text:
    Riley Knowles v. Hiram Knowles.

      Negotiable Instruments—Notes—Consideration—Compromise of Doubtful Bight—Duress—Ademption—Propositions of Law.

      1. The compromise of a doubtful right, in the absence of fraud and with full knowledge of the facts by all concerned, is a sufficient consideration for a promise.
    2. In an action upon promissory notes given under a compromise agreement, this court holds that the evidence fails to show that the compromise was brought about by fraud or duress, and declines to interfere with the judgment in behalf of plaintiff.
    [Opinion filed September 21, 1888.]
    Appeal from the County Court of Menard County ; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. T. W. MoHeely and 1ST. W. Branson, for appellant.
    The will of the appellant’s father gave him an undivided one-third interest in the testator’s real and personal estate, the same as it did his brothers Hiram and Prettyman, after providing for a few small bequests to others. It is true, appellant had signed a paper, in his father’s life-time, purporting to release his expectancy in his father’s estate. But his father afterward died testate, and by his will he devised one-third of his estate to appellant. Conceding, for the sake of the argument, that if Marvel Knowles had died intestate, a court of equity would have given force to appellant’s release of his expectancy in his father’s estate, yet the fact remains that Marvel did not die intestate, but on the contrary, left his last will and testament, which was intended, and in law and equity is held to be the authoritative expression of his last will and intention in regard to the disposition of his estate. That will took effect, not from its date, nor from the date of appellant’s release, but from the date of the testator’s death. Every will is construed with reference to the real and personal estate therein devised, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
    “ The very nature of the testamentary act, which is expected to take effect only at the time of the decease of the testator, presupposes, that so far as facts and circumstances are susceptible of anticipation by him, so as to enable him to place himself in the position he will then he in relatively to his property and his obligations to his family, he will have used the language of his will with reference more particularly to that period.” 1 Redfield on Wills (2d Ed.), *379-380. See also notes,
    ,e General devises and bequests seem to have been universally construed to include all which it was in the power of the testator to dispose of, which, as the law now stands, in most of the American States, will embrace all the testator’s estate, whether real or personal, at the time of his decease.” lb. *385-6, and authorities cited.
    M A will speaks from the death of the testator and not from its date, unless its language, by fair construction, indicates the contrary intention.” Canfield v. Bostwick, 21 Conn. 550; Updike v. Tompkins, 100 Ill. 406.
    Then the pretense of Lowe and Bobinson as to appellant’s inability to hold under, the will, when they talked him into signing the notes, was false and fraudulent. The professional knowledge and character of these men gave them a manifest advantage over the plain farmer with whom they were dealing ; they took an undue advantage of their opportunity, and misled him and betrayed his confidence.
    There was no other consideration to the notes sued on, and there was no pretense of any other consideration". The only inducement urged for the giving of the notes was appellant’s alleged liability on the indebtedness which his father had released him from, and his alleged inability to take under the will. The testimony is conclusive to this effect. Then as both of these inducements were false and fraudulent, there was no consideration whatever.

      If it be contended that there was some sort of moral obligation on part of appellant to pay the discharged indebtedness, which would furnish a sufficient consideration for a new promise, such contention, in the light of authority, is not in accordance with the law.
    A promise to pay a debt, after it has been released by the creditor, is not binding for want of consideration; and there is no moral obligation on the released debtor which is a sufficient consideration for a new promise ; and there is a distinction between the case of a debt discharged by the voluntary act of the creditor, and the case of a debt discharged by some positive provision of Jaw. Hale v. Hale, 124 Mass. 292; Ingersol v. Martin, 58 Md. 67; 42 Am. Rep. 322; Stafford v. Bacon, 1 Hill, 532; Warren v. Whitney, 42 Me. 561; Montgomery v. Lampton, 3 Metc. 519; Shepard v. Rhoades, 7 R. I. 470; Valentine v. Foster, 1 Met. 522; Snevily v. Reed, 9 Watts, 396; Wright v. Clarke, 34 Miss. 116; Mason v. Campbell, 27 Minn. 54.
    The principle of ademption or satisfaction of a legacy by a subsequent gift, is applicable only to legacies of personal property, and not to devises of land. “ The principle of ademption by subsequent portion has not been applied to devises of real estate.” 2 Redfield on Wills, 539, Ed. 1866.
    A devise of real estate can not, like a pecuniary legacy, be affected by any subsequent transaction between the testator and the devisee, but must stand until it is revoked or altered in the manner prescribed by law.” Allen v. Allen, 13 S. C. 512; 36 Am. Rep. 716.
    The principle of ademption, or presumption of satisfaction, will not apply where the legacy and the subsequent portion or gift are not ejusdem generis. 2 Redfield on Wills, 538; 1 Pomeroy’s Eq. Jur. 602; 2 Story’s Eq. Jur., Sec. 1111.
    The principle of ademption will not apply, nor the presumption of satisfaction arise, where the bequest to the child is of a residue, or of some portion of the residue, in -which case it is not regarded as a portion. A residue is always changing. 2 Redfield on Wills, 539.
    “Ho presumption of an intention to adeem arises where the bequest is of a residuum or of an interest therein, and this because a residuum or an interest therein can never be regarded as a portion, strictly speaking, inasmuch as the amount is necessarily of an uncertain character, and hence the presumption against double portions does not arise.” Allen v. Allen, supra; Farnham v. Phillips, 2 Ark. 215; Freemantle v. Banks, 5 Ves. 85.
    Mr. S. H. Blank, for appellee.
    Under the law of “ademption,” as laid down by the authorities, appellant’s legacy or bequest under the will had been “adeemed” or satisfied by the testator by the subsequent gift to appellant of the §2,716. Pomeroy’s Equity Jurisprudence, Yol. 1, Sec. 553 et seq.

    “ Where a parent gives a legacy to a child, not stating the purpose with reference to which he gives it, the court understands him as giving a portion; and, by a sort of artificial rule, upon an artificial notion, and a sort of feeling upon what is called a leaning against double portions—if the father afterward advances a portion on the marriage of that child, though of less amount, it is a satisfaction of the whole or in part.” See also Story’s Eq. Jur., 2d Vol., Secs. 1110 to 1118 inclusive.
    If the ground taken by appellant’s counsel, that in order to support a promise to pay a disputed claim such claim should be sustainable at law or in equity, be correct, it would not sustain the ground of defense in this case, because there existed in favor of the payee of the notes a sustainable claim in equity; but we do not think the position tenable, nor in accordance with the decisions of our Supreme Court “The compromise of a doubtful right is a sufficient consideration for a promise; and it is immaterial on whose side the right ultimately turns out to bo, as it must always be on one side or the other, because there can be but one good right to the same tiling.” McKinley v. Watkins, 13 Ill. 140; Miller et al. v. Hawker, 66 Ill. 185; Honeyman v. Jarvis, 79 Ill. 319; Bond v. Coats, 16 Ind. 202; Chitty on Contracts, 5th Ed., p. 29; Chitty on Contracts, 5th Ed., p. 44; Zane v. Zane, 6 Munf. 406; Hindert v. Schneider, 4 Ill. App. 203.

      In the case of Zane v. Zane, supra, the court say: “The compromise of doubtful and conflicting rights and claims, and the settlement of boundaries, is not only a good consideration to uphold an agreement, but is highly favored in law.”
   Wall, P. J.

This was an action of assumpsit by appellee against appellant upon two promissory notes. The defense interposed was want of consideration. The case was tried by the court, a jury being waived, and there was judgment for the plaintiff, from which an appeal is prosecuted to this court.

The principal facts disclosed by the proof are that the appellant, the appellee and Prettyman Knowles were the sons of Marvel Knowles; that the latter, who resided in Indiana, held promissory notes signed by the appellant, amounting to <1)2,700; that in April, 1882, an agreement between appellant and his father was entered into by which the latter surrendered these notes to the appellant and he, the appellant, executed a written instrument by which, in consideration of the cancellation of said notes, he released all interest he might have in the estate, real or personal, of his father.

Previous to this date the father had made his will, by which he gave the main part of his property, real and personal, to Ms said three sons. This will he never changed, notwithstanding the release executed by appellant, and he died in July, 1883, leaving it as his last testament. Soon after his death, the appellant made the claim that under the will he was entitled to one-third of the lands left by his father, in Indiana, and after some discussion of the matter his brothers were induced to make him a deed therefor in recognition of the claim. Shortly after, it was discovered that the deed did not properly describe the lands, whereupon appellant conveyed back to his brothers, and the latter then conveyed to him the land by a correct description; but before this last deed was made, appellant having set up a claim to a share of the personal estate, the question was agitated as to his liability upon the old notes surrendered to him when he executed the release above mentioned.

Appellant was invited to the house of Mr. Lowe, who was an attorney for the brothers, Hiram and Prettyman, where he remained from four o’clock in the afternoon until three o’clock the next morning.

The conference resulted in his giving the notes in suit with others, in all amounting to §1,800.

He insists that he was overeached by the attorneys of his brothers; that he was made to believe if he claimed one-tliird of the estate under the will he would be'compelled to pay the §2,700 which he owed his father, and that suit would be brought against him on that liability if he did not adjust the matter. His testimony as to what occurred at that time is uncontradicted. Assuming this statement to be true, the question is whether there was such a want of consideration as to render these notes invalid for that cause.

The giving of the notes in suit was evidently a settlement of the whole controversy in regard to the estate, and another deed was executed by Hiram and Prettyman for one-third of the lands, which deed contained also the following provision: “ And it is agreed by the grantors that they, as heirs of Marvel Knowles, hereby release the grantee from all obligations and release which said Riley Knowles incurred and referred to in a certain release executed by him to the said Marvel Knowles on the 2d day of May, 1882.”

It is quite certain that there was a dispute and serious controversy as to the right of appellant to take under the will after he had received a cancellation of his notes of §2,700 and released his claim upon his father’s estate.

