text:
    George B. Clapp and Vanlora J. Clapp v. Anna Herdman.

      Seal Property—Statutory Covenant of Seizin—Breaches—Taxes—Lien —Action for Damages—Outstanding Tax Deed—Measure of Damages— Entry of Remittitur in this Court—Evidence—Instructions.

    1. The statutory covenant of seizin is in legal effect a covenant of title. Unless the grantor, by his deed, invests the grantee with an indefeasible estate in the premises conveyed, there is a breach of his covenant of seizin, for which the grantee may at once bring his action.

      2. In the case presented, the evidence introduced in support; of the tax deed is sufficient to show a paramount outstanding title. The collector’s return was prima facie evidence o£ the assessment and the amount of the tax.
    8. Where a grantee has purchased an outstanding title, the amount reasonably and in good faith paid for it, provided it does not exceed the purchase money paid to the covenantor, is the measure of his damages.
    4. A grantee, who has paid off taxes which were a lien upon premises when conveyed to him by warranty deed, may recover from the grantor the amount so paid, with interest.
    5. The entry of a remittitur is allowed in this court in the case presented, the verdict being slightly excessive because of the admission of improper evidence,
    [Opinion filed March 28, 1888.]
    Appeal from the. Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Howard Hare, for appellants.
    A covenant of seizin, supported by a covenant of warranty, where the covenantee is in possession, is not broken until there has been an actual or constructive eviction. Kirkendall v. Keogh, 2 Ill. App. 492; Backus’ Adm’rs v. McCoy, 3 Ohio, 211; Devore v. Sunderland, 17 Ohio, 52; Dickson v. Desire’s Adm’rs, 23 Mo. 164; Rawle on Covenants for Title, pp. 51, 73, 74; Oberhizer v. McCullister, 10 Ind. 44; Baxter v. Bradbury, 20 Maine, 260; Adams v. Barnes, 17 Mass. 365; Blackwell on Tax Titles, 4th Ed., 555.
    The grantor should have notice of an outstanding adverse claim of title. Harding v. Larkin, 41 Ill. 413; McConnell v. Downs, 48 Ill. 271; Frazer v. Board of Supervisors, 74 Ill. 282.
    Ho tax deed based on any proceedings, the record of which shall appear to have been destroyed, shall be received in any of the courts of this State as prima facie evidence of the regularity of such proceedings, unless the person claiming thereunder shall show affirmatively that each and all of the provisions of the law in respect to the assessment, levy, sale and deed have been in all respects complied with, and no presumption shall be indulged in favor of any such tax deed or sale, etc. ¶ 23, Ch. 116, R, S. Ill.; Gage v. Lightburn, 93 Ill. 248; Cottingham v. Springer, 88 Ill. 90; Dubois v. Clampeau, 24 Mich. 360.
    The plaintiff must show by competent evidence the value of the outstanding tax titles or incumbrances; the amount paid by the plaintiff for such outstanding title or incumbrance is no evidence of its value, in the absence of all other evidence; the jury can not act without proof as to its value. Anderson v. Knox, 20 Ala. 156; Dickson v. Desire, 23 Mo. 151; Brady v. Spurck, 27 Ill. 478; Massy v. Cram, 1 McCord, 689; Braud v. Foster, 5 Iowa, 289; Bond v. Quattlebaum, 5 Iowa, 584; Hacker v. Blake, 17 Ind. 97; Small v. Reeves, 14 Ind. 164; Nyce's Executors v. Obertz, 17 Ohio, 77.
    Mr. William T. Blair, for appellee.
    These tax titles being outstanding at the time of their conveyance, adverse and hostile to appellant’s title, they are bound in this case to affirmatively make out a perfect title in themselves; they were bound to show below, by a preponderance of evidence, that neither of these titles was of any force or effect—either as a conveyance of or a lien or incumbrance on this land. Rawle on. Covenants of Title, p. 57; Abbott v. Allen, 14 Johns. 247; Baker v. Hunt, 40 Ill. 264.
    A seizin in fact is not a fulfillment of the covenant of seizin. Frazer v. Board of Supervisors, 74 Ill. 282.
    It makes no difference that the adverse title or incumbrance was known to the grantee at the time. These covenants are deliberately designed to protect a grantee against such Imown or suspected claims and titles. Wadhams v. Innes, 4 Ill. App. 642; Beach v. Miller, 51 Ill. 207; Long v. Moler, 5 Ohio St. 271.
    The covenants of - seizin and right to convey, and against incumbrances, are in presentí, and were violated in this case as soon as made. They do not run with the land; nor is the grantee required to wait until evicted. Richard v. Bent, 59 Ill. 38; Jones v. Warner, 81 Ill. 343; Tone v. Wilson, 81 Ill. 529.
    A judgment for taxes can not be collaterally impeached. Chicago Theol. Sem’y v. Gage, 11 Bis. 289; Cooley on Taxation (2d Ed.), p. 567; Chestnut v. Marsh, 12 Ill. 173; Spellman v. Curtenius, 12 Ill. 409.

      The collector’s report is jprima, facie evidence that the land has been properly assessed, the tax duly levied, and that it is not paid, and is sufficient to authorize the judgment. Extension of the tax of this same year, 1870, expressly passed upon in the last case cited below, precisely in point. Buck v. People, 78 Ill. 560; Chiniquy v. People, 78 Ill. 570; Pike v. People, 84 Ill. 80; Hosmer v. People, 96 Ill. 58.
    A grantor who has given a covenant of seizin or against incumbrances is not entitled to any notice whatever, if he has violated his covenant. He may be “called upon at any time after the execution of the deed, and at the caprice of his covenantee, to make out a perfect title affirmatively.” Abbott v. Allen, 14 Johns. 247; Baker v. Hunt, 97 Ill. 620; Claycomb v. Hunger, 51 Ill. 373.
    A covenantee is entitled to damages to the extent of the injury sustained by him by reason of his grantor’s violation of his covenant. King v. Grilson, 32 Ill. 348.
    If it is an incumbrance, and he has removed it, he may recover the sum paid for the purpose, with interest. Willetts v. Burgess, 34 Ill. 494.
   Moran, P. J.

An action of covenant was brought by appellee to recover from appellants for certain taxes which were a lien on a lot conveyed to her by appellants, and which she had paid, and also for money paid by her to purchase a tax title which was outstanding against the lot. Appellants conveyed to appellee on July 20,1882, a lot situate in the City of Chicago, a particular description of which it is not material to set out.

The conveyance was by the statutory form of warranty deed, and appellee went into possession of the premises upon the delivery of the deed to her. The taxes for the year 1882 became a lien on the lot on the first day of Hay of said year, by force of the statute, and were, therefore, an incupibrance which appellants were bound to discharge. They having failed to do so, it was appellee’s right to pay off the incumbrance and appellants were clearly liable to her under the implied covenant against incumbrances in their deed, for the amount paid by her to discharge said incumbrance, and interest thereon from the date of such payment to the date of judgment.

Appellee recovered, however, not only the taxes of 1882 and interest thereon, but in addition thereto the sum of 8500, paid by her to purchase a tax title existing upon the lot by virtue of a tax deed, executed by the County Clerk, upon a sale made for taxes, in October, 1884, in pursuance of a judgment against said lot, upon a report of the collector made of the delinquent taxes of 1873, and of prior years, including 1870. The judgment against the lot in question was for the taxes of 1873, and for the tax of 1870, but the tax of 1873 was paid before sale, and the lot was sold for the 1870 tax, amounting to 819.33, and a certificate issued, and within a year after the expiration of the time of redemption, and on SejD-tember 3, 1877, a deed was executed to the purchaser at the sale.

The main contention of appellant is based on objections to this tax title and to the recovery by appellee of the money paid by her to purchase it in.

The deed which appellants executed to appellee must, by the terms of the statute, be held to contain a covenant that at 'the time of the making and delivery thereof, they were “law-i fully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and power to convey the same.”

This is more comprehensive than the ordinary covenant of seizin as used in common law conveyancing, and is not satisfied by the seizin in fact, or actual possession by the grantor and a delivery of such seizin or possession to the grantee. The statutory covenant of seizin is in legal effect a covenant of title, and though the maker of such covenant puts the covenantee in the possession of the premises conveyed, yet unless by his deed he invests him with an indefeasible estate in the premises his covenant of seizin is broken, and the covenantee has the right to at once bring his action for the breach. 4 Kent’s Com. 472; Greenly v. Wilcox, 2 Johns. 1; Brandt v. Foster, 5 Iowa, 286.

