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    E. F. Lawrence et al. v. S. H. Stiles.
    1. Evidence. — Where ns to a certain fact there are only two witnesses, and they are equally confident., and their statements are absolutely irreconcilable, every item of evidence fairly tending to corrobórale or to contrad.cfc either of them is more or less material to establish a preponderance.
    2. Same — Use of figuring book. — Where the question of fact was whether or not appellee deposited §1.000 with appellant's bank on September 27, 1880, and as bearing upon that question the date of the deposit admitted to have been made m another bank, was important, if not conclusive, and the bookkeeper of such oilier bank was prepared to testily from an inspection of his daily figuring book made in the usual course of business at the time. Held, that bis testimony should have been leceived whelher the books were adm siible or not. Though based on the writing- and without, actual recollection, it was not in the legal sense matter of inference merely.
    Appeal from the Circuit Court of Livingston county; the Hon. William Brown, Judge, presiding.
    Opinion filed May 26, 1885.
    Mr. Charles E. Fuller and Mr. C. M. Brazee, for appellant;
    as to competency of memorandum, cited Wolcott v. Heath, 78 Ill. 433; Flower v. Downs, 6 La. An. 539; Dunlap v. Berry, 4 Scam. 327; Davidson v. Latlande, 12 La. An. 826; Chapin v. Lapham, 20 Pick. (Mass.) 467; Pinney v. Andrus, 41 Vt. 631; Cole v. Jessup, 10 N. Y. 96; Filkins v. Balker, 6 Lans. 518; Abbott’s Trial Ev., 320; Treadwell v. Wells, 4 Cal. 260; Jones v. Johns, 2 Cranch, 426; Massey v. Hackett, 12 La. An. 54; Chiapella v. Brown, 14 La. An. 189; Keut v. Mason, 1 Bradwell, 455; Welcome v. Batchelder, 23 Me. 85; Prother v. Pritchard, 26 Ind. 65; McCormick v. P. C. R. R. Co., 49 N. Y. 316; Marcly v. Shultz, 29 N. Y. 348; Halsey v. Sinzebaugh, 15 N. Y. 485; Reed v. Jones, 15 Wis. 40; Russell v. H. R. R. R. Co., 17 N. Y. 134; State v. Colwell, 3 R. I. 132; O’Neal v. Walton, 1 Rich. (S. C.) 234; Mattocks v. Lyman, 16 Vt. 113; Martin v. Good, 14 Md. 398; 14 U. S. Digest, § 4750; Downer v. Rowell, 24 Vt. 343.
    As to admissibility of entries of books: C. & N. W. Ry. Co. v. Ingersoll, 65 Ill. 399; 1 Greenleaf on Evidence, § 120; McLean Co. Bk. v. Mitchell, 88 Ill. 52; Wolcott v. Heath, 78 Ill. 433; C. & W. Coal Co. v. Liddell, 69 Ill. 639.
    Mr. Wm. Lathrop and Mr. Wm. Marshall, for appellee;
    as to memorandum as evidence, cited Elston v. Kennicott, 46 Ill. 187; C. & A. R. R. Co. v. Adler, 56 Ill. 344.
    As to proving negatively that an alleged fact did not exist because of no memorándum of it in the books: Lawhorn v. Carter, 11 Bush, 7; Keim v. Rush, 5 W. & S. 377; Morse v. Potter, 4 Gray, 292.
   Pleasants, P. J.

Appellant’s firm had a private bank at Belvidere, of which Irving Terwilliger was acting cashier and W. R. Dunton bookkeeper. One of its members, James S. Terwilliger, was cashier of the First National Bank of the same place, and had occasionally acted as such for appellant also, during short periods, in the absence of Irving. Appellee, who was a farmer in good circumstances, residing at a distance of ten miles, in the county of DeKalb, kept an account and had a pass book with each of these banks, though his transactions with them were not frequent.

On Nov. 17, 1881, he presented at appellant’s bank his check thereon for $1,500, and received the money. They claimed that he then had there only $500 and brought this suit to recover the alleged over-draft.

The journal and ledger of the bank, showing his account, and the testimony of Irving Terwilliger, who stated the balance to liis credit and the payment to him of the amount claimed to have been overdrawn as above mentioned, made the plaintiff’s case in chief.

Defendant testified that on Monday, the 27th day of September, 18S0, he deposited there the sum of §1,000 (which was not entered on their books), and was apparently corroborated by a credit for that amount as of that date on his pass book, which was produced in evidence.

In rebutt il James S. Terwilliger testified that this entry was in his handwriting, which was admitted; that the money therein mentioned was in fact deposited in the First National and there received by him as its cashier; that this pass book was the one there presented, and that he made the entry therein without observing that it was not the book of that bank. He claimed to remember distinctly that he received but one deposit of that amount from the defendant, and that one in the back room of the First National Bank in the presence of Wm. S. Dunton, its president. He had no independent recollection of the date, but fixed it with absolute confidence not only by the entry in the pass book but by the deposit slip or ticket which he then made out and spindled, bearing date the 27th day of September, 1889, which was produced, and after repeated rejection, finally admitted in evidence.

Defendant admitted that he gave the money mentioned in the pass book to James S. Terwilliger, but reiterated that it was at appellant’s bank and on the 27th, as therein entered. He further stated that the deposit referred to by Terwilliger was another and different one made on the next day, September 28th; and in this also was apparently corroborated by a credit for the same amount, as of that day, in the handwriting of said Terwilliger, on his pass book from the First National, which was put in evidence. To those transactions, including the dates, he also professed to swear from personal recollection independent of the entries in the books.

Terwilliger then accounted for the one last above mentioned as follows: It was the uniform custom in the bank to make the entries in the journal from the deposit tickets for two days together, that is, under the date of two days written at the head of the page, and then to post them all in the ledger as of the latest only. Thus the business of the 27th and 2Sth was written up in the journal under the heading of “ Monday and Tuesday, September 27th and 28th, 1880,” and all posted in the ledger under the date of September 28th. He said that customers often make deposits without presenting their pass books; that for this reason, when they do bring them the course is, before entering therein the deposit then made, to see from the ledger if any previously made had been omitted, and if so to credit it then in its proper order according to the date in the ledger; that on the 26th of October, 1880, defendant next made another deposit in the First National, bringing the proper pass book, and witness then entered in it the preceding one also, but under date of September-28th as it appeared in the ledger.

He further stated that he did no business at and for appellant’s bank after August 10th of that year, fixing the time, however, only from the books and papers of that bank. Irving also testified that James had never done any business there when he was present, and that he knew, though from the books only, that he was present generally throughout the 27th of September, 1880, but could not swear that he was not out of the bank at all during the business hours of that day. W. R. Duntuu, appellant’s bookkeeper, testified to the same effect. The manner of writing up the journal and posting at the First National, as stated by James Terwilliger, was also testified to by Hr. Frink, its bookkeeper.

The single ultimate question of fact in the case was whether or not appellee deposited §1,000 with appellant’s bank on Sept. 27,1850. As bearing upon that question the date of the deposit of §1,000 admitted to have been made in the First National was important if not conclusive, for he made but one such in that bank about that time and but one anywhere on the 27th; so that if the deposit of that date was in the First National his testimony is false, the evidence of the pass book turned against, him and the case of appellants fairly established.

In reference to this date James S. Terwilliger and the appellee were the principal and the only positive witnesses. Though one claimed to fix it from writings alone and the other from independent recollection as well, they were equally confident and their statements absolutely irreconcilable-To establish a preponderance, every item of evidence fairly tending to corroborate or to contradict either of them was more or less material. On both sides there were circumstances of this character not necessary to be here stated.

Appellants claim that Terwilliger would have been further strengthened and appellee correspondingly weakened by the books of the First National Bank and certain testimony of Mr. Frink in connection with them, which was offered but not admitted. Although the journal and ledger would not have contradicted the statement of appellee or the entry in his pass book, yet they would have verified Terwilliger’s account of the manner of keeping them and tended to explain the entry in the pass book under date of the 28th as not of itself inconsistent with the claim that the deposit so credited was really made on the 27th. These are the only books of the bank in which the depositor’s name appears; but others were offered which it is claimed would have tended to identity the transaction and fix the day of its occurrence, viz., the cash book, and two figuring books kept by Terwilliger and Frink, respectively, — “ for figuring up cash, and figuring up items during the day to see that they agree with the cash on hand,” as Tenviiliger described them. These would show the transactions of each day separately, so far as they would show them at all.

It is said by counsel that the page offered, which was of the book kept by-Frink, contains only an unintelligible mass of figures and not a credit of $1,000 among them.

It may be quite unintelligible to others without explanation by the person who made it, and yet enable him to swear positively that it does show, and to explain satisfactorily how it shows, the receipt of $1,000 in one item on that day and none such on the next.

Mr. Frink having stated that he knew appellee by sight, but knew of his being at the bank that day only from the books, identified the figuring on the page for the 27th as made by him in the regular course of business, and was then asked to state whether there is included in the figures of that date a deposit of a thousand dollars from S. II. Stiles,” and also the following: After refreshing your recollection by reference to that book can you state to the jury whether or not a deposit was made in the name of Samuel II. Stiles in the First Hational Bank on the 27th day of September, 1880;” to each of which questions a general objection was sustained. In the further course of his examination, however, he did state that “ Samuel II. Stiles received a credit of $1,000 at the First Hational Bank of Belvidere on September 27,1880,” which statement, though ruled out upon like objection, served to show at least that the witness thought he understood the figures, and was prepared upon his faith in them to swear positively to the fact so understood, without any independent recollection of it.

The materiality of these books and of his testimony being sufficiently clear, the question is whether they were competent.

