text:
    Brunswick Balke Collander Company, Defendant in Error, v. Frank D. Campbell, Plaintiff in Error.
    Gen. No. 20,101.
    1. Descent and distribution, § 83

      —proof sufficient to establish plea of riens per descent. A plea of riens per descent is established by showing that the beneficial title was not in the devisor at the time the will took effect.
    2. Descent and distribution, § 83

      —when parol evidence sufficient to establish plea of riens per descent. In an action by a creditor of a testator against a devisee of real estate, the defendant may establish his plea of riens per descent by showing that he became the beneficial owner of said real estate under an oral contract of sale made between him and the testator before the will took effect, and such evidence is not rendered inadmissible by the provision of the statute of frauds which makes a contract for a conveyance of land unenforceable unless there is a signed memorandum thereof by the party to he charged.
    3. Descent and distribution, § 81

      —parties. In a suit by a creditor of the testator against a devisee of real estate to enforce the liability of the defendant under section 12 of the Statute of Frauds and Perjuries, (J. & A. ¶ 5878,) where the defendant and another were executors under the will, the defendant’s coexecutor is not a necessary party.
    4. Witnesses, § 95

      —competency. In a suit by a creditor of a testator to enforce the liability of a devisee of real estate under section 12 of the Statute of Frauds and Perjuries, (J. & A. ¶ 5878) the devisee is not rendered incompetent to testify by section 2 of the Evidence Act, (J. & A. ¶ 5519.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed November 30, 1914.
    E. W. Adkinson, for plaintiff in error.
    Charles Hudson, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff below, the Brunswick Balke Collander Company, defendant in error here, obtained a judgment in the Municipal Court of Chicago November 15, 1913, against the defendant below, Frank D. Campbell, the plaintiff in error here, for $500 and costs.

The basis of the judgment was the liability of Charles M. Campbell, the father of the defendant, on certain appeal bonds. Although some question is made by the plaintiff in error as to whether, even if he be liable at all, the judgment is not about $12 too large, we think that this may be ignored in our consideration of the case. We think the liability of Charles M. Campbell, had he been living, for the full amount of the judgment rendered would have been established by the evidence offered by the plaintiff.

The alleged liability of the defendant in this case, however, the son of Charles M. Campbell, is predicated on section 12 of the Statute of Frauds and Perjuries. That section reads, so far as it is necessary to quote it, as follows:

“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 the said heir or devisee.”

The plaintiff proved the appeal bonds in question and the breach of their conditions and the amount due on them. He then produced in evidence a will of Charles M. Campbell, which had been admitted to record and probate, in which was the following devise:

“Unless I shall convey to my beloved son, Frank D. Campbell, during my lifetime, the following described real estate, viz.: The east thirty seven and one-half feet (E. 37½ ft.) of three (3) lots on Seventy-second street between Kimbark and Madison avenues, I give and bequeath the said real estate to him to be his absolute estate forever, subject, however, to the incumbrance which may be thereon, which I direct shall be paid by him and not charged to my estate.”

The will left all the remainder of the testator’s estate to his sons, George A. Campbell and Frank D. Campbell, in trust, to pay over the income to his widow during her life or widowhood. After the death or marriage of the widow it was to go to the said sons absolutely. The said sons were appointed executors of the will.

The plaintiff then offered the inventory filed by said executors in the Probate Court, setting forth that Charles M. Campbell died leaving no personal property, and describing only one piece of real estate, and that in these words:

“Lot Thirteen (13) and the east half of Lot Fourteen (14) in Block Eleven (11) in J. G. Shortall’s (Trustee) Subdivision of the North half of the Northeast quarter of Section Twenty-six (26), Township Thirty-eight (38) North, Range 14 East of the Third Principal Meridian in Cook County, Illinois. Title by warranty deed from Sarah A. Dickerman and husband believed to be perfect, but encumbered by trust deed to the Chicago Title and Trust Company, Trustee, dated April 6, 1904, to secure the sum of Two Thousand ($2,000) Dollars, due five years after date with interest at five and one-half per cent., payable semiannually. Said property has been registered under the Torrens Law.
“The title to said real estate stands in the name of Charles M. Campbell, but the undersigned executors understand that the real beneficial title to said property is in Frank D. Campbell. That the title to said-property was held by Charles M. Campbell for the use and behoof of the said Frank D. Campbell, his heirs and assigns and that the incumbrance thereon was really the indebtedness of the said Frank D. Campbell.”

It was thereafter stipulated on the record that the piece of real estate thus described in the inventory was the same piece as that described in the will as the east thirty-seven and one-half feet of three lots on Seventy-second street, etc.

Following this the plaintiff introduced in evidence a Torrens certificate of title, dated June 6, 1904, certifying that Charles M. Campbell was then the owner of an estate in fee simple in said described land. He then called the defendant to the stand under section 33 of the Municipal Court Act, and proved by him the value of the land in question to be $4,000. He then rested his case.

Section 13 of the Statute of Frauds and Perjuries is, in part:

“When any action or suit is brought against any heir or devisee, he may plead riens per descent at the time of the commencement of the action or suit.”

The defendant had in this cause pleaded riens per descent according to the approved forms so far as the system of pleading in use in the Municipal Court permitted, by stating in his affidavit of defense:

“First: That he received no property by descent or devise from said Charles M. Campbell.
“Second : That the property described in the plaintiff’s statement of claim” (i. e. the property above described) “was purchased by this defendant from the said Charles M. Campbell in the lifetime of the said Charles M. Campbell, and was paid for in full by this defendant to the said Charles M. Campbell prior to the death of the said Charles M. Campbell.
“Third: That this defendant and the said Charles M. Campbell accounted together, and the said Charles M. Campbell promised to execute a deed to said property, but by reason of his sudden death in Florida the same had not been executed and delivered to this defendant, although this defendant says he has fully paid the purchase price agreed upon.”

We have no doubt that if the defendant should prove the statements made in the second and third paragraphs of this affidavit, he would thereby (in connection with the evidence offered by the plaintiff) establish in legal effect the truth of the first paragraph, which was the essential plea to be proven by him, riens per descent.

This was apparently not the view of the court below, however, and the contention of the plaintiff—the defendant in error in this court—is to the contrary.

The defendant testified in his own behalf, in effect, that he had purchased the property in question from his father in his lifetime for $1,500 in cash and the assumption of a mortgage of $2,500 which existed on the property; that he had paid the $1,500 in full to his father and reduced the incumbrance by $500, but that owing to his father’s sudden death in Florida, the deed had not been executed and delivered. He offered the checks showing the payments to his father. But at the close of the evidence for the defendant the court on motion of the plaintiff struck it all out and gave judgment for the plaintiff.

It does not appear from the record on what ground this action was taken, but the counsel for defendant in his argument asserts that it was “on the ground that the contract testified to, being an oral contract for the sale of land, was void and could not be availed of by the plaintiff in error in this case,” and color is lent to this statement by the fact that, as appears by the record, the court refused the request of the defendant that it should hold the following propositions of law:

“1. The Statute of Frauds being a personal defense to the parties to the contract, the plaintiff in this case being a creditor only of one of the parties to the contract cannot interpose the defense of the Statute of Frauds.
“2. The Court holds the law to be that the Statute of Frauds is a personal defense to be interposed by a party or privy to a contract, and that a creditor not being a party or privy to the contract cannot avail himself of the 'Statute of Frauds as a means of enforcing or defeating the cause of action.”

We think these propositions both stated the law correctly when properly construed. Counsel for plaintiff, however, point out that it is by the 12th section of our statute—“To revise the law in relation to frauds and perjuries”—that the action at law is given to a creditor of a testator against devisees of real estate, and that therefore it cannot be properly said that a creditor “cannot avail himself of the Statute of Frauds.” This is a technically accurate statement, but the meaning attached to the words “Statute of Frauds” in the submitted proposition very evidently did not apply to all the sections of the act, but to that primary provision which makes a contract for the conveyance of land unenforceable unless there is a signed memorandum of the same by the party to be charged.

However, it makes no difference whether the court was justified in refusing to hold the propositions in question on account of their general language or not. The essential error complained of was in striking out the evidence for the defendant. That evidence was both competent and material.

If the facts were as stated by the defendant he took nothing by descent or devise from his father, and established the truth of the plea the law allowed bim to make.

Counsel for the defendant say: “The real matter at issue in the trial Court was whether the land had been conveyed to the defendant prior to the death of the father”; but this is not so.

The real question is whether it belonged to the defendant prior to the death of the father, and if he was the holder of the entire beneficial interest; it made no difference to the creditor’s rights whether the land had been “conveyed” or not. The creditor could not in any event avail himself of the fact that the father had signed no memorandum of sale, and it is by no means certain that the father himself could have done so after the payments made by the son. At all events, the representatives of his estate are not attempting to. Even if the bare legal title descended to the defendant by the devise, he took that legal title in trust to cause it to follow the beneficial one. The naked legal title was no “asset” and had no value. The plea of riens per descent would be established by showing that the beneficial title was not in the devisor at the time the will took effect.