It is not necessary to allege or prove an ouster or eviction; it is sufficient to negative the words of the covenant and to prove that the grantor did not have title to the land at the time of the conveyance. Richert v. Snyder, 9 Wend. 416; 4 Kent’s Com. 479.

The burden of proof was upon appellee to establish that the outstanding title was paramount, and it is asserted by appellant’s counsel that she failed to meet this requirement of the case. We have examined the proof introduced in support of the tax deed issued by the County Clerk to Asaliel Gage, dated September 3, 1877, and we are of opinion that by said deed Gage obtained a valid tax title to said premises. The proof shows a valid precept, judgment and affidavit, and upon the said tax deed ejectment could have been maintained against appellants for said lot at the time they conveyed it; and against appellee at the time she purchased the tax title. The only objection seriously urged against said tax title is that there is no proper evidence to show that the lot was assessed for the taxes of 1870, for which it was sold, or to show the amount for which it was assessed.

The collector’s return has been held to be prima facie evidence of the legality of the tax and of its assessment and lexry, and that it is due and unpaid. Chiniquy v; People, 78 Ill. 570; Pike v. People, 84 Ill. 80; O. & M. Ry. Co. v. People, 119 Ill. 207.

There being no contrary evidence the prima facie proof furnished by the collector’s report, was sufficient evidence of the assessment and of the amount of the tax.

Appellee having shown a paramount outstanding title, and that she had purchased the same, what was the measure of her damages? For a total breach, the damage is the consideration money and interest; but if the grantee has lost less, as where the covenant is broken as to a portion only of the land conveyed, the damages are limited to the actual injury sustained. The consideration money and interest is the extent to which damages can, under any circumstances, be recovered for a breach of this covenant. The consideration money is one extreme, and nominal damages the other. Between these extremes the damages will be determined by various circumstances, and where the paramount title has been bought in by the covenantee, the amount reasonably paid for it, provided it does not exceed the purchase money paid to the covenantor, is held by all the authorities to be the proper limit of the recovery. Rawle on Cov. of Title, Sec. 188; Spring v. Chase, 22 Maine, 505; Price v. Deal, 90 N. C. 295; Anderson v. Knox, 20 Ala. 160.

The case last cited was reversed because the trial Judge told the jury that in the absence of any other evidence as to the value of the outstanding title they might take the amount paid by the plaintiff as evidence of such value. That case is relied on by appellants, and it is urged that in the case at bar the jury had no evidence before them as to the reasonable value of the tax title, save the amount paid, which is no evidence on that point, and, therefore, the verdict is not based on evidence and mu.it be set aside.

If in this case, as in that one, the jury had been misdirected by the court on the point, there might be a basis for counsel’s position. But here the jury were properly instructed that they must find that the sum paid for the title was a just and reasonable amount, and that the plaintiff acted in good faith in buying in the title, in order to allow plaintiff’s demand. We think the jury had before them evidence from which they might well find that the amount paid for the tax title was the price thereof. There was proof of the situation of the lot and the market value thereof, as well as the amount which appellee paid to appellant for it, on the assumption that she was obtaining a valid, merchantable and indefeasible title. From this proof the jury could readily conclude whether the sum-of §500 was a reasonable amount to pay for the outstanding paramount title, and the evidence, showing the negotiation by appellee for the purchase, furnished proof that she fairly and necessarily paid that amount, for the holder of the tax title would not sell for a less sum. The jury adopted the measure of damages that was just and fair, and allowed appellee only the amount which she actually paid out for the tax deed, and the amount paid for the taxes of 1882, with interest thereon from the time of payment to the date of verdict. Claycomb v. Hunger, 51 Ill. 373, 377.

There was an error in admitting in evidence the tax deed of 1878, based on the sale for the taxes of 1869. There was no judgment in evidence to support said deed and it was therefore invalid as a title. We do not think it was an incumbrance or that it could be treated as such in this action. The consideiation paid for said tax title was §1, and to that extent the verdict is too large.

Appellee has offered to remit said sum in this court and there being no other error in the record, she will be allowed to enter said remittitur here, and the judgment will then be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Moran, P. J.

license: Public Domain

text:
    Harry P. Pratt v. James M. Marean.

      Patents—Agreement between Separate Owners of Letters-Patent—Sale of Patented Machine—Bill to Enjoin Vse by Vendee.

      1. When a patented machine passes from the patentee to a purchaser, it is no longer within the limits of the monopoly.
    2. An agreement between separate owners of Ietters-patent, covering a machine, not to use the patented machine in each other’s territory, is not binding upon a purchaser of a machine from either.
    (Opinion filed March 28, 1888.)
    In error to the ‘‘Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    This writ of error is prosecuted to review the decree of the court below in sustaining a demurrer to the complainant’s bill and dismissing the same for want of equity. The bill was filed by the plaintiff in error to enjoin the use of certain knitting machines containing improvements covered by letters-patent.
    It appears that in 3884, B. P. Pratt and Edwin C. Walker were partners and joint owners of the patent covering the improvement in the machines. They also owned twelve machines containing the patented improvement. Some difference arose between them, and a bill was filed to dissolve the partnership. The suit was practically terminated by an agreement between the parties that Walker might take and retain the exclusive possession of the said twelve machines as well as other property, and remove the same beyond the jurisdiction of the court, and use and dispose of the same as to him should seem fit, he to account therefor as between the parties to the suit, being charged with the full value thereof. “That the interests of said Pratt & Walker in the letters-patent shallbe equally divided by deeds of assignment, said Walker to choose a State or Territory and said Pratt to choose a State or Territory alternately, until the whole United States is divided, and said Walker and said Pratt, or their respective assignees in the territory assigned to each, shall have exclusive rights therein under said patent, free from all interference by the other, to manufacture, or license to be manufactured, goods under said patented invention.”
    Wisconsin fell to Walker in the division of States, and he removed the patented machines to Milwaukee and sold them to one Cameron, who brought them to Chicago. Defendant in error succeeded to Cameron’s interest in, and control over the machines, and has continued to operate them in Chicago in producing the knit goods which they were constructed to manufacture.
    Pratt took Illinois, in the division of States between himself and Walker, and Walker conveyed to him all his interest in the patent for die State'of Illinois, and said B. P. Pratt conveyed to plaintiff in error the entire patent for Illinois. Plaintiff in error sought by liis bill to enjoin defendant from manufacturing said knit goods under said patent invention in the State of Illinois.
    The court denied the relief prayed for and dismissed the bill.

      Messrs. Lyman M. Paine and C. C. & C. L. Bonney, for plaintiff in error.
    While it may be true that ordinarily the purchaser from a patentee, or from a licensee duly authorized, takes the machine free from all claim for royalty or for damages for infringement, and with full and perfect right to use the machine anywhere, or sell it anywhere, still that is not the position of defendant in error in this case.
    After the agreement between Walker and Pratt had been made a part of the records of the Circuit Court of Cook County, and after the same agreement had been embodied in the assignment from Walker to Pratt, and had been made a part of the records of the Patent Office, it is absolutely certain that defendant in error could not then purchase a machine from Walker in Milwaukee, and by so doing gain any right whatever to sell or use such machine in Chicago. It is admití ted in this record that the purchase of the knitting machines by Cameron, and the use by defendant in error, were made) with full knowledge of the rights of plaintiff in error, as I assignee of B. P. Pratt.
    _ The sale was not unrestricted. Walker took the machines under an express limitation that they should be used only in such territory as should fall to him in a division of States. That limitation was made known to the world by filing in the Circuit Court of Cook County, and also in the Patent Office in Washington. It was a burden upon the title of Walker in the machines, and the rule of caveat evvptor applies with full force to the present ownership of defendant in error. A few knitting machines can supply the demand of the world, while each family is a possible purchaser of a sewing machine. The enjoyment of the monopoly in sewing machines is derived from the restricted sale of machines, while in knitting machines the enjoyment comes through the restricted use of machines.
    Walker was to have the machinery of the firm at its cost price, including the machines in question, to use if he chose, or to dispose of if he saw fit. But when the patent under which those machines were built was equally divided, unquestionably the freedom to use the machines containing the patent was restricted to such States as should fall to Walker in the equal division. The words mean no more than that such machines should be free from all future claims for royalty by Pratt, and that Walker was to be accountable in the partnership settlement for their cost only, and not at all for their use, if lie continued to use them, nor for their selling price, if he should conclude to sell them. Such construction gives effect to all the provisions of the agreement, and thus the equal division of the patent was not a mere trap to ensnare Pratt into a partnership settlement.
    Messrs. Merriam & Whipple, for defendant in error.
    In Adams v. Burke, 17 Wall. 453, the United States Supreme Court, defining the rights under letters-patent for inventions, say: “ The right to manufacture, the right to sell and the right to use are each substantive rights, and may be granted or conferred separately by the patentee. But in the essential nature of things, when the patentee or person having his rights sells a machine or instrument whose sole value is in its use, he receiv.es the consideration for its use, and he parts with the right to restrict that use.”
    Pratt did this when he disposed of his interest in these machines to Walker, and received his pay for them. The predicament is not changed because he sold merely for the cost price.
    In the Paper Bag Machine Cases, 105 United States, 771, the same court hold: “Power to sell the machine and transfer the accompanying right of use is an incident of unrestricted ownership.” See, also, Birdsell v. Shaliol, 112 U. S. 478. .
    A grant of an exclusive right to make, use and sell a patented invention within a particular part of the United States, confers the right to use anywhere within the United States, those specimens of that invention which are made and sold under the grant and within the territory covered thereby. Adams v. Burke, 17 Wall. 453; McKay v. Wooster, 3 Off. Gaz. 441; Roosevelt v. Western Electric Co., 20 Fed. Rep. 724; Holliday v. Matheson, 24 Fed. Rep, 185.
   Moran, P. J.

