author: Mr. Presiding Justice Holdom

text:
    R. Jackson & Company, Defendant in Error, v. Republic Iron & Steel Company, Plaintiff in Error.
    Gen. No. 13,881.
    1. Garnishment—when demand pursuant to section 11 of act not essential. A demand pursuant to section 11 of the Garnishment Act is not essential to the maintenance of an action if the defendant is a non-resident.
    2. Garnishment—what essential to valid judgment in. Jurisdiction of the court of a defendant is a primary indispensable requisite to support a judgment against a garnishee rendered in an attachment proceeding. No intendments are to. be indulged in favor of the jurisdiction of a domestic court over a resident of a sister state.
    3. Exemptions—when laws of sister state will he enforced in Illinois. A non-resident defendant whose wages were earned and payable in the state of Indiana is entitled to the benefit of the exemption laws of such'btate of Indiana.
    4. Attachments—when court without jurisdiction. ■ A municipal court has no jurisdiction of an attachment suit commenced, tried and adjudged within the second official district thereof in which such defendant had neither office, representative, property nor effects, service being had in the first judicial district.
    Attachment. Error' to the Municipal Court of Chicago; the Hon. M. F. Girten, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and garnishee discharged.
    Opinion filed June 11, 1908.
    Rehearing denied June 24, 1908.
    Rubens, Fischer & Mosser, for plaintiff in error; Richard Jones, Jr., of counsel.
    Frank Foster, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is a suit in attachment instituted in the Municipal Court of Chicago against James Arney, the debtor of plaintiff. The right to the attachment is grounded on the fact that Arney was a non-resident of the State of Illinois and resided in the city of East Chicago in the adjoining State of Indiana. Appellant was summoned as garnishee.

In this opinion the parties will be referred to as plaintiff, defendant and garnishee, respectively.

The jurisdiction of the court of a defendant is a primary, indispensable requisite to support a judgment against the garnishee. No intendments are to be indulged in favor of the jurisdiction of a domestic court over a resident of a sister state. The genius and spirit of our laws are such that a party is never to be sued out of the jurisdiction of his residence except by special statutory provision to the contrary, and in that event the law compels' every material condition of the statute to be complied with in letter and in spirit before assuming jurisdiction to adjudicate upon the rights of such non-resident.

The garnishee is a corporation existing in virtue of the laws of the State of New Jersey. It operates steel mills in the city of the residence of defendant, and. maintains an office within the limits of the first judicial district of the Municipal Court in Chicago. This proceeding was commenced and tried and judgment rendered in the second district.

Defendant was an employe of the garnishee, and at the time of the service of garnishee process was indebted to the (defendant) in the sum of $107. The trial proceeded before the court without the intervention of a jury, and a statement of such proceedings had and the evidence heard appear in the record. From such statement it appears that the charter of the garnishee was granted by the State of New Jersey; that it was served with garnishee process at its office in the first district, and that it had neither office, representative, property nor effects in the second district. The answer of the garnishee disclosed the following facts: That defendant was employed by it at its works in East Chicago, Indiana; that his wages were earned and payable at said East Chicago; that he was the head of a family, residing with such family, within the State of Indiana, and that as the head of a family he was entitled to an exemption under the Indiana statutes in the sum of six hundred dollars; that the garnishee in its answer claimed the exemption allowed by the Indiana statute for the defendant; that when garnishee process was served it owed defendant $107; that no demand in garnishment was made either upon defendant or the garnishee, prior to the commencement of the attachment suit.

The garnishee upon the trial objected to the jurisdiction' of the court on the grounds above recited and for the additional reason that no property, moneys or effects of any kind or nature belonging to defendant were attached in the second district of the Municipal Court. It further objected because no demand was made on either defendant or garnishee before instituting suit. On the foregoing grounds the garnishee moved the court to dismiss the suit, but the trial judge refused so to do. Thereupon the garnishee claimed for the defendant the benefit of the exemption law of the State of Indiana, which the court refused to allow and proceeded to enter a finding against the garnishee for the sum of $98.50, and after overruling motions for new trial and in arrest of judgment gave judgment upon the finding, and the garnishee prosecutes this writ of error in an effort to reverse such judgment as being contrary to law.

A reversal is predicated upon three reasons urged upon us in argument: First, that no demand was made either upon defendant or the garnishee prior to the commencement of the attachment suit, as provided by section 11, chapter 32, R. S.; second, that the defendant was entitled to the exemption allowed by the statutes of the State of Indiana; and third, that the Municipal Court had jurisdiction of neither the defendant nor the garnishee, and that its judgment is therefore void.

It is our opinion that the provisions of the garnishee statute have no application to the case of a non-resident defendant, and we think it equally clear that the measure of exemptions allowed by our statute to the heads of families residing with them within this state is restricted in its operation to the domestic jurisdiction, and has no extra-territorial force. This we think is apparent from the provision of the Illinois statute hereinafter referred to. It is quite evident that the law-making power of this state anticipated a condition which we find obtaining in this record, viz: That the workingman in a foreign jurisdiction, with a resident master doing business or found within the State of Illinois, might be confronted with a garnishment of his wages by process of onr courts, and that the exemption statute as drawn being confined in its beneficient operation to the heads of families residing with the same within this jurisdiction, such non-resident workingman might be without the right to claim any exemption. The legislature, in its wisdom, provided against such condition by enacting section 22, chapter 52, R. S., by which the exemptions allowed by the statutes of the state of the non-resident workingman was made operative when invoked in the jurisdiction in which he-might be made to appear against his will. Section 22 reads:

“And whenever in any proceedings in any court of this State, to subject the wages due to any person to garnishment, it shall appear that such person is a non-resident of the State of Illinois,- that the wages earned by him were earned and payable outside of the State of Illinois, the said person whose wages are so sought to be subjected to garnishment shall be allowed the same exemption as is at the time allowed to hirn by the laws of the State in which he so resides.”

The answer of the garnishee was neither traversed nor its statements denied, consequently the truth of such statements stands admitted for the purposes of onr review. The Illinois statutes supra make it encumbent upon the court, upon claim made and proof in support of such claim tendered, to allow to the defendant workingman the exemptions provided by the laws of the state of his residence, and to protect his wages from being diverted from him to the payment of a domestic judgment. We find this Indiana exemption statute in section 715, Burns’ B. S. Indiana of 1894. It provides: “An amount of property, not exceeding in value $600, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court, from any debt growing out of or founded upon a contract, express or implied, after the taking effect of this Act.” This Act has been in force since May 81, 1879. By section 714 it is provided:

“Before any person shall be entitled to the benefit of the provisions of the ° above recited act, he shall make out and deliver to the sheriff or other officer having the writ, an inventory of all of his or her real estate, within or without this State, money on hand or on deposit within or without this State, rights, credits, and choses in action, and all personal property of every description whatever belonging to him or in which he had any interest at the date of the issuing of the writ, and make and subscribe an affidavit to the same that such inventory contains a full and true account of all such property as required in this act to be set out in the said inventory, had or held by him at the time such writ was issued; and if any such property has been disposed of by him since the issuing of the writ, such affidavit shall show that fact, and how the same has been disposed of, and what disposition he has made of the proceeds; and until such inventory and affidavit shall be furnished to such officer, he shall not set apart any property to the execution defendant as exempt from execution.”

It is contended by plaintiff’s counsel that because the requirements of section 714 were not complied with by defendant, that, even conceding the exemption allowed by the Indiana statute might be claimed by the defendant, still, because of such failure he is not entitled to invoke the benefit of the Act; that compliance with such requirements is a prerequisite of reaping its benefits.

We might be inclined so to hold if the Indiana courts had not put an interpretation upon this statute to the contrary. The case of Terra Haute & Indianapolis R. R. Co. v. Baker, 122 Ind. 433, is strongly in point and would seem to be decisive. The court say:

“It was the duty of the appellant to avail itself of all legal means to prevent a judgment against it when garnisheed. As the wages for which the appellant sues were not subject to garnishment in the hands" of appellant, either by the laws of Indiana or under the laws of Missouri, it was the duty of the appellant to interpose that defense, and, having failed to do so, it cannot now have credit for the amount thus unnecessarily paid. Generally the garnishee is regarded and treated as a mere stakeholder between the parties, but the class of cases now before us constitutes an exception to the general rule.”

The wages in the Baker case were garnisheed in Missouri and paid. Nevertheless the Indiana court held that it was the duty of the master to protect the servant’s wages from garnishment to the extent of claiming the exemption, and it having failed to do so, gave judgment for the amount due the servant.

Unlike the master in the Baker case, this garnishee has claimed the exemption allowed the defendant under the Indiana statute, for the defendant, and having done so, it was the duty of the Municipal Court to allow such claim for exemption, and not to have proceeded further in the case.

As we have above noted, to entitle the courts of this state to exercise jurisdiction over a resident of a foreign state, all the material requirements of the statute conferring jurisdiction must be substantially complied with.