And first, as to the books. In the argument' for appellee the question of their admissibility as original evidence is not discussed. They are there treated solely as memoranda for refreshing the recollection of witnesses, and their incompetency as evidence of themselves is simply asserted as if it were too clear to require a reference to authority or the assignment of any reason. This may be dne to the fact that so little prominence or distinctness was given to it by the counsel for appellant; but we regret it not a little, and none the less because our first impression was as it remains, against him.

It is well known that memoranda and entiles made at or about the time of the transactions to which they relate, in the regular and usual course of business and of the employment and duty of the person who made them, have long been admitted as part of the ros gestae. Price v. The Earl of Torringford, 1 Smith’s Lead. Cas. with Hare and Wallace’s Notes (6th Am. Ed.) marg. p. 390, top 499 to 515; 1 Greenl. on Ev. (Redfield’s Ed.), Secs. 115-120, inclusive, and notes; also incidentally stated in §§ 147, 151.

Being held to presuppose the existence of better evidence in the oath of the person who made them, such entries were at first received only after his death. Price v. Torringford, supra Doe v. Turford, 3 B & Ad. 898; Pool v. Dicas, 1 Bing. N. C. 649; Welch v. Barrett, 15 Mass. 380; Brewster v. Doane, 2 Hill (N. Y.), 557; Nicholas v. Webb, 8 Wheat. 326, and other cases in the notes above referred to. In Massachusetts, insanity, and in Pennsylvania, Maryland and South Carolina, absence beyond the jurisdiction, have been held tantamount in this regard, to death; and the latter seems to have been so treated in this State. C. & N. W. R. R. Co. v. Ingersoll, 65 Ill. 399. In such cases they are admitted upon proof of his handwriting.

They are original legal evidence, and not hearsay; else the death of the person who made them would not render them competent. If, therefore, being alive and produced, he can not recollect the fact so recorded independently of the entry; after referring to it, the way would seem to be opened for its admission as secondary, just as though he were dead, insane or beyond the jurisdiction. Upon this reasoning the American authorities have extended the principle and admitted the writing in that ease during his life, upon the single-additional item of preliminary proof that it was truly made. 1 Greenl on Ev., Sec. 115, note 4, and Sec. 120, note 2; Merrill v. The Ithaca and Owego R. R. Co., 16 Wend. 587; Bank of Monroe v. Culver, 2 Hill, 532; Cole v. Jessup, 10 N. Y. (6 Sheld.) 96; Bunker v. Shed, 8 Metc. 150; Farmers and Mechanics Bank v. Boreaf, 1 Rawle, 152; Smith v. Lane, 12 Serg. and R. 84; Redden v. Spruance, 4 Harr. 265, 269; Bullard v. Wilson, 5 Martin (N. J.) 196 (3 Cond. La. 505); Spann v. Baltzell, 1 Florida, 302, 321; Underwood v. Parrott, 2 Texas, 168, 176. So in this State. In Humphreys v. Spear, 15 Ill. 275, Mr. Justice Treat delivering the opinion of the court said: “ It is well settled in this country that entries made by a clerk in the regular and usual course of business are admissible in evidence after his deatli on proof of his handwriting; and during his life if authenticated by him” — citing Have and Wallace’s Flotes and Greenleaf on Evidence, ubi supra.

Writings of this character are not only parts of the res gestae but, practically speaking, are often “ the best evidence of which the case in its nature is susceptible.” Those whose business it is to take part daily in similar transactions and make minutes of them at the time, may not long remember the particular transactions themselves, and certainly can not recollect such particulars thereof as date, amount, quantity or price, independently of their minutes. As was said in the opinion just referred to, “In the case of a running account at a store, consisting of numerous items, better evidence is not generally attainable.” And in the Bank of Monroe v. Culver^ 2 Hill, 532, in reference to bank books, the admissibility of which was in question, the court, per Bronson, J., said: “The memoranda and entries were made in the usual course of business and as a partof the proper employment of the witness. Ido not see how it is possible to doubt that such evidence ought to be received. * * * There are a multitude of transactions occurring every day in banks, the offices of insurance companies, merchants’ stores and other places, which, after the lapse of a very brief period, can not be proved any other way.”

In the case at bar the bank whose books were excluded had no interest in the proof sought to be made by them. The fact and amount of the deposit in question, as claimed by appellee, were never disputed. It is shown to have been paid back to him in full when called for, and there is no controversy between them. The fact to be proved, and which has come to be material in a controversy between him and another party, is simply the time when it was made — whether on the 27th or the 28th of September, 1880. The journal and ledger of the b mk are important only for the purpose of identifying the particular deposit credited oii the pass book, for neither of them purports to fix the date. In the journal the transactions of the two days are not distinguished. The ledger shows it of the 28 th; but it shows no deposit whatever as of the 27th) nor any for years except on Tuesdays, Thursdays and Saturdays, though the bank was all the time receiving them on other days as well — thus importing on its face that deposits of two days have been uniformly credited as of the last only. Now if the figuring book contained an entry of the character above described, which did clearly, though only incidentally, tend to fix the day, and the witness who made it was unable, of his independent recollection after referring to it, to swear to the time, we are of opinion that upon the principle held and illustrated by the authorities above cited it ought to have been received in connection with his testimony. This book was kept and preserved as much in the course of business as was the journal or ledger. Mr. Frink was a disinterested witness. He had been employed by the bank as bookkeeper from September, 1879. The figures offered were made by him on the 27th day of September, 1889, in the usual and regular course of business, as part of his employment and duty, and before any question as to the date of this deposit arose or was anticipated. He had no motive to make them incorrectly. Their truth was tested by the amount of cash on hand. Nothing appears to cast the slightest suspicion upon them. If he did not swear in direct terms that they were truly made, he did in effect, and that is sufficient. Presbyterian Church v. Emerson, 66 Ill. 269 (271). The objection to them and their exclusion were not based upon any defect of preliminary proof, but upon their supposed incurable incompetency. In the Merchants and Mechanics Bank v. Boreaf, 1 Rawle, 152, the appéllee sought to recover an alleged deposit of $800 which was credited on his bank book and by a witness sworn to have been made by him for the plaintiff as so credited. The bank claimed that the amount deposited was only $80 and that $800 was set down in his book by mistake. To prove this amount the bank offered the entry in its own book, supported by the oatli of its clerk that he received the deposit and made the entry a^ the time but had no independent recollection of the fact in question. The book was rejected; which the Supreme Court held to be error, saying: “ It is assumed that the clerk was able to swear that his entry in the book was true, to the best of his knowledge and belief.” With no less reason we may assume it here.

Just what these figures, if explained, would have tended to show we do not know with certainty, but for reasons hereafter state! presume it would have been pertinent; and as was observed by Mr. Justice McAllister, in C. & N. W. Ry. Co. v. Ingersoll, 65 Ill. 405, Many such entries are capable of explanation by applying to them evidence of the usages and customs of the business.”

As to the other books it does not appear that there was any attempt or formal offer to make preliminary proof with technical strictness, nor that this was the ground of their exclusion. From the manner in which they were identified, offered,objected to and rejected, we suppose the court and counsel understood it was at hand; and upon such proof, made or waived, we think they would have been competent.

It would be unnecessary to say that the deposit slip or ticket was properly admitted, except with reference to another trial and in view of the fact that counsel for appellee resisted it and still insists it was error. The cashier testified that he made it at the time of the deposit and truly, as part of his employment and duty — the first record of the transaction and its concomitant, according to the uniform course of business — and yet independently of it he could not recollect the date. All the required conditions of admissibility seem to have been fulfilled by this proof.

In this connection we may also notice a point made by appellee upon the bearing, as evidence, of the books of appellant. Tiiese were received without objection, but it is said they were not competent “ to prove negatively that an alleged fact did not exist because they had made no memorandum of it in the books of Yourt, Lawrence & Co.;” citing Lawhorn v Carter, 11 Bush. 7; Keim v. Bush, 5 Watts and Serg. 377; Morse v. Potter, 4 Gray, 292.

In the first cited the court uses the expression that mercantile books are never admissible to establish a negative proposition; ” but this is broader than was required by the case Or sustained by the authority relied on, which is the one in 4th Gray, where it was held that the time book of the employer, showing certain days on which the laborer worked, was not competent to show that he did not work on other days for which he also claimed, and the reason given was that it was a book of credit only and not of charges. The evidence in the cases in 11th Bush, and 5th Watts and Serg. consisted of books of a like character, the party in each attempting to avoid a charge for goods delivered by showing that his delivery book did not contain an entry of their receipt. We are not aware that it has ever been so held in "reference to books like those under consideration. In Furness v. Cope, 5 Bing. 114, bank books were admitted to show that a party had no funds there. In McLean Co. Bank v. Mitchell, 88 Ill. 54, the deposit blotter of original entries and the cash book were treated as competent evidence tending to show that an alleged deposit claimed by Mitchell was not made, and that its entry on the individual deposit ledger and transfer thence to his pass-book were by mistake. So was the effect of the book declared competent in the Farmers and Mechanics Bank v. Boreaf, supra. In the Bank of Monroe v. Culver, 2 Hill, 552, where it was claimed that a certain note had been discounted by the bank at usurious rates, and the books were offered to show among other things that such a note was never discounted by it, which was objected to, the court said: “ If the §2,000 note had been discounted by the plaintiffs that fact would, in the ordinary course of business, have appeared upon the books of the bank. The fact that there was no such entry in the books was, I think, proper evidence for the consideration of the jury.” In Mourse and wife v. McGay and another, 2 Rawle, 70, which was an action of ejectment, for the purpose of proving that an instrument, a copy of which had been put in evidence, was not genuine, the account book of the officer before whom it purported to have been acknowledged was admitted as competent and pertinent, because it showed charges for taking the acknowledgments of three other deeds for the same party, on the day that the one in question purported to have been taken, but none for taking that of the latter. And the reason for admitting negative evidence of this character is well stated in the American Hotes upon Smith’s Leading Cases, as follows: “It is obvious that the ground on which entries in the course of business are admitted is that as res gestee they afford a presumption as to the other facts; and an omission, in a course of usual entry, is often as strong a fact as an entry.” Vol. I, (top) p. 506, (6th Am. Ed.)