And the plaintiff cannot, because the devisor had not signed a memorandum of sale, be heard to the contrary. Kelly v. Kendall, 118 Ill. 650 ; King v. Bushnell, 121 Ill. 656.

It follows of course that the fact that the property had been previously by the devisor registered under the Torrens Act and that the certificate was outstanding, was immaterial.

It is suggested by the plaintiff in error, although not by defendant, that possibly the court struck out the defendant’s testimony on the supposed ground that the defendant was incompetent to testify under section 2 of the Evidence Act. This is hardly likely, as the section clearly does not apply to Campbell’s testimony. Of course, if the evidence was rejected for any such reason, the rejection was erroneous.

Complaint is made by the plaintiff in error that there was a defect of parties in the suit in that the other executor of the will of Charles M. Campbell was not made a party. We do not think this objection is well taken.

But for the error indicated in striking out the evidence introduced by the defendant, the judgment of the Municipal Court is reversed and the cause remanded to that court for proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    John V. Berg for use of Edgar F. Seney and Rowland T. Rogers, Defendant in Error, v. L. E. Randall, Plaintiff in Error.
    Gen. No. 20,116.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Garnishment proceeding by John V. Berg for the use of Edgar F. Seney and Rowland T. Rogers against L. E. Randall. The defendant was served with a garnishee summons, was defaulted for want of appearance and a conditional judgment was entered against him. Later the judgment was made final for failure of defendant to appear after service of a writ of scire facias was issued and served upon him. The next day after final judgment was entered defendant appeared and moved to have the final judgment set aside, presenting in support of his motion a sworn petition in which he set forth that when he was first served with summons he was not indebted to John V. Berg and had been at no time since; that when he was first served he was about to leave the city and notified Seney, one of the plaintiffs, to that effect and also that he was not indebted to Berg; that Seney told him that he would consent to have the matter continued and that relying, on Seney’s promise he left the city and paid no further attention to the matter until he was served with the scire facias to appear in court at 9:30 a.'m.; that he did appear at' said time and place and after sitting in the court room until about 10:30 a. m. and not hearing his case called he inquired of the clerk as to it and the clerk informed him that his case was the first one called and that judgment had been entered against him. The motion to vacate was continued for hearing at various times and when the case was last called for hearing the defendant failed to appear and the court overruled the motion and ordered that the judgment stand. To reverse the judgment, defendant prosecutes a writ of error. "
    Abstract of the Decision.
    1. Garnishment, § 116a

      —vacation of default judgment. Overruling of motion to vacate a default judgment against a garnishee, held not error where the excuses alleged for allowing both the conditional and the final judgment to go against him were not sufficient in themselves and there was no proof of the allegations except the affidavit attached to the petition.
    2. Garnishment, § 110

      —when proof of judgment against original debtor not essential. A default judgment may be taken against a garnishee without proof of the judgment upon which the garnishment proceeding was based, where it was set upon in the affidavit for the garnishee summons so that the default of the garnishee admitted it.
    Caswell & Healy, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Thomas J. Healey, Defendant in Error, v. H. Stern, Plaintiff in Error.
    Gen. No. 20,172.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.

      Abstract of the Decision.
    1. Appeal and error, § 578

      —necessity of exception to entry of judgment. Decisions of the Supreme Court that the question of the weight of the evidence cannot he considered in the Appellate Court where the ease was tried without a jury and no exception was taken to the entry of the judgment, although the entry of such judgment was resisted and a motion to vacate it made immediately thereafter, referred to as hardly applicable to cases brought after the amendment of May 31, 1911, to section 81 of the Practice Act (J. & A. ¶ 8618,) but the question not decided.
    2. Sales, § 329

      —sufficiency of evidence. In an action to recover for goods sold, where practically the only issue was whether the sale was made according to the weights at the place from where they were shipped or according to the weights at the place to which they were shipped, a finding in favor of plaintiff held sustained by the evidence.
    Statement of the Case.
    Action by Thomas J. Healey against H. Stern in the Municipal Court of Chicago to recover a sum claimed to be due for scrap iron sold to defendant. To reverse a judgment in favor of plaintiff for $249.56, defendant prosecutes a writ of error.
    Joseph W. Schulman, for plaintiff in error.
    Benjamin B. Morris, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    City of Chicago, Defendant in Error, v. Mary Perkinson, Plaintiff in Error.
    Gen. No. 19,779.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1034

      —judicial notice. The Appellate Court cannot take judicial notice of ordinances not contained in the record.
    2. Breach of the peace, § 1

      —what does not constitute. Where a person occupying premises abutting a street, took a horse and wagon left in the street in front of a portion of her premises and left them in the middle of the street in the street car tracks, held that such acts and conduct did not show a breach of the peace or the commission of an act which tended to a breach of the peace within the meaning of an ordinance prohibiting the making, etc., of “an improper noise, riot, disturbance, breach of the peace or diversion tending to a breach of the peace.” ,
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Complaint by the City of Chicago against Mary Perkinson charging defendant with a breach of the peace in violation of section 2012 of the Chicago Code of 1911. To reverse a judgment of guilty, defendant prosecutes a writ of error.
    J. H. Perkinson, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Robert Graham, Appellee, v. Charles E. Hagmann, Appellant.
    Gen. No. 19,967.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 2

      —when evidence sufficient to show negligence in driving automobile. In an action for personal injuries sustained by plaintiff in a collision between a wagon in which he was riding and defendant’s automobile, where plaintiff’s evidence tended to show that the automobile ran into the wagon and defendant’s evidence tended to show that the wagon ran into the automobile, held that a verdict for plaintiff was sustained by the evidence.
    2. Negligence, § 112

      —when negligence of driver of wagon not imputable to occupant. Where a person was riding on the rear end of a wagon and was injured in a collision between the wagon and an automobile, the wagon being driven by the employee of a person who owned the horse and wagon, held that the negligence of the driver could not be imputed to the person injured, it appearing that the latter was being taken to his home and that he had no control over the horse.
    Appeal from the Circuit Court of Cook county; the Hon. Dean Franklin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by Robert Graham against Charles E. Hagmann to recover for personal injuries sustained by plaintiff in a collision with a wagon in which he was riding and defendant’s automobile at a street intersection. To reverse a judgment for plaintiff, defendant appeals.
    William J. Ammen, Felix J. Streyckmans and Albert B. Joyner, for appellant.
    Edward Maher and James L. Bynum, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Paul J. Giersch, Plaintiff in Error. Same v. Joseph F. Sass, Plaintiff in Error. Same v. Joseph Blacek, Plaintiff in Error. Same v. William Bykowski, Plaintiff in Error.
    Gen. No. 20,079.
    (Not to be reported in full.)
    Gen. No. 20,080.
    (Not to be reported in full.)
    Gen. No. 20,081.
    (Not to be reported in full.)
    Gen. No. 20,082.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Actions in the Municipal Court of Chicago by the City of Chicago against Paul J. Giersch, Joseph F. Sass, Joseph Blacek and William Bykowski for violation of section 2012 of the Municipal Code of Chicago. The defendants were together acting in concert when the alleged violation of the ordinance occurred. A verdict of guilty was returned and a fine of one dollar was assessed against each defendant. To reverse the judgments entered on the verdicts, the defendants severally appealed and by agreement the causes were submitted in the Appellate Court on the record, abstract and briefs filed in the case against defendant Giersch.
    Noble street runs into Milwaukee avenue from the north. Defendants were passengers on a southbound Noble street car and were given transfers. They took a car going northwest on Milwaukee avenue and asked for one transfer to Ashland avenue, which runs north and south. The conductor refused to give such transfer and told the defendants that none of them could ride farther than Division street and Ashland avenue. There was a car line on Division, an east and west street, to which defendants might have transferred if they had taken a northbound car on Noble street. When the Milwaukee avenue car reached Division street the conductor insisted that the defendants leave the car or pay another fare, but they refused to do either.
    Abstract of the Decision.
    1. Breach of peace, § 1

      —what constitutes violation of city ordinance. Conduct of passengers on a street car in refusing to leave the car or pay another fare, held to warrant the jury in finding them guilty of a violation of a city ordinance prohibiting the making, etc., of “an improper noise, disturbance, breach of the peace or diversion tending to a breach of the peace.”
    2. Carriers, § 262

      —duty of passenger to pay fare. Though a passenger has the right to remain on a street car he should submit, for the time being, to an order of the conductor to pay another fare and seek redress by a civil action.
    3. Trial, § 261

