said Sexton. On the 24th day of November, 1875, said executors filed their final report, showing that, after the payment of all claims legally established against said estate, and the costs of administration, they had on hand personal estate amounting to something over $300,000; and said court, after finding and adjudging that the defendant, as the widow and heir of her husband, was entitled to all of said personal estate, the same was ordered to be paid over to her, which was accordingly done, and her receipt therefor having been filed in said court, an order was entered declaring said estate settled, and discharging said executors.

By the condition of said bond, Curtis, the guardian, obligated himself, at the expiration of his trust, to settle his accounts in the Probate Court or with the ward, or his legal representatives, and to pay over and deliver all the estate, title papers, and effects remaining in his hands or due from him on such settlement, to the person or persons lawfully entitled thereto. His trust expired the instant his ward attained his majority, and it then became his immediate duty to settle with his ward and pay and deliver over to him all money and property-in his, the guardian’s, hands,'belonging to said ward. A failure to make such settlement and payment was a breach of the bond, and under our statute, the ward was entitled to bring his action against'the sureties on the bond, without having a devastavit previously established against the principal. R. S., Chap. 103, Sec. 13; McIntyre v. People, 103 Ill. 142.

Was the remedy on the bond in suit barred by the limitation provided in section 70 of the statute in regard to the administration of estates? Said section divides demands against estates of testators and intestates into several classes, the seventh specification being in the following language:

“ All other debts and demands, of whatsoever kind, without regard to quality or dignity, which shall be exhibited to the court within two years from the granting of letters, a's aforesaid, and all demands not exhibited within two years, as aforesaid, shall be forever barred, unless thehreditor shall find other estate of the deceased, not inventoried or "accounted for by the executor or. administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate, saving, however, to femes covert, infants, persons of unsound mind, or imprisoned, or without the United States in the employment of the United States, or of this State, the term of two years after their respective disabilities are removed, to exhibit their claims.”

The question arises whether the limitation here provided is a bar merely to the claimant’s remedy as against the executor, or administrator, or a bar to his right to recover upon his demand against any party, including heirs and devisees. We are of the opinion that the latter effect is to be given to it. In Hall v. Bumstead, 20 Pick. 2, Chief Justice Shaw, in discussing the policy of a statute in many respects similar to ours, says: Every demand which can be made and enforced against the estate of a deceased person, is to be pursued against the administrator where it can be done, and the whole estate, personal and real, is in effect made assets in his hands to meet such claims. This object is one of great importance, by securing, as far as practicable, an early and final settlement of estates, so that the residuum may be distributed among those entitled, free from incumbrances and charges, which would lead to protracted litigation.”

Selover v. Coe, 63 N. Y. 438, was a suit brought against an heir at law of an intestate, to recover the share of real and personal estate received by him, to be applied upon an alleged claim against the estate of said in‘estate. A statute of New York provided that, when a claim was presented to an administrator and rejected by him, such claim should be barred unless suit should be brought to enforce it within six months thereafter. It was held that a failure to bring suit within the time limited was a defense, not only to an action against the personal representatives of the intestate, but also to any action brought to enforce the claim against his heirs at law or next of kin.

Graham v. Vining, 2 Tex. 433, was a suit against the administrator and heirs of an intestate. A statute provided that administrators, within two months of the granting of letters of administration, should publish a certain notice requiring all persons having claims against the estate of the intestate, to exhibit the same within the time limited by law, and also providing that claimants should have twelve months from the date of the letters of administration to present their claims; and it was held that a claim not presented to the administrator within the time prescribed was barred, not only as against him, but also as against the heirs and creditors of the estate. The same rule was again affirmed in Gaston v. Boyd, 52 Tex. 282.

In Carpenter v. Murphy, 57 Wis. 541, the question of limitation aro.-e in a suit brought by the administratrix upon a promissory note executed by the defendant. The defendant, by way of counter claim, sought to avail himself of certain alleged items of indebtedness which, by reason of his failure to present them within the period prescribed by the statute, were barred. The court, in sustaining the limitation as to the counter-claim, say: “The defendant having failed to present his claims against the plaintiff’s intestate to the commissioners, and the time allowed by law for so doing having elapsed, such claims were absolutely and forever barred, either as a basis of an action or a set-off. The statute did not merely affect the remedy; it extinguished the right.”

In the light of the foregoing authorities we are constrained to hold as a rule of law, that the limitation prescribed by section 70 of the statute in relation to the administration of estates, is available as a defense, not only by the executor or administrator, but also by the heirs and other distributees of the testator or intestate.

It is objected, however, in this case, that the plaintiff’s right of action did not accrue until more than a year after the date of the letters testamentary, and that he can not for that reason be held to the limitation of two years from date of said letters. That is true, but it is also true that up to the time his right of action accrued he was laboring under the disability of infancy, and by the express terms of the statute the period of limitation did not commence to run until the disability was removed. He had two years from that date within which to present his claim, and his failure to present it within that time barred the claim precisely the same as though he had been under no disability at the date of the letters testamentary, and had failed to' present it within two years from that date.