Section 29 of the Municipal Court Act provides that attachment suits brought against non-residents may be brought in any district where any property of the defendant is levied upon within such district, or any garnishee resides or is found in such district. Provision is also made for transferring a case brought in the wrong district to the court in the district in which it should have been brought in the first instance. A compliance with this provision we hold essential to clothe the Municipal Court with jurisdiction. It cannot be dispensed with. The proof, uncontradicted, is that the defendant was a non-resident; so also was the garnishee. No property of the defendant was found within the second district. The garnishee had no property or representative within the second district. It had an office and property within the first district. It was served with the garnishee writ within the first district. Before the Municipal Court could be vested with jurisdiction of the defendant, property belonging to him subject to attachment must there be found. To confer upon the court jurisdiction of the garnishee, it must reside or be found within the second district or have property found and attached within the second district. Neither of these conditions prevailed. The garnishee was found and served in the first district. Such service was insufficient to confer jurisdiction as to the garnishee. And as the only method of conferring jurisdiction as to the defendant rested in the court’s having jurisdiction of the garnishee, it is evident that the court had no jurisdiction to proceed with the cause or enter the judgment complained of. The court might have transferred the ease for trial to the court in the first district, but it saw fit not to do so.

The judgment of the Municipal Court being void is reversed and the garnishee is discharged.

Reversed and garnishee discharged.


source: Caselaw Access Project

license: Public Domain

text:
    Commercial Loan & Trust Company, Appellant, v. John B. Mallers, Appellee.
    Gen. No. 13,884.
    1. Negotiable instruments—when unauthorized indorsement binding. An unauthorized indorsement of a promissory note becomes binding upon a subsequent ratification.
    2. Negotiable instruments—when cancelled obligation enforceable. An indorsement upon a promissory note which has been cancelled and surrendered is revived and becomes enforceable upon a repudiation by the indorser of an indorsement upon a promissory note given in liquidation of the cancelled obligation: provided, however, that the indorser has not by virtue of the cancellation of his original obligation surrendered collateral and thus changed his position. Held, under the facts of this case, that the evidence tending to show such a change of position by the indorser was inadequate.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed June 11, 1908.
    Statement by the Court. The American Fire Extinguisher Company at the times of the transactions involved in this litigation kept its bank account and did its banking business with appellant. Appellee was president and his son, Edward B. Mailers, secretary and treasurer of the American Fire Extinguisher Company. On May 8, 1895, the Extinguisher Company gave its promissory note to appellant for $2,500, payable ninety days after date. The payment of this note appellee guaranteed by suitable-indorsement. When the note matured, August 8, 1895, neither the maker nor appellee paid, but Edward B. Mailers, a son of appellee and the secretary and treasurer of the maker, represented to appellant that his father, appellee, was in Europe, and had not left any funds for its liquidation, but had given authority to him, the son, to give a new note and indorse his father’s name thereon as guarantor. Appellant cancelled and surrendered the matured note, taking in its place a new note of like amount, tenor and effect, dated August 9, 1895, payable in ninety days from its date, on which note the son indorsed appellee’s name as guarantor.
    The declaration counted on each of the two notes, and comprised also the common counts. To this declaration appellee pleaded the general issue and special pleas denying his indorsement of the second note, or that it was indorsed with his authority, or that he guaranteed its payment, or requested appellant to accept the note, and averring that the note of May 8,1895, had been fully paid.
    The cause was first tried with the intervention of a jury, which being unable to agree, the cause was thereafter, with the consent of all the parties, submitted to the court, for trial without a jury. On this last trial before the court, it found the issues in favor of appellee and entered a judgment of nil capiat, and this review is sought for the purpose of reversing that judgment.
    Errors are assigned on the admission and rejection of certain evidence and in failing to hold as the law certain propositions tendered, in not granting a new trial and in not arresting the judgment; also in not finding the issues for appellant and entering judgment in its favor accordingly.
    Horace Q-. Stone and Ira C. Wood, for appellant.
    Charles B. Stafford, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

While it is true that there is no direct testimony of the authority of appellee’s son to sign his father’s name to the note of August 9, 1895, or to bind him as a guarantor thereof when the note of May 8, 1895, on which he was obligated as guarantor, was cancelled and surrendered by appellant in faith of the son’s having such authority from the father, yet there is proof in the record that appellee recognized the obligation which the son’s action in indorsing the note imputed to him, by a promise on his part to meet that obligation by paying the note. Such evidence at least tended to prove a ratification of the son’s action, and if the actions of appellee were sufficient as a ratification, then his liability became fixed as firmly as if his indorsement had been authorized in the first instance. But be this as it may, it is patent that as to appellant the appellee is liable on one of the notes. If the second note was indorsed without authority and such indorsement has not been subsequently ratified by appellee, then he remains liable to appellant upon the first note, for in contemplation of law that note has not been paid. As said in Eagle Bank v. Smith, 5 Conn. 74, “Whether he was or was not their agent, the legal consequences are precisely the same. The defendants cannot take benefit of a pretended payment of the note by a stranger, if the payment was fictitious and not actual. ’ ’ Appellee cannot disaffirm the action of his son in indorsing his name upon the new note, and thereby escape the obligation of paying it, and affirm the son’s action as paying the note in faith of the unauthorized indorsement. So that appellee, in repudiating his liability upon the second note, assumes the obligation to discharge his liability arising from his guarantee of the first note. Henderson v. Cummings, 44 Ill. 325; Dodge v. Tullock, 110 Mich. 480; Tasker v. Kenton Ins. Co., 59 N. H. 438.

The Circuit Court erred in not holding as a proposition of law, “that as Mailers’ name was used on the new note to take up the old note which also bore his name, his repudiation of the use of his name on the new note is a repudiation of the entire transaction, which leaves the note of May 8, 1895, unpaid.”

Such being the law, worked no hardship to appellee. As guarantor of the first note he was obligated to pay it. Repudiating the action of his son in signing his name as guarantor to the second note, resulted in holding him to his original obligation. This in no way operated to enlarge his liability.

Another defense, however, is interposed, which if sustained by the proofs would have the effect of discharging appellee’s liability upon the first note. Appellee insists that he had no knowledge of the giving of the second note until after he had surrendered to the Amur-can Fire Extinguisher Company the security which he had received from it in indemnification of his liability as guarantor of the first note; that the surrender of such security was made in faith that the first note had been paid, and after the exhibiting of it to him marked paid and cancelled. But the law proceeds upon the theory that the party invoking such defense has been damaged by the surrender of security, or a lien, of a monetary value commensurate with the liability assumed, which the surety is led to believe at the time of such surrender has been discharged. In this record, however, we are unable to discover that anything of value was surrendered by appellee to the maker of the first note on the assumption of the verity of the surface appearances that the note had been paid. Appellee’s testimony on this subject is very unsatisfactory and does not rise to the dignity of proof of the surrender of any security of any tangible character or of any appreciable value. His testimony lacks definiteness as applied to the note transaction.- He first makes a general statement that he never indorsed for the American Fire Extinguisher Company without taking collateral. He then testified, referring to security taken on the first note guaranteed by him, “I forget what it was; I think it was the premium Rothschild properties.” (R. p. 82.) Again, R. p. 85, Mailers testifies, in answer to a question from his counsel: “The American Fire Extinguisher Company through Mr. Brackett gave me collateral upon which I made this indorsement. This collateral was demanded from me when I returned, upon which I demanded the note, that they surrender this note to me, marked paid, in the regular way, through the bank, upon which I delivered the collateral to him.” This comprises all the testimony in relation to collateral received or restored. It falls far short of proving that any collateral of an appreciable value was either given as security for the liability incurred from guaranteeing the first note, or surrendered in the belief that such liability had been extinguished by payment.

The judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

Note: Since the filing of the foregoing opinion the appellant, on motion, withdrew its petition for rehearing and the order reversing and remanding was vacated, the judgment of the Circuit Court reversed and judgment entered in this court in favor of appellant for $2,500, with interest at seven per cent, from August 9, 1905, and costs of both courts.


text:
    The Union National Bank of Muncie, Indiana, Defendant in Error, v. Walter C. Griswold, Plaintiff in Error.
    Gen. No. 13,892.
    1. Warehouseman—who proper plaintiff in action against. The assignee of a warehouse receipt may maintain in his own name an action for the loss of the goods described and stored.
    2. Warehouseman—when estoppel to contradict receipt does not arise. A warehouseman is entitled to show the true contents of parcels, etc., stored, where the receipt given contains a provision as follows:
    “The contents of trunks, boxes, parcels, barrels, baskets, etc., mentioned on this receipt being unknown, are stored at owner’s risk.”
    3. Warehouseman—what essential to maintenance of action against. In order to maintain an action either in tort for conversion or in assumpsit on an implied promise to pay the value of property stored and not returned, it is essential that the plaintiff aver and prove a tender of the storage charges.

      4. Partnership—when established. Held, that the evidence in this case was sufficient prima facie to show the liability of the defendant as a partner.
    5. Appeals and errors—when refusal of court to give instructions ashed by prevailing party not subject to review. A party who has prevailed in the trial court cannot obtain a review of the action of the trial court in refusing to give an instruction upon his behalf in the absence of the assignment of cross-error.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    Samuel H. Trude, for plaintiff in error.
    Warren B. Wilson, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out with the purpose in view of reversing a judgment of the Circuit Court in favor of plaintiff and against the defendant, for the sum of $3,108.28.

The action is assumpsit to recover the value of 139 bales of white cotton waste. The defendant and Frank H. Griswold, since deceased, are alleged to have been partners as warehousemen in the city of Chicago, under the name and style of “Newberry Warehouse & Storage Company. ’ ’ The right to recover is based upon a warehouse receipt in these words :

“F. H. Griswold, Manager.

W. C. Griswold, Floor, Basement

F. H. Griswold, Section, C. & D.

Proprietors. Lot 5211

Goods subject to sale after Register

4 months unless charges are paid. No. 5211

Folio

Newberry Warehouse and Storage Company,

Chicago, Jan. 2nd, 1902.