      —when court may direct jury to correct verdict. In suits against several defendants for violation of a city ordinance, where the cases were given to the jury with leave to seal and separate, and each verdict as announced the next morning found a defendant guilty but did not fix the amount of his fine, held that the court did not err in directing the jury to retire and correct their verdict.
    William D. Munhall, for plaintiffs in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Arnold Holinger, Trustee, et al., v. Harriet E. Dickinson et al.; Julius Stichert, Plaintiff in Error, v. Arnold Holinger, Trustee, et al., Defendants in Error.
    Gen. No. 20,102.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Bill by Arnold Holinger, trustee, and L. E. Chipman to foreclose a trust deed in the nature of a mortgage. Julius Stichert was made a party defendant and filed an answer and a cross-bill. Stichert, according to his cross-bill, purchased the mortgaged property of the mortgagor, Dickinson, subsequent to the execution of the trust deed, and in his cross-bill he prayed for an accounting with the mortgagor. The court sustained a demurrer to said cross-bill, dismissed the same and entered a decree of foreclosure. Stichert prosecuted an appeal to the Appellate Court assigning for error the order sustaining the demurrer to his cross-bill and dismissing the same, and that court held that the appeal did not bring before it the error assigned and affirmed the decree. See 183 Ill. App. 122. Stichert now prosecutes a writ of error on the same record.
    The pleadings in this case are stated in the opinion filed on the former appeal.
    G. W. Spunner and Hayden N. Bell, for plaintiff in error.
    Brundage, Landon & Holt, for defendants in error.

      Abstract of the Decision.
    Mortgages, § 489

      —matters which may not he adjudicated on cross-hill. On a bill to foreclose a trust deed, a person made a partydefendant and claiming an interest in the property as a purchaser thereof from the mortgagor subsequent to the execution of the trust deed held not entitled to file a cross-bill praying for an accounting with the mortgagor, since to permit him to do so would delay the foreclosure proceeding and incumber the record with questions not necessary or properly involved in such proceeding.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative. Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.


author: Green, J.

text:
    Fourth District District
    February Term, 1886.
    Robert B. Smith et al., Adm'rs, etc., v. William H. Hall, Adm'r, etc.
    1. Interest in land — Descends to heirs. — An interest in land descends to the heirs, and will not pass to an administrator as would a chose in action, or personal estate.
    2. Agency — To collect. — An agent employed to make or negotiate a contract is not as of course to be treated as having an incidental authority to receive payments which may become due on such contracts. An agent intrusted to receive payment of a negotiable or other instrument is ordinarily entitled to receive it only when and after it becomes due, and not before, unless there be a known usage of trade or course of business in a particular employment or habit of dealing between parties extending the ordinary reach of authority.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Wise & Davis, for appellants;
    as to agency, cited Thompson v. Elliott, 73 Ill. 221; Draper v. Rice, 56 Ia. 114; Dutcher v. Beckwith, 45 Ill. 460; Peabody v. Hoard, 46 Ill. 242; Meyers v. Barnes, 65 Ill. 70; Mathews v. Hamilton, 23 Ill. 470.

      Messrs. Metcalfe & Bradshaw, for appellee ;
    cited Noble v. Nugent, 89 Ill. 522; Anderson v. Conly, 21 Wend. 279; M. State Life Ins. Co. v. Advance Co., 80 Ill. 549; Harris v. Simmerman, 81 Ill. 413; Doan v. Duncan, 17 Ill. 274; Story on Agency, § 127; 2 Kent’s Com., 8th Ed., 798.
   Green, J.

The claim which is the subject-matter of this suit was filed by the heirs of Maria Merchant in the Oounty Court of Madison county against the estate of Sarah P. Smith, and upon a hearing there was a finding and judgment by the court for the defendants, Bobert B. Smith and Sarah B. Smith (administrators of the estate of Sarah P. Smith), for costs. From this judgment the claimants appealed to the Circuit Court of Madison county, and at the March term, 1884, thereof, said cause was tried by the court and a jury, and a verdict for plaintiffs was rendered for the sum of $500; which verdict on the motion of defendants was set aside and a new trial awarded. The cause was then continued from term to term until the March term, 1885, of said circuit court, at which term leave was granted by the court to substitute William H. Hall, administrator of the estate of Maria Merchant, as plaintiff, in the place and stead of said claimants, and at the same term (Hall then' becoming plaintiff ) the cause was tried by the court without a jury by consent of all the parties, resulting in a finding and judgment by the court in favor' of appellee as administrator, and against appellants as administrators, for the sum of $1,706 and costs of suit, to be paid in due course of administration; to reverse which judgment appellants took this appeal. The said claim is for the value of a lot in Minneapolis, Minn., sold by appellant’s intestate under a power contained in a mortgage, and is based upon the alleged facts that said intestate, Sarah P. Smith, conveyed said lot to one Ole H. Mahla by warranty deed, on February 28, 1872, and received from him in part payment therefor his three promissory notes for $100 each, payable to her in one, two and three years respectively, with ten per cent, interest, secured by mortgage upon said lot; that all of said notes were paid to her at maturity, or before maturity, and were so paid during her lifetime; that after all of said notes and interest had been so paid, she caused said mortgage to be foreclosed by advertisement and sale in the county where said lot was situated, claiming that about one hundred dollars of the sum secured by said notes and mortgage was due and unpaid; that at said sale one Charles Woods purchased said lot for the amount so claimed to be due and unpaid, and interest, costs and attorney’s fee; that the time had expired for redeeming from said sale before said claimants or any one of them had any knowledge of said foreclosure, or knowledge that any claim was or had been made that said lot was not fully paid for; that the Supreme Court of Minnesota had decided in a suit brought by claimants against said Woods to recover said lot; that the title thereto had passed to and become vested in him by said purchase at said foreclosure sale; that said lot was deeded by Ole H. Mahla to John Fallon on July 5, 1872 and by Fallon to William H. Connelly on October 2, 1873; that Connelly died in August, 1871, intestate, leaving him surviving Anna M. Connelly, his daughter and only heir, who died intestate and without issue in January, 1875, leaving as her only heir, her maternal grandmother, said Maria Merchant, who died in February, 1877, testate, and devised said lot to claimants, and that the value of lot at time of filing claim in the county court was §1,100.

The evidence establishes satisfactorily these facts: That, William H. Connelly died intestate in August, 1871, leaving only one heir, said Anna M. Connelly, a minor, who died unmarried and without issue and intestate in January, 1875, leaving no heir other than said Maria Merchant, her maternal grandmother, who died in February, 1877 (but not testate as shown by any competent evidence in the record); that said claimants, Harvey FT. Merchant, Mary Hewins, Erneline Hewins and J. G. Merchant, are the children and only heirs at law of said Maria Merchant; that said lot was conveyed (as alleged in said claim,) by Sarah P. Smith, appellant’s intestate, to Ole H. Mahla, by him to John Fallon and by him to William H. Connelly, subject to the mortgage from Mahla to said Sarah P. Smith; that said mortgage and three notes secured thereby for $100 each were executed by said Mahla to secure part of the purchase money of said lot and were delivered to said Sarah P. Smith as alleged insaid claim; that said foreclosure sale of said lot was legally made on May 5, 1877 ; -that said Woods purchased said lot at said sale, received a deed therefor and thereby became the owner thereof in fee, and said children and heirs of Maria Merchant were thereby divested of all title to or in said lot, and that appellee was duly appointed administrator of the estate of said Maria Merchant on March 4, 1885; the value of the lot in the view we take of this case is not important. From these facts established by the evidence, we are of the opinion that the plaintiff below, as administrator, could not maintain this suit, even upon the theory that his intestate died seized in fee of said lot free from the lien of the Mahla mortgage, because at the time of her death the foreclosure sale had not been made ; no claim for damage or right of action had then accrued to her by reason thereof. Her only interest as claimed at the time of her death was in the land descended to her heirs at her death, and would not pass to her administrator as would a chose in action or personal estate. This doctrine is declared quite fully in Buck v. Eaman, 18 Ill. 528; hence the judgment below recovered by plaintiff as administrator was erroneous.

We do not reverse on this ground alone, but hold that had the heirs of Maria Merchant themselves prosecuted this claim as plaintiffs they could not lawfully recover upon the facts proven. To justify such recovery it was indispensable to prove by a preponderance of the evidence that the whole amount, principal and interest, of the third $100 note, secured by the Mahla mortgage, had before said sale been paid to Sarah P. Smith or to her agent, authorized to receive and receipt therefor at the time of payment, or whose act in so receiving and receipting was afterward assented to and ratified by her; otherwise the sale of the mortgaged lot to satisfy said note and interest or so much thereof as was unpaid would have been lawful, and those claiming under the mortgagor could not recover anything from said Sarah P. Smith unless a surplus of the proceeds of such sale remained in her hands after satisfying debt, interest, costs and expenses, and then only such surplus would be recoverable. But no question of surplus of proceeds arises here ; the evidence relied upon by plaintiff to prove full payment of this third mortgage note consists of one Hancock’s testimony and this receipt signed by him.