Walker, by the agreement with Pratt, obtained a complete title to the patented machines, and jydiile,' because of the terms of his contract, he might be prevented from operating those machines or any other made under the same patent in the manufacture of goods in the State of Illinois, it by no means follows that persons to whom he sold said machines were not at liberty to use them for the purpose for which they were constructed anywhere within the United States^

When a patented machine passes from the patentee to- the hands of a purchaser, it is no longer within the limits of the monopoly. It becomes the purchaser’s private property, and he must be held by the purchase to have obtained the right to use such machine in the most unrestricted sense. Bloomer v. McQuewan, 14 How. 539; Adams v. Burke, 17 Wall. 455.

The purchase of the machines by Cameron from Walker was a lawful purchase, and Cameron became the lawful owner of them, for he traced his title to the machines directly from said owners of the patent, and being the lawful owner of them, he or his vendee could remove them to any State, and could use them wherever he desired.

‘The agreement of Walker not to manufacture the knit goods in Illinois, was, if binding, only binding on him as his personal contract. 1. Such contract did not in any manner attach itself to the machines, or run with the property in them as a covenant against their being used in Illinois, which could be held binding on Walker’s rendoej The right of plaintiff in error to restrain the manufacture of knit goods does not depend on the patent. The patent is not upon the goods, but upon the. machine. Hence, every one who owns a machine may manufacture the knit goods in Illinois, provided he has not, by contract, agreed not-to-domo.»

It is very clear that defendant in error never made such an agreement, and we are wholly at a loss for any reason for enforcing Walker’s agreement against him. ‘

The judgment of the Circuit Court is not erroneous, and must therefore be affirmed.

Judgment affirmed.


author: Bailey, J.

text:
    Franklin Sawyer v. Susanna Martins.

      Personal Injuries—Action for Damages—-Respondeat Superior—Evidence.

    1. The maxim, respondeat superior, only applies to acts of a servant done in the course of his employment, and while engaged in the business of his master.
    2. In an action to recover damages for personal injuries, it is held: That the verdict is not supported by the evidence; and that the defendant is not liable, the person or persons whose negligence caused the injury complained of not having been in his employment or engaged in the prosecution of his business when the plaintiff’s son was injured, or in the matter out of which the injury grew.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. Joseph Weight, for appellant.
    Mr. Pliny B. Smith, for appellee.
   Bailey, J.

This was an action on the case, brought by Susanna Martins against Franklin Sawyer and Charles D. Bockwood to recover damages for loss of services and expenses sustained by reason of an injury to her minor son, Thomas B. Martins, caused, as is alleged, by the negligence of the defendant’s servants. The plaintiff’s son was injured by the fall of a sign-board which certain persons were engaged in tak'ng down from the Kinzie Street front of a building belonging to defendant Sawyer, situated on the northeast corner of Kinzie Street and Dearborn Avenue, Chicago. The jury found both the defendants guilty, but assessed separate damages, the damages assessed against defendant Sawyer being §275, and those assessed against defendant Bockwood being §25. The plaintiff was thereupon permitted to discontinue her suit as to defendant Rockwood and judgment was rendered upon the verdict against defendant Sawyer for §275 and costs.

The facts, as shown by the evidence, are these: For some time prior to the inj ury to the plaintiff’s son, the second story of said building had been occupied by the firm of Z. Cobb & Sons as their place of business. On the last day of May, 1885, the lease to said firm having expired, they vacated said premises, leaving two sign-boards attached to the second story of the building, one on the Dearborn Avenue front and the other on the Kinzie Street front. A few days after they moved out, defendant Rockwood, who occupied premises across the street from said building, had a conversation with defendant Sawyer, in which he asked him who the signs belonged to. Sawyer said that they did not belong to him, but to Z. Cobb & Sons, but that the foreman of that firm had said to him, that if anybody would take them down he might have them. Rockwood then said that he thought he would take them. Sawyer replied that they did not belong to him, and it would be all right if he, Rockwood, should take them down.

The foregoing is the conversation substantially as testified to by Sawyer. Rockwood’s version of it is not materially different. He says: “ I asked him why Z. Cobb & Sons did not take the signs away. He said they left them there and said anybody could have them. Said he, ‘Have you any use for them % ’ ‘Well’ said I, ‘I think I can use them.’ ‘Well/ said he, ‘you can have them, and when the boys have time, take them down.’ ”

On the 11th day of May, 1885, a few days after this con-1 versation, Anderson and Kelly, two of Rockwood’s employes, went over to Sawyer’s building to take the signs down. The only evidence of any directions by either of the defendants to them or any one else to take down the signs is in Anderson’s testimony, who swears that about an hour before they went over, Rockwood told them that they were to take the signs down when they got to it. Sawyer’s testimony is clear and explicit that he gave no directions to any one to take them down, and had nothing to do with the matter, and did not know that his son or any person in his employ was present assisting in the enterprise, and in this his evidence is in no way contradicted. It appears, however, that one of Sawyer’s sons, a hoy about fifteen years old, went over to the building with Anderson and Kelly and assisted in taking down the signs. There is also some evidence tending to show that another person, then in Sawyer’s employ, was present. Kelly testifies that such was the fact though he is unable to identify the person or give his name, while Anderson testifies that only he, Kelly and young Sawyer, were present or had anything to do with taking down the signs.

The sign on the Dearborn Avenue front was safely detached from the building, and while that sign was being taken inside the building and laid down by the others present, Anderson undertook to detach the other sign without assistance, and in doing so he let it fall to the sidewalk below, and in its fall it struck the plain tiff's son and broke one of his legs and otherwise injured him.

We are unable to see how, upon the foregoing facts, defendant Sawyer can be held to bo liable. The utmost effect that can be given to his conversation with Kockwood is, that he thereby gave Kockwood a license to enter upon his building and remove the sign, but the removal, when it was undertaken by Kockwood, was not Sawyer’s enterprise, nor was it0 undertaken in his interest or for his benefit. It was a matter 'in respect to which he was a mere stranger. ¡Nor does it. seem to be important that his son, or one of his employes, was present assisting in taking down the signs, so long as neither! of them was there by his direction or authority, or in the performance of any act pertaining to his employment. The maxim, respondeat superior, only applies to acts of a servant done in the course of his employment,- and while engaged in the business of his master; but when he sees fit to step, outside of his master’s business and aid another person in the performance of a tortious act, he ceases, pro Tiao vice, to be a servant of such master, and respondeat superior no longer applies.

The case of Stevens v. Armstrong, 6 N. T. 435, is very similar to the present in many of its features, and may serve to illustrate the principles here involved. There the defendants gave permission to an employe of another firm to go to the upper story of their premises to find a box which said firm wished to purchase, and such box being found and paid for, the purchasers sent their porter to get it. Said porter, with the knowledge and permission of the defendants, proceeded to said loft to get the box down, and being there, called to some person below to hoist the “fall” which was on the outside and in front of the store. A person below took hold of and hoisted it up, when the porter attached the hooks to the box and called to the party below to hoist, which was done, and the box, after being swung out of the door, became detached from the hooks and fell to the sidewalk and injured the plaintiff. It was held that although the injury was caused by the negligence of the porter while removing the box from the defendant’s premises with their knowledge and consent, he was not in their employ, and that the relation of master and servant did not exist between him and them. The court say: “The defendants did not employ the porter to do the act, in point of fact, nor did he assume to act as their agent or servant in that respect, but as the servant of the purchasers, in whose service, in fact and in law, he was.”