Received in store by team one hundred (139) thirty nine bales W. Cotton waste, weighing sixty two thousand (62500) five hundred pounds on account of Howard W. Foote and deliverable only to his order hereon on payment of all charges due and the return of this receipt. All loss or damage by fire, water, moth, ratage, leakage, rotage, the elements or by the property being perishable, and all marble and glass of whatever kind if not properly packed, at owner’s risk.

The contents of trunks, boxes, parcels, barrels, baskets, etc., mentioned on this receipt being unknown, are stored at owner’s risk. Storage 35 cents per bale for the first month, or any part thereof, and 25 cents per bale for each subsequent month or any part thereof.

F. H. Griswold,

Advances $.................... Gen’l Manager.'

Freight $....................

Cartage $....................

Insurance $3000.00.

Premium $27.00.

Time 1 year.

Nos. 79, 81 & 83 Bast Kinzie St.”

This warehouse receipt was assigned to plaintiff by Howard W. Foote as security for a loan of $3,000.

The suit was originally commenced against defendant individually and as administrator of the estate of Frank H. Griswold, deceased, but subsequently and before the trial was discontinued as to defendant as administrator, and the cause thenceforth proceeded against the defendant alone.

The declaration consists of three counts. The main averments of the first count are that defendant and Frank H. Griswold, deceased, in the lifetime of the latter and at the time of issuing the warehouse receipt above set out, were partners at Chicago in business as public warehousemen of class C, under the firm name of “The Newberry Warehouse & Storage Company”; that on January 2, 1904, one Howard W. Foote stored 62,500 pounds of white cotton waste packed in 139 bales, for which the foregoing receipt was issued to him. That on January 24, 1902, Foote indorsed his name upon the back of the warehouse receipt and delivered it so indorsed to the plaintiff, thereby transferring the warehouse receipt and the goods therein mentioned to the plaintiff; that Frank H. Griswold died July 1,1902, and that thereafter plaintiff demanded of defendant, as surviving partner, the delivery of the property, and at the same time offered to pay all charges due on account of the property or the warehouse receipt, and to return the latter; that defendant refused to deliver said goods or any part thereof to plaintiff, and that said goods had neither been lost nor destroyed, nor damaged by fire, water, ratage, etc., nor by the property being perishable; that such stored property was of the value of $5,000; that plaintiff on its part has performed all the conditions of the warehouse receipt, entitling it to delivery of the property therein mentioned; that demand was made upon defendant for the value of the property, which was refused.

The second count is in all material particulars the same as the first. The third count differs from the first in that it avers that in truth and in fact the defendant and his deceased partner, doing business under the name and style of “The Newberry Warehouse & Storage Company, ’ ’ never had any such goods in store as described in said warehouse receipt, and never had the same or any part thereof in store; that at the time of the indorsing and delivery of the warehouse receipt by Foote to plaintiff, the plaintiff advanced to Foote, in faith of the security thereof, the sum of $3,000, no part of which has been paid.

To this declaration defendant filed three pleas—first, the general issue; second, denial of joint liability; and third, denial of partnership between himself and Frank H. Griswold, deceased, under the name of The New-berry Warehouse & Storage Company, or otherwise. The last two pleas were verified.

Upon the issue thus joined the parties proceeded to trial before the court and jury, with the result mentioned in the introductory part of this statement.

The pertinent questions argued and controlling our decision are: (1) The right of plaintiff to maintain the action in its own name; (2) proof of the partnership averred; (3) the probative force of the evidence; and (4) the rulings of the court on the ■ admission of evidence. We will discuss and dispose of the questions in the order of their enumeration.

First. The action is properly brought in the name of the assignee plaintiff. The statutes of this state so provide. Section 24, chapter 114, R. S., title “Warehouses,” is in these words:

“Warehouse receipts for property stored in any class of public warehouses, as herein described, shall be transferrable by the indorsement of the party to whose order such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. All warehouse receipts for property stored in public warehouses of Class C. shall distinctly state on their face the brand or distinguishing marks upon such property.”

This statute is so plain and free from ambiguity as to be self-interpretive. It needs no argument or illustration to explain or point out its meaning. It means exactly what it says. “An indorsement by the party in whose name the warehouse receipt issues is deemed a valid transfer- of the property represented by the receipt,” says the statute, and this is sufficient to vest the right to maintain an action by and in the name of the assignee.

In Sargeant v. Central Warehouse Company, 15 Ill. App. 553, it was held that the indorsement and delivery of a warehouse receipt had the effect not only to transfer title to the stored property to the assignee, but also to give him the right of action for any breach of duty of which the warehouseman might be guilty in respect to the goods stored while they remained in the custody of the warehouseman.

Second. The facts that “The Newberry Warehouse & Storage Company” was not a corporation; that the titles of president and secretary and treasurer were merely assumed by defendant and Ms deceased partner; that the office stationery and the warehouse receipt in evidence stated that these persons were proprietors of the warehouse; that the evidence of Ellis that both of the Griswolds were in charge of the warehouse and equally took part in its busmess until the death of Frank H. Griswold; that they each hired employes m the work of the warehouse, and were daily in attendance at the warehouse, engaging in supervising and directing its business, were sufficient prima facie to impose upon defendant the responsibility of a partnership with his deceased associate in that enterprise. The daily acts of the parties, shorn of the fiction that they were doing business under a corporate name, without any corporate authority, imposed upon them, at' least as to innocent third parties, the relationship of partners, with its attendant obligations and liabilities.

Third. The evidence as to what the article covered by the warehouse receipt in fact was, is very meager and unsatisfactory. Plaintiff seems to proceed upon the theory that defendant is, by the written descriptive portion of the receipt, estopped to deny that the article stored was anything else but “white cotton waste”; that the receipt itself was prima facie proof that such was the nature of the article stored and that defendant could not give m evidence what the bales stored M fact contained. But in constrmng the liability of the warehouseman, it must not be lost sight of that effect must be given to the receipt as. a whole, and that all its clauses and provisos must be considered in arriving at and declarmg the obligation and liability of the parties in faith of it. TMs clause is found in the receipt:11 The contents of trunks, boxes, parcels, barrels, baskets, etc., mentioned in tMs receipt being unknown, are stored at owner’s risk.” We think the identity of the goods actually stored and intended to be covered by this warehouse receipt of the utmost importance. More especially is its importance apparent when it is borne in inind that the description of the goods received in store is ambiguous, and not susceptible of interpretation except by parol evidence. Such evidence is always admissible in explanation of an ambiguity patent from a reading of the words of an instrument. The evidence does not disclose the condition in which the bales were at the time of issuing the receipt, or what they contained, or how they were marked, or whether the bales had any distinctive marks upon them. In view of the proven fact that the articles were contained in bales, and the statement in the warehouse receipt that the contents were unknown to the warehouseman, can the warehouseman be denied the right to show what were the contents of these bales? We cannot reconcile our duty under the law by conceding our assent to the contention that such right should be denied.

These bales were of considerable bulk. It is but reasonable to infer that their contents could have been easily proven. From whom did Foote originally obtain these bales? This the proof fails to show, except by Foote’s statement, correctly excluded as evidence, that they were sold to him by Frank IT. Griswold, the deceased partner. Such proof could not be made by the evidence of Foote. If such was the fact, however, the method and manner of payment could have been established by competent evidence. Property for which $3,000 or more is paid leaves behind some earmarks and evidential facts of payment. But none was offered.

We extract from the testimony of Ellis and from other facts appearing in proof, that the so-called “white cotton waste” was the property intended to be covered by the receipt given, as it was the property actually and in fact received for storage when the receipt was given. Then again, there is no evidence on the part of plaintiff tending to show what goods were actually encompassed within the bales at the time the receipt was given to Foote. No one is produced who ever saw the contents of any one of the bales; and whether or not the hales were marked, or if marked, how, is likewise without proof.

In the cases holding a warehouseman or railroad company concluded by their receipts and way-bills from denying that the articles specifically described in the receipt or way-bill were received for storage or shipment, and estopped from making a denial, it will be found that the articles were not only of such a character as to impute knowledge thereof to the warehouseman or railroad company, but that there was no clause or proviso, as in this case, that the contents of the packages, cases, or boxes, or whatever they may be, were unknown to the party issuing the receipt or bill. A reservation in a receipt or bill of lading that the contents of the packages are unknown is sufficient to put an assignee thereof upon inquiry to verify the statement as to contents. The cases in which the doctrine of estoppel may be successfully invoked are those where the article, whatever it may be, is in such condition as to be exposed to the sight of the warehouseman or common carrier, such as machinery, grain, cattle or the like. St. L. & I. M. R. R. v. Larned, 103 Ill. 293; Tibbits v. C., R. I. & P. Ry., 49 Ill. App. 567; Fletcher v. G. W. Elevator Co., 12 S. D. 643.

In such and like cases it is the doctrine that the warehouseman and common carrier are, as to innocent third parties, estopped to deny the truth of the statement in the receipt or bill.

Unless a warehouseman by the terms of his receipt describe the stored property, without reservation as to his knowledge of the goods in the packages, he is not bound to inspect the contents of such packages, and consequently is not liable if the articles turn out not to be as represented. In such case the duty of the warehouseman is discharged in tendering the property actually received, notwithstanding it may not answer the description in the receipt. As applied to the case at bar, the Griswolds were not bound to inspect the contents of the 139 bales delivered for storage, but were only bound to deliver what they actually received when they issued the receipt. The statement in the receipt that the contents of the bales were unknown to them, put assignees upon notice that as to the contents of the bales they were not to be held responsible, and that whoever took by assignment without inquiring and ascertaining by inspection or otherwise what the bales actually contained, did so at their own risk.