“ April, 10, 1874. ¡Received of W. H. Connelly, assignee of Ole Mahla, ninety-two dollars in full payment of the Mahla mortgage.

H. B. Hajxcook,

Agent for Sarah P. Smith.'

The note which is claimed to have been paid by this ninety-two dollars was the third and last due of the three notes secured hy the mortgage on said lot. It was not in Hancock’s possession, or at least was not produced at the time Connelly made this payment, and when it afterward came to the hands of Charles Woods as agent for Sarah P. Smith, had no credits indorsed on it other than interest to Feb. 20, 1874; and Hancock testifies a balance of eight dollars principal of said note, and interest on the $100, from February 20 to April 10, 1874, might have remained unpaid when he had received this ninety-two dollars and don’t remember it was ever paid-Thus, notwithstanding the receipt, taking all the evidence together, it does not appear that the said mortgage debt was fully paid even to Hancock, and said note was not then due. In addition to this receipt the only evidence on behalf of plaintiff tending to prove the character and extent of Hancock’s agency was his own testimony. He says: I first knew Sarah P. Smith in 1856 ; was her agent in regard to her property interests in Minneapolis; authority was both verbal and written, by letter correspondence, not formal power of attorney ; have no writings showing such authority other than letters; was such agent until Charles H. Woods was appointed. The deed from Sarah P. Smith to Ole H. Mahla (of the lot in question here) was in my possession when sale was made ; I delivered it to him in pursuance of a contract of sale made with him by Sarah P. Smith; was directed to deliver it to him on receipt of down money on the sale, and notes for balance of purchase money; sent mortgage to her after it was recorded,. and the notes doubtless at same time. They were returned to me for collection before maturity or about that time: did not surrender remaining note when final payment was made to me, either because I had not received it from Mrs. Smith or could not find it; received it either shortly before or after that payment.” And on cross-examination says: “Have no recollection of the time I received the last note from Mrs. Smith.” The foregoing is all the testimony on behalf of plaintiff to prove the authority given by Sarah P. Smith to Hancock to collect this third note before' its maturity (other than his testimony detailing what was said. and done at the time of giving this receipt, hereafter adverted to), and falls far short of proving such authority to him. The law of agency material as affecting the rights of the parties in interest in this case is stated in Story on Agency, Sec. 98, Paley on Agency, by Loyd, 290, 291, and is cited and approved in Thompson v. Elliott, 73 Ill. 221, 222. In the latter case it is said in the opinion, “ The doctrine is pretty well settled and not controverted, that an agent employed to make or negotiate a contract is not, as of course, to be treated as having an incidental authority to receive payments which may become due on such contract, and it is further laid down by the authorities, that an agent intrusted to receive payment of a negotiable or other instrument, is ordinarily entitled to receive it only wrhen and after it becomes due, and not before it becomes due ; but if there be a known usage of trade or course of business in a particular employment or habit of dealing between parties, extending the ordinary reach of authority, that will be held to give full validity to the act.” We find nothing in the facts proven in this case to take it out of the rule above announced, or bringing it within any of the exceptions named. On the contrary, this is one of the cases in which the rule should be strictly applied. Mrs. Smith never received this payment of $92, or any part thereof, nor did her administrators. She was not informed by Connelly or Hancock such payment had been made, and never knew it had been made. It further appears that at the time of this payment Connelly had never dealt with Hancock as the agent of Mrs. Smith or knew him to he such. He knew the note was not due; that Mahla had given it and secured it by mortgage un his lot; that it was unpaid and was a lien thereon. Mrs. Smith was not present when the payment was made, nor was the note produced. Hancock exhibited no authority to act as the agent of Mrs. Smith, nor does he claim he told Connelly he was such agent, but this is his testimony as to what was said and done-at time of giving receipt: Connelly and some one with him came to pay off the mortgage; I could not find the note; I told him if they would pay it I would see that they got the note and have the mortgage satisfied, as it was common for me to receive money for her, although I might not have the note and mortgage; they relied on this and paid the money.” It thus appears that Hancock exhibited no evidence to Connelly of his agency, did not claim Mrs. Smith had authorized him to receive this payment or collect this note, but because it was common for him in the past to receive money he assumed the right in this instance to do so and take §92 in full payment of a note belonging to her, without any means to determine the amount due thereon, and promised that he, not Mrs. Smith, would see that they got the note, and he, not Mrs. Smith, would have the mortgage satisfied, from all the evidence. It not only appears that the vital fact of Hancock’s, authority to collect this note before maturity remains unproven, and no evidence of the subsequent ratification by Mrs. Smith of his act of receiving the payment is shown, but further, from Hancock’s testimony it would appear that Connelly, instead of regarding him as Mrs. Smith’s agent, employed Hancock as his own agent to procure and surrender the note and see that the mortgage was satisfied, and relied upon Hancock’s promise to do so, and should be bound by his acts. Finding then, as we do, that Sarah P. Smith did not receive in person, and no one lawfully authorized so to do received for her, the principal sum of said last note for §100 and accrued interest, that the same remained and was unpaid at the time of the mortgage sale to Woods, that she had the right to sell said lot for default in such payment, as was done, it follows the judgment of the circuit court must be reversed.

Judgment reversed.


author: Wilkin J.

text:
    Gustavus Pape et al. v. The People, etc.
    1. Official bond — Defalcation—Successive terms. — Where a comity treasurer who had been twice elected to the office and by act of the legislature had his last term extended one year, gave bonds for the three terms, and upon his death a defalcation was discovered, and he had made no official reports showing the state of his accounts at the expiration of any term, in the absence of all proof to the contrary, the law would fix the defalcation in the last term.
    2. Re-reference of cause. — The power given to the court by section 1, chapter 117, R. S. is a discretionary power with the exercise of which the court will not interfere unless it is clearly shown that it has been abused.
    Error to the Circuit Court of Bandolph county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. Ralph E. Sprigg and Mr. J. J. Morrison, for plaintiffs in error;
    as to liability of sureties, cited Mix v. Singleton, 86 Ill. 194; Stern v. People, 96 Ill. 475; Coons v. People, 76 Ill. 383.
    Mr. H. Clay Horner, Mr. Abram G. Gordon and Mr. Don E. Detrich, for defendants in error ;
    that in the absence of evidence as to when default occurred it will be presumed to have occurred during last term of office, cited Brandt on Suretyship and Guaranty, § 467; Kelly v. State, 25 O. 579; Pinkstaff v. People, 59 Ill. 150 ; Kagay v. Trustees, 68 Ill. 76.
   Wilkin J.

In the year 1877, John II. Altrogge was elected treasurer of Bandolph county. In 1879 he was re-elected, and by act of the legislature his last term was extended one year. He gave bonds for the first two regular terms, and in December, 1881, executed the bond sued on for the extended term.

He died May 27, 1882, and B. G. Detrich was appointed his successor. He was afterward ordered by the county board of said county to examine the accounts of Altrogge, and report the same. He afterward made his report, reporting each term separately, and at the March meeting of the board the same was approved.

This report shows that during the first term Altrogge received something over $18,000 more than he paid out. That during his second term he again received about $28,000 more than he distributed, exclusive of the amount unaccounted for at the end of his first term, and that during the extended term up to the time of his death his credits amounted to about $15,000 more than his receipts — not taking into account the amounts unaccounted for during the previous terms. These several reports showing a defalcation, and there being different sureties on the three several bonds of Altrogge, suits were brought to the September term, 1881, of the Circuit Court of Randolph county, on each of said bonds.

At that term all of the cases were continued by agreement- and referred to R. H. Mann, Esq. The order of reference is informal but is treated by all parties, and by the court, as a reference under the provisions of the statute.

At the March term, 1885, the referee made his report, and as we understand from the record, reported the testimony taken in all the cases as the evidence in this case. He found against plaintiffs in error and reported the amount due to be $1,718.12. Exceptions were filed to this report, and also a motion by plaintiffs in error, to re-refer the case for further evidence. Both the motion and exceptions Avere overruled and judgment entered for the amount so reported, and costs.

It is first insisted that the trial court erred in refusing to refer the case back for further evidence. The poAver given to the court by section 1, chapter 117, Revised Statutes, page 981, Hurd’s edition, 1885, is a discretionary power, with the exercise of which this court Avill not interfere unless it is clearly shown that it has been abused, and of this there is no proof in the record. By the exceptions filed and the errors assigned, but one other question is raised for our decision, and that is Avhether or not the evidence justified the finding of the reteree as to the liability on the last bond. That Altrogge was defaulter to at least the amount of the judgment rendered is not denied, but it is claimed that the defalcation occurred during the first and second terms, or one of them, and not on the last. A preliminary question is raised by counsel for defendant in error that the bill of exceptions does not purport to contain all the evidence and that no exception was taken to the judgment of the court below, and that therefore it must be affirmed without reference to the merits of the case. The last objection does not exist in fact, and the former is not well taken, for the reason that the evidence being a part of the referee’s report is preserved in the record without a bill of exceptions.