Ho doubt the testator supposed, whether correctly or not, that, holding this release, it was unnecessary to change or modify his will to conform to the understanding then arrived at, and it was clearly and palpably inequitable for appellant, under the circumstances, to insist upon taking under the will without accounting for the notes which had been surrendered to him. We are not advised what might or might not have been the result of the litigation in the State of Indiana, nor do we feel called upon to determine what would have been the result of such a controversy in the State of Illinois. There was a moral obligation, if nothing more, resting upon appellant to make good the §2,700 if he participated in the estate, and there was such substantial ground of controversy upon common law principles that he or any man might well have considered it very doubtful whether he would not finally be required to meet the demand thus asserted by his brothers, and in such case he may well have considered it the part of wisdom to make an equitable adjustment of the matter, thus ending amicably what might have been a bitter and losing contest.

The doctrine of ademption was perhaps, if not probably, applicable so far as the personal estate is concerned, and how much there was of that does not clearly appear.

We can not see that any fraud or duress was employed to induce the making of this settlement. Appellant was not misled in supposing that the advice and arguments of the attorneys were at all disinterested, for he knew these attorneys were representing his brothers. In dealing with them he could not regard them as his advisers; he and they stood at arms’ length, and he saw fit to use his own judgment in refuting or conceding their arguments. It was his privilege to 'withdraw and take legal advice from those who were not in the employ of his adversary, hut he did not choose to doy so. He had confidence in his own capacity to determine what was best to be done, and he does not pretend that he was in anywise deceived as to the facts.

He claims merely that in a cause where he constituted himself a judge he mistook the law and erroneously decided against his own rights. It is unnecessary to refer to the many authorities that are in point, and we cite only the case of Honeyman v. Jarvis, 79 Ill. 318, where the subject is thoroughly discussed. The principles there stated furnish ample ground for the position of appellee that there was a valid consideration for the notes now sued upon. It was there said that the compromise of a doubtful right, though it should afterward turn out the right was on the other side, where there is no fraud and the parties act in good faith with full knowledge of the facts, is a sufficient consideration for a promise, and, quoting from Ohitty on Contracts, “ the real consideration which each party receives under a compromise being not the sacrifice of the right but the settlement of the dispute and the abandonment of the claim, it is no objection to the validity of the transaction that the right was really in one of the parties and that the other had no right whatever. The fact that one may have had no claim is immaterial if he was honestly mistaken as to his claim.”

It is manifest that the validity of the settlement can not depend upon the accuracy of the conclusion reached by the parties. The right must always be on one side or the other, and therefore the compromise of a doubtful right is a sufficient foundation for an agreement. Otherwise, the agreement would stand only in ease it should be ultimately decided that it correctly settled the rights involved, and the making of a compromise would be work in vain—merely child’s play, settling nothing.

The first question, therefore, in such cases, must be whether there was such a controversy as that it might properly be said there was a doubtful right. If there was, and it was adjusted by the parties without fraud and upon a full knowledge of the facts, it ought to stand as the parties fixed it. We find no occasion to dissent from the conclusion reached by the trial court as to the facts.

Complaint is made that the court refused to hold propositions Nos. 6 and 7 offered by appellant. In the view we take of the case these propositions were inapt and imperfect in their assumed statement of the issues raised by the proof, and it would have shed no light upon the subject to have held them; hence it was no error to refuse them. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    Mary Dunphy et al. v. James Gorman et al.

      Fraudulent Conveyances—Principal and, Surety—Judgments—Subrogation—Merger—Parties—Remittitur.
    1. Where a conveyance is fraudulent as to creditors the grantee is not entitled to peaceable possession of the property conveyed, so long as other means of the grantor remain unexhausted.
    2. Where a voluntary conveyance is made the presumption of fraud may be rebutted by proving that the provision was reasonable and that enough was retained by the grantor to preserve his solvency, the burden of proof being on the donee.
    3. A surety upon paying the debt of the principal has a clear right to be substituted in place of the creditor as to all securities held by the latter. A judgment paid by him will be kept alive for his benefit.
    4. In the case presented this court declines to interfere with the decree finding the conveyance in question fraudulent.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Jersey County; the Hon. George W. Hebdhan, Judge, presiding.
    Mr. A. A. Goodrich, Thomas F. Ferns, and James B. Ward, for appellants.
    It is a settled question of law that a husband has the right to provide a home for his wife and to this end may convey to her real estate which will be a valid transfer as to all the world except as to existing creditors, and the transfer will be held good as to them when the debtor retains sufficient property to pay his debts. Giddings v. Watson, 53 Ill. 186; Bridgeport v. Riddle, 55 Ill. 261; Pratt v. Myers, 56 Ill. 23; Bittinger v. Kasten, 111 Ill. 260.
    “ The principal ground upon which a court of equity entertains a creditor’s bill, is that the. remedy at law has been exhausted. In order to maintain a creditor’s bill, it must appear that a judgment has been rendered, an execution has been issued and placed in the hands of a sheriff, and that it has been returned no property found.” Preston v. Colby, 117 Ill. 484; Newman v. Willetts, 52 Ill. 98.
    Where a judgment is recovered upon a judgment, the latter is merged in the former and all its liens or priorities are released. Gould et al. v. Hayden et al., 63 Ind. 443, and also see authorities therein cited; Frazier v. McQueen, 20 Ark. 68; Boynton v. Ball, 105 Ill. 634.
    It follows, therefore, at the time of filing the bill complainants could not be put in position to enforce the original Kingston judgment for the reason it had become merged—extinguished—and there was no right of Mrs. Kingston remaining in respect to this judgment, to which complainants could be subrogated.
    A surety who pays the debt is entitled to he put in the place of the creditor, and to all the means, and to every remedy which the creditor possesses to enforce payment from the principal debtor, and hence the surety can obtain no greater right, or obtain a better position, than was held by the original creditor. 1 Story’s Equity, 447 etseq.; Kirkpatrick v. Howk, 80 Ill. 122.
    Mr. Jos. S. Cabe, for appellees.
    Courts of equity will not apply the technical doctrine of merger where the intention or just interests of the parties require the incumbrance kept alive. Fowler v. Fay et al., 62 Ill. 375; Edgerton et al. v. Young et al., 43 Ill. 465; Richardson v. Hockenhull, 85 Ill. 124; Worcester Nat. Bank v. Cheeney, 87 Ill. 602.
    In this case the lands conveyed to Mary Dunphy were clearly liable for the payment of the judgment debt of Patrick Dunphy and others to Kate 0. Kingston, and at the same time these sureties were by virtue of the appeal bond, personally bound for the same debt; and they being compelled by execution to pay that debt, are entitled to be subrogated to Mrs. Kingston’s rights in the premises. Young v. Morgan, 89 Ill. 199; Beaver v. Slanker, 94 Ill. 175.
    Hor is the fact that Mrs. Kingston’s judgment has been paid in full to militate against their right of subrogation; for that judgment is to be, by equity, kept alive, and they be subrogated to all her rights as a judgment creditor. Bispham’s Equity, Sec. 336; Story’s Equity, Sec. 327; Rice et al. v. Rice et al. 108 Ill. 204.
    Where the grantee’s title is tainted by fraud he has no right to say that all other means to satisfy the debt shall be exhausted before he could be disturbed in his title. Newman et al. v. Willetts, 52 Ill. 102.
   Wall, P. J.

Kingston obtained a judgment in the Circuit Court against Dunphy and four other persons, from which an appeal was prosecuted unsuccessfully to the Appellate Court, whereupon an action was brought upon the appeal bond and judgment w.as rendered accordingly against the original judgment debtors and their sureties, upon which latter judgment the appellees, Gordon and Long, who were two of the sureties, paid in part satisfaction thereof $516.75, the residue being paid by other parties thereto.

The appellees then filed their bill in chancery charging that after the original judgment was obtained and before it was affirmed, Dunphy conveyed his real estate to his wife without consideration, and with the fraudulent purpose of hindering and delaying his creditors, and praying that'they might be subrogated to the rights of the judgment creditors in that behalf; upon which bill a decree was granted substantially as therein prayed.

It is now objected to said decree that it did not appear from the proof that Dunphy, by said conveyance, rendered himself insolvent, there being evidence tending to show that he still retained personal property worth more than the amount of the judgment. The conveyance was no doubt made, as found by the decree, with the fraudulent intent of defeating creditors, and in such case the conveyance is void as to the creditor, who has the right to place himself in the same position he would have occupied had it never been made. “ The grantee’s title being tainted with fraud, he has no right to say that all other means shall be exhausted before ,lie shall be disturbed in his title.” Miller v. Davidson, 3 Gilm. 518; Weightman v. Hatch, 17 Ill. 281.

Where a voluntary conveyance is made by a debtor the presumption of fraud may be rebutted by proving that the provision was reasonable and that enough was retained by the grantor to preserve his solvency. The burden of proof is on the donee, and the proof must -he clear and satisfactory. If there is reasonable doubt of the adequacy of the grantor’s means, then the conveyance must fall, for the effect of it is to hind el- and delay his creditors. Bump on Fraudulent Conveyances, 276-285.

There can he no question, however, upon the facts in this record, that the moving purpose in making the conveyance was to put the property beyond the reach of creditors ; not merely to make proper provision for the wife, who was the grantee.

It is objected also that appellees produced no judgment against Dunphy, and it is contended this was essential to justify relief in a court of equity. The position is not well taken. A surety upon paying the debt of the principal has a clear right to be substituted in place of the creditor as to all securities held by the latter, and to have the same benefit he would have had therein. 1 Story Eq. Jur., Secs. 327,499, 502.

The judgment will be kept alive for the benefit of the surety notwithstanding he has paid it, and he will be permitted to enjoy as against the principal debtor exactly the same advantages which could have been claimed by the judgment creditor. Rice v. Rice, 108 Ill. 204; Bispham’s Eq., Sec. 336.

Equally untenable is the point that the original judgment had been merged in the judgment upon the appeal bond and therefore the relief could not be granted.

The statute makes a fraudulent transfer void as against creditors. Chap. 59, See. 4. And the term creditor has received a liberal construction. The character of the claim, if just and lawful, is not material. It need not be due when the fraudulent transfer is made. It may be absolute or contingent. A liability as surety is as much within the statute as a liability as principal. Bump on Fraudulent Conveyances, 502-3-7-8; Choteau v. Jones, 11 Ill. 300; Hatfield v. Merced, 82 Ill. 113.