The liability in Armour v. M. C. R. R., 65 N. Y. 111, turned upon the negligence of the carrier’s agent in issuing a bill of lading for a quantity of lard upon a forged warehouse receipt, the agent being informed at the time that a draft would be drawn against the bill of lading and used in bank. The negligence of the agent was held to be imputable to the carrier, and estopped it from denying the receipt of the lard; and on this theory a recovery was sustained.

In Hall v. Milwaukee Dock Co., 29 Wis. 482, the doctrine there promulgated was that while a warehouseman is estopped from denying the description of the property in the receipt, so far as it relates to matters which are or ought to be within his knowledge, he is not liable in respect to matters which are not visible or open to inspection, and that the obligation resting upon the warehouseman was discharged upon tendering for delivery the same property actually received in store.

In Robson v. Swart, 14 Minn. 287, Swart, a warehouseman, gave a receipt for twenty sacks No. 2 wheat. The receipt was assigned to an innocent third party -lfor value, who demanded No. 2 wheat, as called for by the receipt. The warehouseman offered to deliver the identical twenty sacks which he had received, but upon inspection the wheat therein turned out to be inferior to No. 2, designated in the receipt. It was held the doctrine of estoppel had no application, and that the warehouseman discharged his whole obligation when he proffered the identical wheat which he had received for storage.

Dean v. Driggs, 117 N. Y. 274, was an action to recover damages on a warehouse receipt for 1,400 barrels of Portland cement. The action was by an innocent holder for value of the warehouse receipt, which acknowledged to have received for storage, without any qualification or restriction, ‘1 fifteen hundred barrels of Portland cement.” The barrels, when opened, proved not to contain Portland cement, but a worthless substance. The warehouseman, however, delivered the identical barrels which he actually received. A judgment for the value of 1,500 barrels of Portland cement was recovered in the trial court and affirmed on review at a general term of the Supreme Court; but the Court of Appeals reversed the decisions of the courts below, holding that while a warehouseman is estopped by his receipt in regard to any error or misstatement therein, it is only when it relates to a representation of a fact which was, or in the ordinary course of business ought to have been, within his knowledge, and upon which a third person, acting reasonably, had a right to rely. This case further holds that it is no part of the duty of a warehouseman to open packages delivered in order to ascertain their contents, and that he is not chargeable with knowledge of the contents where they are not visible and open to inspection. After reciting the facts, the court held that no warranty as to the contents of the barrels could be implied from the language of the receipt; that this was merely descriptive, and simply warranted the number of barrels stated to have been delivered; that they were marked as stated and that there was nothing in their appearance which could reasonably lead to any suspicion that their contents were not what was represented, and that consequently the action was not maintainable. A paraphrase of this language to conform to the facts in the case at bar is clearly as controlling and equally as effective to discharge the liability of defendant upon tender of the bales which were received at the time the receipt was given.

Fourth. The manifest weight of the evidence is clearly with defendant. Ellis, who was employed in the warehouse at the time the receipt was given, identifies the bales offered to Wilson on demand made for plaintiff as the identical bales received into storage when the receipt was given. There is no countervailing proof on this point found in the record. As held in the Portland cement case, no warranty as to the contents of the bales could be implied from the language of the receipt, that such language is merely descriptive, and the warranty only extended to the number of the bales. An offer to return the identical bales received was sufficient to discharge the liability of defendant as warehouseman.

Fifth. The averment of each count of the declaration was to the effect that plaintiff had tendered storage charges to the defendant when demand was made for the 139 bales of white cotton waste and the warehouse receipt tendered. On this issue was joined. No proof to support it was tendered. This was material, in any view of the case, to entitle plaintiff to possession of the goods, and, in default of delivery on demand, to maintain an action, either in tort for conversion, or in assumpsit on an implied promise to pay their value. The ruling of the trial court in excluding exhibit 2 and the testimony of Foote in relation to it, and his conversations with Frank H. Griswold, then deceased, was without error. For if Foote bought the 139 bales of alleged white cotton waste from Frank H. Griswold as his property, that was not a partnership transaction, and in no aspect of the case would the defendant be liable for the representation of his partner about a matter so disconnected from the partnership business, and in which the proof fails to show he had any interest. Neither would such testimony be admissible under the issues made by the pleadings. The action is not for a false warranty of the contents on a sale of the bales stored, but in assumpsit on an implied liability for the value of the contents of the bales stored, for failure to deliver them to plaintiff on demand and tender of storage charges. As to all such matters the evidence of Foote is inadmissible.

The first instruction given at the request of plaintiff states the law correctly. We are not called upon to pass upon the correctness of the court’s ruling in refusing to give the other instruction proffered by plaintiff, as it has failed to assign any cross-errors on such refusal. An examination of the instructions given to the jury at the instance of defendant shows that the jury were fully and fairly informed, we think, of all the essential legal principles applicable to the defense, under the proofs. The instructions refused, we think, tended to throw no additional light upon the law of the case, or to assist the jury in arriving at a more accurate verdict. If the jury had applied the law laid down by the court to the facts in evidence, their verdict must have been for the defendant.

A careful investigation of the record leads us to think that the jury may have been impressed from the evidence with the belief that Foote and Frank H. Griswold conspired together in this matter to create such surface appearances, false in fact, with the intention of misleading third parties, in which the jury may have concluded the defendant was somewhat implicated, and that plaintiff was deceived and thereby induced to advance a large sum of money upon the security of practically worthless property. Upon a new trial the plaintiff should exert every reasonable effort to bring before the court and jury all the facts preceding and entering into the obtaining of -the warehouse receipt from the defendant’s firm.

For.the errors indicated in this opinion, the judgment of the Circuit Court is reversed and the cause remanded to that court for a new trial conformable to the views here expressed.

Reversed and remanded.