Ho objection to' any portion of the evidence was made, either before the referee or the court on exceptions, and therefore its competency is not in question here. In fact the three several reports of Detrich above referred to seem to have been admitted before the referee by agreement of parties.

It is manifest from the several reports of the referee that he bases his conclusions upon these reports of Detrich, treating the amount unaccounted for at the end of each term as being on hand at the beginning of the next.

Having consented that these reports should be admitted in evidence, or allowed them to be offered without objection, in the absence of all proof to impeach their correctness, plaintiffs in error can not be allowed to say that Altrogge did not receive the several sums therein charged against him, merely because a part of them may not appear upon his books. The defalcation being fully established and Altrogge having made no official reports showing the state of his accounts at the expiration of any term, in the absence of all proof to the contrary the law fixes it in the last term. Brandt on Suretyship and Guaranty, Sec. 467, and cases cited.

The only evidence tending in the slightest degree to fix the default in either of the previous terms, is the testimony of Detrich as to a conversation with Altrogge in June, 1879.

Ho objection was made to this evidence, but, waiving all question as to its competency to bind the sureties on the bond then in force, it is clearly insufficient by reason of its uncertainty to establish the fact of a defalcation at that time.

Most of the $18,000 not paid out during the first term was unquestionably carried into the second term, and thence into the last, for the reason that the amount shown to have been paid out from the time the last bond was executed to the date of his death, largely exceeds the amount unaccounted for at the end of the second term, and what was received after the giving of this bond. The presumption of the law is therefore aided by the proof, and the referee was justified in concluding that the whole amount unexpended, as shown by the reports of Detrich, was on hand at the end of the first and second terms, and that being the case the legal liability of the sureties on the last bond is fixed. If, as would seem from this record, the officer persistently neglected, during his entire term of office, to make reports to the county board as required by law, and the county board failed to require him to do so, plaintiffs in error must be charged with a knowledge of these facts, and with the knowledge that the law, in the absence of such reports, would fix any defalcation on the last term, unless they should be able to prove that it had previously occurred. Had the officer made his reports showing the amounts found by Detrich to have been unaccounted for on hand at the end of the first and second terms, plaintiffs in error would have been liable whether the money had been actually on hand or not. While his neglect to make his report was inexcusable, and the conduct of the county board still more so, in permitting him to continue in office without doing his duty in that regard the public can not be made to suffer by reason of such neglect. Hence the presumption of the law 'fixing the liability is right and proper, and the judgment in this case must be affirmed.

Affirmed.


author: Wilkin, J.

text:
    Emma S. Spangler v. John Spangler.
    1. Chancery — Demurrer.—In a bill for divorce plaintiff in error filed a plea denying that, defendant in error was at the time of filing his bill, or since, a resident of J. county, in which the bill was filed, but averring that he was at that time, and still was a resident of W. county, and demanding the judgment of the court whether plaintiff in error ought to make any answer to the bill, etc. Held, that it was error to sustain a demurrer to such plea.
    2. Office of flea in chancery. — A plea to abill in chancery is proper whenever the defendant wishes to reduce the cause, or some part of it, to a single point, and from thence to create a bar to the suit.
    Ebbor to the Circuit, Court of Jefferson county, the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. C. H. Patton, for plaintiff in error ;
    cited Davis v. Davis, 30 Ill. 181; Peeples v. Peeples, 19 Ill. 269; Gillilan v. Gray, 14 Ill. 416; Parker v. Parker, 61 Ill. 369; Way v. Way, 64 Ill. 410; Sommers v. Sommers, 16 Bradwell, 77.
    Messrs Pollock & Sons, for defendant in error.
   Wilkin, J.

At the December term, 1885, of the Circuit Court of Jefferson county, defendant in error filed his bill for divorce against plaintiff in error. The bill alleges that both parties reside in said Jefferson county. To this bill plaintiff in error filed a plea denying that defendant in error was at the time of filing his bill or since, a resident of Jefferson county, and averring that he yvas at that time and still is a resident of Washington county in this State. The plea concludes by demanding the judgment of the court' yvhether she ought to be compelled to make any ansyver to the bill, etc. To this plea the defendant in error filed a general demurrer, which yvas sustained. The plaintiff in error failing to answer further she was defaulted and on a hearing a decree was rendered in favor of the defendant in error. The only question presented for our decision is as to whether or not the court erred in sustaining the demurrer to the plea.

It was not proper practice to dispose of a plea in chancery on demurrer. Story’s Equity Pleading, Sec. 697; Daniell’s Chancery Pleading and Practice, Vol. 1, Sec. 4, p. 713; Cochran et al. v. McDowell, 15 Ill 10; Dixon v. Dixon, 61 Ill. 324. The demurrer may, however, be treated as equivalent to setting the plea for hearing, and we shall so consider it. By Sec. 5, Chap. 40, R. S., it is expressly provided that divorce proceedings shall be had in the county where the complainant resides. The latter clause of Sec. 2, Chap. 40, of the statute of 1845, was the same. In Way v. Way, 64 Ill. 410, the Supreme Court say: “The' language is imperative, and excludes the right to commence proceeding in any other county than the one in which the residence of the complainant is fixed.” If the statute could, by possibility, be construed into a different meaning, this case effectually disposes of all that is said by counsel for defendant in error as to the right of a complainant to bring a bill for divorce in any other county than that in which he resides. The allegation in the bill that the complainant resided in Jefferson county was a material and necessary one, and the plaintiff in error unquestionably had the right to put it in issue. Counsel for defendant in error seem to maintain that this can not be done by plea, and in the argument confound this plea with a plea in abatement to the jurisdiction as at common law, objecting to the manner in which it concludes, and citing authorities as to the requisites of a plea at law. It scarcely need be suggested that pleas in equity are not to be determined by the rules of pleading at law and hence the authorities cited both as to the office and form of this plea have no application whatever. The plea in this case is not a plea to the jurisdiction, but a plea in bar. The same defense set up in the plea might have been interposed by answer, as was done in Way v. Way, supra. It may with equal propriety be done by plea. A plea to a bill in chancery is proper whenever the defendant wishes to reduce the cause, or some part of it, to a single point, and from thence to create a bar to the suit. Smith’s Chancery Practice, Vol. 1, page 216; Story’s Equity Pleading, Sec. 652.

Pleas in chancery are pure pleas and pleas hot pure. Pleas not pure are sometimes called negative pleas — Ibid. Sec. 651. It was formerly doubted whether a purely negative plea was a legitimate mode of defense in equity; but that doubt has been dissipated, and it is now firmly established that such a plea is good — Ibid. 668. In Sec. 652, supra, the author says: The true end of a plea is to save to the parties the expense of an examination of witnesses at large.” It would, therefore, seem to be eminently proper in this kind of proceeding, if the complainant did not reside in the county in which the bill was brought, such residence being a “ prerequisite to the existence of the right to file the bill,” as was said in Way v. Way, supra, to raise the question, by plea, and thus save the expense of a general hearing. We see no objection to this plea, either in form or substance, as a plea in bar to a bill in chancery. The court below erred in holding it bad, and the decree is reversed and cause remanded for that reason.


author: Wilkiu, J.

text:
    Illinois Glass Co. v. Luke Holman, use, etc.
    Gauniskhent — Exemption.—While a garnishee proceeding accomplishes the same purpose as an attachment or execution, it is in no sense a levy upon property. It is a judicial proceeding by which a new judgment is obtained. The exemption contained in the 14th section of the garnishment act is in no way affected or qualified by section 37 of chapter 121 of the R. S., which provides that “no personal property shall be exempt from levy of attachment or execution when the judgment is for commutation of road or street labor.”
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 16, 1886.

      Messrs. Wise & Davis, for appellant;
    cited Herman on Executions, § 122; Douthett v. Winter, 108 Ill. 330.
    Mr. A. W. Hope, for appellee.
   Wilkiu, J.

On March 3, 1883, the town of Hpper Alton obtained judgment against Luke Holman for $1.30 for a failure to perform street labor. . On return of execution no property, and affidavit, appellant was summoned as garnishee. It answered that it was indebted to Holman but in a less sum than $50 ; that the indebtedness was for wages, and claimed the exemption for him. Judgment was rendered against appellant for $7.35 and cost, and it appeals to this court. Section 37, 0. 121, page 918, E. S. 1881 (then in force) provides: “Ho personal property shall be exempt from levy of attachment or execution, when the judgment is for commutation of road or street labor.”

To sustain the judgment of the court below it must be held that the town of Hpper Alton could invoke this provision of the statute in the collection of a penalty for a failure to perform street labor assessed under an ordinance of said town, and also that the provisions of that section shall be extended to proceedings under the Garnishment Act.