If, then, the books are admissible at all, no objection is perceived to their use for what they may be worth for this purpose.

We have seen that Mr. Frink was prepared to explain his figuring book, and from his own entries made at the time, without actual recollection of the fact, to swear positively that appellee received credit for §1,000 at the First National Bank, on the 27th of September, 188), but was not 'allowed to do so. Was the proposed testimony competent?

Although as to matter of fact, a witness can testify only from his own knowledge and recollection, and not from hearsay, yet he may refresh and assist his memory by the use of a written instrument, memorandum or entry in a book. And the authorities recognize two kinds of recollection by aid of the writing, from which he may testify — the one being actual and the other imputed, one absolute and independent of the writing after reference to it, the other still dependent upon and inferred from it. When he finally testifies from the kind first mentioned, being the first class described by Gfreenleaf in Sec. 437, the character of the writing by which it is refreshed is immaterial. It may be one not made by witness, nor in the regular course of business, nor contemporaneous with the fact, nor even an original, nor need it be produced on the trial*. .And it is because it may be of such a character— not of itself capable of inspiring absolute confidence, but only of bringing to mind what he had known and forgotten — that the witness is required, after using it for that purpose, to speak from a present, actual, and independent recollection. This is the common case and the general rule. 1 G-reenl. Ev. Sec. 436.

But there are others which are exceptional, where such a recollection is not required, its place being supplied by what is deemed equivalent as a ground of assurance and accepted from necessity to prevent a failure of justice. Thus where the writing is an original, made at or about the time of the occurrence, and the witness recollects that he has seen it before, and that when he saw it he knew the contents to be correct, which is the second class described by Greenleaf, his testimony to the fact itself is received as if it was based on actual recollection; for 1ns knowledge of it is thereby shown to be actual and certain, as well, though inferentially, as if it were so based. Here, however, since he can not be cross-examined in relation to the fact or circumstances because he has no actual recollection of them, the writing on which he relies must be produced, in order that the other party may cross-examine in relation to it and have the benefit of every part of it. With this security against falsehood and error it is deemed safe, as well as necessary, to admit the testimony. 1 Greenleaf, Ev., Secs. 436-7 and note 3 to each. Our own Supreme Court has so declared it in relation to names, dates and amounts. C. & A. R. R. Co. v. Adler, 56 Ill. 348; Chicago and Wilmington Coal Co. v. Liddell, 69 Id. 641; Wolcott v. Heath, 78 Id. 434-5. Neither of the two cases cited by counsel as to the contrary, were of this character. In Elston v. Kennicott, 46 Ill. 187 (206), the material question was not merely whether the taxes had been paid, but whether they had been paid by Kennicott or under his title. The memorandum which was entered opposite the description of the land in the collector’s warrant, was ¿simply, “paid February 2d,” and of course could not enable the witness to say by whom paid, lie would not undertake to swear as to that, either from a direct recollection or from the memorandum. In C. & A. R. R. Co. v. Adler., su^tra, the writing used was a copy made two years after the original. The report of the case does not show when, with reference to the time of the occurrence, or by whom the original itself was made, nor its contents, nor what the witness testified. It is evident that in each of them the court regarded the writing as of the kind governed by the general rule, and that the language relied on by counsel was not intended to apply to the exceptional kind here considered. In the one last cited, the competency or testimony from contemporaneous memoranda, without any independent recollection, as to dates, was expressly declared. Authority in support of it from other States is abundant. Bartlett v. Hoyt, 33 N. H. 151; Haven v. Wendell, 11 Id. 112; Dower v. Rowell, 24 Vt. 346; Mattocks v. Lyman, 16 Id. 117; Dugan v. Mahoney, 11 Allen, 592; Crittenden v. Rogers, 8 Gray, 452; New Haven Co. Bank v. Mitchell, 15 Conn. 206 (224); The State v. Colwell, 3 R. I. 132; Halsey v. Linsbaugh, 15 N. Y. 485 (overruling Lawrence v. Baker, 5 Wend. 301 and Foster v. Heath, 11 Id. 485); Russell v. Hudson River R. R. Co., 17 Id. 134 (139); Peck v. Valentine, 94 Id. 569 (571); Martin v. Good, 14 Md. 409; Spring Garden Mut. Ins. Co. v. Evans, 15 Id. 62; The State v. Rawls, 2 Nott and McCord, 334; O’Neale v. Walton, 1 Richardson, 234; Bank of Tennessee v Cowan, 7 Humphrey, 70.

Whether Mr. Frink remembered that he had seen these figures before and then understood them and knew them to be correct, was not shown. He was not directly asked as to that. Having disclaimed any present and actual recollection of the deposit by appellee as revived by reference to them on the trial, all further examination in regard to them seems to have been cutoff. But if the case is not within the second class, as it probably is, it appears to have come fairly within the third described by Greetileaf (Sec. 347), as follows: “Where the writing in question neither is recognized by the witness as one which he remembers to have before seen, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is on that ground enabled to swear positively as to the fact;” oras more generally stated by Hare and Wallace in 1 Smith Lead. Cases, topp. 507, “ where the witness, after referring to the paper, undertakes to swear positively to the fact, yet not because he remembers it, but because of the confidence he has in the paper,” which seems to include both the second and third classes described by Greenleaf. In the latter, it seems that the memorandum must be not only an original, and contemporaneous with the fact, but also one made by the witness, or at least with his knowledge at the time. It was so in the examples given, and at the close of Sec. 346 he says: “But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, ancL the writing was not made by him, his testimony, so far as it is founded on the written paper, is but hearsay.” Where the nature of the business carried on requires many entries of the same general character every day, as is the case with banks, it must often be that the person who makes them and at the time knows them to be correct, can not, after the lapse of even a brief period, actually remember a particular transaction so entered, or the making of the entry, nor any occasion when he afterward saw it and then recognized it as being true. Neither the transaction itself nor the entry of it, after being made, may be ever again brought to his attention until he is called to testify; and yet from the book, the order of dates and entries, the position of the one in question, the course of business, and his own habits in respect to such transactions, he may, upon seeing the entry in his own handwriting, be more certain both of the fact and the date of its occurrence than he would be of the particulars of almost any similar transaction so long past, of which he would testify only from what he believed to be actual recollection. The same is true of isolated transactions. Men sometimes give receipts for money paid to them, and sometimes they do not. When they do, the receipt passes at once out of their possession and thoughts. Afterward they may forget the payment, and when shown the receipt may have no recollection of having given it, but, knowing its genuineness, entertain no doubt of the fact expressed by it. So one may attest the execution of a deed by signing his name as a witness, and afterward, on being shown his name so signed, recall nothing of the fact of execution or of his signing his own name as a witness, but have no doubt of the fact from the known genuineness of his signature shown. In such cases the testimony of the witness is received. Thus, in Dugan v. Mahoney, 31 Allen, 572, which was an action for goods sold and delivered, two witnesses were called to prove the delivery of numerous parcels. Neither had any recollection of the facts, but were able to swear to them positively from certain entries and checks made by them in memorandum books in the regular and usual course of business. It does not appear that they remembered having seen these entries before and that when they saw them they knew them to be correct, but they knew they were made by them and were positive that they would not have been made if the fact had not been known to have occurred. That seems to be the kind and ground of the witnesses’ knowledge in the third class of cases described by Greenleaf, as distinguished from that in the second, if indeed ¡there is any substantial distinction between them. Here the .Supreme Court of Massachusetts said: “It is obvious that this species of evidence must be admissible in regard to numbers, dates, sales and deliveries of goods, payments and receipts of money, accounts and the like, in respect to which no memory could be expected to be sufficiently retentive without depending upon memoranda; and even memoranda would not bring transactions to present recollection. In,such cases, if the witness, on looking at the writing, is able to testify that .lie knows the transaction took place, though he has no present memory of it, his testimony is admissible. A similar rule is applied to attesting witnesses who, if they know from seeing their handwriting that they witnessed the execution of the instrument, may so testify, although the sight of the handwriting does not bring to their recollection even the fact of attestation.” Citing Rex v. St. Martins, 2 Ad. and El. 210; Crittenden v. Rogers, 8 Gray, 452. In Martin v. Good, 14 Md. 398 (409 et seq.), the subject is carefully considered, and upon many authorities cited the statement of the law by Greenleaf in the third class and herein above quoted, is held to be correct. In England the same doctrine in substance was settled by the case of Mangham v. Hubbard et al., 8 Barn, and Cress. 14; Powell on Evidence, 308.

We are of opinion that whether the figuring and cash book and ledger and journal of the First National Bank were or were not admissible, the testimony of Frink should have been received. 1 Greenl. Ev., Sec. 115; Dugan v. Mahoney and Mangham v. Hubbard, supra. Though based on the writing and without actual recollection, it was not in the legal sense matter of inference merely. The same may be said of much of the testimony given by Irving and Jam es Ter wi 11 i ger, based on memoranda. It was positive evidence, and therefore it was improper to give the 4th and 5tli instructions asked by the defendant. There is no doubt about the correctness of the principle that the mere inference of witnesses are not evidence, but it was here misapplied. Wolcott v. Heath, 78 Ill. 433. These instructions must have discredited this testimony if they did not wholly exclude it from the consideration of the jury. For the errors above indicated the judgment of the circuit court will he reversed and the cause remanded.