author: Mr. Presiding Justice Holdom Mr. Justice Brown

text:
    Margaret Ankeny Bonney, Appellant, v. Lawton C. Bonney, Appellee.
    Gen. No. 13,900.
    1. Release—when set aside in equity. A release from liability for the wrongful conversion of bonds will be set aside in equity if without consideration.
    2. Release—what considered in equity in connection with hill to set aside. If the consideration for a release is inadequate, a court of equity, in determining whether it should be set aside, will consider threats made to induce the execution of such release, as well as the necessities of the party executing the same, the condition of the health of such party, and all other circumstances which tend to show a countervailing of the will of such party.
    Brown, J., dissenting.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    Statement by the Court. This litigation is enmeshed with an original bill filed by appellant, twice amended, a cross-bill filed by Lawton 0. Bonney, the appellee, and twice amended, a cross-bill injected at the instance of both the Bonneys in the name of the three minor children of appellant and Charles L. Bonney, and a cross-bill of Charles L. Bonney.
    Demurrers of appellant were successfully interposed to the cross-bill and the first amendment thereto of appellee and her demurrer to the cross-bill of the minor children and her ex-husband, Charles L., were overruled, as were also like demurrers to the second amendment to appellee’s' cross-bill. Answers were filed by the several defendants to the original and cross-bills, and an amended and supplemental answer by appellant to appellee’s cross-bill March 28, 1902, to which the usual general replications in chancery were interposed. The two infant cross-complainants, Ada Bonney and Valerian Bonney, on arriving at full age, filed disclaimers and repudiated the actions of their guardian ad litem in filing a cross-hill in their name, and as to them the cross-hill was discontinued. On the issues thus joined the cause and cross-causes were heard before a master on reference, who filed his report recommending that the relief prayed by appellant be granted. Objections were filed before the master to his report by appellee, which objections being overruled by the master were again filed before the chancellor as exceptions to the master’s report. The chancellor sustained the exceptions to the eighth and ninth findings- of the master and overruled them as to the first seven findings, and after vacating the order entered December 23,1902, restraining the prosecution of certain suits, on July 10, 1907, entered a decree dismissing the original bill as amended and all cross-bills for want of equity, from which decree appellant prosecutes this appeal.
    The bill of appellant as amended seeks to have canceled a certain release made by appellant of date December 19, 1899, as being executed without consideration and under duress, and to have appellee decreed to deliver up and surrender to her thirty-one bonds of the Chicago General Railway Company, twenty-nine being of the face value of $1,000 each and two being of the face value of $500 each, making a total of $30,000 of said bonds at their par value; said bonds being the property of appellant and claimed by appellee in virtue of said release, or in default of delivering the bonds, that appellee account With and pay to appellant their value.
    Appellant and cross-complainant Charles L. Bonney were husband and wife, and were divorced by decree of the Circuit Court entered of record December 19, 1899, the date of the release. Charles L. Bonney, prior to the last mentioned date, had been guilty of grave misconduct towards appellant, in which there was, to say the least, a strong suspicion that he had been guilty of adultery with a female travelling companion while making a trip to Europe with his wife; that he had been guilty of cruelty towards his wife, as found in the decree divorcing them; that for a long time prior to June 24,1899, she was the owner of these thirty-one bonds; that appellee represented to appellant, who was about to depart for Europe with her husband, that the Chicago General Railway Company, with its franchises and property, was about to be sold to other parties or to a corporation, and that the purchaser would assume and guarantee its bonds, including those held by her, and prevailed upon appellant to leave her bonds subject to his order, so that he, acting as her agent, might procure them to be guaranteed by the purchaser of the road should it be sold' in her absence; that, relying upon these representations, she on June 24, 1899, took the bonds from the vault in which she kept them and deposited them with the Merchants Loan & Trust Company, the place suggested by appellee, enclosed them in an envelope indorsed to be delivered to appellee when he should need them for the purpose of having them guaranteed by a purchaser of the road; that appellant left Chicago as contemplated, and returned to Chicago about September 1st following, and that owing to ill-treatment by her husband she was made ill in body and distracted in mind; that thereafter, and on October 7, 1899, she was prevailed upon by appellee and her husband to return to Europe with her two daughters and a travelling companion; that appellee then assured her that within six months the road would be sold and her bonds guaranteed by the purchaser; that, relying on these promises and the promise that money sufficient to pay living expenses would be sent to her, she departed for Rome, Italy, with her daughters and travel-ling companion, but not receiving money for her expenses and not hearing from her husband or appellee, on November 23, 1899, she returned from Rome alone to Chicago and went at once to the Merchants Loan & Trust Company to get the then due interest coupons, when she learned that appellee withdrew the bonds on November 6, 1899; she thereupon immediately went to the office of appellee to ascertain why the bonds had been taken away and not returned; that appellee then assured her that he had taken the bonds for the purpose of having them guaranteed by a prospective purchaser, and he anticipated that a sale would be consummated almost any day, and that when the bonds had been guaranteed by the purchaser, he would return them to her; that fearing some fraud was being practiced upon her, she demanded her bonds from appellee, but he insisted that a sale was near consummation; that the bonds were in his possession, and that interference of that kind might jeopordize a sale, and protesting that he had always acted in her interest, and would still protect her and her bonds if she would not withdraw them, saying that in a few days the sale of the road would be concluded and her bonds guaranteed and returned as promised; that appellee was so much wrought up over her demand that he cried and begged her not to interfere with the arrangement at that time and until a sale; that she became impressed with the sincerity of appellee’s protestations, yielded, and permitted appellee to retain the bonds for the purpose of carrying out his promise to have them guaranteed.
    There were many negotiations between appellant and her husband relative to a divorce and alimony. Frank P. Leffingwell, a lawyer and a mutual friend of the parties, acted as an intermediary in an endeavor to arrange an amicable adjustment both as to the grounds upon which the divorce should be sought and the amount of the alimony and support money for the children which should be paid. Major Connelly, an attorney at Bock Island, acted as the legal counsel and adviser of appellant, and the appellee in these arrangements acted in behalf of his brother Charles, who part of the time was also represented by a lawyer named Plumb. A final arrangement and understanding was arrived at and concluded between the marital disputants on December 15, 1899. Such arrangement was perpetuated in the terms of the decree of divorce entered December 19, 1899. The divorce was entered on the charge of cruelty of Charles toward appellant and sustained by the testimony of appellee.
    On starting with Leffingwell for the court in which appellant’s divorce cause was to be heard, Leffingwell presented a release, written in pencil, and at the same time had her sign her name in ink to a blank paper, over which the release could be written in ink. Said release is. as follows:
    “For value received I hereby waive any and all claim which I have or may be entitled to make against Lawton C. Bonney by reason of his having taken possession of and disposed of or otherwise used thirty (30) bonds of one thousand dollars each, which were owned by me and were deposited upon my departure for Europe with the Merchants Loan & Trust Company of Chicago, the said Lawton C. Bonney having withdrawn the same from the said bank about the month of November, 1899.
    Margaret Ankeny Bonney. (Seal.)
    Dated Chicago, December 19, 1899.
    Witness: Frank P. Leketngwell.”
    That appellant at that particular time first learned that appellee had made away with her bonds; that she was greatly upset and distracted in mind on receiving that information; that she would not have executed the release then if she had not been informed that her failing to do so would result in her failure to procure a divorce, and that appellee and her husband had threatened in that event to keep from her the possession of her children; that these threats so worked upon her feelings and so excited her fears that she was mentally unable to resist the unlawful demand so made, and signed the release, but that in fact such signing was without consideration; that fearing that she would lose her reason if she remained away from her children, she returned December 31,1899, to Borne, where she had left them, and did not again return to Chicago until June 14, 1900; that on December 22, 1900, she made a written demand upon appellee for a restoration to her of the thirty-one bonds, but they were not forthcoming, and that she does not know where they are; that appellee converted the bonds to his own use without right or authority, and that such action was a fraud upon her rights.
    Appellee claims that appellant was never the owner of the thirty-one bonds, but that they were the property of his brother Charles; that they were left with the Merchants Loan & Trust Company bank in June, 1899, when appellant left for Europe, so that he might have access to them, and that on November 6, 1899, he withdrew the bonds from the bank; that the bonds had been given to appellant by her husband so that she might support the family from the interest, and that the bonds being needed by the Chicago G-eneral Bailway Company, they pledged them for its benefit, and. that the bonds are not within his control; that the conditions were explained to appellant and she authorized appellee to use them as he thought best for their joint interests; that on behalf of his brother’ Charles he negotiated the agreement for alimony which was carried into effect by the decree of December 19, 1899; that Charles was insolvent, and that appellee raised the alimony for him; that appellee paid Leffingwell $2,350 and Lamb $150 for appellant in cash, and also gave $10,000 in notes of Bonney Bros, and certain real estate in settlement and as a part consideration for the release.
    Appellee by his cross-bill as amended seeks to nullify the decree for alimony and all the steps taken in compliance with its terms, to set aside the conveyances of real estate, to have returned the money paid, to have cancelled the notes for $10,000, and to enjoin suits pending on some and the bringing of other suits seeking to collect them. Appellee also insists in his cross-bill that the agreement settling’ alimony was of a three-fold nature—between himself, appellant and her husband—and that the release of the date of the decree was given in part compliance with it, and with the intent of releasing, both the Bonneys from all claims of appellant; that the real estate was conveyed and the notes aggregating $10,000 were given to James D. Lamb, a brother of appellant to hold in trust for her and the children; that all that appellee did in securing the alimony to appellant was in settlement of the accounts between himself and Charles and in settlement with appellant of all claims growing out of their handling her moneys and property for the past eleven years, and prays for an accounting.
    The cross-bill of the three minor children was filed by the procurance of appellee and Charles L. Bonney through a guardian ad litem, and avers the alleged tripartite agreement set up in the answer and cross-bill of appellee, and sets out its terms and avers a compliance by all the parties; claims one-half interest in all the property parted with by the Bonney sin settlement of the alimony decree and insists that if the bonds shall be adjudged to be returned, one-half of right belongs to them, and prays that their rights be ascertained and established under the so-called tripartite agreement.
    When two of the children, Ada and Valerian, attained their majority, they repudiated the cross-bill filed in their behalf, and it was dismissed as to them, and on April 28, 1902, on sustaining of a demurrer, was dismissed out of court.
    Charles L. Bonney filed a cross-bill averring that the thirty-one bonds in dispute belonged to him; that appellee took them from the bank and turned them over to the Chicago General Bailway Company, and that the four notes of $2,500 each were given by appellee to appellant December 19, 1899, in consideration for the release of that date, and praying that the bonds be surrendered to him. The material averments of this cross-bill were denied by the answer of appellant, which avers that the cross-bill was filed in collusion with appellee to harass and annoy her.
    After a great deal of testimony had been taken before the master and appellee had put in evidence an account against appellant fortified by 321 vouchers, consisting mainly of checks of Bonney Bros., in which appellant was given a credit of $9,000 as the value of the thirty-one bonds, a balance appeared to be due from appellant to appellee of $47,102.61. Appellant, Lamb and the People’s Trust & Savings Bank, obtained leave to and filed May 9, 1905, an amended additional and supplementary answer to the cross-bill of appellee. This answer, after reciting the averments of the second amended cross-bill of appellee, avers that Charles L. Bonney set up the same facts in case general number 225,283 in the Circuit Court, in which appellee appeared and also filed a cross-bill against the respondents and the minor children and said Charles, in which appellee alleged the making of the tripartite agreement, in which appellant agreed to release appellee from using her bonds in consideration of the money paid, notes delivered and real estate conveyed to Lamb on December 19, 1899, as shown by the decree of divorce in case general number 202,665 in said Circuit Court, and which decree was attached to the amended bill of said Charles in case No. 225,283, and that appellee also averred in said cross-bill, “That no actual consideration for said notes or cash of $150 and $2,350, were given or paid, and that the giving of the same was in the nature of a charitable donation to avoid the annoyance of a disagreeable woman.” He further averred that he advanced the thirty-one bonds to Charles, who transferred them to appellant, and that he took them out of the bank and hypothecated them for the railroad company; that in said cross-bill appellee set up the same identical facts alleged in his cross-bill in the case at bar, and prayed for identically the same relief, using the same words in each of his averments and prayers in each cross-bill'; that the respondents filed a general and special demurrer to appellee’s said cross-bill in said case general number 225,283, as well as to said bill of Charles; that upon a hearing of such demurrers the same were sustained and the bill and cross-bill of said Charles and appellee dismissed for want of equity; that an appeal to this court by Charles, appellee filing cross-errors, resulted in the judgment of dismissal being affirmed. Charles prosecuted a further appeal from the judgment of this court affirming the judgment of the Circuit Court to the Supreme Court, in which court appellee appeared and assigned cross-errors, and the Supreme Court affirmed the judgment of affirmance of this court. Said appellant invoked the doctrine of res adjudicate, against appellee’s cross-bill in the case at bar, and claimed that by reason of the matters alleged and former adjudications set forth appellee was estopped from further litigating them in this cause, and insisted that all testimony taken in appellee’s cross cause should be stricken out and suppressed. The death of James D. Lamb being suggested, it was ordered that Garrett D. Lamb, the administrator of his estate, be substituted as a defendant in the cross-bill of appellee.
    The master found the facts substantially in accord with appellant’s contention. He specifically found that the bonds in question at the time of their conversion by appellee were the property of appellant and that such conversion was without warrant or authority from appellant; that the decree for alimony was entered in the divorce suit pursuant to an agreement entered into between the parties, to which appellee was privy, on December 15, 1899; that appellee on December 19, 1899, sent word to appellant that her bonds had not been guaranteed, but on the contrary he had hypothecated them; that the release was thereupon procured from appellant under a threat that failure to comply would be met by a strenuous opposition by the Bonneys to the divorce and an effort on their part to prevent her having the custody of her children; that in fear that such threats would be carried out, she signed the release written in pencil and attached her name in ink to a blank sheet of paper over which was subsequently written a release in the words of the one written in pencil; that at the time of signing the release appellant was in a highly nervous and excitable condition, and that the threats of appellee and his brother Charles that they would deprive her of her children amounted to duress, and had such an effect upon her mind as to cause her to sign the release without any regard to her right in the matter, and that there was no consideration for the execution of the release, and that the same is null and void.
    The master recommended that a decree be entered directing appellee to account to appellant for the value of the bonds, and that all the cross-bills be dismissed. The- chancellor sustained the exceptions of appellee to the master’s report finding that the release was executed without consideration and under duress, and dismissed the bill as amended and all the cross-bills for want of equity.
    Appellant prosecutes this appeal and makes twenty-two assignments of error upon the record.
    Thomas S. McClelland, for appellant.
    Lyman M. Paine, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