When this fraudulent conveyance was executed the appellees were bound as the sureties for the grantor upon the appeal bond, which was subsequently .reduced to judgment and paid in part by them. It is immaterial to inquire whether the judgment appealed from was or was not merged in the judgment on the bond.

Error is also assigned upon the exclusion of certain testimony of the wife. This testimony related to the financial condition and business transactions of Dunphy. It is apparent that if it had been considered the decree could not have been otherwise and we need not, therefore, determine whether it was competent or not.

It is next urged that, as appeared from the answer and proof, there were other persons not parties to the record who should have been brought in. These persons were the children and heirs-at-law of Dunphy, who died after the bill was filed, intestate. The conveyance in question was void as against the creditor but not as against the heirs. As between the parties it was valid. 1 Story Eq. Jur., Sec. 371.

The heirs of Dunphy were not interested in the subject matter of the litigation and were not proper parties to the suit.

It is suggested that the decree is excessive as to the amount. A remitUtv/r has been entered in this court which, as we understand, will obviate the objection.

The decree will be affirmed. Affirmed.


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    Alonzo A. Hill v. Jaba Bell et al.

      Unprotected Tumbling Bods—Statute.

    This court reverses a judgment obtained for bulling clover, because of the failure on the part of plaintiff to comply with the statute in regard to the protection of tumbling rods.

      [Opinion filed September 21, 1888.]
    Appeal from the County Court of Brown County; the Hon. J. J. MuBohxold, Judge, presiding.
    " Mr. W. L. Yahdeveítteb, for appellant,
    Mr. J. 0. Thompson, for appellee.
   Wall, P. J.

The appellees recovered a judgment against the appellant for 87-25 for services in threshing or hulling clover. This work was done with a machine connected by a tumbling rod, in sections, with a horse power, and the defense was, that the statute in relation to protection against accidents in the use of such tumbling rods was not complied with. The statute is as follows (1 Starr & CL, Ill. Stat. 1292):

“ Section 1. That all persons in this State who are, or who may hereafter own or run any threshing machine, corn sheller or any other machine which is connected to a horse power by means of tumbling rods, or line of shafting, shall cause such and every length or section of such tumbling rod (except the one next the horse power), together with the knuckles or joints and jacks thereof, to be safely boxed or secured while running.

“ Section 2. Any person owning or running any machine^ as mentioned in section one of this act, without complying with the requirements of the aforesaid section, shall be liable to the person damaged for any damage which may be sustained by any such person by reason of such neglect, and no action shall be maintained, nor shall any legal liability exist for services rendered by or with any such machine, when it shall be made to appear that the first section of this act has not been complied with.”

There was no pretense that the rods or jacks were secured in any manner, but there was proof that the knuckles or joints were protected by a contrivance which was, probably, sufficient.

Hor was there any proof that by the use of this device all danger in respect to the unprotected part of the tumbling rods and jacks was avoided.

The jury were properly instructed by the court upon the point involved, and as there is no conflict in the evidence, we are required to determine whether the verdict can be sustained.

We assume there can be no doubt that recovery is precluded unless the statute was substantially complied with, and we shall enter into no discussion in that regard. The requirement is that each and every length or- section (except the one next the horse power), together with the knuckles or joints and jacks thereof, be safely boxed or secured. There were two sections, exclusive of the one next the horse power, and there were two jacks, and the only attempt at “ boxing or securing” was at the joints or knuckles.

One of the jacks was in the section next the horse power, and the location of the other is not shown.

How, in the absence of all proof that the use of the patent joint or knuckle made the whole tumbling rod secure, the conclusion is irresistible that a substantial part of the rod, to wit, the two sections not next the horse power, between the joints, was wholly unprotected. Security is required by the statute as to those parts as well as the rest, if the language employed is to receive the meaning it naturally imports. It is argued, however, there is no appreciable, if any, danger in the use of tumbling rods except at the joints, and when these are made safe the spirit of thelaw is satisfied, and we grantthat if it so appeared by the proof there would be support for the verdict.

As it is, however, we feel constrained to say that the jury were without warrant in the conclusion reached, and much as we regret to reverse so small a judgment, it is a matter of duty to do so. The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Congee, J.

text:
    William Riley et al. v. The People of the State of Illinois.

      Criminal Lato—Riot—Dispute as to Boundary Line—Removal of Fence— JSvidence.

    The paramount owner of land having a present right of immediate possession may enter the same though occupied by another, and by himself or his servants remove a fence wrongfully erected thereon; and the persons who remove the same will not be guilty of riot unless they act in a violent and tumultuous manner against the person or property of the trespasser.
    [Opinion filed September 21, 1888.]
    Appeal from the County Court of Greene County ; the Hon. L. Larkin, Judge, presiding.
    In this case the appellants, William Riley and Timothy Sullivan, with others, were indicted by the grand jury for riot at the September term, 1887, of the Greene County Circuit Court, and on certificate, a trial was had at the December term, 1887, of the County Court, resulting in the conviction of the defendants, William Riley and Timothy Sullivan, on the first count in the indictment, and fines of $50 imposed upon each of them, from which judgment they prosecute appeal to this court. The other defendants were discharged.
    The first count in the indictment charges that on the 23d day of April, 1887, the said Riley and others unlawfully, with force and violence, did break and deface a certain fence, etc., the property of Conner Carmody, against the wish and will of Conner Carmody, etc. The second count charged that the fence was broken unlawfully and in a riotous and tumultuous manner, etc. As the conviction is upon the first count, the main question in this case is, Was the act of William Riley and Timothy Sullivan an unlawful act, done with the force and violence contemplated in the statute defining a riot? A brief statement of the principal facts in the order of their occurrence will show, we think, that the acts of the accused were not only lawful but entirely proper under all the circumstances.
    In 1857 William E. Davis conveyed to the Jacksonville and Carrollton Eailroad Co. a piece of land 1,221 feet long by 250 feet in width, at Carrollton, Illinois, for depot and right-of-way purposes, lying near the center of section 23; 125 feet of the strip being in the N. E. J and 125 feet in the E. W. I of section 23, the center line of the section north and south being the center line through the strip north and south, along which the main track of the railroad was laid over twenty 3rears ago. William E. Davis then owned a small farm lying on the east of the depot grounds, and prior to 1866 he constructed a rail fence on the line between his farm and the depot grounds. Davis repaired the fence on same line, and after his death Conner Carmody came into possession of the farm and also 'repaired the same fence, and for over twenty years the “Davis fence,” so-called, has been the line dividing the farm now owned by Carmody from the depot grounds. Daring all this time these grounds have been tinder the control of the railroad company, and have been leased by the company at various times for lumber yards, tile factory, etc., and in 18— the C. & A. Eailroad Company leased all the east half of the grounds to L. S. Bushnell, who had the actual possession of the same as such tenant in March and April, 1887, at the time of the occurrences hereafter mentioned. On the lower part of this strip was a tile factory building, and grounds inclosed on the east by the old “ Davis fence,” and on the west by a fence put up by the tile factory company, and in this inclosure a spur from the railroad track was run, and Bushnell had cordwood and other property therein. In March, 1887, Conner Carmody had White, County Surveyor, make a survey, and by virtue of this survey he made claim to a portion of Bushnell’s inclosure, and against the objections and protest of Bushnell, commenced to take it within his pasture, and in doing so tore down andhauled away the lower end of the old Davis fence, and entered upon the railroad grounds leased to Bushnell, and then put up a slat and wire fence, taking into his pasture a strip twelve to fifteen feet in width, and moved Bushnell’s cordwood to make way for his fence. Carmody had full notice that this ground was claimed by the railroad company and he was forbidden by Bushnell, lessee, and by the officers of the company from trespassing upon it. In defiance of all this he forcibly entered and put up. the fence which he claims was unlawfully broken on the 23d day of April, 1887. William Biley, general roadmaster of the C. & A. B. B. Co., acting under the orders of C. H. Chappell, general manager of said company, with other employes under him, came to Carrollton with lumber and material to build a fence upon the line of the old Davis fence, and in a peaceful manner cut Carmody’s wire fence in sections, moved all the material of it into Carniody’s pasture and were proceeding to put up a fence on the old line where the Davis fence had stood, when he and his workmen were arrested on complaint of Carmody. There was no riotous or tumultuous conduct, and no violence was used toward Carmody.
    The obstruction placed by Carmody was simply removed in a peaceable manner.
    Mr. Henry C. Withers, for appellants.
    The C. & A. R. R. Co. and its tenant, Bushnell, had the lawful right to regain possession in a peaceable manner, and this is all that was done by Biley and his workmen. Ill. & St. L. R. R. & Coal Co. v. Cobb, 94 Ill. 57; Sattler v. The People, 59 Ill. 68; Reeder v. Purdy, 41 Ill. 285; Fort Dearborn Lodge v. Klein, 115 Ill. 191.
    There was no evidence on the part of the people of any riotous or tumultuous conduct, nor proof of any unlawful act. An unlawful act must be done to constitute a riot. Dougherty v. The People, 4 Scam. 179; Legg v. The People, 92 Ill. 598.
    The County Court erred in allowing evidence in regard to the survey of J. C. White.
    The railroad company and its predecessors had held continuous and peaceable possession of the ground.on which Carmody put his fence for over twenty years, and the survey of J. C. White, in March, 1887, could not change the boundary lines so long established. Besides this, the White survey is shown by his testimony to be uncertain and unreliable. Title of lands can not be determined by criminal prosecution. The admission of this testimony prejudiced the jury and misled them as to the issue. The plat made by J. C. White for Conner Carmody was not a “ record of survey ” and should have been excluded. This survey was made twenty years after Davis had built his rail fence on the line and it is clear that it was improperly admitted in evidence in this case. Kyle v. Town of Logan, 87 Ill. 66.
    Mr. David F. King, for appellees.
   Congee, J.