¡Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    James E. Morrow et al. v. James Langan.
    Joint judgment — Must be joint conversion. — The judgment in tort against all the defendants being wholly unsupported by evidence as to one or more, is erroneous.
    Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed May 30, 1885.
    Messrs. Strawn & Patton, for appellant;
    that it was error to render judgment against all of the defendants jointly, cited 1 Chitty on Pleading, 86; Nicoll v. Glenn, 1 M. & S. 588; Ragor v. Kendall, 70 Ill. 95; Jansen v. Varnum, 89 Ill. 100; McDonald v. Wilkie, 13 11. 22.
    Mr. E. F. Bull and Mr. S. S. Lawrence, for appellee;
    cited German Nat. Bk. v. Meadowcroft, 95 Ill. 124; Sexton v. Abbott, 53 Iowa, 181; Nelson v. Brown, 53 Iowa, 555; Ledyard v. Hibbard, 58 Mich. 214.
   Pleasants, P. J.

Appellant Kent bought and shipped grain among other places at Nevada, in Livingston county, where he had a warehouse and two cribs. John Riley was his agent in charge of the business there.

From the 3d to the 28th of January, 1883, appellee, by his tenants, delivered at one of these cribs 1,142.25 bushels of ear corn. During that time other parties also delivered corn of the same grade, which was put into the same crib, and the mass was shelled and shipped out about as fast as it was recei ved.

On the 8th of February, after all the corn so delivered by appellee had been shipped out, he took a receipt of which the following is a copy: “ Nevada, Ill., Feb. 8, 1883. Rec. of James Langan eleven hundred and forty-two bushels and twenty-five pounds of ear corn in my elevator. Rec. it as rejected, and I agree to pay him any time for any portion said Langan wisnes to'sell of it, highest price I am paying for such grade, and I also agree to keep it in my elevator for him ninety days free of storage — after that I will charge half cent per bushel per month for storage. L. E. Kent, per Riley.”

On May 12, 1883, a pluries fi. fa. was issued on an old judgment of the circuit court for $4,785 in favor of the National Bank of Pontiac against Kent, which came into the hand of the sheriff in the afternoon of the same day.

On the next, which was Sunday, Riley informed appellee of Kent’s embarrassment and advised him to get possession of the corn then in the crib.

Early in the morning of the 14th appellee put upon the crib a notice in writing that he claimed the corn therein. About an hour later appellant Morrow, without seeing this, put on a similar one and placed Riley and Kavanaugh in charge of the corn, for the bank of which he was president and for which he was then acting.

On the 16th the sheriff, by virtue of this writ, took the corn and afterward in due course sold it. Thereupon appellee, after tendering to Kent the amount due for storage and demanding the corn of Morrow, brought this suit against them and the bank, in trover for its conversion; and upon trial without a jury, the issue was found for plaintiff and his damages assessed at $215. Defendants’ motion for a new trial, based on several grounds — among which was the want of evidence to establish their joint liability — -was overruled and judgment entered upon the findings, from which they appealed.

The principal question argued here was whether Kent was a purchaser or a bailee of the corn delivered by Langan — appellants insisting that he was a purchaser upon the authority of Lonergan v. Stewart, 55 Ill. 44, Richardson v. Ohnstead, 74 Id. 213, and Bailey v. Bensley, 87 Id. 556, while appellee claimed that he was only a bailee, and bound to return upon demand a like quantity of the same grade under the authority of the German National Bank v. Meadowcroft, 95 Id. 124. Its decision would turn upon the construction given to the receipt above copied in the light of the circumstances surrounding the transaction, but we do not decide it here because the judgment must be reversed for another reason and the evidence of these circumstances may be different upon another trial.

If the property in the corn levied on was in Kent when the writ came to the sheriff’s hands, neither of the other defendants was liable in any form of action. lie could not defeat the lien of the bank’s execution by afterward putting appellee in possession, if he did, through Riley or otherwise, so put him in possession.

If the property was then in appellee, Morrow and the bank were liable only for the corn levied on, and for that only by reason of the levy and sale; for there was no other conversion of that corn. But for the levy and sale Kent was not liable in this action. As to him these proceedings were in invittim. In taking charge of the corn at Morrow’s request for the bank before the levy, Riley was not the agent of Kent, but of Morrow or the bank. Kent’s liability, if any, in tort, "was for a previous conversion of other corn in which Morrow and the bank had no part. So in either case the judgment against all .the defendants being wholly unsupported by evidenceas to one or more, is erroneous. 1 Ch. Pl. 86; Ragor v. Kendall, 70 Ill. 95; Jansen v. Varnum, 89 Id. 100.

It is therefore reversed and cause remanded.

Reversed and remanded.


author: Welch, J.

text:
    Simon Flanders et al. v. Frances M. Doyle.
    1. Usury. — The court is of opinion that the original contract in this case was usurious.
    2. Mortgage — Sale.—if a party purchases from a mortgagor without any deduction from the price on account of the incumbrance, he thereby becomes invested with the right to interpose the same defenses as might have been made by the mortgagor.
    3. Sale subject to mortgage. — But if the sale is made subject to the mortgage and the amount of the incumbrance is deducted from the price, the grantee will not be permitted to make the defense of usury.
    4. Subsequent puKCHASEH.-^Where the deed from the purchaser in such case contained this provision: “Subject to all legal claims the holder or holders of two certain mortgages on said tract may have by virtue of said mortgage thereon.” Held, that the grantee does not occupy any better position than her grantor, and can not take advantage of the usurious contract.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Bull, Strawn & Ruger, for appellants;
    cited Maher v Lanfrom, 86 Ill. 513; Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, 45 Ill. 462; Union Dime Savings Institution v. Wilmot, 94 N. Y. 221.
    Messrs. Doyle, Morris & Pierson, for appellee;
    as to usury, cited Payne v. Newcomb, 100 Ill. 620; Mitchell v. Lyman, 77 Ill. 530; Armour v. Moore, 5 Bradwell, 435; Wilday v. Morrison, 66 Ill. 534.
    As to who may question usury: Pike v Crist, 62 Ill. 464; Henderson v. Bellew, 45 Ill. 325, Valentine v. Fish, 45 Ill. 468; Maher v. Lanfrom, 88 Ill. 522; Melendy v. Keen, 89 Ill. 403.
   Welch, J.

This was a bill filed by the appellee claiming that she was the owner of a certain forty acres of land in Iroquois county; that she purchased the same from Edward Ilurlbut; that Hnrlbnt purchased from Thomas I. Martin; that there was a mortgage upon the records upon said land for $300, given by Martin and wife to E. Sanford, by Sanford assigned to Flanders; and that of said $300, $15 was usury; and asks that she may be allowed to redeem by paying only the alleged §285 principal and interest at six per cent., deducting payments already made. The answer denies any usury, and also claims that if the contract was usurious appellee could not take advantage of it, for the reason that Huriba t, the grantee of Martin, agreed, as part of the purchase money for the property, to pay the full amount of the mortgage and all interest at ten per cent, due thereon, according to the terms of the same, and that the full amount of principal and said interest was deducted by said Martin from the purchase money. The circuit court found that the mortgage was usurious, and decreed that the appellee might redeem by paying $285 and interest at six per cent, after deducting the payments. From which decree appellant appeals.

The two principal questions that are presented by this record for our examination are, 1st, was there usury in the transaction? 2nd, if there was usury can appellee take advantage of it?

The question as to whether there was usury can only be answered by ascertaining who made the loan and to whom did the money belong. McGill, who, from his testimony, seems to have been acting as agent of Sanford and of Martin in this loan, says: “ Have known Sanford ten years; have acted as local agent for him in loaning money in this county; he was to give me one per cent, on all loans approved by him. On that agreement I made two loans to T. I. Martin, of $300 each. Martin received $285 on each loan, Sanford $12, and 1 $3.” At the time this loan was made by McGill he received from Sanford the following directions". “ In loan to self to T. J. Martin I herewith inclose you the money in trust for the purpose of this loan, with statement as follows: amount of loan, $300; deduct fees four per cent, for me; amount enclosed for mortgagor, $288, in amount your fees. Be sure that all papers are properly executed and acknowledged.” The note and mortgage were executed to Sanford. Sanford says: “I had an arrangement with Trowbridge and others by which I could use money of theirs temporarily for such purposes until the loan should afterward be sold, and I did in this case use such funds, and the loan was afterward sold. The money belonged to Trowbridge, and I paid him interest on it at the rate of ten per cent, as long as I used it. A few days after the loan, Simon Flanders, who was a carpenter, bought the loan and paid $300 therefor.” We are satisfied that the loan in this case was made by Sanford; that in making it he used the money of Trowbridge under an agreement with him that he might so use it by paying him interest thereon at ten per cent, until the loan should be sold. When sold to Flanders he paid to Trowbridge the money he had thus used under this agreement with him, with interest thereon at ten. per cent. There was no error in the circuit court in holding that the original contract was usurious.