Brackett v. Lubke, 4 Allen, 138, upon which counsel for the appellee seems to place considerable reliance, is clearly distinguishable from the present case. There the defendants, who were the tenants of a building, engaged a carpenter to repair an awning and told him what they wanted to have done, but were not present when the work was being performed. The defendant afterward paid, the carpenter for said repairs. In the course of the work a rod fell and struck the plaintiff, and the jury having found that the injury resulted from,the negligence of the carpenter, the defendants, his employers, were held liable. There the existence of the relation of master and servant between the defendants and the carpenter was clear and undisputed, and there was no room to doubt the application of the rule respondeat superior.

In the present case, not only is the proof of the existence of that relation wanting, but the evidence is explicit that it did not exist. The person or persons whose negligence caused the injury complained of were not in defendant Sawyer’s employment nor engaged in the prosecution of his business at the time the plaintiff’s son was injured or in the matter out of which said injury grew. The verdict, then, as to defendant Sawyer, is wholly unsupported by the evidence, and the judgment must therefore be reversed.

Other questions are discussed, but, as what we have already said fully disposes of the case so far as this appeal is concerned, we need not consider it further. The judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Richard T. Burgess v. Ida M. Burgess.

      Divorce—Alimony Pendente Lite—Discretion—Solicitor's Fees—Error without Prejudice—Rules of Court.

    1. The allowance of temporary alimony and solicitor’s fees in divorce cases is discretionary with the chancellor. Where grounds are shown authorizing his action, this court will interfere only where the difference in judgment is strong and decided.
    2. Probable cause for the suit, the wife’s necessity and the husband’s ability, are the controlling considerations in determining whether alimony pendente lite and suit money will be allowed.
    3. The merits of the controversy between the parties can not be determined on a motion for temporary alimony.
    4. This court will not reverse an order for temporary alimony and solicitor’s fees on the ground that affidavits were read in violation of the rules of the court below, if it appears that such affidavits were not material to the issue presented by the motion.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon, Murray F, Tuley, Judge, presiding.

      Messrs. Edward H. Morris and Forrest O. Murdock, for appellant.
    Mr. Maurice Baumann, for appellee.
   Moran, P. J.

This is an appeal from an order made by the court below in a divorce case for temporary alimony, and for solicitor’s fees. We are of opinion that complainant in her petition for alimony, and by the affidavits which were properly filed in support of it, sufficiently established probable cause for the suit.

This case is in this respect unlike Wheeler v. Wheeler, 18 Ill. App. 330, cited by counsel for appellant. There the bill was not sworn to, and the answer was, and it did not appear that any affidavits or any evidence in any form was heard, from which the court could find probable cause. Orders of the kind here appealed from, are discretionary with the chancellor, and where grounds are shown by the complainant which authorize his action, they will be reversed only where the difference in judgment between the chancellor and this court is strong and decided. Lane v. Lane, 22 Ill. App. 529. The merits of the controversy between the parties can not be determined on the motion for alimony. Whether in fact a decree ought to be granted can only be properly determined on the final hearing. Probable cause for the suit, the wife’s necessity, and the husband’s ability, are the controlling considerations in determining whether alimony pendente lite and suit money will be allowed.

Here it appears that complainant is sick and is without means of support, and defendant admits that he has about 8600 on deposit in the bank, and is earning 850 per month. It very clearly appears from the evidence that complainant and defendant had a quarrel and that defendant struck her so as to leave marks upon her. Whether there was such extreme and repeated cruelty as would justify a divorce is the main question of dispute between the parties, and that, as we have already said, must be determined by the final hearing.

Counsel for appellant contends that the court erred in allowing certain affidavits to be read on the hearing of the motion, which were not filed and copies of which were not served upon appellant or his solicitor, as required by chancery rule 3, of the Circuit Court of Cook County. We agree with counsel that the rule of court was violated in allowing said affidavits to be read, and if the affidavits contained matter pertinent to the true inquiry before the court and could be regarded as affecting the result, we might feel compelled to reverse the order for this error. Such rules of court are laws to the court and can not be disregarded, or set aside, except in the manner provided by the rules themselves. But, on examining the affidavits of the reading of which the complaint is made, we find them all to relate to the merits of the main controversy between the parties. They contain only evidence going to show that defendant was in fact guilty of extreme and repeated cruelty. They were, therefore, not material to the questions which the court was called upon to decide on this motion, and must be treated as having no weight in determining those questions.

Complainant’s right to alimony was made out entirely without regard to anything in those affidavits contained, and if the court had undertaken on these and other affidavits in the case to decide the merits of the controversy between the parties, it would have been error against complainant.

Therefore, though the court erred in allowing the affidavits to be read, such error will not reverse. It did not injure appellant as he could not be properly called on to answer evidence of the nature contained in said affidavits on this motion.

We find no error which authorizes a reversal, and the decree of the Circuit Court will, therefore, be affirmed.

Decree affirmed.


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    John Boyd v. Charles T. Yerkes et al., Partners.

      Agency—Notice to Agent—Conflict of Evidence—Instructions—Deposition ~Motion to Strike out Parts of—Account Books—Incompetent Entries.

      1. Notice to an agent touching the subject-matter of his agency is notice to the principal. This rule applies where the agent represents both parties at the same time.
    2. Where the evidence is conflicting it is improper for the court to instruct the jury what any party became bound to do under the evidence.
    3. In the case presented, it is held: That notice to the agent was notice to his principal; that certain instructions were erroneous; and that a motion to strike out certain portions of a deposition wherein the witness testified to entries in books of account, which he did not make and which were also incompetent, should have been granted.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Thomas J. Sutherland, for appellant.
    Mr. H. S. Monroe, for appellee.
   Moran, P. J.

This is an action brought by appellees to recover for loss on certain stocks which it is claimed were purchased and earned by appellees for appellant on his order, and also for loss on certain transactions in oats, which, it is claimed, were conducted by appellees for appellant on the board of trade.

As to the oat deal, appellees’ evidence tended to show that appellant had given to one Cutler, who was the brother-in-law of appellant and manager of the business of appellees, authority to deal through appellees in stocks and grain, and that appellant had informed appellees that Cutler had such authority. Cutler ordered the sale of the 25,000 bushels of oats in question to be made for appellant’s account. Appellant testified that he gave Cutler authority to order sales and purchases of stocks through appellees’ firm, but gave him no authority to order the purchase or sale of oats or other grain. That on one occasion Cutler told him he had made §300 for him in an oat trade, and he told Cutler not to repeat it; that he did not want oats sold on his account; that afterward he found Cutler had again sold oats for him, and he went to Cutler and told him that he would not have it, and that he must cancel the deal as far as he, appellant, was concerned, and Outler promised, as the manager of appellees, that it should be canceled on the books.

There was thus presented a conflict upon, the question of Cutler’s authority to order the oat deal in question, for appellant’s account. For direction to the jury upon the question of Cutler’s authority to bind appellant by orders to appellees’ firm, the court gave the following instruction, being No. 2 of plaintiffs’ instructions:

“If the jury believe, from the evidence, that the defendant Boyd, before the making of said, orders, gave to the witness Cutler authority to buy and sell grain and stocks for him, and that the plaintiffs, or either of them, were informed that such was the fact, by said Boyd, and that said Cutler gave said orders to sell said oats for and on behalf of said Boyd, then the court instructs you that the orders of said Cutler in regard to buying or selling stocks or grain for account of Boyd were and are binding upon said Boyd, and are to be regarded the same as though given in person by said Boyd.”

This instruction was misleading and erroneous. If Cutler had been given authority to buy and sell grain and stocks, and the plaintiffs were informed by Boyd that such was the fact, yet if Boyd withdrew Cutler’s authority to buy or sell grain, and told Cutler that he must not sell oats for his account, then orders by Cutler thereafter given to appellees to buy or sell grain were not binding on appellant.

It is agreed that Cutler was the manager of' appellees in their business, and if it is true that appellant told him not to buy or sell oats for. him, it withdrew his authority to do so, if such authority he ever had, and notice to Cutler of that fact was notice to appellees, and they would be charged with the knowledge their agent had, no matter what appellant had previously told them. Telling Cutler that he must not sell oats was the same as tolling appellees that Cutler was not authorized to sell oats.