While the numerous errors assigned present many questions of law and fact for our consideration, still we are in accord with the learned chancellor in his conclusion that the only serious questions necessary to be considered in the determination of the rights of the parties are as to whether in the execution of the release of December 19, 1899, there was present the element of duress and whether the release was given without consideration.

The evidence in this case is somewhat voluminous— too much so to permit of its being set forth at any great length in this opinion. Neither is it the essence of reaching a correct conclusion that it be set forth in extenso. We shall refer to what, in our judgment, seems most essential to fortify the conclusions to which we have arrived.

We cannot refrain from saying, as introductory to our views, that we are impressed with the insincerity of the pretenses and conduct of appellee and his brother Charles, and the utter unreliability of their evidence as a whole. . Their relations to this litigation abound in contradictions and inconsistencies. Their actions in this litigation and in the former suit on appeal, in this and the Supremó Court, show a studied purpose to befog the issues and unduly persecute appellant by involving the pleadings and issues in a maze of unnecessary cross-bills, answers and amendments to each. The injecting of the minor children of appellant into the case as cross-complainants was not done to serve any honest purpose, is plainly apparent, for as soon as the children lawfully could, they repudiated, as they should have done, the action of the intermeddlers prompted by appellee and Charles. The testimony of the latter will not be received as worthy of belief, except- as it may be corroborated by credible testimony or by facts and circumstances manifest from the relations of the parties not in dispute, or unless sustained by the evidence of witnesses whom we regard as worthy of belief.

The marital relations of appellant and her husband seem to have been strained for many years prior to June, 1899, when she and her husband, with a young lady traveling companion, took an European trip. On this trip the young lady referred to as a traveling companion was made one of the party by the husband. The relations of Charles Bonney with this woman and his attitude and actions with her were charged to he so scandalous that the health of appellant was much affected and she became very nervous and debilitated and continued in such condition for sometime thereafter. On the return from this European trip all semblance of marital felicity was abandoned and appellant and her husband parted. Appellee sympathized with appellant in the alleged moral delinquencies of his brother, her husband, and in that way gained appellant’s confidence. He proffered his services as an intermediary between the husband and wife, and arranged for the maintenance of appellant and her children, and subsequently for the divorce and allowances for alimony which culminated in the decree of December 19, 1899. In October, 1899, appellee arranged for appellant and her children, with a lady friend, to go to Europe, in pursuance of which the party so composed went to Borne; the expenses of the journey were provided through appellee. Failing remittances and being otherwise disturbed, appellant on November 13, 1899, left her companion and children in Borne and started for Chicago, where she arrived ten days later. On the day after her arrival she went to the bank and ascertained that the thirty-one bonds had been taken away by appellee eighteen days before. On making this discovery she attended with Mr. Frank P. Leffingwell, a member of the Chicago bar and a mutual friend of the family, at the office of appellee and demanded the return of her bonds. • Appellee, while failing to return the bonds, admitted their possession, claimed that the road was about to be sold to other parties, that her husband was assiduously working up the details, that knowledge of her presence would unnerve him, upset the deal, destroy the prospect of a sale and involve all concerned in ruin, and begged her to go to her mother in Clinton, Iowa, and stay until the sale of the road was accomplished, which he expected would be within a few days. Appellee then assured appellant that her bonds would be guaranteed by the purchaser of the road, and in that condition delivered to her. To these importunities appellant gave heed, with the request and upon the assurance that the progress of the sale as made should be communicated to her daily through Mr. Leffingwell.

In the early part of December negotiations were had by the parties looking to a divorce and a settlement of terms for suitable alimony.

A.ppellee was much concerned for the reputation of the Bonney family and desired that a divorce should not be sought for the marital infidelity of his brother Charles, and that a scandal of that nature should be avoided if possible. In the negotiations seeking a divorce with incident alimony, appellee represented his brother Charles. Appellant was represented by Major Connelly as her counsel, and Mr. Leffingwell advised appellant as a mutual friend anxious to avoid unnecessary friction, legal contest and resulting public notoriety. On December 14th negotiations proceeded to the point of disagreement; they, however, were resumed and concluded on the next day, December 15,1899. The terms of the agreement then reached, both as to the grounds upon which the divorce should be asked and the terms of the allowances for alimony and support of the children of the marriage, were as provided in the decree of divorce and alimony entered December 19, 1899. Appellant yielded her assent to the lesser charge of cruelty, instead of the more serious one of adultery, on which to rest her claim for divorce, and appellee appeared and testified in support of the charge of cruelty. At the making of the final agreement December 15th there were present Leffingwell, Connelly, appellee, Plumb, an attorney representing Charles Bonney, and Ankeny, a brother of appellant. We regard the testimony of Leffingwell, corroborated as it is by Major Connelly and Mr. Ankeny, as the most reliable and controlling in our solution of the disputed facts. While Plumb does say the bonds were referred to in the negotiations of December 14th and 15th, still on every other material point his evidence corroborates every material statement of Leffingwell, Connelly and Ankeny. Significant indeed is Plumb’s testimony that the substance of the agreement, although written by him and embodied in the decree of divorce, yet. neither in his writing nor in the decree of divorce is there any mention whatever made of the bonds, appellant’s release of them to appellee'or his brother, or a ratification of their final disposition by appellee. Leffingwell testifies that the whole subject of the negotiations of December 14th and 15th related to alimony and matters incident to the divorce suit, and the final agreement arrived at on December 15th was embodied in the decree of divorce; that no mention was made on either of these days of the thirty-one bonds, and that at no time were these bonds on either of those two days the subject of discussion. They did not enter in any manner into the alimony settlement. These statements are verified and sustained by the decree of December 19th and the testimony of the witnesses Connelly and Ankeny. These evidential facts must, as they do, control our judgment, as evidencing to our minds the fact that the decree states the terms agreed upon as a settlement of the alimony, and that nothing else was intended to be settled between any of the parties at that time. Mr. Leffingwell testifies that in the afternoon of the eighteenth or the morning of the nineteenth of December he received the first intimation from any source that appellee wanted or thought of asking appellant for a release of his liability for misappropriating the bonds, or that the bonds had been disposed of by him contrary to right. Appellee said to Leffingwell, “I suppose Margaret will have no objection to giving me a release on account of those bonds.” Leffingwell replied, “I don’t know; I will have to speak to her about that.” Leffingwell further says in his testimony that Charles Bonney and appellee both told him that if there was any fight in the matter on the part of Mrs. Bonney, Charles would put up—or they would put up—the biggest fight he knew how, to get the children and keep them; not that appellee would make a fight for the children, but he said Charles would, and Charles himself said emphatically he would. Leffingwell told all this to appellant. Under this statement, and just as she and Leffingwell were about to start for the court to the divorce hearing, on December 19th, without time for thought or in which to take counsel, and under a nervous strain resulting from the past ill-treatment of her husband, accentuated and increased by the threat of attempting to deprive her of her children, she signed the release in pencil and a blank sheet of paper in ink, both of which appear in the record. For this release no consideration whatever was given to or received by appellant. That the bonds were appellant’s, there can be no doubt from the proofs; the record so states; the husband and appellee have on several occasions admitted the fact, and their denial of that fact on the trial and their pretenses to the contrary cannot be received as overcoming or in any way weakening such convincing proof. Such pretenses and denial belie all the cogent evidential facts proving appellant’s ownership of the bonds.