The evidence shows that the railroad company was in the peaceable possession of the strip of ground in controversy prior to the time that Carmody entered and built his fence.

Carmody having invaded the possession of the company and erected his fence upon the land in their- possession, the principal question arising upon the record is, could the appellants as servants of the company enter in the manner they did and remove such fence without being guilty of a riot.

The first count of the indictment charges that the said Riley and others unlawfully, with force and violence, did break and deface the fence, etc.; while the second charges that the fence was broken unlawfully, and in a riotous and tumultuous manner, etc.

In Fort Dearborn Lodge v. Klein, 115 Ill. 191, it is said : It is clear, then, from the very words of the statute, that the paramount owner of a tract of land, having a present right of immediate possession, may enter the same in a peaceable manner, though occupied by another, and he will not, by reason of such entry, become a trespasser.”

. The word, “ entry,” occurring in the statute, is used in its appropriate legal sense, as signifying that remedy which the common law gives to the paramount owner of real property to redress, without legal process, the inj ury which he sustains when wrongfully deprived of the possession thereof by one having no right thereto.

The appellants having a legal right to enter, were not guilty of committing an unlawful act, and could not be guilty of the offense charged in the indictment, unless in removing the fence, as they lawfully might, they acted in a violent and tumultuous manner against the person or property of Carmody. We.think the evidence entirely fails to show that they thus acted.

Carmody says ° 65 On Saturday, when Riley came with the men, I was sitting on my porch, and when I went down to where they were at work, they were digging post holes where the old Davis fence had stood. I had them arrested and started this prosecution. The railroad men were very quiet. There was no loud talking and no disturbance.”

The evidence entirely failed to sustain the indictment and a new trial should have been awarded. The judgment of the County Court will be reversed and the cause remanded.

Reversed and, remanded


author: Congeb, J.

text:
    David Quick v. I. & St. L. Ry. Co.

      Master and Servant—Personal Injuries—Contributory Negligence— Mules and Megulations—Special Findings.
    In an action by a railroad employe for an injury suffered by him while engaged under a car, this court declines to interfere with the judgment for the defendant, notwithstanding a general verdict- for the plaintiff, the special findings of the jury showing contributory negligence on Ms part.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. C. B. Smith, Judge, presiding.

      Messrs. Cbaig & Cbaig, for plaintiff in error.
    Messrs. John T. Dye and William H. Dye, for defendant in error.
   Congeb, J.

This is an action brought by plaintiff in error against defendant in error, for an injury resulting to him from the moving of a car on a track in the yards of defendant in error at Mattoon, Illinois.

Plaintiff in error was in the employ of defendant in error as a carpenter, and as a part of his duty, went under a car standing upon a side track in the yard to make some repairs upon it, and while so underneath it, the switch engine ran against the car, moving it forward, and thereby seriously and permanently injured plaintiff in error.

The jury returned a general verdict in favor of plaintiff in error for §500, and also returned answers to the following questions submitted to them at the request of the plaintiff in error, as follows:

Q. Was the plaintiff injured by the defendant? A. Yes.
Q. Was the plaintiff in the employ of the defendant at the time he was injured? A. Yes.
Q. Is the plaintiff injured permanently? A. Yes..
Q. Was Severns a person who used intoxicating liquors to excess? A. Yes.
Q. Had Severns been using intoxicating liquors a short time previous to his sending the engine to get the car? A. Ho.
Q. Could the engineer have seen the person at work under the car had he looked in time to have stopped his engine before he struck the car? A. Ho.
Q. Did the engineer fail to ring the bell or sound the whistle after going on the track that the car was on that was being repaired? A. Yes.

And the jury answered the questions submitted to them by the court at the request of defendant as follows:

Q. Did the injury complained of in the declaration result from the moving up a car on a track in the yards of the defendant, in the attempt to attach a locomotive thereto while Quick was at work making repairs under the car? A. Yes.
Q. Were any flags displayed on said car, or in front of the same, to warn the engineer of the approaching train, of the fact that plaintiff was at work under said car? A. Ho.
Q. .Was any signal or warning of any kind given to the engineer of the approaching train, of the fact that the plaintiff was at work under said car? If so, what signal or warning was given ? A. Ho.
Q. Were there blue flags in the yards of said company where said accident occurred, at the time Quick went under said car, provided for the express purpose of being used as signals of danger, when car repairers or inspectors should be at work under cars? A. Yes.
Q. At the time Quick went under said car to work, did he know these blue signal flags were in the yard? A. Yes.
Q. Did the rules of the defendant company provide that when making repairs to cars standing on the main track or side track they must protect themselves by placing a blue signal in the draw-head or on the platform of the car at each end of the train, to prevent the cars from being coupled to, or moved while they are making repairs? A. Yes.
Q. Did the plaintiff, Quick, at the time he went under the car, before the happening of the accident complained of, display any blue flag or signal of any kind, to protect himself from danger of the car being coupled onto, or moved while he was under the car? A. Ho.
Q. Did he ask for, or inquire after the signal flags, to get them for his own protection? A. Ho.

The Circuit Court rendered a judgment for the defendant in error upon the special findings of the jury, notwithstanding the general verdict in favor of plaintiff in error.

The jury found that the rules of the company required Quick, before going under the car, to place the signal flag upon it, so that it might be known to the other employes in the yard, that such car could not be moved; that he knew at the time that these flags were in the yard; hut, that neither the flags required by the rules of the company, nor any of the signals of any kind were displayed by plaintiff in error to protect himself from the danger of having the car moved while he was underneath it. These findings show such negligence on the part of plaintiff in error as to preclude a recovery.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Conger, J.

text:
    Jackson Johnson et al. v. Elisha Lawson.

      Negotiable Instruments—Note—Liability of Sureties—Fraudulent Declarations—Admissibility of.

    In an action against a surety on a promissory note, who claims to have become such because of fraudulent representations, it is error to exclude the representations in question.
    [Opinion filed September 21, 1888.]
    In- error to the Circuit Court of Scott County; the Hon. George W. IIerdman, Judge, presiding.
    Messrs. J. M. Riggs, T. H. Devine and James CAllans, for plaintiffs in error.
    The compromise of a doubtful right, though it afterward turns out the right was on the other side, where there is neither actual nor constructive fraud, and the parties act in good faith, with full knowledge of the facts, is a sufficient consideration to support a compromise. Honeyman v. Jarvis, 79 Ill. 322; Miller v. Hawker, 66 Ill. 187; Mulholland v. Bartlett, 74 Ill. 62; Parker v. Enslow, 102 Ill. 277; Daffin v. Roberts, 9 Ill. App. 103.
    But the claim must have been made in good faith; the plaintiff must have honestly believed he had a good cause of action; the compromise must have been fairly entered into with full knowledge of the facts, and there must have been neither actual nor constructive fraud.
    In the following cases it has been held that where a party makes a misrepresentation about the title to land, the fact that he has a deed or mortgage of record which will show the truth, makes no difference, and will not avoid the effect which his misrepresentations will otherwise have. Parham v. Randolph, 4 How. (Miss.) 435; S. C., 35 Am. Dec. 405, 406; Eppy v. Withrow, 7 Watts, 168; Campbell v. Wittingham, 5 J. J. Marsh, 96; S. C., 20 Am. Dec. 246; Kennedy v. Johnson, 2 Bibb, 12; S. C., 4 Am. Dec. 667; Napier v. Young, 6 Yerg. 108; Young v. Hopkins, 6 T. B. Mon. 23; Mattoon v. Young, 45 N. Y. 702; Raley v. Williams, 73 Mo. 310; Markham v. O’Connor, 52 Ga. 183; S. C., 21 Am. Rep. 250.
    If, as averred in the pleas, the defendant in error made fraudulent misstatements of a material character, with the intent to deceive plaintiffs in error, or either of them, and for the purpose, as averred, of preventing them, or either of them, from searching the records, and they, or either of them, in ignorance of the truth, relied on such material misstatements, and would not otherwise have signed either of the notes mentioned in this case, these facts constitute a full defense to the note in suit, even though the truth might have been learned by searching the records; and the evidence offered by plaintiffs in error ought to have been admitted.
    Messrs. James Warren and Morrison & Whitlock, for defendants in error.
   Conger, J.

This was an action of assumpsit upon a note for §570.40 given by plaintiffs in error to defendant in error, dated March 20, 1886. To the declaration a plea was filed setting up that prior to that time John Johnson, a brother of plaintiff in error, had bought from Dawson forty acres of land and given in payment therefor his note for §1,067.66, with Jackson Johnson, one of the plaintiffs in error, and one Isaac Johnson, as sureties; that it was understood and agreed by said John Johnson and his sureties, of which the plaintiff had, at the time, full knowledge, that John Johnson should give such sureties a mortgage upon the forty acres to indemnify them; that such mortgage was thereafter so executed on the 19th day of March, 1886, and that on the next day Isaac Johnson paid one-lialf of said note, and plaintiff in error Jackson Johnson, for the other half, gave the note in suit with William Johnson, the other plaintiff in error, as his surety ; that said plaintiff in error, Jackson Johnson, gave said note relying solely on said mortgage as indemnity, which defendant in error well knew, and_said defendant in error repeatedly theretofore, and then and there falsely told said Jackson Johnson that he had no mortgage on said forty acres of land, and that it belonged to said John Johnson; that such false statements were made to deceive and mislead said .Jackson J olinson and to prevent him from searching the record; that he did rely upon them, etc.; that Dawson had before that time taken a mortgage from John Johnson upon said forty acres for its full value ; and that John Johnson was and still is solvent.

[Replications were filed denying that the consideration of the note was as represented in the pleas, but averring that Dawson had brought suit in attachment upon the note for §1,067.66, and that the note in suit was given for one-lialf of said original note upon the consideration of dismissing said attachment suit- and releasing Isaac Johnson from liability.

Other replications deny that defendants in error relied upon any statement of Dawson, or that he made any such statements as set forth in the pleas.