Notice to the agent is notice to the principal where connected with the subject-matter of the agency. Story on Agency, Sec. 140.

Here the subject-matter of Cutler’s agency for appellees was to direct the sales and purchases of grain and stocks as orders were given by the customers, and the notice was therefore given, if given at‘all, in the very matter of the agency. The rule applies where the agent represents both parties at the same time. Bank of New Milford v. Town of Hew Milford, 38 Conn. 93.

The instruction ignores appellant’s evidence that he forbade Cutler to sell oats on his account. It should have contained a hypothesis' negativing appellant’s contention on this point. It was not for the court to take that question of fact from the jury. Chicago P. & Prov. Co. v. Tilton, 87 Ill. 547.

For the error in said instruction the case must be reversed. Counsel for appellant insists that there are errors in others of the plaintiff’s instructions. In the first we think there is an error, in that it tells the jury, among other things, that the defendant “became bound under the evidence in this case upon the reasonable request of the plaintiff to furnish,” etc. This invades the province of the jury. Where there is a conflict of evidence it is never proper for the court to tell the jury what any party became bound to do under the evidence.

As to the other instructions given for the plaintiff, we are not prepared to say that any of them announce incorrect legal principles, but some of them are involved and verbally confused and inaccurate. U pon another trial we think it will not be difficult for counsel to prepare instructions stating legal propositions applicable to the facts that shall be more perspicuous and less liable to criticism. We are of opinion that the court made no error in refusing or modifying defendant’s instructions.

Counsel for appellant moved the court some two years before the trial, to suppress or strike out portions of the deposition of one J. C. O’Keefe, wherein said witness testified to entries in books, which entries, it appeared from his deposition, he did not make, and of the correctness of which he had no personal knowledge, and also to suppress the whole deposition on the ground that the witness refused to answer certain questions on cross-examination and for other reasons. The court refused to suppress the deposition, or to strike out of it the incompetent testimony, and to this ruling of the court an exception was taken.

The witness was the head bookkeeper of Horton & Company, of Hew York, who were claimed to be the brokers of appellees in purchasing stocks which appellant had ordered appellees to purchase for him. It was sought to prove that said order had been filled, and that the stock was purchased by Horton & Company for appellees and carried for him.

The witness testified to certain entries in Horton & Company’s books, showing transactions in the stock for appellees and made a list of transactions shown by the books which was attached to his deposition as an exhibit. Entries in the books of Horton & Company of transactions or accounts between said firm and appellees were res inter alios acta as to appellant.

The books themselves would not be competent evidence against him, and so, of course, evidence as to the entries contained in them was incompetent. The witness had no personal knowledge as to the transactions entered in the books and they were not used to refresh his recollection.

The motion to expunge such incompetent testimony from the depositipn, having been made in apt time, should have been granted. In its nature the testimony could not be made competent by other evidence that might be offered at the trial. As the case will be tried again, the motion to strike out the incompetent evidence from said deposition, if renewed, will be granted by the court.

For the errors pointed out, the judgment will be reversed and the case remanded.

Seversed and remanded.,


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    People of the State of Illinois ex rel. v. Elliott Anthony, a Judge of the Superior Court.

      Mandamus—Hill of Exceptions—Amendment—Befusal of Trial Judge to Sign—Betition.

    1. The question whether a certain exception was taken at a trial is one to be determined by the trial Judge, and by him only.
    2. Mandamus lies to compel a trial Judge to sign a bill of exceptions but not to direct what statements or exceptions such bill shall contain.
    [Opinion filed March 28, 1888.]
    Petition for mandamus.
    Mr. F. P. Simons, for petitioner.
    Mr. E. A. Sherburne, for respondent.
   Moran, P. J.

This is a petition in mandamus to compel the respondent to sign an amended bill of exceptions in a case which is now pending on appeal in this court.

The case in which it is sought to have the amended bill filed, and which is entitled McCormick v. Hubbard, was tried, in the Superior Court, at the May term thereof, and at that term a bill of exceptions was signed by the respondent and filed in the case. Belator now asserts that certain exceptions to the finding of the court and to the judgment were taken at the trial, hut that by inadvertence in making up the original bill of exceptions, such exceptions did not appear in it. A motion was made upon notice to the opposite party in said case to file an amended bill of exceptions, and said motion was supported by affidavits made by the two attorneys who tried the case for relator before respondent, in which affidavits said attorneys swear that said exceptions to the finding and judgment were taken at the trial.

Respondent attaches to his answer in this case, as part of his return, the affidavit of the. attorney for McCormick, who swears that no such exceptions were taken at the trial. If we were authorized to determine this case upon the weight of evidence on that issue, we might conclude that the preponderance was clearly with the relator, but we have in this proceeding nothing to do with the determination of such an issue. In our practice it is well settled that the question whether a certain exception was taken, is a question to be determined and certified by the trial Judge, and by him only. K mandamus may go to compel the Judge to sign a bill of exceptions, but not to direct what statements or exceptions such bill shall contain.

The answer which the respondent has filed in this -case states that the case of McCormick v. Hubbard was tried before him without a jury, and that he signed the bill of exceptions which was presented to him by relator’s counsel within the time fixed for filing the same.

Respondent says: “I kept no memorandum of exceptions, if any were taken at the trial; there was no dispute or anything to fix in my mind whether the alleged exceptions stated in the petition and affidavits attached, were or were not saved*, and I am not able now to state what is the fact in that regard.” Respondent further states, in substance, that he does not feel that he can properly certify to the amended bill of exceptions, there being nothing for him to amend by, and nothing to rely on but conflicting and inconsistent affidavits.

The return brings this case, in our opinion, within the doetrine laid down by our Supreme Court, in The People v. Jameson, 40 Ill. 93, and The People v. Pearson, 2 Scam. 206.

•In the case first cited the Supreme Court said: “We can not look into the affidavits which have been presented touching the fact in dispute, as it is the exclusive province of the Judge to determine the correctness of a bill of exceptions which he is requested to sign.” And in The People v. Pearson, it was said: “The law makes him, and properly so, the judge of the propriety and accuracy of the act he is called on to solemnly verify the truth of, so that it shall become a part of the record in the cause; it is not for other parties to determine its truth.

Under the authorities cited above, the mandamus must in this case be denied!

Mandamus denied


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    Elisha C. Ware v. Thomas M. Jordan.

      Action on Note—Consideration—Gambling Transactions on Board of Trade—Évidence.

    In an action on a promissory note, the defense being that the note was given in settlement of losses in certain gambling transactions on the board of trade, it is held: That it does not appear that the transactions in question were gambling transactions; and that from the mere fact that such transactions were closed before maturity, an account of losses being rendered on the basis of differences in price, it should not be inferred that such was the intention of the parties ab initio, and that there was an understanding that there should be no delivery of the commodity sold.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Barker, Clifford, Thornton & Smith, for appellant.
    Messrs. Payne & Porter and John V. A. Weaver, for. appellee.
   Bailey, J.

This was an action of assumpsit, brought by Thomas M. Jordan against Elisha C. Ware, to recover the amount of a promissory note for $250, executed by the defendant to the plaintiff, dated December 16, 1879, and payable on or before October, 1880, with eight per cent, interest. The defense interposed was that said note was given in settlement of losses in certain gambling transactions on the Board of Trade of Chicago. The trial resulted in a verdict and judgment in favor of the plaintiff for §398.33.

The transactions out of which said promissory note grew took place in the latter part of the year 1876. The plaintiff was a commission merchant, doing business on said board, and was employed by the defendant to purchase for him 20,000 bushels of wheat for future delivery. This purchase was made and resulted in a profit of' §1,500, which was paid over by the plaintiff to the defendant. Shortly afterward, the defendant directed the plaintiff to sell for him, on said board, at two different times, 20,000 bushels of wheat, which commissions were duly executed, the defendant depositing with the plaintiff certain sums of money as margins, but the price of wheat suddenly advancing to a point much above that at which the defendant’s wheat was sold, and the defendant failing, on plaintiff’s demand, to furnish corresponding margins, the plaintiff closed out said transactions at a loss to the defendant, over and above the amount of his margins, of between §1,500 and §1,600. The plaintiff rendered to the defendant an account of said losses, and frequently importuned him to pay the same, but the defendant claimed to be unable to do so for want of means, and the matter ran along until December 16, 1879, at which date the defendant gave and the plaintiff accepted the note in question in compromise and settlement of the account.