We are, however, of opinion that appellee can not take any advantage from the fact of the usury. She derives her title from Hurlbut and he from Martin, the mortgagor. The deed from Martin et ux to Hurlbut, of July 14, 1869, for the land cm! raced in this mortgage, and also another forty acres on which there was another mortgage for $300, has this provision: “Subject to two certain sale mortgages to E. Sanford of $300 each, and now of record on said land, situate in the county of Iroquois.” The mortgage referred to in said deed, which is now owned by Flanders, was of date July 21, 1875, and made to Sanford, on which there was an indorsement made by Sanford to Flanders. Martin and wife both state that the face of the note and interest due thereon in the mortgage specified was a part of the consideration for their conveyance to Hurlbut, and that it was deducted from the price. In Maher et al. v. Lanfrom et al., 86 Ill. 520-21 and cases there cited, “ If a party purchases from a mortgagor without any deduction from the price on account of the incumbrance, he thereby becomes invested with the right to interpose the same defenses as might have been made by the mortgagor. In such case the conveyance amounts to an authovity to the purchaser to interpose the defense of usury against the collection of the mortgage debt, without regard to the actual value of the property. But if tne sale is made subject to the mortgage and die amount of the incumbrance is deducted from the price, the grantee will not be permitted to malee the defense of usm‘y.” Cramer v. Lepper, 20th Am. Rep. 756 and note, 758; Hough v. Horsey, 11 Am. Rep 484; Picket v. National Bank of Memphis, 32 Ark. 346; Ferris v. Crawford, 2 Denio, 595. In this case Hnrlbnt bought subject to the mortgage and the face of the note, and ten per cent, interest was deducted from the price; he could not be permitted to make the defense of usury. Does his grantee, the appellee, occupy any better position than her grantor? The deed from Hnrlbnt to her contains this provision: “Subject to all legal claims the holder or holders of two certain mortgages on said tract may have by virtue of said mortgages thereon." Hnrlbnt had assumed to pay the amount of the face of the note and mortgage and interest thereon, according to the terms thereof, and the same had been deducted from the purchase price. Hnrlbnt had agreed to pay this money to the holder of the mortgages, an agreement in which Martin and the holder of the mortgages had an interest. The legal claim that the holder of this mortgage had at the time of this conveyance to appellee by Hnrlbnt was for the payment of the face of the note with interest at ten per cent., less payments. This is what she assumed to pay. In the case of Algy Dean for use, etc. v. Edwin Walker, 107 Ill. 540, this rule is announced: that a deed made subject to a mortgage which the grantee agrees to pay, or if the amount of the mortgage has been deducted from the purchase price and left in the hands of the grantee, the grantee will become personally liable to the holder of the incumbrance to pay the same. This rule applies equally when the owner sells and conveys the land incumbered by a mortgage which he had assumed to pay, or retained the amount thereof from the price. To one who, as a part of the consideration of his purchase, assumes to pay or retains the amount thereof from the price, the contract will be for the benefit of the holder of the mortgage. The law, operating on the acts of the parties, establishes a privity of contract between the grantee and tie holder of the mortgage, and an obligation arises on the part of the grantee fo pay the mortgage, and the mortgagee may, by an action in the name of the grantor for his use, maintain a personal action against the grantee for the same. The same rule was announced by Justice Walker in John M. Daub et al. v. Elizabeth Englebach, 109 Ill. 267. “This court has repeatedly held that a person purchasing lands and agreeing to pay off incumbrances on the land as part of the consideration for the purchase, becomes liable to pay the holder of the lien. Even if the mortgage was rendered void he, in equity, is still liable to pay the debt. He agreed to do so, and even if the mortgage was rendered void, that did not cancel the debt, nor did it release him from his legal liability to pay it. It will not be inequitable or unjust.” Ho more is required to be paid than was agreed to be paid by her; she will not be wronged out of a penny by paying the face of the note and ten per cent, interest thereon according to its terms, less paj'tnents.

It is, however, insisted by counsel for appellee that for the consideration of a lease for one year made by appellee to Martin for this land, that she obtained from him the right to interpose the defense of usury. We are of the opinion that Martin acquired by his lease no right which he did not already have under his lease from Hurlbut, and for which he had paid to Hurlbut $210, and we are not satisfied from the evidence that any authority was ever given by Martin to appellee. We are further of the opinion that Martin having conveyed to Hurlbut, subject to this mortgage, and having deducted the amount of the face of the note together with the interest thereon according to its terms, less payments, to the date of his conveyance to Hurlbut and left the same in his hands to be by him paid to the holder of the mortgage and note, and Hurlbut having convoyed the same to appellee, as we have seen, under similar conditions, Martin, if he had desired, had not the power to grant authority to the appellee to interpose this defense of usury. This is a bill filed by appellee to redeem. Martin, the mortgagor, is no party to this suit; appellant is asking no affirmative relief. Appellee has in her hands the full amount of the face of the note together with the interest thereon, less sncli amounts as are shown to have been paid, which was retained by her from the price of the land on the conveyance to her, by Ilurlbut, and interest thereon since that time. It would be inequitable and unjust to allow her to redeem said land for a less sum than the amount of the face of the note and mortgage and interest thereon according to the terms thereof, less such amounts as are shown to have been paid. If the mortgage debt were to be reduced on this application, by reason of the usury in the contract, it is manifest the appellee would get the land purchased for less than she agreed to pay for it.

The decree in this ease, allowing her to redeem by paying the sum of $285, with interest at six per cent, less such credits as have been shown, was erroneous. She should have been allowed to redeem on the terms that she should, by a day fixed by the court, bring and tender into court for the appellant, Flanders, the amount due upon the note and mortgage, together with interest thereon, according to the terms of the said note and mortgage, after allowing all just credits thereon, interest to be counted to the day of payment, and also that she pay the costs, and that in default of the payment of the amount so found to be due upon the note and mortgage for the principal and interest after allowing all just credits, that the bill be dismissed at appellee’s costs.

For the errors herein indicated this cause is reversed and remanded with directions to enter a decree in conformity with this opinion.

Reversed and remanded.


text:
    George Wilkinson v. Frances M. Doyle.
    As the same questions arise in this as in the preceding case, the cause is reversed and remanded for the same reasons.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. E. F. Bull, for appellant;
    that there was no usury in the loan, cited Kihlholz v. Wolf, 103 Ill. 362; Wilson v. Kirby, 88 Ill. 566; Cooper v. Nock, 27 Ill. 301; Ferguson v. Sutphen, 3 Gilm. 547; 1 Jones on Mortgages, p. 634; Trotter v. Curtis, 19 Johns. 160; Nourse v. Prime, 11 Am. Dec. 416; Colehour v. State Savings Institution, 90 Ill. 152; Phillips v. Roberts, 90 Ill. 492; Brigham v. Myers, 51 Ia. 397; Van Wyke v. Walter, N. Y. Ct. of Appeals, June 8, 1830.
    A defense of usury is denied one purchasing subject to a mortgage, when the mortgage formed a part of the consideration: Cramer v. Lepper, 26 Ohio, 59; Huff v. Horsey, 36 Md. 181; Pickett v. Mer. Nat. Bk., 32 Ark. 346; Lee v. Feamster, 45 Am. Rep. 549; Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, 45 Ill. 462; Sutherland on Damages, Vol. I, 563; Pinnell v. Boyd, 33 N. J. Eq. 190; Doleman v. Crane, 14 Ib. 63; Colebrook on Collaterals, page 162; Thacher v. Stone, 3 Pick. 253; Housatonic Bank v. Martin, 1 Met. 307; Rasley v. Dudley, 3 Id. 149; Gerrish v. Mace, 9 Gray, 239; Green v. Comb, 13 Mass. 513; Ready v. Heubner, 46 Wis. 792; Lamoille Co. Nat. Bk. v. Bingham, 28 Am. Rep. 490.
   Welch, J.

This was a bill file 3 by appellee, claiming that she was the owner of the northwest quarter of the southwest quarter of section 36, of township 28, N., R. 13, west of the 2d P. M., in Iroquois county. That she bought the same of Edward Hnrlbut, and that Hnrlbut bought from Thomas I. ■Martin; that there is a mortgage upon the records on said land for $390, given bv Martin et ux to E. Sandford, and by Sandford assigned to Mary Hoge, and by her assigned to appellant; that ot the said $3u0, $15 is usury; and she asks that she may be allowed to redeem by paying only the alleged $285 with six per cent, interest, deducting payments already made. The answer denies any usury and claims that even if the contract were usurious appellee could not take advantage of it, because Iiurlbut, as grantee of Martin, agreed, as part of the purchase money for the property, to pay the full amount of the mortgage and all the interest at ten percent, due thereon, according to the terms of the same, and that the full amount of the principal and interest then due on said note was deducted by Martin from the said purchase money. The circuit court found that the mortgage was usurious, and decreed that appellee could redeem by paying $285 and interest at six per cent, after deducting the payments; from which decree appellant appeals. Cross-error to dismiss appeal — motion to dismiss appeal overruled. The same two questions that arose in the case of Simon Flanders and E. Sandford v. Appellee, decided at this term, are presented in this case: first, was the transaction usurious; second, can appellee take advantage of such usury.

We are satisfied from the evidence in this case that the loan was made by Smdford to Martin, and that the loan was usurious — he paying to Martin $285 and taking a note and mortgage for $399, and that there was no error in the circuit court so finding. The note and mortgage in this suit are similar to the other note and mortgage described in the deed of Martin etux to Iiurlbut, and in the deed from Iiurlbut to the appellee, referred to in the case of Flanders et al. v. Appellee, supra. And we are of the opinion that appellee can not take advantage of such usury, for the same reasons and upon the same authorities referred to in that case. We hold that the decree in this case allowing appellee to redeem on the payment of the sum of $285, with six per cent, interest, after deducting credits, is erroneous. The decree should have been that the appellee should be allowed to redeem upon the bringing and tendering into court for the appellant the amount found due upon said note and mortgage according to their terms, after deducting all just credits, and this amount appellee should be required to bring in and tender by a day to be fixed by the court, the interest to be computed to the day of payment and that she also pay the costs; and that in default on her part, the bill will be dismissed at her costs. For the errors herein indicated this cause is reversed and remanded, with directions to enter a decree in conformity with this opinion.