By the pleadings, therefore, the issue was presented whether or not the execution of the note in suit was procured by the false and fraudulent statements of defendant in error, that he held no mortgage which would interfere with the one already executed to Jackson Johnson and Isaac Johnson, or whether it was given as stated in plaintiff’s replication. The Circuit Court, recognizing in the instructions that this was an issue in the case, gave the following-instruction :

“Mol. That this suit is on the note in evidence,and the execution thereof is admitted by the pleadings, but defendants have set up as a defense that the consideration of the note was the assurance of the plaintiff that he had no mortgage or lien on the land mentioned in the pleas at the time said note was signed. The burden is on defendants to sliow by evidence that Dawson gave such assurance to defendants, or one of them, and that the same was the consideration of the note sued on.”

The court, however, refused to allow plaintiffs in error to show the statements of defendant in error, which they proposed to introduce to sustain their plea.

This was error. All the circumstances, and statements of the plaintiff which would have tended to throw light upon the question at issue should have been allowed to go to the jury. For the error indicated the judgment of the Circuit Court will be reversed, and the cause remanded.

Reversed and remanded.


text:
    The Phœnix Insurance Company v. Catherine Van Allen et al.

      Fire Insurance—Trover for Value of Policy—Breach of Condition— Adjustment of Loss—Compromise Settlement—Fraud.

    1. A compromise settlement of a loss under a fire insurance policy, freely entered into by the assured, should not be disturbed in the absence of fraud.
    2. In the case presented, this court reverses the judgment for the plaintiff as contrary to the evidence.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Edgar County; the lion. J. F. Hughes, Judge, presiding.
    Messrs. White & Weight and H. R Tarree, for appellant.

      Messrs. Horace S. Clark and Isaac H. Van Dyke, for appellees.
   Wall, P. J.

The appellees recovered a verdict and judgment thereon against appellant for $338.75. The form of action was trover, for the value of an insurance policy issued by the appellant to appellees covering certain property therein named against loss, etc., to the amount of $2,200. A fire occurred destroying the barn, being a part of the property included in the policy, and notice was given to the appellant.

An adjuster of the company visited the appellees, and representing that the title to the property was not correctly stated —that a mortgage had been placed upon the real estate, that foreclosure proceedings had been commenced and that the right to the property insured was not jointly in the appellees —expressed the opinion that the policy was worthless Appellees insist that he also threatened to sue upon a premium note then held by the company; and have them taken to town on account of it. The adjuster offered to pay $80 and give up the premium note then held by the company, which being refused, he offered $100 and the note. This last offer was accepted, and a receipt was signed which acknowledged full settlement of the loss and cancellation of the policy.

The appellees received a check for the money, the adjuster took the policy and, a few days after, Edward Van Allen, one of appellees, called on the attorney of the company and received the note. The present suit is based on the theory that, by reason of fraud, the appellees had the right to recover the value of the policy, which was taken from them without their consent. They insist they did not understand the policy was to be given up, though the appellee, Edward Van Allen, is by no means clear in this assertion—in one part of his testimony admitting that he understood the policy was to be canceled, and it is certain he knew it was actually taken away by the adjuster. The wife, Mrs. Van Allen, is more emphatic and consistent in her testimony. The receipt signed hy them on that occasion they say they did not read nor did they know what it contained, though it is not pretended that the contents of it were falsely stated. This testimony is opposed by that of the adjuster and of Mr. Ficklin, an attorney who went with him, and by the production of the receipt and the policy.

It a'so appears that there was a mortgage upon the real estate, executed by appellees after the issuance of the policy, which, according to the terms of the policy, would vitiate the insurance, and it appears that the ownership of the property was incorrectly stated in the application, though it is contended, and perhaps truly, that any error in this respect was chargeable to the agent of the company, who filled up the application upon answers or statements made to him by the assured.

Considering the whole case as it appears in the record, carefully weighing and analyzing the testimony of each witness, we regard the verdict as opposed to the clear preponderance of the evidence. We have no doubt the appellees knew, at the time, they were surrendering the entire policy, and that the only real question of fact is whether the circumstances of the settlement show such unfair and fraxxdulent conduct on the part of the adjuster as to warrant the jxiry in disregarding it for that reason; and xxpon this point we think the clear weight of the proof is with appellant. The only threats charged by appellees were that suit woxxld be brought and they woxxld be taken to town on account of it. In sxxbstance, the remainder of the assertions of the adjuster, according to the version of the appellees, amounted to no more than the expression of his opinion as to the value of the policy.

While the appellees were probably no match for him in such a discussion, yet they knew he was the paid agent of the company, and that they were not to rely xxpon him as their friend or adviser, and if they chose to concede his views and settle accordingly they ought to abide by what they were then satisfied with.

It is quite probable the making of the'mortgage was fatal to the insurance; at least, in order to avoid sxxch a result, some excuse, answer or waiver not now sxxggested woxxld have been necessary, and there certainly was enough room for question as to the validity of the policy to justify a compromise of the controversy. It .would not comport with justice to set aside the settlement upon the grounds here asserted. A sound public policy requires that settlements, when fairly made, should be sustained, and that parties should not be tempted or encouraged to find reasons for breaking them.

We think the court erred in not granting a new trial. The judgment will be reversed and the cause remanded.'

Reversed and remanded.


text:
    Henry C. Latham et al. v. David E. McGinnis et al.

      Landlord and, Tenant—Forcible Detainer—Bill—Injunctions—Farlies —Pleading—Chancery Jurisdiction—Sec. 14, Chap. 80, JR. S.

    1. Upon a bill to enjoin a sale, use, or removal of a crop by a tenant owing rent, an objection that the complainants have no joint or common right to the rent claimed should be raised by demurrer to the bill, and comes too late after answer filed.
    2. Where equity has jurisdiction it wi 1 not be ousted merely because jurisdiction of the subject-matter is conferred by statute on the courts of law.
    [Opinion filed September 21, 1888.]
    In ekeob to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    In the spring and summer of 1884, William W. McGinnis and David E. McGinnis, brothers, and large farmers in Sangamon county, became heavily involved in debt and their creditors began to press them for payment. They were not partners, but William W. (whom the witnesses in the case call Wash McGinnis) had indorsed the paper of his brother, David E. (whom the witnesses call Erv McGinnis) at the Marine bank in Springfield, for a large amount of money, and was liable as such indorser, and for this the bank was pressing him.
    This was the situation when, in April, 1884, William W. McGinnis tirged his brother, David E., to relieve him from his liability as indorser. Accordingly they together went to the Marine bank, where David E. owed over §13,000, and in the presence of Mr. B. JEL Ferguson, the president of the bank, it was agreed between them that David E. would convoy to William W. McGinnis real estate to the amount of §10,391.50 in value, and that William W. would pay that amount to the bank in reduction of David E. McGinnis’ indebtedness.
    It was further agreed that David E. was to stay on the land as a tenant and pay a fixed rent for the same to William W. The deed was accordingly executed by David E. McGinnis and wife and delivered to Ferguson at the hank to be given to William W. when he credited his brother’s notes to the amount of the consideration named in the deed. The credits were made and the deed duly delivered.

    Afterward, in February, 1885, William W. McGinnis was compelled to make an assignment for the benefit of his creditors, and to this end he conveyed all his property, both real and personal, by deed, to Henry C. Latham, trustee, and among the lands so conveyed were the north 133\ acres of the ET. E. £ of Sec. 1, Town. 14 ETorth, Bange 7, West 3d P. M., and being a part of the land which he had purchased as aforesaid from his brother Ervin. Under this deed of trust Latham succeeded to the rights of William W. McGinnis in said land, collected the rents from it for two years from David E. McGinnis, and in October, 1885, sold the land to Thomas Fernandes, under the powers contained in the trust deed at the end of the' second year’s tenancy. March 1, 1886, David E. McGinnis refused to surrender the possession of the premises to Fernandes, although the statutory notice had been given terminating the tenancy, and Fernandes proceeded, first by an action of forcible detainer, and afterward by ejectment to obtain the possession. While these actions were pending David E. McGinnis continued in possession of the land, refusing to pay rent.

      This was the condition of affairs on February 18, 1887, when the bill in this case was filed. The bill, in addition to the above facts, avers the insolvency of the defendant, David E. McGinnis; that said defendant is a tenant wilfully holding over without leave ; that the rent for the year 1886, amounting to about $600, will be due and payable March 1, 1887; that there is no fund or property from which to make said rent except the com crop grown upon said premises during the year 1886, and the great danger that said crop will be sold, used or removed ; prays an injunction restraining the sale, use or removal of said crop, and for an accounting, etc.
    Messrs. Greene & Humphrey, for plaintiffs in error.
    Messrs. Gross & Broadwell, and J. F. Barrow, for defendant in error.
    Our statute provides that when, before the rent is due, the tenant is about to dispose of the crop, and thereby endanger the landlord’s rent, the latter may proceed at once by distress. Sec. 34, Chap. 80, 2 Starr & C. Ill. Stat, p. 1507.
    The remedy at law being speedy, adequate and complete, resort to equity is not allowed. A party can have no standing in a court of equity when he has a complete remedy at law. Craft v. Dickens, 78 Ill. 131; Long v. Barker, 85 Ill. 431; Gore v. Kramer, 117 Ill. 176; Sec. 178, Pomeroy’s Equity Jurisprudence.
   Conger, J.

We aré of opinion that the evidence supports the allegations of the bill, and shall only notice two of the objections relied upon by the defendants in error, viz:

1. “By the averments of the bill the three complainants had no joint or common right to the rent claimed, • and therefore there could be no decree in their favor.”
2. “A court of equity, on the facts averred, has no jurisdiction.”

As to the first objection, it is sufficient to say, that it should have been raised by a demurrer to the bill. It is too late to do so after answer filed.

The second objection,that there was an adequate remedy at law and for that reason equity would not assume jurisdiction, we do not think can be sustained. Prior to the passage of Sec. 14 of Chap. 80 of the Eevised Statutes in 1873, it is quite clear there would have been no adequate remedy at law for the collection of the rent in question by either Latham or Fernandes.