It is not claimed by the defendant that there was any agreement or any express understanding between him and the plaintiff, at the time said sales were made, that there should be no delivery of the grain sold, or that settlement should be made on the basis of the difference in price, the defendant himself testifying that nothing was said between him and the plaintiff on that subject, and the plaintiff testifying that said transactions were Iona fide sales of grain for future delivery. It is insisted, however, that from the mere fact that the transactions were closed out before maturity, and an account of the losses rendered upon the basis of differences in price, it should be inferred that such was the intention and expectation of the parties ab initio, and that there was aq understanding that the commodities sold should not be delivered, and that settlements should be made on the basis of the differences of price. Such conclusion does not follow from the premises, especially as the transactions were closed out for want of margins. Wo see no ground for holding that the transactions out of which the indebtedness in question arose were gambling transactions, especially since the jury, whose prerogative it was to weigh and construe the evidence, has decided the other way.

Some other questions are raised upon the rulings of the court in the admission and exclusion of evidence and in the instructions to the jury, which we have duly considered, but we do not deem' it necessary to do more than to say that we find no material error in the rulings of the court in those respects. ' 1

As we find no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    Louisville, New Albany & Chicago Railway Company v. Diamond State Iron Company.

      Sales—Failure of Vendee to Give Shipping Directions—Assumpsit.

    In an action of assumpsit on a contract for the sale of spikes, the purchaser having failed to give necessary shipping directions, this court declines to interfere with the finding of the court below, there being no error at law, and the evidence being sufficient to sustain the finding and judgment.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.

      Messrs. Haynes & Easley, for appellant.
    Mr. Frank J. Loesch, for appellee.
   Bailey, J.

This was assumpsit upon a contract, by which the plaintiff agreed to sell, and the defendant to purchase, 2,500 kegs of spikes, on certain terms and at a certain price per hundred weight, the spikes to be delivered on board the cars at Wilmington, Delaware, within a certain period specified in the contract, and the defendant to give shipping directions. Five hundred kegs were shipped to Michigan City, Indiana, on shipping directions given by the defendant’s agent, and were afterward paid for by-the defendant. It is claimed by the plaintiff that it was ready and willing to deliver the residue of said spikes according to the contract, but that, by reason of the refusal or failure of the defendant to give the necessary shipping directions, it was prevented from delivering the same. The cause was tried by the court, a jury being waived, and a judgment rendered in favor of the plaintiff for $3,000 and costs.

Upon careful examination of the record wo find no error of law. ~V arious propositions were submitted to the court to be held as the law in the decision of the case, and we are unable to perceive any material error in the rulings of the court in relation to said propositions. The controversy turned chiefly upon questions of fact, and all we need say is, that so far as we are able to see, the evidence sustains the finding and judgment. Discussions of mere questions of fact by this court, especially where we agree with the decision of the court below, can ordinarily subserve no useful purpose. We content ourselves, therefore, with saying that we see no reason for disturbing the judgment. It will, accordingly, be affirmed. ■

Judgment affirmed.


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    John Stenzel v. William Sims.

      Practice—-Appeal from Justice—Dismissal—Motion to Set Aside—Discretion—Diligence—Negligence of Attorney—Procedendo—Record.

    Upon a motion to set aside a judgment dismissing an appeal from a Justice, it is held: That the negligence of his attorney is to be imputed to appellant; that this court can not interfere, in the absence of an abuse of discretion by the trial court in overruling the motion; that diligence and merits are both required before such a motion can be granted; that the court below had authority to dismiss the appeal with procedendo; and that the record is not defective in failing to show that appellant was called.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Israel Cowen, for appellant.
    Appeal is a proceeding by which a case in legal procedure is taken from the decision of an inferior tribunal to that of a superior court to be again re-investigated, tried and determined. The judgment or determination in the former tribunal is vacated, and the action again tried de novo in the Superior Court. Appeals were wholly unknown as any part of the proceeding in an action at common law.' In England they were only known in courts of equity and courts modeled after the civil law. Appeal, therefore, exists in this country only as it is regulated and modeled by statute. Powell on App. Proceedings, Chap. 9, Sec. 1; Skinner v. Lake View Avenue Co., 57 Ill. 151.
    It would seem, then, that by the filing of the appeal bond, of the appearance of appellee and of the transcript of the Justice’s judgment in the Circuit Court, the latter acquires jurisdiction of the persons and subject-matter, and hence the cause is virtually the same as if it had been commenced in said Circuit Court. If that be true, and indeed the statute says so, explicitly, the rights of the parties are the same, as in original actions commenced by summons. And what is that right, after the pleadings are made up and issue formed ? The right to a trial; and a trial is defined to be an investigation of the issues of fact raised by the pleadings. Hayne, "Sew Trial and A., 25.
    By means of an appeal a trial de novo is obtained at the volition of a party without assigning any cause for it, by simply announcing his intention to appeal, giving certain bail, and in other respects complying with the requisition of the statute allowing the appeal. Powell on App. Proceedings, Ch. 9, Sec. 2.
    The appeal usually removes the whole case and subjects the facts as well as the law to a rehearing and a new judgment. Story on Con., Sec. 1762; Scribner v. Williams, 1 Paige, 550; Taff v. Hewitt, 1 Ohio St. 511.
    Mr. W. C. Minard, for appellee.
   Moran, P. J.

Appellee recovered a judgment against appellant before a Justice of the Peace, and appellant took the case to the Circuit Court, where it was regularly placed upon the calendar, and reached in its order for trial.

When the case was called for trial, neither the appellant nor his counsel was in attendance, and on motion of appellee the appeal was dismissed with a procedendo, and statutory damages were allowed against appellant.

A motion was made at the same term to set aside the judgment of dismissal, and an affidavit filed which probably sufficiently disclosed merits as against the claim of appellee, but which also disclosed that appellant employed a lawyer (not the counsel who has argued the case in this court) to look after said appeal, and that said lawyer wholly neglected to do so, and that appellant did not know said case had been 'liable to call, or had been called and the appeal dismissed, until the Constable called upon him with an execution for the payment of the judgment. The neglect of his attorney is on this motion to be imputed to appellant himself, and his affidavit shows, therefore, an absolute lack of diligence. We can not regard his merits, no matter how complete his defense; his right to interpose it was forfeited by the negligence of his attorney and himself.

It is not the practice for courts of review to interfere with the ruling of the trial Judge in such a matter where there is an absolute want of diligence shown. An appellate court has no authority to reverse in such cases, unless it appears from all the circumstances that there has been an abuse of the discretion of the trial court, and it can not be held an abuse of such discretion to refuse to set aside . a judgment when the moving party himself shows an entire lack of diligence.

Though, on such motions, merits may be regarded as the more important of the two requirements, so as that, if diligence is shown, the highest degree thereof may not be essential where the merits are clear, yet diligence and merits must both appear, and absolute lack of the one is as fatal to the motion as the want of the other.

Where the party employs a lawyer and the lawyer wholly neglects his duty, and because of such negligence the client is cast in his case or his defense, his remedy is complete against the delinquent attorney for all the damages which he has sustained through the neglect.

Counsel for appellant has contended with earnestness and ingenuity, that the Circuit Court had no authority to dismiss the appeal with procedendo, but should have proceeded with the trial and compelled appellee to make out his case by evidence.

The contention is based upon the fact that the trial of a ease coming to the court on appeal from a Justice of the Peace is' to be de novo, and upon the provision of the statute, that on the trial of the appeal “the rights of the parties shall be the same as in original actions.”

However willing we might be to adopt the practice contended for if the question was a new one in this State, we are compelled to regard the course adopted by the trial court as so fully authorized by repeated adjudications in this State as to be not open to question. The point has been repeatedly made in the Appellate and in the Supreme Courts, and has. always been decided the same way. Boyd v. Kocher, 31 Ill. 295; Allen v. City of Monmouth, 37 Ill.372; Nispel v. Wolff, 74 Ill. 303; Lawler v. Gorden, 91 Ill. 602; Hickley v„ Dean, 104 Ill. 630; Bigelow v. Village of Kewanee, 17 Ill. App„ 631; De Luew v. Carrigan, 19 Ill. App. 193.

There is nothing in the point that the record does not show that appellant was called, as is done where a default is entered in the original case. By filing his appeal bond appellant appeared and gave the court jurisdiction of the subject-matter by filing of the Justice’s transcript. It was appellant’s duty to be in court when his case was reached for trial.