It must be remembered, however, that the bar of the statute is not absolute, but only extinguishes the right of the claimant to have his claim satisfied out of the assets inventoried or accounted for by the executors prior to the time the period of limitation expires. The question thus arises whether the assets distributed to the defendant were inventoried or accounted for by the executors before Sexton’s claim was barred by limitation. With this question we have had some difficulty. The inventory filed by the executors, if any such was filed, was not exhibited in evidence, nor is there any evidence showing or tending to show when the property distributed to the defendant came into the possession of the executors. The record is silent on that subject, down to the final report of the executors, and that was more than two years after the date of the letters testamentary, though less than two years after Sexton became of age. The final report, and the receipt for the property turned over to the defendant, show that at that time said property was in the possession of the executors, and that it was, by the very act of distribution, accounted for by them.

The true interpretation of the statute seems to be that, as to persons laboring under disabilities at the date of the letters testamentary or of administration, and who are given two years after their disabilities are removed for the exhibition of their claims, the bar of the statute applies to all the estate of the deceased inventoried or accounted for prior to the expiration of two years from the date of the removal of such disabilities, that is, prior to the expiration of the period of limitation as to them. In this view it sufficiently appears that the property distributed to the defendant was accounted for by the executors, and that Sexton, by failing to exhibit his claim within the period prescribed by the statute, is barred of all right to have said property applied to its satisfaction.

We are also of the opinion that no action can be maintained against the defendant for the reason that Brooks left sufficient personal property to satisfy all just claims against his estate, and that the only way in which the present claimant could enforce application of said property, to the satisfaction of his claim, was through due course of administration in the Probate Court.

Personal property descends to the executor or administrator, to be administered upon by him, and such administration consists in collecting the estate, converting it into cash, and distributing it to creditors, devisees, heirs and other distributees, according to their respective rights. The jurisdiction of matters of administration is committed by law to the Probate Court, and that court is vested with power to adjudicate upon and finally determine the rights of all claimants to the estate, and to award distribution according to the actual and ultimate rights of all parties concerned, l't is the policy of the law that the conflicting interests of all claimants to personal property should be adjudicated upon and finally settled by that court, so that the residuum, after the payment of debts, may be distributed among those entitled, free from incumbrances and charges. It . thus becomes incumbent upon all persons having any claim to distribution of personal estate, and who are lab ¡ring under no disability, to resort to that court and submit their several claims and rights to its decision, and its judgments awarding final distribution, unless attacked by a direct proceeding, are conclusive as to the ownership of the property distributed.

It follows, from the foregoing principles, that creditors will not be permitted to lie by and remain silent during the course of the administration, and then seek to follow personal property into the hands of the heir or other distributee, and wrest it from him for the purpose of applying it to their debts. The judgment of the Probate Court, awarding distribution, is a judgment in rem, and is binding on all creditors and others who had an opportunity to be heard.

We have no statute authorizing suits by creditors against heirs or devisees in respect to personal estate distributed to them, and. we think such suits are forbidden, at least by implication, by the twelfth section of the Statute in relation to Frauds and Perjuries. That section provides that when any lands, tenements or hereditaments, or any rents or profits out of the same, shall descend to any heir, or be devised to any devisee, and the personal estate of the ancestor of such heir, or devisor of such devisee, shall be insufficient to discharge the just demands against such ancestor’s or devisor’s estate, such heir or devisee shall be liable to the creditor of their ancestor or devisor to the full amount of the lands, tenements or hereditaments, or rents and profits out of the same, as may descend or be devised to said heir or devisee. The theory of this statute seems to be, that as personal property descends to the administrator to be distributed in due course of administration and real estate descends directly to the heir, the heir is to be charged with the debts of his ancestor when and only when the personal estate, which the law regards as the primary fund for the payment of debts, is insufficient for that purpose. It is accordingly held in Guy v. Gericks, 85 Ill. 428, that under this statute no action can be maintained against the heir of a decedent, where his personal effects are sufficient to discharge all just demands against his estate. The same rule was re-affirmed in Laughlin v. Heer, 89 Ill. 119. We are of the opinion then that for this reason also the action in the present case can not be maintained.

On the question as to whether the evidence shows a delivery of the bond in the lifetime of Brooks, the same evidence substantially was introduced on this as on the former trial. That evidence is discussed sufficiently in our former opinion, and what we then said need not be repeated. Some additional evidence was introduced by the plaintiffs on this trial conflicting with the case made at the former trial, and tending to prove a delivery of the bond by Brooks on the day of its date. All that can be said is, that the evidence on the question of delivery is conflicting, and while it might have justified a finding that the bond was in fact delivered as alleged by the plaintiffs, we are unable to say that there is such a preponderance in their favor as would justify us in adopting the conclusion that the bond was in fact delivered in the lifetime of Brooks. The court below saw and heard the witnesses, and very great deference should be paid to his judgment in relation to a question upon which the evidence is sharply conflicting.

We think that the judgment may be sustained upon either of the grounds above mentioned, and it will therefore be affirmed.

Judgment affirmed.