The former could not distrain for the rent because he had sold the land, and no longer had any interest in it, and the latter could not do so because David McGinnis, the tenant of Latham, had never attorned to him, and, therefore, under such circumstances, the tenant being insolvent and the rent being in danger of being lost, equity assumed jurisdiction.

It is not necessary to determine the question whether Sec. 14 of Chap. 80 gave Fernandes, the grantee, the same right of distress that his grantor, Latham, had, or not, because if the subject-matter of the suit at bar was a proper subject of equity jurisdiction prior to the passage of that section, it still remained so, even though now, under its provisions it should be held that Fernandes could proceed by distress so soon as he obtained the title, and without an attornment from the tenant.

The rule is well recognized, that where equity has jurisdiction, and an act of the Legislature confers like jurisdiction on a court of law, it then becomes concurrent in two courts. Jurisdiction having once vested in a court of equity, it remains there until the Legislature shall abolish or limit its exercise ; as, without some positive act, the reasonable inference is, that it is the legislative pleasure that the jurisdiction shall remain upon its old foundations.” McNab v. Heald et al. 41 Ill. 330; Story’s Eq., Sec. 641.

It was error to dismiss the bill, and the decree will be reversed and the cause remanded.

JReversed and remanded.


author: Per Curiam.

text:
    Hiram D. Hart v. Rudien Lemmon.

      Slander—Instructions—Evidence.

    In an action for slander, this 'court declines to interfere with a verdict for the plaintiff, although the instructions given are somewhat faulty and so numerous as to be calculated to confuse, rather than enlighten, the jury.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Adams County; the lion. William Maesh, Judge, presiding.
    Messrs. Bonnet & Woods, for appellant.
    Messrs. Caster & Govert, for appellee.
   Per Curiam.

This was an action for slander, in* which appellee recovered a judgment for §100 against appellant.

Appellee’s third instruction was faulty, as there was not sufficient evidence upon which to base it, and the trial court should not have given the large number of instructions asked. They could only tend to confuse, and not enlighten, the jury.

Notwithstanding this error, which probably did not induce the verdict, wre think the law of the case was substantially given to the jury and that the verdict was fully warranted by the evidence, and there is no good ground for interfering with it. The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Chicago, Springfield & St. Louis Railroad Co. v. Henry H. Beach et al.

      Railroads—Removal of Track from Right of Way—Trespass—Chattel Mortgage—Possession and. Ownership—Evidence—Instructions.

    1. An action of trespass may be maintained by the general owner of property entered upon, where there is no actual possession.
    2. In an action of trespass an instruction is erroneous which assumes that the plaintiff failed to show ownership and possession of the properly in question, there being prima facie and uncontradicted evidence thereof.
    3. Extrinsic evidence may be resorted to for the purpose of identifying property covered by a chattel mortgage.

      4. The rule that a written agreement can not be contradicted, enlarged or varied by parol proof, does not apply to a controversy between one of the parties thereto and a third person.
    5. It is proper to refuse an instruction when the matter contained therein appears in others which are given.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Montgomery County; the Host. J. J. Phillips, Judge, presiding.
    Messrs. Conklins & Grout and J. A. Connolly and G. L. Zinic, for appellants.
    The real owner of an interest in real estate, though not in actual possession, can maintain trespass against an intruder upon the same, where there is no adverse possession. The owner’s constructive possession is sufficient to maintain the action. Gould v. Sternburg, 4 Ill. App. 439; Halligan v. Chicago & Rock Island R. R. Co., 15 Ill. 558; Barber v. Trustees of Schools, 51 Ill. 396; Smith v. Wunderlich, 70 Ill. 426; Cairo & St. L. R. R. Co. v. Woolsey, 85 Ill. 370.
    The same rule prevails as to personal property. Gauche v. Mayer, 27 Ill. 134.
    It is a rule of uniform application, that parol or other extrinsic evidence may be resorted to for the purpose of identifying property sold or mortgaged. Bell v. Prewitt, 62 Ill. 361; Mattingly v. Darwin, 23 Ill. 567; Hartford Fire Ins. Co. v. Hadden, 28 Ill. 260; Pike v. Colvin, 67 Ill. 227.
    Hor does this rule infringe upon the other rule, that a written agreement can not be contradicted, enlarged or varied by parol. Marshall v. Gridley, 46 Ill. 251.
    But this latter rule applies only in suits between the parties to the instrument and does not apply to the case at bar, because this suit is between one of the parties and a third person, in which case the rule is not applicable. Needles v. Hanifan, 11 Ill. App. 303.
    And a stranger (in this case the Chicago, St. Louis. & Chicago R. R. Co.) to a written instrument, i. e., chattel mortgage, when his rights are concerned, is at liberty to show by parol evidence that the contract, i. e., mortgage, of the parties is different from what it purports to be on the face of the writing. Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71.
    Messrs. Lane & Cooper and J. M. Truitt and J. A. Atterbury, for appellees.
    Trespass to realty is a possessory action, and it will not be questioned that before appellant could recover against appellees it was necessary for it to show title to the railroad by showing by written evidence that it had an easement in the street which gave it the right to lay its track where the same was situated, or actual possession of the property in controversy. This elementary principle has been fully sustained by the following cases: Webb v. Sturtevant, 1 Scam. 181; Dean v. Comstock, 32 Ill. 173.
    In Dean v. Comstock, supra, the court say: “ It is a settled principle in this action, that the plaintiff must have the actual or constructive possession of the locus in quo. The gist of the action is the injury to the possession. If the premises are actually occupied the action must be brought by the party in possession; if they are vacant and unoccupied the party having the legal title has the right of possession and must bring the action. Halligan v. Ch. & R. I. R. R. Co., 15 Ill. 560.”

      In Webb v. Sturtevant, supra,, the court say : “In actions of trespass guare clausum, fregit, the law is well settled that possession of the close is sufficient to sustain the action against any person who shall enter upon that possession except the owner. The possession, where that alone is relied on, must, however, be an actual and not a constructive possession.”
   Wall, P. J.

The appellant brought trespass guare clausum fregit, against the appellees, for entering upon a certain railroad track, situate on Adams street in the city of Litchfield, and removing the ties, rails, plates, nuts, bolts, etc., before then being a part of the said track. The pleas were not guilty, and justification under a chattel mortgage executed by the Empire Construction Company, then owning and possessing the property in question.

Issue upon these pleas being submitted to a jury, there was a verdict for appellees, and a motion for new trial having been overruled, judgment was rendered against appellant for costs.

The Springfield & St. Louis Railroad Company, its successors and assigns, had permission under an ordinance of said city, to lay its track in Adams street. The evidence tended to prove that said company transferred its rights to the appellant, Chicago, Springfield & St. Louis Railroad Company; that such transfer was recognized by the city, and that the latter company, being in fact the successor and assignee of the former company, contracted with the Empire Construction Company to build the road ; that the construction company did build the part in question and received payment for the same, but having become embarrassed, surrendered its contract before the road was completed.

A short time before the construction company had ceased operations the chattel mortgage referred to in the special plea was executed.

At the time of the tortious acts alleged against the appellees, the track in controversy was not in the actual occupancy of the appellant or of any other person or corporation, and it is insisted that the appellant can not maintain the present action because it has failed to show possession or such ownership as would imply a right to possession.

It is conceded by the appellees that, under well settled rules of law, the general owner, where there is no. actual possession, may maintain such an action, but ¡.it is urged there was no sufficient proof of such ownership. The proof upon this point is substantially uncontradicted, and, as we think, made a jprima facie case for appellant.

The Circuit Court at the instance of aj)pellees gave the following instructions to the jury:

“1. The court instructs the jury for the defendants, that unless they shall find from a "preponderance of the evidence that the plaintiff, the Chicago, Springfield & St. Louis Eailroad Company, was in the actual occupancy and possession of the property in controversy at the time of the alleged trespass complained of in plaintiff’s declaration, then the jury must find the defendants not guilty.
“ 3: The court instructs the jury, for the defendants, that in an action of trespass the gist of the action is the injury to the possession, and if the jury believe from the evidence in this case that the plaintiff, at the time of the alleged trespass, was not in possession of the property in the declaration mentioned, then the jury will find for the defendants.”

These instructions assume that the appellant had failed to prove its ownership of the property in suit. In this there was error. There was evidence tending to prove such ownership and, as already stated, sufficient in one opinion to support the claim in the absence of all counter-proof. These instructions no doubt controlled the jury and influenced the verdict.

Appellant insists that there was error in refusing the fifth, sixth and seventh instructions asked on its behalf. All that is important in the fifth and seventh is contained in the first given for appellant, and we think the sixth is faulty in leaving it to the jury to determine what would entitle the appellant to the possession of the property. There was no error in refusing these instructions.

It is urged there was error in excluding evidence offered by appellant for the purpose of identifying the property intended to be embraced in the chattel mortgage.

Appellees, by their argument, concede that this chattel mortgage was inoperative upon the property in question, and such was the view of the Circuit Court, as appears from an instruction which it gave advising the jury to disregard it as a defense to the alleged trespass; but appellees insist that it was properly admissible in evidence to show good faith and a claim and color of right, thereby rebutting the idea of malice and confining the plaintiff, in the event of recovery, to actual damages.

The language of description employed, when the facts of the then situation are considered, leave it somewhat uncertain whether it was intended to cover the track or merely the loose articles of similar designation lying along the right of way.

Waiving all discussion as to whether the construction company had any right in the track at that time which it could convey by such an instrument or any other, we are inclined to think it was competent to identify the property intended to be affected. The description was as follows: “All the rail-

road ties, about 5,000 in number, more or less, and all railroad iron, such as rails, splices, bolts, nuts and spikes, and all lumber and tiling of said construction company in North Litchfield township, in said county, located on bed of railroad or otherwise.”

“ Also all the railroad ties, 6,000, more or less, and all plank, timber and other property of said construction company in South Litchfield township, in said county, on bed of railroad or otherwise.”