There is no error in this record which authorizes a reversal of the judgment of the court below, and the same must, there- . fore, be affirmed.

Judgment affirmed.


author: Per Curiam.

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    John McDermott v. John Gubbing.

      Practice—Dismissal as to One of Ttoo Joint Defendants—Conflict of Evidence—Question for Jury.

    1, It is within the power of the trial court to allow the plaintiff to disniiss against one of two defendants who are sued as joint contractors, and to permit the case to proceed as against the other defendant. The fact that the retained defendant has filed a plea denying joint liability, does not alter the rule.
    2. Where the evidence is sharply conflicting, this court will not interfere with the verdict of the jury.
    [Opinion filed March 28, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

      Mr. Perry A. Hull, for appellant.
    Messrs. Fullenwider & Simmons, for appellee.
   Per Curiam.

This is an appeal from the verdict of a jury and the judgment thereon in the action brought to recover for certain water heaters alleged to have been manufactured by appellee upon the order of appellant, upon his promise to pay for them. We have examined the points of law made by appellant’s counsel, and are of opinion that there was no error of law made by the court in the trial of the case. We think it clearly within the power of the court to allow the plaintiff to dismiss against one of two defendants who are sued as joint contractors, and to permit the case to proceed as against the other defendant, and we can not see that the fact that the retained defendant has filed a plea denying joint liability, in any way alters the case.

It is strenuously contended that the verdict should be set aside because not supported by the evidence, but an examination of the record discloses that there is evidence which clearly supports the conclusion which the jury reached. There is indeed a sharp conflict on the question whether appellant promised to be personally liable for the heaters. He contends that his promise to pay was made in his official capacity as secretary of the heater company, and not individually, but appellee swears just as positively that the promise was a personal one, and that the work was done in reliance upon it.

There was other testimony and circumstances in support of each contention, and the case was one peculiarly for the determination of a jury. The verdict must be held to have settled the question of fact in favor of appellee, and as we find no error of law, under the well settled practice of reviewing courts, we must affirm the judgment.

Judgment affirmed.


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    Merchants National Bank of Muskegon v. Emma T. Hogle et al.

      Bill to set aside Fraudulent Conveyances—Whether Multifarious— Prayer for Wrong Belief—Demurrer, Improperly Sustained.

    1. A demurrer to a bill will not be sustained for the reason that the wrong relief is prayed.
    2. Under a prayer for general relief the court may, at the hearing, grant the relief to which the complainant is entitled, notwithstanding an improper specific prayer for relief.
    3. A bill in equity lies to remove fraudulent liens out of the way of an execution. But it seems that after such liens are removed, the court will not appoint a receiver nor proceed to sell the property and pay the complainant’s claim.

      4. In the case presented, it is held: That the bill, though containing much more than is necessary, is not multifarious, its one general purpose being to set aside certain conveyances alleged to be fraudulent, which prevent the satisfaction of the complainant’s judgment.
    [Opinion filed April 11, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamison, Judge, presiding.
    The hill of complaint filed by appellant in the court below, after setting forth recovery of judgment for §200 before a Justice of the Peace, and the recording of a transcript in the office of the clerk of the Circuit Court of Cook County, proceeds to aver that complainant, on the 27th day of August, 1886, caused to be issued an execution upon said transcript which came to the hands of the Sheriff of Cook County, directed against the property of Emma T. Hogle, and that said Sheriff levied said writ upon all the goods and chattels, lands and tenements of the defendant in his county, subject to the prior levies thereon. That Emma T. Hogle, under the name of Hogle & Company, has for some time been engaged in business in Cook County, and at Muskegon, Michigan, and that Thomas C. Hogle, her husband, has actively conducted her said business with power to manage it. That during the course of said business, Emma T. Hogle became the owner of real estate situate in Cook County (describing same); also the owner of a factory, machinery, etc.; also the owner of personal property situate in the factory, in Cook County, and at Muskegon. That during the course of said business various persons became indebted to the defendant, aggregating about §2,000. That during the last two years, in the course of said business, defendant, through her agents, has applied to your orator for loans of money to assist in carrying on said business. That the defendant represented to complainant that his wife was solvent and doing a good business, and the owner of property far exceeding in value the full indebtedness of the defendant. That complainant is a member of the commercial agencies of It. G. Dun & Company, and of the Bradstreet Company, an organization for ascertaining the credit of business firms throughout the Hnited States, and giving information to the members and subscribers thereof. That complainant received reports from these agencies that Emma THogle was solvent, and the owner of property exceeding her indebtedness. That complainant relied upon and believed the reports of said Thomas C. Hogle and of said agencies, and had various business transactions with her, for which said judgment was recovered. That said Thomas C. Hogle knew that complainant relied upon said statements. That on the 16th day of August, 1886, defendant was indebted to complainant in the sum of §200 judgment, and §675 on commercial paper payable to the complainant, not yet due. That previous to the 16th of August, 1886, Emma, together with Thomas C. Hogle and other defendants (naming them), combined for the purpose of defrauding complainant and other creditors of the defendant and of placing the property of Emma T. Hogle and said Hogle & Company in such condition that the complainant and other creditors could not subject the same to the payment of their just claims by process of law.
    That Emma T. Hogle and her husband executed a judgment note for §900, and §100 attorney’s fees, dated August 13, 1886, payable on demand to Frank Travers, and indorsed by him to John S. Miller, trustee; that Frank Travers is the son of Emma T. Hogle’s stepmother, and that Emma T. Hogle asserts that said judgment note was given for moneys loaned her said stepmother at a period antedating the time of the giving of said judgment note. That Emma and Thomas C. Hogle also executed a judgment note to James E. Bingham for §200, dated August 13, 1886, payable three months after date, with power to confess judgment, and §200 attorney’s fees. That defendant gives out that said last note was given to said Bingham for moneys loaned previous to the execution of the note. That the said Emma T. Hogle and Thomas C. Hogle also executed to one John S. Miller a 'judgment note-for §1,005 and §150 attorney’s fees, dated August 12, 1886, payable on demand. That said Emma gives out that this note was for moneys loaned to her prior to the execution of said notes. That the Hogles also executed a judgment note for the sum of §350, dated August 12, 1886, payable on demand, with the attorney’s fees amounting to the sum of §40, and the judgment note dated August 12, 1886, for §505 dollars, payable sixty days after date, to the order of John S. Miller, including §70 attorney’s fees. That they have alleged that the consideration of said note was moneys loaned by said John S. Miller to said Emma T. Hpgle before the execution of the notes. That said Emma T. Hogle executed another judgment note for the sum of §1,466.66, dated August 13, 1886, payable sixty days after date to the order of Charles H. Patton, with eight per cent, interest, including §100 attorney’s fees, for the alleged consideration of moneys loaned by said Patton to said Emma T. Hogle. That on the 16th of August, 1886, judgments were entered on tlie various judgment notes against said Emma T. Hogle (describing them).
    That the various papers in said suit were filed at the hour of 1:55 in the afternoon of said day, and before the entry of any judgments, and before the docketing of any judgments, executions were issued by the clerk of the Superior Court on said judgments, and delivered to the Sheriff of Cook County.
    That said executions were levied upon the property of Emma T. Hogle, and. at the request of John S. Miller, Charles H. Patton, executions in favor of said Patton and Miller were returned “ no property found,” and thereupon, at the hour of 10 o’clock in the morning of the 17th of August, 1886, a collusive creditor’s bill was filed in this court by the said Patton and Miller, upon said last mentioned judgments and returns of said executions, in which bill the said Hogles were made parties defendant.
    That they at once appeared in said proceedings and filed their consent for the appointment of Frank Travers as receiver. He was then appointed receiver in said cause, giving bond for the sum of §2,500, with said John S. Miller as surety. That said Frank Travers was formerly a clerk of said Hogle & Company, and is the stepbrother of the said Emma T. Hogle, and is now acting as the receiver of said Emma T. Hogle and Thomas C. Hogle. That previous to the entry of said judgment, said Emma T. Hogle and Thomas C. Hogle executed to one Leman, as trustee, a trust deed of the.above described real estate, to secure two notes of said John S. Miller for $266 and §525, respectively, which is alleged to be the same indebtedness secured by the judgment note of said John S. Miller, above described. That on the 13th day of August, 1886, Emma T. and Thomas C. Hogle executed and delivered a chattel mortgage upon the fixtures and property in their factory to said Miller as trustee to secure a note for §2,000, payable to the order of James E. Bingham, which indebtedness is alleged to be the same as that secured by judgment note and judgment in favor of James E. Bingham, heretofore mentioned. That both said trust deed and chattel mortgage were filed for record prior to the issuing and levy of said executions.
    That on the 16th of August; 1886, said John S. Miller, attorney for all the complainants in said executions, procured an attachment in favor of John S. Miller, to he levied upon all the property of said Ilogle & Company at Muskegon, Michigan, and caused writs of garnishment to be served in Muskegon County upon all persons indebted to said Hogle & Company, which attachments were for the same debts secured by said alleged judgments and said alleged trust deeds.