The proofs undeniably show that appellant at and since her marriage has been possessed of valuable real estate and some personal property obtained from her father; that at the time of her marriage neither her husband nor appellee had any appreciable financial means. Appellee was a bank clerk on a small salary, and subsequently went into business with his brother Charles, ostensibly in the real estate business, although they also did some promoting, notably of the street car line on Twenty-second street in Chicago. That firm had not been dissolved at the time of the transactions here involved, the statements of appellee to the contrary notwithstanding. The bank account was not changed, neither was the firm’s name. Bonney Bros, continued ostensibly to be associated in active business, with both members of the firm participating. As such firm they appeared to their bankers, by continuing their account in the firm name. Irrespective of which particular member drew checks, either by habit or agreement, they both used the bank funds in the firm bank account, both for their business and individual purposes. Appellant entrusted to Bonney Bros, her business affairs for eleven years, during which time they sold her real estate and received the proceeds, made reinvestments of her property, and at times took title in the name of others; they likewise used her money and property indiscriminately, as they saw fit, regardless of her right and their duty, and as her financial agents at no time made any accounting to her of their dealings with her property. But appellee pretends to have stated an account before the master in which 321 vouchers are produced, most of which are checks payable to Charles L. Bonney, as are admittedly vouchers 218 to 264, aggregating the sum of $26,982.14. These items cover a series of years, and every dollar received by Charles L. Bonney, however used by him, whether personally or in his family, was charged to appellant. The Bonney Bros, seem to have assumed that appellant’s estate and property was their own, to be used by them as they saw fit, and that she was to bear the burden of every expense. In such fashion did they use her estate, and to that extent they charged her account. By such methods and by like artifices they bring appellant into their debt $47,102.61, in which is included an item of $6,558.11, as interest on moneys claimed to have been advanced for her account. This account serves but one useful purpose, viz.: to verify the fact that the bonds were appellant’s, and in this respect it is flatly contradictory to the oath of Lawton C. Bonney that the thirty-one railroad bonds were not appellant’s, for in his eagerness to swell the amount of this pretended claim, appellant is charged $9,000 as the value of these thirty-one bonds, which Lawton C. Bonney, without right and in violation of the confidence placed in his assumed integrity by appellant, and in abuse of that trust and confidence, disposed of them, and refused .either to restore them on demand or pay their value, and now adds to his inexcusable and questionable conduct by denying that the bonds were appellant’s at all.

The fallacy of the contention of appellee, that the release was given by appellant to him for a valuable consideration, arises from the unwarranted assumption that the money and notes delivered and the real estate conveyed to Lamb as trustee for appellant and her children moved from him and not from his brother Charles, and that the consideration for this property was the settlement of not only appellant’s claim to the thirty-one bonds, but any other claim that she might have against him, and the further contention that the payment of the $2,500 in cash and the giving of the notes amounting to $10,000, which he obligated himself to pay, placing himself as to the notes in the position of. a surety, was a consideration for the release. In the first place, we have grave doubts, from the trend of the evidence in this record, that if appellee should pay the notes himself he would then have requited appellant in the amount which would be her due on a fair accounting for money received by the firm of Bonney Bros, from the proceeds of her property, for which, as a member of that firm, he would be personally liable to her to pay. The real estate conveyed to Lamb was largely obtained with money and property rightfully belonging to appellant; this the greater weight of the evidence, to our minds, abundantly proves. Then again, whatever appellee did in the financial settlement with appellant set forth in the divorce decree, and whatever obligation or responsibility he assumed, was done and assumed for and in the interest of his brother Charles. Appellee was anxious to avoid a scandal which would become public should appellant seek a divorce for Charles’ marital infidelity, and to escape such a scandal he was willing, if not anxious, for family reasons, to appease and mollify her. This is partly evident from the fact that he testified on the trial to sustain the less seriously regarded charg’e of cruelty. The financial settlement was equally beneficial to appellee. As a member of the firm of Bonney Bros, he was liable to account to appellant for all his firm’s dealings with her property. In the unsettled condition of their affairs it was to their mutual advantage to get appellant’s claims settled and out of the way. They were anxious to protect their credit with their bank, which was carrying large loans for them, and in their efforts to reorganize the street car line it was essential to success that they should not be hampered by claims for accounting, with resulting attacks upon their business methods and financial dealings. Appellee’s brother Charles had been derelict in his marriage vows; he had treated his wife badly, as was established upon the trial for divorce by the testimony of appellee. He was not only his brother, but his partner, and it was only natural that appellee should desire a settlement for his brother, and through such settlement find an escape from the disagreeable and compromising effects of the situation. For the financial part of the difficulties appellee was equally responsible with his brother Charles to appellant. All these considerations demonstrate conclusively, we think, that appellee was acting in his own interest and that of his brother Charles in the settlement that was made with appellant. That the settlement was for alimony according to the terms of the decree, and nothing else. This being the conclusion to which we have arrived, it is clear, regardless of all other questions, that the release from appellant to appellee was given without consideration and is invalid, and that a court of equity, on that ground alone, has jurisdiction to grant the relief which appellant has prayed in her bill.

We are firmly convinced that appellee took advantage of appellant’s weak and nervous condition in threatening to help her husband resist her desire for a divorce and to deprive her of the custody of her children, as a means to the end of procuring, without consideration, a release from the liability cast upon him by the law in misappropriating appellant’s thirty-one railroad bonds, and that he selected as the crucial moment in which best to accomplish his malign purpose the eve of the hearing of the divorce suit. Appellee unquestionably took an undue advantage of appellant, and used threats of resistance to her application for a divorce and of robbing her of the custody of her children to procure the release without consideration. Such conduct very nearly, if not quite, oversteps the line where free action ceases and duress results.

LefBngwell, however, admits that while appellant was much agitated and fearful lest she lose control of her children, according to the threats made, and believing that her husband and appellee would resort to unscrupulous means to make possible the carrying out of their threats, yet she knew what she was doing at the time and the consequences which would follow the execution of the release. It is apparent that appellant’s situation was fraught with much difficulty, and her freedom of action, if not suspended, much curtailed. While, if there was an adequate consideration for the release, the circumscribing of the will of the party would not be regarded as sufficient to establish duress and thereby avoid it, on the other hand, where there is, as in this case, a total lack of consideration, the threats made and the undue advantage exercised will be circumstances of a controlling character with the courts in according relief from a contract or conveyance so unfairly and inequitably obtained. The rule is thus laid down in section 948, Pomeroy’s Bq. Juris.: “ * * * Whenever one person is in the power of another, so that a free exercise of his judgment and will would be impossible, or even difficult, and whenever a person is in pecuniary necessity and distress, so that he would be likely to make any undue sacrifice, and advantage is taken of such condition to obtain from him a conveyance or contract which is unfair, made upon an inadequate consideration and the like, even though there be no actual duress or threats, equity may relieve defensively or affirmatively.” Buford v. Louisville etc. R. R., 82 Ky. 286; Dingman v. Romine, 141 Mo. 466.

We think that a presumption of invalidity of the release arises from the circumstances of the threats made and of the undue advantage taken of appellant’s necessities and her enfeebled health and nervous condition. Although we do not deem it necessary to, nor do we, place our decision upon the ground that the release was procured by duress, it is sufficient to avoid it that it was exacted without any consideration.

Willetts v. Willetts, 104 Ill. 122, was a case where the wife entered into an agreement for separate maintenance, in which she was overreached by her husband, and the settlement was not commensurate with his estate. It was executed by her while she was in a weakened condition of health and suffering from harsh treatment at the hands of her husband. She filed a bill to set aside all the papers relating to the contract for separate maintenance and for a separate maintenance and a suitable allowance. The trial court granted the relief prayed, set aside the contract of the wife, decreed her separate maintenance with a suitable allowance for that purpose. The decree was affirmed by the Appellate Court in the Second District, and in affirming the decision of the Appellate Court the Supreme Court say: “We are of opinion that no cause is found requiring that the decree of the Circuit Court should be disturbed. The deeds and contracts and other papers which are set aside by the decree of the Circuit Court were executed and accepted by Mrs. Willets under such circumstances that we think the court was fully warranted in the conclusion that her acts were so far affected by the undue influence of her husband that she has a right to have the same set aside.” Applying this to the case at bar, we find that the release sought to be avoided was not only executed by undue influence of the husband, but by the coercion and improper influence of appellee. By parity of reasoning appellant is as much entitled to avoid her release as was the complainant in the Willetts case her contract of separate maintenance.

While we do not regard it as at all essential to a correct determination of the rights of the parties to this record to decide the applicability or not of the doctrine of res adjudicaba fully presented by the pleadings and argued by counsel in their respective briefs, yet we will advert briefly to the litigation preceding this cause, as necessarily a part of the history of the case at bar and helpful in solving the rights of the parties here.

Charles L. Bonney refusing to pay any of the $2,500 notes given on account of alimony, appellant proceeded against him in the original cause by filing a petition for a rule on him to show cause why he did not pay. The court refused to grant the rule, and on appellant’s bringing the record to this court for review, we reversed the decision of the Circuit Court and directed it to grant the rule to show cause as prayed in the petition. Bonney v. Bonney, 98 Ill. App. 129.