Reversed and remanded.


text:
    Stein, Block & Co. v. Penrose D. Good.
    1. Judgment by confession. — To authorize a judgment to be confessed the plaintiff must file a declaration on his cause of action, a warrant, of attorney with proof of its execution, and a plea of confession. As no affidavit of the execution of the warrant of attorney'was filed, no jurisdiction was obtained, and no judgment was authorized to be entered. This is jurisdictional and can not be dispensed with.
    2. Practice — Warrant of attorney. — A judgment can not he confessed on a warrant of attorney which has been executed more than a year and a day, unless an affidavit is filed showing that the maker is alive, and that the debt or some part thereof is still clue. This is not jurisdictional, and the failure to file such affidavit can only be taken advantage of upon equitable grounds.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Grier & Dryden, for appellants;
    as to the appearance by an attorney, cited 1 Salkeld, 86 pl. 3, per Holt; 1 Keble, 89; Hayes v. Shattuck, 21 California, 51; Tally v. Reynolds, 1 Ark. 99; Dalton City v. Dalton Manfg. Co., 33 Geo. 243; Williams v. Butler, 35 Ill. 544; Harris v. Galbraith, 43 Ills. 309; State v. Caruthers, 1 Greene, Ia., 464; Norris v. Douglas, 5 N. J. L. (2 South), 817; Jackson v. Stewart, 6 Johnson, 34; Denton v. Noyes, 6 Johnson, 295; Henck v. Todhunter, 7 H. & J. 275; Beckley v. Newcomb, 24 N. H. 359; Dobbin v. Dupree, 36 Ga. 108; Lyon v. Williams, 42 Ga. 168; Flanigan v. Phila., 51 Pa. 494.
    The confession of a judgment by an attorney is conclusive of his authority so far as the validity of the judgment is concerned. If without authority, the remedy is by action against the attorney, or in a proper case an application may be made to open the judgment for defense: Cyphert v. McClune, 22 Pa. 195; Ingalls v. Sprague, 10 Wend. 675; Gaillard v. Smart, 6 Cowen, 386; Ackor v. Ledyard, 8 N. Y. 65; Bates v. Voorhees, 20 N. Y. 528; Hamilton v. Wright, 37 N. Y. 505; Brown v. Nichols, 42 N. Y. 26; Cox v. N. Y. C. R. R. Co., 63 N. Y. 119.
    As to filing affidavit of execution of warrant: Truett v. Wainwright, 4 Gilm. 411; Lake v. Cook, 15 Ill. 353; Iglehart v. Caurch, 35 Ill. 255; Iglehart v. C., M & F. Ins. Co., 35 Ill. 515; Fleming v. Jencks, 22 Ill. 474; Rising v. Brainard, 36 Ill. 79; Stuhl v. Shipp, 44 Ill. 133; Stewart v. Hibernian Banking Asso., 78 Ill. 596; Page v. Wallace, 87 Ill. 84.
    Hr. W. C. Norcross and Messrs. Williams, Lawrence & Bancroft, for appellee;
    cited Roundy v. Hunt, 24 Ill. 601; Durham v. Brown, 24 Ill. 93; Anderson v. Field, 6 Bradwell, 313; Frear v. Com. Nat. Bk., 73 Ill. 473; Tucker v. Gill, 61 Ill. 238; Hall v. Jones, 32 Ill. 41; Iglehart v. Chicago Marine Ins. Co., 35 Ill. 514; Iglehart v. Morris, 34 Ill. 502; Thomas v. Mueller, 106 Ill. 40.
   Welch, J.

A judgment by confession in favor of appellants against appellee, for the sum of four thousand and ninety-three dollars and sixty-nine cents and costs of suit, was entered before the clerk of the Circuit Court of Warren county, on the 26th day of December, 1884, in vacation, upon four promissory notes, with a warrant of attorney forming a part of each note, authorizing any attorney of any court of record to appear in term time or vacation and confess judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, with costs and five per cent, attorney’s fees, and to waive all errors in any such proceedings, etc. Execution was issued upon this judgment, and on the same day levied on the stock of goods of the appellee. On the 30th day of December, 1884, appellee presented to Judge John J. Glenn, at chambers, his application, and motion to quash the execution and vacate the judgment, assigning various reasons. Judge Glenn, at chambers, made an order staying all proceedings until the first day of the January term, 1885, of the Warren Circuit Court; at which time the motion was heard and allowed, execution quashed and judgment vacated, from which judgment and order of court this appeal is taken.

The judgment was entered in vacation upon a declaration, a warrant of attorney and cognovit filed with the clerk. Ho proof of the warrant of attorney was filed in the papers.

In the view we take of this case we only deem it necessary to examine the first and third reasons assigned by appellee to quash the execution and vacate the judgment.

The first reason assigned is, that the judgment upon which the execution issued is void. Third, that there was no proof of the execution of the power of attorney presented or heard at the time the judgment was entered.

The question of the power of the court to set aside or vacate judgments confessed in vacation or in open court has never been doubted in this Stite. It was recognized in the case of Sloo v. The State Bank, 1st Scammon, 428; Lyon v. Boilvin, 2d Gil. 629; Truett v. Wainright, 4 Gil. 415, and Lake v. Cook, 15 Ill. 356, and has been uniformly recognized by the courts of this State. The cases referred to, supra, were all cases where the confession was in open court. In the case of Lake v. Cook, supra, the judgment was entered at the November term, 1852. At the February term, 1853, Lake entered, a motion that the judgment, execution, and all proceedings subsequent to the declaration be set aside and that he be permitted to plead to the declaration and defend the suit. There was no question made in that case as to the proof of the execution of the warrant of attorney. In Fleming v. Jencks, 22 Ill. 475, judgment, entered in vacation. The only question noticed in that opinion was as to the power.of the court over such judgment. The question of the proof of the execution of the warrant of attorney is not referred to. In Durham v. Brown, 24 Ill. 93, Judge Breese uses this language: “ There was no affidavit tiled with the clerk proving the execution of the power of attorney to confess the judgment.” This was a judgment in vacation. There was tiled with the clerk a declaration, a promissory note with letters of attorney to confess judgment thereon attached and a cognovit. One of the errors assigned was that there was no sufficient proof of the execution of the warrant of attorney. The learned judge continues, “when the confession is by an attorney, one of the proper and indispensable papers would be the power of attorney, and for the want of the power of attorney, there being none filed, the judgment is reversed.”

The meaning of the court evidently is that one of the proper and indispensable papers would be an affidavit proving the execution of the power of attorney, and for the want of this affidavit the cause was reversed. That this is the true reading is evident from the fact that the opinion itself shows that the power itself was filed, and that the essential paper omitted was the affidavit proving the execution. The beginning and conclusion of this opinion can only be reconciled by adopting this interpolation. In Roundy, assignee, v. Hunt, 24 Ill. 600, which was a judgment in vacation, Justice Walker says: “As a condition to the right to confess judgment in vacation, the proper papers must be filed with the clerk. This requirement of the statute could have referred alone to the established practice in cases of confession of judgment in courts of record. That practice requires the plaintiff to file a declaration on his cause of action, that he shall tile a warrant of .attorney with proof of its execution, and a plea of confession. These, under the practice, constitute the proper papers to authorize the confession of a judgment.” In Hinds v. Hopkins, 28 Ill. 344, another and different question was presented, and that was the necessity of filing an affidavit that the debt is unpaid and the defendant living when the warrant of attorney is more than a year and a day old. In that case it was held necessary. Hall v. Jones, 32 Ill. 38, was the case of a judgment confessed in open court. One of the errors assigned in that case was that there was no proof of the execution of the warrant of attorney. Judge Breese says: “The next objection is that there was no proof of the execution of the warrant of attorney. The affidavit of Patton was full to the point;” and then refers to the case of Roundy, assignee, v. Hunt, supra, as to the legal presumption that the authority to confess was judicially passed upon by the court. In Iglehart v. Church, 35 Ill. 255, Justice Walker says: “The judgment in this case was confessed in open court, and the record shows that the court found that the power of attorney was proved. This was a fact that the court had jurisdiction to adjudicate and determine, and having found the fact, it is as binding and conclusive as any other within its jurisdiction. In the case of Iglehart v. Chicago Marine Ins. Co., 35 Ill. 515, the same judge says: “ This judgment was confessed in open court, and the presumptions are in favor of the regularity of all the proceedings. According to the rules of practice, it was necessary that proof should have been made of the execution of the warrant of attorney, before the judgment was confessed, and the evidence of that fact need not be preserved in the record, as it should when judgment is confessed in vacation before the clerk.”