Heither position is tenable, but we choose to place the reversal of this case on the ground that the exemption provided for in the 14th section of the Garnishment Act is in no way affected or qualified by section 37 above referred to. By the last named section nothing is exempt from “levy of attachment or execution.” While a garnishee proceeding accomplishes the same purpose as an attachment, or execution, it is in no sense a levy upon property. It is a judicial proceeding by which a new judgment is obtained. Section 14, G. 62, provides that the wages of a defendant being the head of a family and residing with the same to the amount of fifty dollars shall be exempt from garnishment. If the wages exceed fifty dollars “judgment shall be given only for the balance above that amount.” It is the duty of the garnishee to claim the benefit of the exemption for his employe. C. & A. Railroad Co. v. Ragland, 84 Illinois, 375. Garnishee proceedings are strictly statutory. When the garnishee has shown the indebtedness to be for wages, and that the defendant is the head of a family residing with the same, that the indebtedness does not exceed fifty dollars, and claimed the exemption for the defendant, the law as effectually protects him against liability as though he owed the defendant nothing. As was said by the Supreme Court in Buckingham et al. v. Fisher, 70 Ill. R. 121, “ There are no qualifications or limitations in the statute and we can not add them.”

In Mineral Point R. R. v. Barron, 83 Ill. R. 365, in which it is held that this exemption is not confined to residents of this State but applies to wages due non-residents, referring to the statute entitled “ Exemptions, ” it is said section 13 exempts certain personal property owned by the debtor. By section 14 it is declared such property shall continue so exempt while the family of such person, or any of them, are removing from one place of residence to another in this State. And then it is said: Here the exemptions seem to have been confined to a resident and the conclusion is inevitable that if it bad been contemplated to so confine the act in regard to garnishment, other and different language would have been employed.” So in this ease, the language being plain and the exemption of so much wages unqualified, and without limitation, it is not for us to take from, or add to its provisions. The wages of a laborer have been made the subject of special protection by the legislature in this State. By section 16, C. 52, R. S., no personal property is exempt from levy of attachment or execution when the debt or judgment is for wages. By this section wages to the amount of $50 are exempt from garnishment. It would scarcely be contended that a laborer who had a judgment for wages could garnishee the wages of another laborer when the amount due was less than fifty dollars and yet if appellee’s construction of section 37 of’-the act of 1879, supra, and the Garnishment Act, is correct, that would unavoidably follow. The case of Fanning v. First Nat. Bank, 76 Ill. R. 56, seems to be relied upon by counsel for appellee as supporting his theory of this case, but we do not so regard it. That case may be said to give a liberal construction to the exemption laws of this State in favor of the debtor, which is the rule of construction in applying such statutes. Here, however, we are asked to adopt the opposite rule and say that a statute which by its terms exempts wages to the amount of fifty dollars in all cases shall be construed to apply only to certain kinds of indebtedness.

This we hold can not be done.

Reversed.


text:
    Charles F. Foskett v. John Wolf.
    Administration — Payment op claims. — It is for the county court to say what per cent, upon claims estates will pay, and on a final settlement of the estate, the executor will be required to pay creditors pro rata regard- . less of the fact that a part of them have received their claims in full. Whether or not he can then recover back the amounts paid them without any order of court, quxre. He certainly can not before such final settlement.
    Appeal from the Circuit Court of Richland county ; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 25, 1886.
    Messrs. Wilson & Hutchinson, for appellant.
    Messrs. Gibson & Johnson, for appellee;
    as to the right to recover money paid through a mutual mistake of facts, cited City Bk. v. Bk. of Albany, 1 Hill (N. Y.), 287; Wheaton v. Olds, 20 Wendell, 174; Watson v. Woolverton, 41 Ill. 241; Alderson v. Ennor, 45 Ill. 128; Belden v. Perkins, 78 Ill. 449; International Bk. v. Bartalott, 11 Bradwell, 620.
    When an administrator, supposing an estate solvent, pays a creditor of the estate more than his distributive share, the administrator may, in Ms individual character, recover back the excess in an action for money had and received: Walker v. Hull, 17 Mass. 380; Rogers v. Weaver, 5 Ham. 536.
   Wilkin, J.

Appellee was appointed executor of the last will of E. J. French, deceased, March 10, 1880.

Prior to the 17th of August, 1880, claims amounting to several thousand dollars had been probated and allowed against the estate by the County Court of Richland county, and on an order of distribution appellee paid thirty cents on the dollar of such claims. Appellant having a claim at that time so allowed, amounting to $560.45, was on that day paid $164.52. Afterward without any order of the court, and without any rejiort showing the condition of the estate, appellee proceeded to pay the claims in full, supposing that all debts existing against the estate had been presented, and that the assets were ample to pay all liabilities ; and, on the 35th of October, 1880, he paid appellant $395.93, balance of his claim in full. Afterward and within two years from the grant of letters,, additional claims were ■ presented, and allowed against the estate, and thereupon it proved to be insolvent, and as appellee now claims, will pay but seventy cents on the dollar of seventh class claims. He therefore brings this suit to recover hack thirty per cent, of appellant’s claim. There has been no settlement of the estate; the 'seventy per cent, has not been paid on' the subsequently allowed claim. Ho order of court has been made fixing the yw rata amount to he paid to creditors. There is no evidence in the record to show that the court has ever found the estate to be insolvent. The theory of appellee’s case is that thirty per cent, of the amount paid appellant was paid him by mistake, and that he therefore may recover the same in this action as so much money had and received to his use. If it is conceded that the money was paid under a mistake of fact within the rule of law authorizing its recovery, still this action can not be maintained for at least two reasons: In the first place appellee has so far sustained no individual loss. He did not pay appellant his money, but that of the estate of Dr. French; nor has he since paid out his own money to reimburse the estate for money belonging to it paid out by mistake. How can it then be said, that appellant has money in his hands belonging to appellee, which in equity and good conscience he ought not to retain %

In the second place there has been no such action of the County Court of Bichland county in the settlement of the estate as would be necessary in any event to enable appellee to recover. It is not for the executor, nor was it for the trial court to say what per cent, that estate will pay. Secs. 111 and 112, chapter 3, R. S., makes it the duty of the county court to settle that question and provides the manner in which it shall be done. The whole amount of money received by appellant was due him, and he was legally entitled to receive it unless the estate was insolvent, and then he would be entitled to receive whatever amount the County Court of Bichland county should by its order apportion him. In other words, when appellee seeks to compel appellant to refund thirty cents on the dollar, on the hypothesis that the estate will only pay seventy cents on the dollar, he must support that hypothesis by the order of the county court as provided in Sec. 112, supra; until he does so appellant has a right to say, “You were mistaken when you paid my claim in full, and yon may be mistaken in fixing the amount to be refunded.”

It is said in argument that the evidence shows that the estate: will pay less than seventy cents on the dollar of seventh class, claims. If we assume that the county court will allow all the' credits claimed by appellee and that he will realize nothing on the notes ordered to be compounded, it may be made to so ap¡Dcar; these are questions not to be assumed but to be settled by the county court on the executor’s reports. On a final settlement of the estate appellee will of course be required to pay creditors pro rata regardless of the fact that a part of them have received their claims in full: People, etc., v. Phelps, Adm’x, 78 Ill. 147; and when he has done so the question will properly arise between him and the creditors paid in full as to whether he can recover back the amount paid them without any order of court, in excess of them pro rata amount.

■ In the present condition of the record it is not necessary to decide that question, and we express no opinion upon it.

For the reasons stated, the case is reversed and remanded.

Reversed and remanded.


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    Jacob Beaird et al., Ex’rs, etc. v. John Wolf, Ex’r, etc.
    Administration or estates — Payment oe claim by mistake. — If the executor by a mistake pays a claimant more money than he is entitled to receive, without an order of court, the mistake is one which can in no way be allowed to affect the settlement of the estate. No action, therefore, to recover the same, can be properly brought in behalf of the estate.
    Ebbob to the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Wilson & Hutchinson, for plaintiffs in error.
    Messrs. Gibson & Johnson, for defendant in error.
   Wilkin, J.

This case is substantially the same as that of Charles T. Foskett against John Wolf, 19 Bradwell, 33, decided at this term on appeal from the Circuit Court of Rich-land county.

In that case the suit was brought by Wolf, in his individual name; in this he files a claim as executor of E. J. French, deceased. If the executor by mistake paid John B. Gharst more money than he was entitled to receive, without an order of court, .the mistake is one which can in no way he allowed to affect the settlement of the estate. People, etc., v. Phelps, Adm’x, 78 Ill. 147.

The claim is therefore improperly filed on behalf of the estate of Edward J. French, deceased.