On February 14,1902, Charles L. Bonney filed a bill in the Circuit Court of Cook county, setting up the conveyance to Lamb as trustee of the property constituting the alimony allowed by the decree of divorce between him and appellant of December 19,1899, claiming a reversion in one-half upon the death of appellant. He alleged non-residence and waste on the part of Lamb as grounds for his removal as trustee. Charles L. Bonney, without notice to Lamb, filed “an amended supplemental bill,” in which he made his wife and chil-' dren, the appellee and the People’s Trust & Savings Bank parties, and prayed, after attacking the actions preceding the decree of divorce and the settlement of alimony made in that decree, and impugning appellant’s and Lamb’s conduct, charging fraud of both in many matters specified, for an accounting; that the decree for alimony be reviewed and modified; that the four notes for $2,500 each be considered canceled; that a new trustee be appointed, and for a preliminary injunction enjoining suits commenced or which might be commenced on the notes. To the latter bill, Mr. Lamb, appellant and the bank filed a general and special demurrer. Appellee, after answering, filed a cross-bill, setting up the same matters set out in the “amended and supplemental bill” and substantially the same matters appearing in the cross-bill in the case at bar. Appellee made all persons in his brother’s bill, including his brother, defendants, and prayed inter alia for an accounting between appellant and Bonney Bros., between Charles and appellant for moneys advanced by him for family expenses; that Lamb be removed as trustee and another appointed, to whom Lamb should account; that the interest of appellant and the children, if any, in the property be determined; that the interest of appellee in the real estate be'.set off in severalty; that the $2,500 in cash be returned to him, etc.,—in substance the identical relief prayed by the present cross-bill.

To this cross-bill Lamb, the bank and appellant filed a general and special demurrer. The children, by a guardian ad litem, answered, and filed a cross-bill, claiming, that they were the absolute owners of one-half of the property. The demurrers to the “amended and supplemental bill” of Charles was sustained, and he took leave to amend within five days; but instead of doing so, he filed an amendment to his original bill. It being made to appear that he had not complied with the order last referred to, his “amended and supplemental bill” was dismissed by the court, and the amendment to the original bill, having been filed without leave, was stricken from the files. The demurrers to the cross-bill of appellee were sustained, and it was likewise' dismissed by the court. The cause was referred to a master on the issues made by the minors. The master heard evidence and filed his report, upon the coming in of which the Circuit Court entered the following order:

“This cause coming on to be heard upon the pleadings and upon the report of the master to whom the same was referred, and it appearing that the Bank, Lamb and Margaret”—appellant—“were necessary parties to this suit and that their demurrers were sustained to the bill of complaint as amended, and that complainant elected to stand by his bill as amended, therefore ordered, that said master’s report be approved and the bill of complaint as amended be dismissed for want of equity as to Lamb, Bank and Margaret, and dismissed for want of necessary parties as to the remainder of said defendants. That all cross-bills be dismissed for want of necessary parties. That all defendants to said bill as amended recover costs against complainant and have execution therefor.”

From this decree Charles L. Bonney appealed to this court, and appellee and the minors appeared and filed cross-errors. This court, on February 25,1904, in case general number 11,158, in an opinion not reported, affirmed the decree of the Circuit Court. Charles sought a further review in the Supreme Court, where all of the parties appeared by counsel, and the decree of the Circuit Court and the judgment of this court were affirmed. Bonney v. Lamb, 210 Ill. 95.

The foregoing recitation of the nature of the litigation preceding this, we think, clearly demonstrates the futility and vexatiousness of the extended issues made in the pleadings filed and inspired by appellee in the case at bar; and we can only see in such actions a studied and maliciously designed plan to harass, annoy and tire out appellant in her legitimate contest in seeking to establish her legal rights and to procure the decision of the courts in affirmance of them. The Supreme Court in case supra, in characterizing the pleadings, said: ‘£ This record consists almost wholly of the pleadings filed by the several parties to the suit, which in many instances are very voluminous, and it would serve no useful purpose to incorporate even the substance thereof in this opinion.”

Our conclusion is that the report and recommendations of the master correctly define the rights of the parties. The decree of the Circuit Court is therefore reversed and the cause remanded to that court with directions to enter a decree in accordance with the recommendations of the master’s report, including the dismissal of all the cross-bills, and that the in junctional order of December 23, 1902, be vacated and set aside.

Reversed and remanded, with directions.

Mr. Justice Brown

dissenting.

My viewpoint in this case is different from that of the majority of the court.

I think we are concerned with only three questions, and it seems to me that the court below decided all of them correctly and that his dismissal of the bill was the necessary result thereof.

The first is: Was Mrs. Bonney on December 19,1899, in such mental condition that she understood and appreciated what she was doing when she executed the release in question? I think the answer is shown by the evidence to be in the affirmative.

The second is: Was Mrs. Bonney under legal duress when she signed the release ? I think the answer to this is in the negative. Fear of unscrupulous opposition to her in her suit for divorce is what is claimed by her. This was not legal duress.

The third is: Did Lawton Bonney give consideration for this release? It seems to me plain that he did. He was under no legal obligation to furnish any part of or any security for the alimony to be decreed against his brother. He did furnish money and incurred personal liability therefor, demanding the release before he did it.

In consideration of these matters and without reference to anything else treated of in the opinion of the court, or expressing dissent from its conclusions on the relative reliability of the testimony therein contained, I think the decree of the Circuit Court should be affirmed.


text:
    City of Chicago, Defendant in Error, v. John Brod, Plaintiff in Error.
    Gen. No. 13,906.
    Criminal law—when imposition of fine unjustifiable. The imposition of a fine for the purpose of casting costs upon a defendant is indefensible, the evidence being against the judgment rendered.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed June 11, 1908.
    George F. Mulligan, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out to reverse the judgment of the Municipal Court inflicting a fine of ten dollars on John Brod and condemning him to pay the costs of his prosecution.

The trouble occurred when Lammers, a policeman, was making an arrest. . The man arrested, however, turned out to be half-witted and entirely innocent of any wrong doing and was consequently upon trial discharged. Lammers claims that when he made the foregoing arrest Brod asked him if he was a detective, and on his replying in the affirmative Brod retorted, “Well, you are a hell of a detective, you are! If you are such a hell of a detective, why don’t you arrest me?” Thereupon Lammers placed Brod under arrest. This is all the testimony given to support the information filed by the officer against Brod, charging that Brod, in violation of section 1772 of the Revised Municipal Code of Chicago, interfered with him while he was, in the discharge of his duty as a policeman, making an arrest.

Brod denies that he used the language attributed to him by the officer or that he spoke to him at all. He further testified that he was attracted to the scene of the arrest by hearing a pistol shot; that he mingled in the crowd and heard that the man who was apparently the centre of the trouble was the harmless man, who was discharged by the same judge who fined Brod. Brod, in an ordinary tone of voice, said to a man next to him, who he thinks was Ericson, the harness-maker, in reply to his inquiry as to what was the matter, “Well, he doesn’t need to shoot him,” referring to the man under arrest. Brod swears that at the time of making this remark he had his back to the policeman, who turned upon him, grabbed him by the throat, saying, “So you want to interfere with this, do you?” After handling Brod in a rough and severe manner, the officer called a patrol wagon and took Brod in it to the station. This testimony of Brod’s was corroborated in every material matter by the testimony of two reputable citizens, eye-witnesses of the whole affair. These witnesses were in no wise impeached or their veracity assailed. Brod had lived in the neighborhood of his arrest eighteen years; was a wholesale and retail druggist, whose reputation for good citizenship had never before been in dispute. He was well and favorably known to his neighbors and had never before been arrested.

At the conclusion of the hearing the presiding judge remarked on the motion of Brod’s counsel, that he be discharged “Well, I think the defendant was guilty of indiscreet conduct in making any remark, but I am not going to fine him. I think the whole thing was a mistake all around. The people there knew something which the officer did not know, it seems, about Detlof, but even a half-witted man could commit a murder as well as anybody else. However, I let Detlof go, and I am going to discharge the defendant with a caution against making any remarks when an officer is making an arrest.”

The greater preponderance of the proof demonstrates, to the satisfaction of any reasonable person, that Brod was not guilty of the charge of interfering with an officer while making an arrest. The trial judge so clearly indicates by his language supra. The prosecuting officer unfortunately and without right we think, suggested that Brod pay the costs if discharged. The court then used this language in reply to that suggestion: “Well, what can I do? The officer tells one story and is flatly contradicted by three reputable witnesses 'who tell an entirely different story.” After further importunities by the prosecuting officer in an attempt to have the court mulct Brod with the costs, the court said, “I’ll tell you what we’ll do. Let the defendant pay the costs in one case and we’ll let it go that way. If you don’t want to pay the costs I’ll fine you one dollar and costs, and then you will have to pay them. What do you want to do?” Brod requested and obtained leave to consult with his counsel, and after doing so declined to pay any costs, whereupon the court said: “Ten dollars and costs. I’ll stand by our policemen every time. They have got to be supported.”

This has a strong flavor of the old justice of the peace court procedure of injustice and disregard of the legal rights of the citizen, which the institution of the Municipal Court was designed to remove. It is a strange doctrine that the court shall support the policemen every time, right or wrong. If this pronouncement of the trial judge is sustainable, where are our boasted liberties? Are they at the mercy of policemen, right or wrong? Must the citizen be beholden to the whim and humor of the police for his freedom, and can that freedom be taken away without the citizen offending against the law? The doctrine announced by the trial judge is too dangerous to be tolerated for one moment in the temple of justice.

We are not at all surprised that -the city of Chicago, fails to appear and defend against this unwarrantable judgment, which through its prosecuting officer it procured to be entered. It is indefensible and cannot be sustained.

The judgment of. the Municipal Court is reversed and the plaintiff in error, Brod, is discharged.

Reversed.