In connection with other evidence which was received tending to show the general situation when the mortgage was made, appellant offered to prove, by witnesses, that at the time the mortgage was made, there was personal property of the Empire Construction Company lying on and near the right of way of the Q. & St, L. R. R. and the right of way of the Chicago, Springfield & St. Louis R. R. as follows: 11,319 ties, 46 tons of rails, oak plank and tiling to the amount of $700, several keg of bolts, spikes and splice bars; none of which were in the track laid on Adams street.

This and other like proof was rejected, and as we think erroneously, and it was immaterial whether the mortgage was offered as a complete justification dr in mitigation of damages. Bell v. Prewitt, 62 Ill. 361, and cases cited.

The appellant not being a party to the contract can not be precluded from proving what was the real intention of the parties, although such proof may contradict the writing. 1 Greenl. Ev., Sec. 279; 2 Wharton Ev., Sec. 920.

The judgment will be reversed and the canse remanded.

Reversed and remanded.


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    Patrick Griffin v. John Kaericher.

      Master and Servant—Wages—Contract—Instructions.

    This court reverses a judgment for the plaintiff in an action to recover wages, because of the failure of the court below to give an instruction touching the question whether the contract was for a definite time.
    [Opinion filed September 21, 1888.]
    Appeal from the County Court of Moultrie County; the Hon. H. M. Minee, Judge, presiding.
    Messrs. Cochean & Harbaugh, for appellant.
    Mr. Frank Spitler, for appellee.
   Conger, J.

This was a suit by appellee against appellant to recover for wages, which resulted in a judgment in favor of appellee for $18.77. The disputed question was as to the length of time appellee was to labor for appellant.

Appellant claimed that the contract was for a definite time at the rate of $18 per month, while appellee insisted that the contract could be terminated at any time if either of the parties was dissatisfied. This was the vital question in the case, and evidence was offered upon it by both parties.

The court was requested by appellant to give to the jury the following instruction, viz.:

“ If the jury believe from the evidence that the plaintiff made a contract to work for the defendant until defendant’s harvesting was done, at an agreed price per month, and if the jury believe from the evidence that before the end of the term so agreed upon the plaintiff left the employ of the defendant, then the burden of proof is upon the plaintiff to show by a preponderance of the evidence that he left with the defendant’s consent or was discharged by him, or that the plaintiff had just and reasonable grounds for leaving when he did.”

The court refused this instruction as well as all others askgd for by the appellant. It is insisted by appellee that the jury believed the evidence offered by himself, and therefore the refusal of the instruction could have worked no injury to appellant. We can not assume such to be the fact.

The jury being uninstructed upon the question, may not have known that it was important to determine whether the contract was to labor for a definite time or not. There was evidence tending to sustain appellant’s theory of the case, and the instruction should have been given.

The judgment of the County Court will be reversed and the cause remanded.

Reversed and remanded.


author: Corgkeb, J.

text:
    William F. Jenks v. David H. Vandolah.

      Practice—Parties—Amendment—Unreasonable Condition—Costs.
    While the conditions upon which amendments shall be allowed are within the sound discretion of the court, such conditions must he reasonable.
    [Opinion filed September 21, 1888].

      In error to the County Court of McLean County; the Hon. C. D. Myer, Judge, presiding.
    Mr. Frank E. Henderson, for plaintiff in error.
    It is to avoid the defeat of justice by evasions that the statute of amendments .was made, and we understand “ it is a liberal” statute. Doty v. Colton, 90 Ill. 453. Its “object and effect is to do away with all formal objections to the pleadings.” Drake v. Drake, 83 Ill. 528-9. The terms must be just and reasonable (Starr & C., R. S., Chap. 110, Sec. 23, p. 1787), and “must not be so onerous as would amount to a deprivation of the right secured by statute.” Misch v. McAlpine, 78 Ill. 507, which case was reversed for unreasonable refusal to allow amendment, as also was Stone v. Williams, 17 Ill. App. 178-9, and “ discretion” of the court reviewed. Informal amendments “ it is proper not to impose terms.” C. T. Coal & R. R. Co. v. Lickiss, 72 Ill. 521; McDowell v. Town, 90 Ill. 361.
    The court say, where name of nominal plaintiff had been stricken out on amendment, costs should not have been taxed against him; a full discussion of this subject in this case shows the amendment statute to be intended to avoid hardship and do justice and get to a trial of the true merits of a case, and shows what amendments are allowable. When leave to make proper amendment is asked, and is refused by the court, it is an abuse of discretion for which the court reversed. Shufeldt v. Fidelity Savings Bank, 93 Ill. 598. Lior will the “doctrine of discretion in the Circuit Court ” be extended. McKinstry v. Pennoyer, 1 Scam. 319.
    The terms imposed were uncalled for in any view of the case unless they are in the nature of a penalty. It deprived plaintiff of the right to amend. They were impossible for him to perform.
    Messrs. J. M. Weakly and J. E. Pollock, for defendant in error.
    Plaintiff in error and one Parks made a contract with the defendant in error to dig a well for him at a stipulated rate per foot. Plaintiff in error brought suit in his own name, and on the trial, himself swore that lie and Parks had taken the contract together and that it was a joint contract. Parks testified to the same thing. The plaintiff in the court below rested his case. The defendant moved the court to instruct the jury to find a verdict for the defendant. Plaintiff then asked the court for leave to amend his declaration, which was allowed upon terms of payment of two-thirds of the costs. These terms the plaintiff declined to accept and refused to proceed further with the case. Thereupon the ¿ourt instructed the jury to find a verdict for defendant. That this was the proper practice in this case we have no doubt. See Bartelott v. The International Bank, 119 Ill. 259.
   Corgkeb, J.

This was an action to recover for services in digging a well. The declaration was filed in the name of the plaintiff in error, but upon the proof coming in it appeared the suit should have been brought in the joint names of plaintiff in error and one Parks.

Plaintiff in error then moved the court to amend the declaration by making Parks a joint plaintiff with himself. The court granted the motion upon condition that plaintiff in error should pay two-thirds of the accrued costs, amounting to §30. At the same time and with his motion, plaintiff in error filed his affidavit setting forth that he was a poor person, and was wholly unable to comply with the conditions imposed by the court.

Whereupon the court refused to allow the amendments, and directed the jury to find for defendant in error. While the conditions upon which amendments shall be made are within the sound discretion of the trial court, and ordinarily should not be interfered with, we think under the circumstances of this case, the conditions imposed were unreasonable, and in effect denied plaintiff in error justice. Misch v. McAlpine, 78 Ill. 507.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.1.


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    Omer H. Drury v. Albert G. Barnes.

      Sales—Agency—Authority of Special Agent—Sale of Horse—Replevin ■—Instructions.

    1. An authority to a special agent to sell for cash will not justify an exchange for other property.
    2. An innocent purchaser at an unauthorized sale takes no greater title than is possessed by the vendor.
    3. In an action of replevin to recover a horse wrongfully sold by the agent of its owner to an innocent purchaser, this court reverses the judgment for the defendant, for the failure of the trial court to give certain instructions asked by the plaintiff.
    [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Anthony Thornton and John Gr. Drennan, for appellant.
    Messrs. H. M. Yandeveer and W. M. Provine, for appellee.
    Where the owner of property holds out another or allows Mm to appear as the owner of property, and innocent parties are thus led into dealing with such apparent owner, they will be protected. The rights of persons so dealing in such a case do not depend upon the actual title or authority of the person with whom they have directly dealt, but they are derived from the act of the real owner, which precludes him from disputing as against them, the existence of the title or power he caused or allowed to appear to be vested in the person upon the faith of whose title or power they dealt. Anderson v. Armstead, 69 Ill. 452; Smith v. Board Sup. Peoria Co., 59 Ill. 412; Wells on Rep., Sec. 329; Marshall v. Ender, 20 Ill. App. 312; Bigelow on Estop. p. 467; Evans on Agency, Sec. 139; Story on Agency, Sec. 444.

      We insist that the evidence shows that McKnight was authorized to sell the mare; that Drury ratified the sale after it was made and after learning all the facts; that Drury allowed McKnight to appear as her owner, and appellee having in good faith bought her of McKnight for full value, Drury is precluded from asserting his ownership as against appellee.
    The amount of evidence has nothing to do with the question of giving an instruction, and where evidence tends to prove a certain state of facts a party has the right to instructions upon hypothesis of such facts and it is for the jury to find if they are true—and this though there may be no direct evidence of the fact. Kendall v. Brown, 74 Ill. 232; Eames v. Rend, 105 Ill. 506; Peoria Marine & Fire Ins. Co. v. Anapow, 45 Ill. 86; 1 Greenleaf, Sec. 48.
    The rule is that all instructions are to be taken together as a series, and one, if too general or erroneous, is cured, if limited, by others. Toledo, W. & W. R. R. v. Ingraham, 77 Ill. 309; Kendall v. Brown, 86 Ill. 390; Prior v. White, 12 Ill. 261; Skiles v. Caruthers, 88 Ill. 458.
   Congee, J.

Upon the 23d of March, 1887, appellant delivered to one Frank McKnight a certain mare under the following agreement, viz:

6C Article of agreement made this 23d day of March, 1887, by and between O. H. Drury, of Mew Boston, Mercer county, III, of the first part, and Frank McKnight, of Centraba, Marion county, 111., of the second part.

Cl The said Drury delivers unto the said McKnight one gray mare, Lady Drury, (formerly Lady Davis), sound and in good condition so far as can be known, for the following purpose: To be handled and trotted during the season of 1887. Mow, it is further agreed 'that said McKnight shall take the said mare to Marion county, Illinois, and there handle and train her, using every means possible to get speed out of her; at the same time he shall not abuse or injure her in any manner whatsoever; and it is further agreed that said Drury shall not be called upon to pay any of her expenses during the season. It is further agreed that at the end of the season the said McKnight shah make a faithful and true account of all moneys taken by said mare, and that after paying her expenses he shall turn over to said Drury one-half of the net earnings. ¡No charge for training.

“ Feank McKnight.”

In the following December, appellee having seen the mare at several places in the possession of McKnight, and supposing her to be his property, purchased her, paying McKnight 8650 in cash and a horse valued at 8200. McKnight left the State and never accounted to appellant for the proceeds of the sale except 8100, for which McKnight sent appellant a draft, but which appellant states he never cashed, and offered back to McKnight.