It is insisted by counsel for defendant in error, that the merits of this case can not properly be considered for the reason that the bill of exceptions, while purporting to contain all of the evidence, shows upon its face that certain documentary evidence introduced upon the trial is omitted, and that therefore we must, presume that proper evidence was before the court below to sustain its judgment, and in support of this position Peacock v. Carnes, 110 Ill. 99, is cited.

The bill of exceptions recites that “ the plaintiff offered in evidence the inventory, sale bill, and the claims probated against the estate, and the receipt of John B. Gharst for the amount of money paid him; ” that the court remarked, “these may be all considered in evidence if no objection be made.” Assuming that these papers were received in evidence and should have been copied into the bill of exceptions, we do not understand the ease cited to go to the extent of holding that from their omission we must presume that other and independent proofs were introduced, to which no reference whatever is made. If this court could see that the omitted documents could with the evidence contained in the bill of exceptions be held to sustain the' judgment, then the presumption would be indulged that such documents contained the necessary facts to make out the case. But from this omission we will not presume that reports by the executor and orders of the court, essential to his right to recover and not referred to or copied in the bill of exceptions, were introduced in evidence. For the reason stated in the case of Foskett against Wolf, and because the claim is improperly filed on behalf of the estate of E. J. French, this case is also reversed and remanded.

Reversed and remanded.


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    Felix Stinnett v. Samuel F. B. Wilson et al.
    I. Practice — Re-instatement of cause after term expires. — A case may be re-instated for further proceedings after the lapse of a term upon notice to the properparties; and if the parties appear to the cause after it has been re-instated and participate in the subsequent proceedings without objections, want of notice, and the regularity of the re-instatement will he treated'as waived.
    2. Same — Damages on dissolution of injunction. — If the suggestion of damages are filed at the time the injunction is dissolved, the hearing and assessment thereon may properly be had at any subsequent term.
    3. Samf. — These suggestions when so filed take the place of a declaration on the bond, and should he so framed as to give the opposite party notice of the damages claimed.
    4. Same — Bill of exceptions. — Failure to preserve the evidence in the record is fatal on appeal.
    5. Evidence — “Usual and customary fee;” — In proving damages upon dissolution of an injunction, testimony that a certain fee would be “reasonable ” is not proper and sufficient upon which tobase a decree. It should be, “ Whathas the defendant paid or become liable to pay, and is it the usual and customary fee paid for such services? ”
    6. Damages — Dissolution of injunction against attorneys. — It is doubtful if a court should allow damages to solicitors for services in securing the dissolution of an injunction against themselves.
    Error to the Circuit Court of Wayne county; the Hon. T. S. Casey, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. J. G. Crews and Hr. H. Tompkins, for plaintiff in error.
    Messrs. Robinson & Johns and Messrs. Creighton & Sib. ley, for defendants in error.
   Wilkin, J.

This was a proceeding in the Circuit Court of Wayne county, to assess damages on the dissolution of an injunction. The hill does not appear in the record and its scope and object can only be gathered from the decrees and orders made in the case. Erom these it appears that on a hearing in vacation before the Hon. T. S. Casey on motion to dissolve injunction on the 16th day of May, 1882, “ it was ordered and adjudged that the injunction he dissolved upon the said administrator filing a good and sufficient bond in the County Court of Wayne county, Illinois, as such administrator, in the sum of §1,200. And also at the same time and place came J. It. Creighton and Wm. H. Eobinson, solicitors as aforesaid, and filed suggestions of damages in said cause under the provisions of the injunction bond, and cause continued for hearing upon the bill until the October term, 1883.” At the October terms 1883, the bill was dismissed at complainant’s cost. At the October term, 1884, an order was made redocketing the case, reciting that it was “by error stricken from the docket, without passing upon the suggestion of damages made by defendants’ solicitors.” It then appears that complainants by their solicitor, J. G. Crews, and defendants by their solicitors, appeared and submitted to the court the questions of damages, heretofore suggested, etc. The order proceeds: “And having heard the evidence and argument of counsel and the court being fully advised in the premises, doth find that Wm. H. Eobinson and J. E. Creighton have appeared as counsel for the defendants * * * and it further appearing to the court from the evidence that fifty dollars is a reasonable solicitor’s fee on the part of defendants, it is therefore ordered that the defendants be allowed the sum of fifty dollars as their damages for the wrongful suing out of said injunction.”

It is insisted that the court had no power to re-instate the case at the October term, 1884, and no jurisdiction to hear and determine the question of damages at that time. It has been frequently decided by the Supreme Court of this State, that a case may be re-instated for further proceedings after the lapse of a term, upon notice to the proper parties, and that if the parties appear to the cause after it has been re-instated and participate in the subsequent proceedings without objection, want of notice and the regularity of the re-instatement will be treated as waived. Tibbs et al. v. Allen, 29 Ill. 535; Welch v. Louis et al., 31 Ill. 446; Herrington et al. v. McCullum, 73 Ill. 476.

Having appeared in the case without objection at the Octoher term, 1884, complainant can not be heard to say that the case was not properly in court at that time. If the suggestion of damages was filed at the time the injunction was dissolved the hearing and assessment thereon might properly be had at any subsequent term. McWilliams et al. v. Morgan, 70 Ill. 551.

If, therefore, the suggestions in this case had been regularly filed upon the final dissolution of the injunction and the case stricken from the docket, the court might, upon proper notice, or if waived, without notice, re-instate it for the disposition of that branch of the case. The record fails to show that suggestions of damages were filed upon the dissolution of the injunction, as required by the statute. The order made in vacation at chambers shows that suggestions were then filed, but what damages were claimed even then does not appear, and there is nothing in the record to show that any were filed in the circuit court upon which the hearing in this case was had. The order in vacation was but a conditional one and did not absolutely dissolve the injunction; that was only done by the order at the October term, 1883, dismissing the bill. The suggestions of damages should then have been filed in court. Sec. 12, chapter 69, R. S.

These suggestions when so filed take the ¡Hace of a declaration on the bond and should be so framed as to give the opposite party notice of the damages claimed. Winkler v. Winkler, 40 Ill. 185; Hamilton v. Stewart et al., 59 Ill. 334. But treating this objection as waived, no error being assigned upon it, we think the failure to preserve the evidence in the record is fatal to the decree. Forth et al. v. Xenia, 54 Ill. 210; Albright et al. v. Smith et al., 68 Ill. 181; Spring et al. v. Collector of Olney, 78 Ill. 101.

While it is doubtless true as claimed by counsel for defendants in error that the evidence in a chancery cause may be preserved by recitals in the decree, it is not done in this case. The only recitals in this decree referring to the evidence are as follows : And having heard the evidence and the argument of counsel and being fully advised in the premises, doth find that W. H. Robinson and J. R. Creighton appeared as counsel for defendants in the dissolution of the injunction as aforesaid and it further appearing to the court from the evidence that fifty dollars is a reasonable solicitor’s fee on the part of defendant, it is therefore ordered,” etc. There is nothing in these recitals to show what facts were proved and in both of the above cases last cited it was held that such statements in a decree were not sufficient. But if held sufficient as to the facts found by the decree they do not sustain the order allowing the fifty dollars damages. But two facts are so found: first, that certain attorneys appeared for defendants and second that fifty dollars is a reasonable solicitor’s fee on the part of defendants.

In Jevne & Almini v. Osgood et al., 57 Ill. 347, it is said: “ The attorneys in this case only gave it as their opinion that the fee they named would be reasonable. Such proof is not proper and sufficient upon which to base the decree. It should be, what has the defendant paid or become liable to pay and is it the usual and customary fee paid for such services ? ” It appears from the record that the solicitors who appeared for defendants were themselves also defendants to the injunction proceeding and on the authority of Jevne & Almini v. Osgood et al., supra, the recitals in the decree would not authorize the allowances of a solicitor’s fee for their services in obtaining a dissolution of the writ. It may be that if they were but nominal parties, as stated in the argument, and were acting not for themselves but for the other defendants under employment by them, that such other defendants could recover for their fees, but no such case is made either by the record or recitals in the decree. The decree must he reversed and cause remanded.

.Reversed and remanded.


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    Champion Iron Fence Company v. B. H. Wernsing.
    Attorney and client — Continuation oe relation. — Where an attorney deposits a county order for his ^client, as security to sureties for signing a bond in an attachment suit against his client, the attorney may, in the absence of proof that he has been discharged, rightfully demand its return and receive it back upon the fulfillment of the conditions upon which it was deposited.
    Appeal from the Circuit Court of Effingham county ; the Hon. William 0. Jones, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. J. M. Gwin, for appellant.
    Messrs. Wood Bros., for appellee.
   Wilkin, J.