In Rising v. Brainard, 36 Ill. 80, which was an application for a supersedeas, the error assigned was, that a judgment was entered in vacation by confession under a power of attorney upon a note, more than a year and a day after the note fell due, without proof that the defendant was then alive, or that the debt was then due. It was said, “ this court has held that an affidavit should be filed, showing that the defendant is alive, and that the debt is due and unpaid, when the judgment is entered in vacation more than a year and a day after the power was executed. But in such case the party aggrieved should apply to the court in which the judgment was entered for redress, where he may obtain it on motion if equitably entitled thereto, the party making the application being required to show some equitable reason therefor. Stuhl v. Shipp, 44 Ill. 133, was a confession made in vacation on a note and power of attorney more than a year and a day after the maturity of the note and of the date of the warrant of attorney, and no affidavit was presented that the maker was alive, or that the debt remained unpaid. The court say: “ The case of Hinds v. Hopkins, 28 Ill. 351, was so far modified in Rising v. Brainard, 36 Ill. 80, as to render it necessary to apply to the court below to set aside a judgment by confession, and to show some equitable reason therefor, before this court will reverse on the ground that the power of attorney was more than a year and a day old.” An examination of the record in Stuhl v. Shipp shows that the power of attorney filed was signed and duly acknowledged before a notary public, and his official seal attached. In Tucker v. Gill, 61 Ill. 238, Justice McAllister says: “ The expression upon filing the proper papers includes everything requisite by the common law practice in such cases.” In Roundy v. Hunt, 24 Ill. 598, which was a judgment in vacation under a statute precisely like that above referred to, the court said: “As a condition to the right to confess a j udgment in vacation, the proper papers must be filed with the clerk. This requirement of the statute could have referred alone to the established practice in cases of confession of judgment in courts of record. That practice requires the plaintiff to file a declaration On his cause of action, that he shall file the warrant of attorney, with proof of its execution and a plea of confession. These, under the practice, constitute the proper papers to confess judgment.” Frear v. Commercial National Bank, 73 Ill. 473, was a judgment confessed in open court. Justice Walker says: “ Tne confession was in open court, and execution of the warrant of attorney was duly proved and the court thus acquired complete jurisdiction over the parties and the subject matter.” In the case of Stewait v. The Hibernian Banking Association, 78 Ill. 596,which was a confession in open court, it was simply decided that in the absence of a bill of exceptions the court will presume sufficient evidence was offered to authorize the judgment. In the case of Anderson v. Field, 6 Bradwell, 313, it is said: “The court below had jurisdiction of the person of the defendant only by virtue of the warrant of attorney and the entry of appearance un ler the power therein contained. Proof of the warrant of attorney was therefore essential to the jurisdiction of the court over the person of the defendant, and such proof being wanting, the court was without jurisdiction.”

After a patient and thorough examination of the foregoing authorities we find that the only case that has been modified is that of Hinds v. Hopkins, supra, where it was held that it was necessary that an affidavit should be filed, showing that the defendant is alive and thatthedebt was due and unpaid when the judgment was entered, in vacation, more than a year and a day after the power of attorney was executed. This was modified by the rule stated in Rising v. Brainard and Stuhl v. Shipp, supra: “That before a judgment will be set aside because an affidavit was not filed, showing that the defendant was alive, and that the debt was due and unpaid, filie party making the application is required to show some equitable reason therefor.” That the cases of Durham v. Brown, Roundy v. Hunt, Tucker v. Gill, Frear v. National Bank and Anderson v. Field, supra, all hold that proof of the execution of the warrant of attorney is necessary to obtaining jurisdiction of the parties and subject-matter.

From the foregoing authorities we deduce two separate and distinct rules of practice: One, as announced in Durham v. Brown and Roundy v. Hunt, that to authorize a judgment to be confessed the plaintiff must file a declaration on his cause of action, a warrant of attorney, with proof of its execution, anda plea of confession; the othei-, announced in Hinds et al. v. Hopkins, a judgment can not be confessed on a warrant of attorney which has been executed more than a year and a day, unless an affidavit is filed showing that the maker is alive and that the debt or some part thereof is still due.

The rule as announced in Durham v. Brown and Roundy v. Hunt has been approved in Hall v. Jones, Iglehart v. Church, Iglehart v. Chicago Marine Ins. Co., Tucker v. Gill, Frear v. Commercial National Bank, and Anderson v. Field, supra, and the rule as announced in Hinds v. Hopkins, supra, has been modified to the extent as hereinbefore stated, by the cases of Rising v. Brainard and Stuhl v. Shipp, supra.

This case falls within the rule as stated in Durham v. Brown and Roundy v. Hunt, supra, and after its uniform approval, as we have seen, without modification, since it was announced, we see no good reason for departing from it in this case. Ho affidavit of the execution of the warrant of attorney having been filed, no jurisdiction was obtained and no judgment was authorized to be entered. We adopt the language of the learned judge who tried this case: “The objection in this case that there is no proof of the execution of the warrant of attorney is not like those cases that the court has been referred to, where the judgment is entered more than a year and a day after the power of attorney was executed, and no affidavit is filed that the defendant is alive and that the debt is due and unpaid. In the latter the proof required is of facts occurring after the execution of the power authorizing the entering of the judgment, in the former, of the execution of the power itself which confers jurisdiction. Ho court is vested with equitable power to confer jurisdiction of the person of the defendant. This can only be acquired in some of the modes prescribed by law.”

We are of opinion that there is no error in this record, and the judgment is therefore affirmed.


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    Levi S. Hodge v. Charles O. Boynton.
    The court is of opinion that the verdict is not contrary to the evidence and affirms the judgment.
    Appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. John L. Pratt, for appellant;
    as to when a court will reversea judgment, cited Miller v. Hammers, 51 Ill. 175; Adams Ex. Co. v. Jones, 53 Ill. 463; Reynolds v. Lambert, 69 Ill. 495; Belden v. Innis, 84 Ill. 78.
    Messrs. Jones & Bishop, and Messrs. Carnes & Denton, for appellee.
   Welch, J.

This was an atition of assumpsit upon the common counts, brought by appellee against the appellant. The claim, as shown by the bill of particulars filed with his declaration, ammnted to the sum of five thousand six hundred and forty-six dollars and thirty-three cents. Pleas of general issue and set-off filed. The trial resulted in a verdict for appellee for the sum of eight hundred dollars, from which was remitted by the anpellee one hundred and fifty-two dollars and ten cents, it appearing that the jury had not allowed appellant two per cent, per month on two notes introduced by him to sustain in part his plea of set-off, and judgment was rendered on the balance in favor of appellee. From which judgment this appeal is prosecuted.

The principal errors assigned are that the verdict is against the evidence, and that the court erred in modifying instructions for appellant.

It was held in Sullivan v. Dollins, 13 Ill. 85, that “a verdict Avill not be set aside merely because the evidence might incline the mind of the court to a different conclusion,” and in French v. Lowry, 19 Ill. 158, that “ unless the finding or verdict is clearly wrong it will not be disturbed;” and in Johnson v. Smallwood, 88 Ill. 73, that “ when the question is one of fact, purely for the jury, unless the verdict is clearly against the weight of the evidence the same will not be disturbed.” In Skiles v. Caruthers, 88 Ill. 458, that “ when the evidence is conflicting, if the finding of the jury is not clearly against the preponderance of the evidence, and the jury have been properly instructed, the verdict will not be interfered with.”

From the evidence in this case and in view of the authorities supra, we are not prepared to say that the court erred in not granting a new trial upon the ground that the verdict was clearly against the evidence.

Did the court err in modifying the instructions for appellant?- We think not. The first instruction without the modification assumed that the appellee had disposed of appellant’s property. The second instruction for appellant, as asked, Avas, “ The court instructs the jury that if you believe from the evidence that the plaintiff and defendant had a settlement on or about the 8th of December, 1880, of all matters of business between them, that then they are now precluded by said settlement, and the plaintiff has no right to recover for anything up to that time.” This instruction was qualified by adding, “ Unless the jury believe from the evidence that there were items or matters included in or left out of said settlement by fraud, accident or mistake, and if any such appears from the evidence, the parties are not concluded by said settlement as to such items.” This qualification was eminently proper, as held in the case of Bull v. Harris, 31 Ill. 487, and in Straubher et al. v. Mohler, 80 Ill. 21.

Perceiving no substantial error in this case, the judgment of the court below is affirmed.

Judgment affirmed.


author: Welch. J.

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    I. C. Persels v. James McConnell et al.
    1. Oottcer with execution — Replevin.—An officer having an execution in his hands which may be a lien on property, confers no right on him to maintain replevin. His duty is to levy the execution oh the property.
    2. Levy. — -In order to constitute a valid levy upon personal property, the officer must reduce the properly to possession, or at least bring it within his immediate control. Mere “ pen and ink” levy is not sufficient.
    3. Evidence — Materiality.—As there was nothing in the record to show how the evidence to which objections were made and sustained was material or relevant to any issue in the case, the judgment is affirmed.
    Appeal from the County Court of Grundy county; the Hon. A. R. Jordan, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. S. C. Stough and Messrs. Clover Bros., for appellant;
    as to levy, cited Forth v. Pursley, 82 Ill. 152; Logsdon v. Spivey, 54 Ill. 104; Freeman on Executions, § 260; Pierce v. Roche, 40 Ill. 292; Douglas v. Whiting, 28 Ill. 362; Bryant v. Dana, 3 Gilm. 343; Davidson v. Waldron, 31 Ill. 120; Howard v. Bennett, 72 Ill. 297.
    Mr. R. M. Wing, for appellees;
    cited Hotchkiss v. McVicker, 12 Johns. 405.
   Welch. J.

This was an action of replexfin brought by the appellant against the appellees. Trial, verdict and judgment for the appellees.

Appellant was a constable, and as such there was, on the 10th day of May, 1884, placed in his hands an execution that issued on a judgment rendered on the 25th day of March, 1884, by I. B. McGinnis, a justice of the peace, in favor of George W. Brown & Co., for the sum of $58.67 and costs, against Bichólas Henson. Appellant, on receipt of the execution, went to the residence of Henson to collect the money or levy the execution. He saw while there the property in controversy. He indorsed on the execution a levy on eighteen acres of growing oats and on an old bay mare, leaving the mare with Henson.

In order to support an action of replevin, it is notnecessary that the plaintiff should be vested with an absolute title to the property. It is sufficient if he has a general or special property therein, and is entitled to the immediate possession thereof. An officer having an execution in his hands, which may be a lien on property, confers no right on him to maintain replevin; his duty is to levy the execution on the property. In order to constitute a valid, levy upon personal property, the officer must reduce the property to possession, or at least bring it within his immediate control; a mere “ pen and ink” levy is not sufficient. Chittenden v. Rogers, 42 Ill. 100; The People v. Johnson, 4 Bradwell, 346. Such valid levy vests the title in the officer. Corbin v. Pearce, 81 Ill. 461; Mulheisen v. Lane, 82 Ill. 117.