It is contended by appellee that appellant authorized McKnight to sell the mare, and there is evidence tending to show that he had written to McKnight during the summer that he would rather McKnight would sell the mare for 8700 than return her ; that he valued her at more, but in his ¡present condition he was willing to take 8700.

After demand made, appellant brought a suit in replevin for the mare, but the jury found against him. Appellant asked the court to give the following instructions, which the court refused to do:

“In this case the court instructs the jury, if the evidence shows that on the 23d day of March, 1887, the plaintiff, Omer II. Drury, was the owner of the mare in question and let the same to Frank McKnight by virtue of the written contract offered in evidence, and that said McKnight trained and trotted the mare in pursuance of such agreement, and even if you shall further believe that about the month of August or September, 1887, the plaintiff wrote to said McKnight authorizing said McKnight to sell the mare for 8700, such authority would not authorize said McKnight to trade said mare to the defendant, Albert G. Barnes, for a horse and 8650.”
“ The court instructs the jury that where authority is given a special agent to sell an article of personal property, such authority does not confer upon such special agent the power to barter or trade the article; and if such special agent, in violation of his authority, barters or trades the article, the person receiving the same or trading for such article would not acquire title to the same ; but the owner may demand the property and on refusal of the person having the same to deliver it up, the owner may maintain replevin for the same.”

These instructions are the law andzhave an important bearing upon the case, and it was error to refuse them. Hone of the instructions given to appellant contain the principle announced in these instructions.

The most that is claimed upon the part of appellee as to the authority given to McKnight to sell, after he came into possession of the mare, under the contract, is that he was authorized to sell her for §700. Such authority would very clearly not authorize him to sell her for less than that price, or receive in payment, in whole or in part, anything but money..

Counsel for appellee insist that the doctrine contained in these instructions are not applicable to the present case, for the reason that appellee, Barnes, was ignorant of the true ownership of the horse, but in good faith supposed it to belong to McKnight.

We are unable to see what difference this would make, for McKnight could not convey a better title than he himself had as owner, or was authorized as an agent to give. Benton v. Curger, 40 Ill. 329.

As he was clearly not the owner, and had no right to sell at all by the original agreement under which he took the mare, appellee must rely upon the authority given him as agent in the declarations made, and letters written after that time by appellant.

Upon the question of a special agent exceeding his authority-see 2 Kent, marginal page 631 et seq.j Story on Agency, Secs. 78, 131 and 437.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    Thomas Summers et al. v. The People of The State of Illinois.

      Fish—Acts 1835 and 1887—Repeal—Fixing Amount of Fine—Jury.

    1. Anything which substantially and materially interferes with the passage of fish up and down stream, is within the meaning of the act of 1885 forbidding any obstruction to their free passage.
    2. In the case presented the question whether the act of 1885 was repealed by that of 1887 is not material, as such repeal would not affect a pending prosecution.
    8. Upon appeal from a justice in such cases the jury may fix the amount of the fine to be imposed.
    [Opinion filed September 21, 1888.]
    In error to the Circuit Court of Brown County; the Hon. J. C. Bag-bt, Judge, presiding.
    Messrs. Morrison & Whitlock, for plaintiffs in error.
    Under the common law defendants had the right to take fish ; and the owner of the lands, Vandeventer, who leased to defendants, had the exclusive right to take fish from his own lands. 3 Kent’s Com., 411, Note A; Commonwealth v. Chapin 5 Peck, 199; Stoughton v. Baker, 4 Mass. 522; Burnham v. Webster, 5 Mass. 256; Vinton v. Welch, 9 Pick. 87; Hooker v. Cummings, 20 Johns. 90. See also Parker v. People, 111 Ill. 581.
    This suit should have been dismissed on the motion made by the defendants, on the grounds that the law under which the prosecution was instituted was repealed by the act of 1887.- The law of 1887 covered all the ground of the former aet, and was manifestly intended as a substitute for it; hence, by a well established rule of construction, recognized by the Supreme Court of this State and other States, repealed it by implication. See Board of Trustees v. City of Chicago, 14 Ill. 334; Andrews v. People, 75 Ill. 605; Culver v. Third National Bank, 64 Ill. 534.

      ftA subsequent statute revising the whole subject of a former one, and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former.” Bartlett v. King, 12 Mass. 537; Towle v. Mavett, 3 Greenl. 22.
    These cases are cited in the case of Board of Trustees v. City of Chicago, 14 Ill. 334, with approbation, and such will be found the doctrine of all the books.
    The same doctrine has been announced, and the same reasons adopted in other States. Hickmann v. Pinkney, 81 N. Y. 215; Farr v. Brackett, 30 Vt. 344; Wakefield v. Phelps, 37 N. H. 205; D. & L. Pk. Road Co. v. Allen, 16 Ill. App. 15; Davies v. Fanburn, 3 How. 636; Dowdell v. State, 58 Md. 333; Dugan v. Gittings, 3 Gill. 138.
    Mr. John J, Teefey, for defendants in error.
   Congee, J.

This was a prosecution against plaintiffs in error for a violation of Sec. 2 of the act of 1885 commonly known as the Fish Law. This section provides: That no person shall place, cause to be placed or erected, any seine, net, wire, fish dam or other obstruction in, or across * * * any watercourse in such manner as shall obstruct the free passage of fish up or down or through such watercourse.”

The evidence discloses that plaintiffs in error set a net with wings which reached nearly to the banks on either side. Some of the witnesses stated that the wings came within a few inches of the hanks, while others testified that upon one side there was a space of four feet between the end of the wing and the bank, through which fish could and did pass.

It is evident, we think, from the language of the act, that the legislation intended to prohibit such an obstruction to the passage of fish as is shown in this case. Some of the fish passing along the stream succeeded in escaping the net and made their way around the ends, and because of this it is insisted by plaintiffs in error that their free passage was not obstructed.

We can not assent to this conclusion. Webster defines “free” as “not under restraint; at liberty; not obstructed; as, the water has a free passage or channel.”

Anything which substantially and materially interferes with the passage of fish up and down the stream would come within the meaning of the words “obstruct the free passage of fish,” although it might be shown that it would be possible for all the fish in the stream to pass around or over such obstructions.

It is insisted that the suit should have been dismissed on the ground that the law of 1885 was repealed by the act of 1887. It is not necessary to determine the question, for the reason that if the law of 1885 has been repealed by that of 1887, as contended by plaintiffs in error, it would make no difference in the present case. Sec. 4, Chap. 131, R. S., provides that such repeal shall not affect any prosecution begun under and by virtue of the act so repealed.

It is next insisted that it was erroneous for the jury to fix the amount of the fine. In all cases of appeal from a justice it seems to be intended that the jury may fix the amount of the fine to be imposed. Sec. 11, Div. 9, Criminal Code.

Finding no substantial error in the record, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    F. F. Randolph et al. v. Samuel S. Chisholm.

      Mechanic's Lien—Title—Error without Prejudice.

    1. The interest of one who is in possession, claiming title, is subject to a lien for repairs made under a contract with him.
    2. An error which only aSects one who is not a party to the appeal, is not sufficient ground for reversal.
    [Opinion filed September 21, 1888.]

      Appeal from the Circuit Court of Coles County; the lion. C. B. Smith, Judge, presiding.
    Messrs. Craig & Craig, for appellants.
    Messrs. Wiley & Heal, for appellees.
   Conger, J.

This case was formerly before this court and is reported in 21 Ill. App. 312, where a statement of the facts can he found.

After the cause was remanded a trial was had and a decree rendered in accordance with the prayer of the petition.

The principal objection to the decree is, as claimed by appellants, that no title is shown in Randolph to the lot in question at the time of making the contract for the repairs to the mill. The evidence shows at least that he was in possession, claiming title, and hence such interest as he may have had was subject to the lien.

The second assignment of error is that “the court erred in rendering a decree against F. F. Randolph by default, when he had a demurrer undisposed of.” As Randolph is no party to the appeal it is not necessary to notice this point; the error, if any it be, can not be urged by one not-affected by it.

The decree of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    The Quincy Building and Loan Association v. Warren C. Winget and Sarah M. Winget.

      Building Associations—Foreclosure of Trust Deed and Cancellation of Stock—Injuncti on.

    Upon a bill filed to enjoin the foreclosure of two deeds of trust and to secure the cancellation of several shares of stock in a building association, this court reverses a decree for the complainants as not supported by the evidence.

      [Opinion filed September 21, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Emmons & Wells, for appellant.
    Mr. George W. Fogg, for appellees.
   Conger, J.

This was a bill filed by appellees to enjoin appellant from foreclosing two deeds of trust and to cancel certain shares of stock held by appellees in the appellant company.

Appellees had, under the rules of the company, taken the shares of stock, and upon them borrowed from appellant the money in question, giving the trust deeds mentioned to secure the repayment of the same.

The two grounds relied upon for relief are : Fraud and misrepresentation by said association or its officers, whereby appellee, Winget, was induced to become a member of the association, and fraudulent statements of the officers of the association as to the consideration of the notes and trust deed.

The record is quite Voluminous upon these questions, and it would answer no good purpose to review the evidence. We have carefully examined all the evidence as contained in the record and fail to find anything whatever in it to sustain the charges made in the bill or the findings of the master.

The master, in his report of the evidence and the findings therein, says: “I further find that as to the allegation in complainants’ bill, viz., ‘ that said complainant, Warren C.Winget, was induced to become a borrower in said institution by false and fraudulent representations,’ that the testimony is conflicting and unsatisfactory.”

After carefully considering the whole record, it simply presents to our minds a case wherein appellees entered into the arrangement held out to the public by the appellant company voluntarily and freely, and after experimenting with it for a few years reached the conclusion that it was not as profitable as they had supposed, and now seek by their bill to be relieved from the consequences of their own lack of judgment.

The decree of the Circuit Court will be reversed and the cause remanded to the Circuit Court, with directions to dismiss the bill.

Reversed and remanded.