It appears from tha evidence in this case that appellant had contracted to build an iron fence around the court house in the city of Effingham. Before the fence was put up it was attached by Flack & Bradley. B. F. Kagay was employed by an agent of appellant to- defend that suit, and in pursuance of his employment he procured appellee, with others, to sign a bond in order to release the. attached property. To indemnify the sureties he placed in the hands of appellee a county order belonging to appellant, for $200, taking a receipt therefor, in which it was stated that the order was to be held as security for B. II. Wernsing and others, as such sureties, and to be delivered back to appellant, when said attachment suit was finally disposed of in its favor.

Flack & Bradley afterward dismissed their suit in the Circuit Court of Effingham county, and on presentation of a certificate of the clerk of that court to that fact, appellee delivered the order to Kagay and cashed it. Subsequently a difficulty arose between Kagay and his client (appellant) as to the amount of his fees, and thereupon this suit was brought to recover the value of the order, appellant claiming that Kagay had no authority to receive it, and that his act in so doing is in no way binding on it.

We think the judgment of the circuit court is right, and may be sustained on either one of two legal propositions, fully supported by the proofs in the case. First, the relation of attorney and client had not terminated between Kagay and appellant, at the time the order was returned to Kagay. The disposal of the attachment suit did not necessarily have that effect. The employment gave the attorney full authority to do whatever was necessary and proper in and about the con-" duet and management of the attachment suit. Within the scope of that authority he deposited this county order. It is not pretended that he exceeded his power as an attorney in so doing. Having placed it in the hands of appellee, he might certainly, in the absence of proof that he had been discharged, rightfully demand its return, and receive it back upon the fulfillment of the conditions upon which it was deposited. It is said by counsel for appellant, that the order was returned after appellee knew the fact that the relation of attorney and client had ceased to exist.” We find no such evidence in the record. Being the agent or "attorney of appellant to deposit the order, he was its agent or attorney to receive it back.

Secondly. The evidence shows a ratification of the act of Kagay in receiving the order. It is unnecessary to enter into a discussion of the evidence to prove this theory of the case. Especially if the itemized account of Kagay against appellant with a credit of this order, or the money received by him upon it, copied at length in the argument of counsel for appellant, is considered in connection with the evidence, there can be no doubt that appellant, with a full knowledge of the facts, recognized the act of Kagay in receiving the order as binding upon it.

The judgment of the circuit court was right, and is affirmed.

Judgment affirmed.


author: Pillsbury, P. J.

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    City of East St. Louis v. East St. Louis Gaslight & Coke Co.
    Voidable contract with city — Disaffirmance.—The contract of the gas company with the city to light the streets, etc., for thirty years being voidable (98 Ill. 415), and such contract having been disaffirmed by the city, the gas company can not recover for the gas furnished and services rendered after such disaffirmance.
    Error to the Circuit Court of- St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed June 12, 1886.
    This action is brought to recover money claimed to be due under a contract to light the streets and supply the city with gas. The declaration, in a special count, alleges that said city, by an ordinance which took effect October 3,1874, had authorized a contract to be made and entered into with the East St. Louis Gas Light and Coke Company to provide for lighting the streets with gas ; that a contract of that date was made; that by the terms of the contract defendant in error was bound to extend its street main pipes within the present and future limits of the city, whenever and wherever said city should order lamps to be erected on connecting lines; to erect lampposts and lamps with necessary service pipe wherever ordered by said city, and label the lamps at street corners with names of intersecting streets ; to furnish gas for all public lamps to be kept burning from one hour after sunset to one hour before sunrise; to light, extinguish, clean and keep in repair said lamps. And said city on its part contracted and agreed to require said company to furnish from and after the execution of the contract, and as soon as lamps could be erected, not less than two hundred lamps along the present street mains of the company; that said city would pay, in monthly installments on bills to be rendered by the company, the sum of $32.20 per lamp per year, the lamp-posts, lamps and service pipe to he and remain the property of the company; and finally, the contract to continue for thirty years from the first day of October, 1874; that said contract was ratified by the city council on the 13th day of October, 1874, and ordered to be spread upon the minutes of the council; that after the making of said contract the city council, on the lOtli of November, 1875, passed an ordinance ordering additional lamps to be erected under the direction of the chairman of the committee on ways and means, and on the 17th of December, 1875, another to the same effect; that plaintiff had complied with said contract, the provisions of said ordinance, and the directions of the chairman of said committee, and had erected lamp-posts and lamps to a large number, to wit, to the number of 303 lamps, and that there became due under said contract for the months of September, October and November, 1878, the sum of §2,658.83, for which the company had rendered monthly bills.
    Common counts and general breach.
    The defendant city filed several pleas, the 6th being in substance as follows : That before said indebtedness or any part thereof accrued, to wit, on the 15th day of Hay, 1877, said city was, and from thence hitherto had been, indebted to an amount in excess of five per cent, of the assessed value of the taxable property within the city, as equalized and assessed by the State Board of Equalization for the years 1876,1877 and 1878; that on said 15th day of Hay, 1877, said city notified the plaintiff in writing that it in no manner recognized any liability to the plaintiff arising out of said contract, and that it would not recognize or pay any claim or bill aforesaid whatever, for lighting any of the streets of said city with gas after the date aforesaid, unless such claim or bill should be contracted in pursuance of some agreement on the part of said city, to be thereafter made; therefore, that since the date aforesaid no agreement whatever had been made or entered into on the part of said city to light the streets of the city with gas, nor to pay for the same. Plaintiff demurred to the 2d, 3d, 4th, 5th and 6th special pleas, and the demurrer was sustained by the court, and the defendant electing to stand by the pleas, judgment was entered thereon for the plaintiff. The case was then tried by the court, by consent of parties, upon the general issue. Finding for plaintiff and judgment for two thousand six hundred and fifty-eight dollars and eighty-tliree cents. A motion for a new trial by the defendant was overruled and the record is brought here by writ of error.
    Mr. B. H. Oauby, for plaintiff in error;
    as to the power of a municipal corporation by contract or other act to abrogate or abridge its own legislative or discretionary powers, cited Cooley on Const. Lim. 206; 1 Dillon on Municipal Corporations, § 97; N. Y. v. Mayor, etc., 3 Duer, 131; Gale v. Kalamazoo, 23 Mich. 344; Presbyterian Church v. Mayor, 5 Cow. 538; Davis v. Mayor, 14 N. Y. 506; Mihau v. Sharp, 17 Barb. 435; East Hartford v. Hartford Bridge Co., 10 How. 535; State v. Cincinnati G. L. Co., 18 Ohio, 262; Reynolds v. Shreveport, 13 La. Ann. 426; Davis v. School Directors, 92 Ill. 293; Stevenson v. School Directors, 87 Ill. 255.
    Mr. Wm. C. Kueffiter, for defendant in error;
    cited City of East St. Louis v. St. Louis G. & C. Co., 98 Ill. 425; Cincinnati v. Cameron, 33 Ohio St. 336; T. H. v. Lake, 43 Ind. 480; Davenport Gas Co. v. Davenport, 13 la. 232; State v. Health, 20 La. An. 1721; Hewitt v. Town of Alton, 7 N. H. 257; West Saving So. v. Phila., 31 Pa. St. 175; Grant v. Davenport, 38 la. 398.
   Pillsbury, P. J.

The alleged contract set out in the declaration requiring the city to receive and pay for gas for lighting the streets at a stated price for the period of thirty years, was before the Supreme Court in a suit between these same parties (98 Ill. 415), brought to recover for gas furnished by defendant in error to the city and received and used by it without objection ; and while the principal opinion does not in terms hold the contract void as being beyond the powers conferred upon the city in this respect, and making the city liable upon the ground of estoppel for the gas received and used, there is a clear intimation that the contract is valid only so far as it has been executed, and that the city can at any time refuse further to take gas under it or be bound by its terms by notice to that effect to the Gas and Coke Company.

The separate concurring opinion of Mr. Justice Walker discusses the question of the validity of the contract, and its reasoning seems to be conclusive that as an executory contract it is null and void. The sixth plea admitted by the demurrer to be true, avers that before any of the gas was furnished for which this suit is brought, the city notified the plaintiff in error in writing, that it in no manner recognized any liability arising out of said contract, and that it would not recognize or pay any claim or bill whatever for lighting any of the streets of said city after that date, unless some other agreement was made therefor, which was never entered into for the furnishing of gas thereafter. The questions of the validity of the contract, and the right of the city at any time to refuse longer to be bound by its terms, is thus distinctly raised by the said plea, and it being substantially conceded in the opinion of the court in the cited case, that the city could at any time avoid the contract,” and the separate opinion of Mr. Justice Walker being such an able exposition of the law regarding the power of the city to enter into such contract and for reasons that seem to be unanswerable and so much better expressed than it is possible for us to do, concluding that the contract was void, we have no hesitation in saying that the sixth plea presented a good defense to this action and the city was not liable under the contract for gas after avoidance of the contract by notice as therein stated.

The contract, then, being voidable, and disaffirmed by the city, no liability is shown and the judgment will be reversed.

Judgment reversed.