Having in view these rules we will now examine the principal error assigned — the refusal of the court to admit proper evidence on the part of appellant. Appellant, in answer to a question asked by counsel for appellee, “ Is the property in this suit indorsed on the execution?” answered, “Ho, it was not indorsed.” He was further asked, Did you make a levy on this property with this execution?” To which he answered, “Ho.” lie was then asked by his own counsel, “ Why was the property mentioned not indorsed on the execution? Why have you not got this property, the corn-plant cr and scraper, and what arrangement did you make with Henson in regard to this property at the time you were there?” To each of the above questions objection was made and sustained.

We are unable to say that the objections were not properly sustained, and this applies with equal force to the remainder of the questions to which objections were made and sustained, there being nothing shown in the record how the questions or any answer thereto could be material or relevant to any issue in the ease. The record fails to show that any statement was made by the appellant as to what he proposed to prove by the answers to his questions, so that we might determine as to its relevancy or materiality. Appellant, as an officer, by virtue of this execution, without a levy on this property, had no such title or interest in the same as to authorize an action of replevin by him for it. As to what his reasons were for not indorsing the property on the execution, and why he has not got the property now, and what agreement he had made with Henson in regard thereto, could furnish no light upon the question as to his right to maintain this action. He made no levy by taking the property into his possession; he did not even make a “ pen and ink ” levy. No title or interest would vest in him by virtue of the execution except by a levy, and, as admitted by him, no such levy having been made, we are unable to perceive how he can maintain this action. No arrangements he might have made in relation to it with Hen - son, without having made a levy, could avail him anything.

Perceiving no error, the judgment is affirmed.


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    Northwestern Mutual Life Ins. Co. v. Martha E. Amerman.
    Insurance — Acceptance of premium — Waiver.—Acceptance of premiums by an insurance company, with the knowledge that the policy is subject to forfeiture by reason of the violation of a condition, is a waiver of the condition, and the policy will be binding.
    Appeal from the Circuit Court of Peoria county; the Hon David McCulloch, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Cratty Bros., Fuller & Gallup and Mr. Miles A. Fuller, for appellant;
    as to waiver, cited May on Insurance, § 361; Chicago Life Ins. Co. v. Warner, 80 Ill. 413.

      Messrs. Worthington & Page, for appellee;
    as to waiver of condition by acceptance of premia n, cited Conn. Ins. Co. v. Spankneble, 52 Ill. 53; Atlantic Ins. Co. v. Wright, 22 Ill. 462; N. E. F. & M. Ins. Co. v. Schettler, 38 Ill. 166; Lycoming Ins. Co. v. Barringer, 73 Ill. 230; Ætna Ins. Co. v. Maguire, 51 Ill. 342; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Phenix Ins. Co. v. Slaughter, 12 Wall. 404; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Ins. Co. v. Slockbower, 26 Penn. 199; North Berwick Co. v. N. E. F. & M. Ins. Co., 52 Me. 336; Viele v. German Ins. Co., 26 Ia. 9.
   Welch, J.

On the 11th day of February, 1882, the appellant issued a policy on the life of David A. Amerman for the sum of $1,000, payable, in case of his death, to the appellee. The premiums on said policy were to be paid semi-annually, at or before noon, on the 11th day of February and August in every year during the continuance of the policy. Among the conditions on which said policy was issued was the following: “This policy * * * is issued and accepted by the parties in interest on the following express conditions: If the said David A. Amerman * * * shall be personally employed * * * as engineer or fireman of any locomotive engine, or in switching or coupling or uncoupling cars, or be employed in any capacity on the trains of a railroad, except a passenger or sleeping-car conductor, mail agent, express messenger or baggage master, without in each or either of the foregoing cases having first obtained the written consent of the company * "s * or if any of the statements in the application for this policy shall be found in any respect untrue, then, and in every such case, this policy shall be void.” Upon this policy the first premium was paid at the time the policy was issued,’and the second premium was paid to J. N. Foger, the local agent of the appellant, residing at Beoria.

No further premiums were paid, Amerman having been killed in coupling cars, at Cruger, in Woodford county, Illinois, about 8 o’clock a. m., February 11, 1883. When killed he was employed as conductor of a freight train on the Wabash railroad, and in the discharge of his duties as such went between two flit cars loaded with bridge timber to make a coupling and was killed. Proof of death was made by appellee, the beneficiary in said policy, and the appellant declining to pay, appellee brought this action of assumpsit on the policy. Appellant filed a general demurrer to the declaration, which was overruled. Appellant then filed the general issue and two special pleas. The first special plea is, in substance, that the policy of insurance sued upon provides that if the person whose life is insured shall, without the written consent of the company insuring same being first had, become personally engaged or employed in switching or coupling or uncoupling cars upon a railroad, then such policy becomes null and void. That the insured did, after the issue of such policy and without the written consent of the company, become so engaged and employed, etc. The second special plea, that the policy of insurance sued upon in this case provides in substance, that if the person whose life is insured shall, without the written consent of the company insuring same being first had, become engaged or employed in any capacity on the trains of a railroad, except as passenger or sleeping car conductor, mail agent, express messenger or baggage master, then such policy becomes null and void. That said insured did, after the issue of such policy, and without the written consent of the company first had as aforesaid, become engaged and employed in a capacity on the trains of a railroad other than passenger or sleeping oar conductor, mail agent, express messenger or baggage master, etc. Similiter as to general issue; demurrer to first and second special pleas; demurrer overruled. Appellee replies to first special plea, that the insured did not, after the issue of said policy, without the consent of the appellant, become engaged and employed in the switching and coupling and uncoupling of cars upon a railroad. Avers that appellant, with knowledge of the fact that insured was engaged and employed upon the trains of a railroad in said capacity, afterward, to wit, on July 1, 1822, notified him that his premium would be due August 11,1882, and requested its- payment, and that assured paid same on August 11th, and defendant accepted same and gave a receipt therefor, to the effect that said policy was thereby made binding for six months from said August 11th. That on January 3, 1833, defendant sent insured a semi-annual notice that the premium would be due February 11, 1833, and that before August 11, 1883, said Amerman died, and that it received from plaintiff the amount of the premium upon said policy accruing August 11, 1883; wherefore defendant waived the benefit of said clause in said policy, and is estopped to plead the same, etc. And as to the second special plea appellee replied that appellant, with full knowledge of the fact that insured was engaged and employed in a capacity on the trains of a railroad otherwise than as a passenger or sleeping car conductor, mail agent, express messenger, or baggage master, waived said condition in said policy, and on August 11,1883, accepted and received $13.47 in full payment of semi-annual premium due, according to the terms of the said policy, and issued its receipt therefor, providing that said policy was thereby made binding for six months from August 11,1883, and that appellant had waived the said condition. A second replication to said plea was filed setting up that the appellant, long prior to July 1,1883, had knowledge of the fact that insured was employed and engaged as a conductor of a freight train without the written consent of the appellant, and having this knowledge, did, on July 1, 1883, notify insured that his premium would be due on August 11, 1833, and that in compliance with said notice the insured made payment on August 11, 1883, and that appellant gave its receipt countersigned by its agent, stating that such policy was thereby made binding for six months f.'ora said date; and that on the 3d day of January, 1883, s ill with said knowledge, appellant sent the insured a setniammal notice that his premium would fall due on February 11, 1833, and that appellant is estopped to plead same, etc. Rejoinder to and traverse of each replication. Trial and verdict for appellee for $1,000. Motion for new trial; motion overruled and judgment; irom which this appeal is taken.

Under the issues and evidence in this case is appellee estopped from insisting on a forfeiture of the policy?

On the 20th day of April, A. D. 1882, Amerman wrote to Dean and Payne, general agents of appellant at Chicago, that on the 11th day of February lie was insured in appellant’s company for $1,000, and at the time was employed as clerk i:i the Wabash railroad office, but had recently gone on the road braking, with the expectation of something better, and to inform him if there would be any change in his policy, if so, what change. On May 1st Dean and Payne wrote him that the company would not issue permits for his present business and advised him to take out an accident policy for six months or a year. “In the meantime you may quit braking, when our policy will be good.” On the 1st day of July, 1882, a notice by the appellant was given David A. Amerman, the insured, of the semi-annual premium due and payable on the lltli day of August, 1883, and in pursuance of that notice Amerman paid to the agents of appellant the semi-annual premium due on said policy August lltli, and received from appellant the following paper: “Northwestern Mutual Life Insurance Company Policy No. 112,006, insuring the life of David A. Amerman, is hereby made binding for six months from the 11th day of August, 1882, providing payment as per margin is made in due time, and the receipt is countersigned by I. N. Foger, agt, Peoria; ” “ This payment and receipt shall not have the force or effect to continue the policy beyond the period above stated.” The margin referred to was the receipt for the payment made as above stated, August 11th. On the 2d day of January, 1883, notice by the appellant was given to said Amerman of the semi-annual premium due February 11, 1883.

The company, with full notice, on the 20th of April, 1882, that the insured had engaged in a business that subjected his policy to forfeiture, on July 1st notify him to pay his semiannual premium on August lltli, and in pursuance of that notice he pays the same, and they issue to him a paper continuing his policy for six months, and then again on January 2d give him another notice of the semi-annual premium due February 11th.

As was well said in Commercial Ins, Co. v. Spankneble, 52 Ill. 57, “Itwould be a fraud to permit the company to receive the premium when they knew the policy was not binding and which they never intended to pay.” Acceptance of premiums, knowing that the policy is subject to forfeiture by reason of the violation of a condition, is a waiver of the condition, and the policy will be binding.

We are of the opinion from the evidence in tills case that appellants waived the forfeiture, and are now estopped to invoke it as a defense in this action. There was no error as to the admission of evidence or in the instructions.

The judgment is affirmed.