      That all the aforesaid judgment notes, secured by trust deeds and chattel mortgage, were without consideration and void, and that at the time of the giving of the same, and thereafter, said Emma T. Hogle was not indebted to the respective holders of said notes in any sum whatsoever. That by virtue of said proceedings, the property of Mrs. Hogle was so placed that it can not be reached by complainant and the other creditors of said Emma T. Hogle. That the plaintiffs in said executions are proceeding to sell the property by virtue of the alleged executions, and have advertised the sale for the 31st day of August, 1886, and will sell, unless restrained by order of court. That the alleged proceedings in the Superior Court were had in term time, but during the adjournment of the Superior Court and not in open court. That all of said proceedings are simply means whereby property of Emiua T. Hogle may he taken out of her name, and the same placed in the hands of various persons whom she could trust for her benefit, and that of her husband. That all of said proceedings are not bona fide, nor to secure bona fide claims, but on the contrary are had for the false and fraudulent proposition of cheating your orator and the other bona fide creditors of Emma T. Hogle.
    The hill then makes all of said parties defendant, and submits interrogatories to the various defendants.
    The prayer of the bill is that complainant’s judgment be paid. That the alleged levies of execution on said property of Emma T. Hogle be declared void1 and of no effect, and that said property be subjected to the liens of complainant’s execution as a prior and valid lien thereon, and that defendants be declared trustees for the benefit of complainant as to any proceeds of sale, and that they be decreed to pay them to the complainant to the extent of the complainant’s judgment and costs, and interest. That the chattel mortgage and trust deeds be declared fraudulent and void as against tjie lien of complainant’s execution and levy. Also praying for an injunction and receiver, also for an injunctien against the Sheriff, enjoining him from paying over the proceeds of said sale to the plaintiffs in said alleged executions until the further order of court, etc.

      A general demurrer was filed for all the defendants, which was sustained by the court and the bill dismissed for want of equity, and the case is brought to this court by appeal.
    Messrs. Moses & Newman, for appellant.
    Mr. John S. Miller, for appellees.
   Moran, P. J.

The bill states the recovery of a judgment in a Justice Court by complainant and the taking of all the necessary steps to make said judgment a lien on the real estate of appellee, Emma T. Hogle, and that after the indebtedness on which the judgment was based, but before the recovery of the judgment, there was a confederacy between said judgment debtor and the other defendants to cover the property of said debtor with apparent liens and incumbrances, so as to hinder'and delay appellant and other creditors, and that to that end judgments were confessed on notes that wrere without consideration, and levies made upon the property of said debtor, and a trust deed given covering certain real estate, to secure notes, also without consideration, and various other transfers and proceedings affecting the title to the debtor’s properly, which transfers and proceedings are alleged to have been collusive and void as against creditors. That by these various conveyances and proceedings appellant’s execution is impeded, and the satisfaction of its judgment obstructed. Appellant prays, among other things, that the said collusive judgments, executions and levies, and the said trust deed, be declared void as against the lien of appellant’s executions, and removed as an obstruction and impediment to appellant’s lien, and that the property be sold to satisfy appellant’s execution.

The facts alleged in the bill entitle appellant to have all fraudulent liens, whether created by judgments or otherwise, removed out of the way of its execution. When the facts stated in the hill entitle the complainant to relief, it is error to sustain a general demurrer to the bill. The bill contained a prayer for general relief, and under such prayer the court could, at the hearing, grant the relief which complainant’s allegations entitle it to have, notwithstanding an improper specific prayer for relief. A demurrer to a bill will not be sustained for the reason that the wrong relief is prayed. Wilkinson v. Beal, 4 Mad. 408; Hopkins v. Snedaker, 71 Ill. 449; Ouryea v. Berry, 84 Ill. 600.

The court would not, after removing fraudulent liens out of the way of the execution, proceed to sell the property and pay complainant’s claim, it is true, but because complainant so prayed, would not prevent the court from removing the obstruction and then leaving complainant to satisfy his execution out of the property in the ordinary manner. Probably the appointment of a receiver under such a bill would not be obtainable, certainly not ordinarily, but because a receiver is asked for, is no reason for putting complainant out of court. The bill, though containing much more than was necessary, is by no means multifarious.

The complainant asserts but one general right, to wit, to set aside what is alleged to be fraudulent conveyances which prevent the satisfaction of the judgment out of the debtor’s property, and a combination and confederacy is alleged against all the parties who are made defendants.

If improper discovery is asked in a bill, there may be a-, demurrer to the discovery, but here the demurrer was a general demurrer to the bill.

It was error to sustain the demurrer and dismiss the bill, and the decree must therefore be reversed and the case remanded,

Meversed and remanded.


author: McAllister, J.

text:
    Elias R. Bowen v. Florence McCarthy, Mary L. Lloyd et al.

      Trustee—Foreclosure—Equitable Mortgage—After-Acquired Title.

    Upon a bill filed to foreclose a trust deed as a mortgage, it is held: That a clause contained in certain chattel mortgages did not amount to an equitable mortgage! the mortgagor having no estate in the premises, and no connection therewith except as guardian of the estate of his infant daughter; and that an after-acquired title did not inure to the mortgagee in said mortgages.
    [Opinion filed April 11, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    This is an appeal from the decree of the court below, in a proceeding to foreclose a trust deed as a mortgage, and settle equities between incumbrancers. The material facts shown by the pleadings and by the evidence are, that some time in the year I860, one Josephine Spear, being seized in fee of lot 13, Canal Trustees’, etc., having a frontage of fifty feet upon'Center Avenue,-near Madison Street, in the City of Chicago, intermarried with one Sidney P. Walker; that the only child of said marriage was bom December 21, 1863, and named Mary Louise Walker; that ten months after the birth of said child, and in the year 1864, said Josephine, the mother, died intestate, leaving said Mary Louise as her only heir at law, and her said husband, her surviving; that about' ¡November 1, 1872, said child being then nine years of age, letters of guardianship of her estate were issued by the County Court of1 Cook County to said Walker, who qualified by giving bond, and continued to act as sn'ch guardian until discharged by the proper court, January 5, 1883; that in 1857 Elias B. Bowen, the appellant, entered into possession of said lot 13, under a lease for nine years, made by one Ira Herriman, who was guardian of the estate of said Josephine Spear, but attorning and paying rent to said Sidney P. Walker some time after his marriage with said Josephine Spear, and that after the expiration of said lease, Bowen continued to occupy the premises under said Walker, but without any written lease, so far as the case shows. It appears that'said Walker had bought and lived upon the lot next south of that in question; that during all the transactions in question their relations were very intimate, Bowen having married and was living with Walker’s mother; and the evidence tended to show that Bowen was familiar with all the facts respecting the title of said lot 13 being in said Mary Louise after her mother’s death, and said Sidney P. Walker being the guardian of her estate. It appears that September 4,1874, by means of a sale of stock by Bowen to Walker, the latter became indebted to the former in the sum of $4,600, for which he gave his promissory note, payable in two years from date, and, to secure the same, a chattel mortgage upon certain specified personal property, which was recorded as such; that in such chattel mortgage the only reference to said lot 13 is found in the defeasance clause, which reads:

      uProvided; nevertheless, that if the said Sidney P. Walker, 1ns heirs, executors, administrators or assigns, shall well and truly pay, or cause to be paid unto the said Elias E. Bowen, his heirs, executors, administrators or assigns, the sum of $4,600 and interest thereon, according to the tenor and effect of one promissory note, dated September 4,1874, signed by the party of the first part [saidWalker] and payable to the order of the party of the second part [said Bowen], in two years after date with interest [after date] at the rate of ten per cent, per annum ('said note having been extended two years from maturity thereof upon condition that the rent of the north thirty feet of lot 13, block 3, in W. i¿ and W. of E. E. ¿ Section 17, and known as Eo. 15 Center Avenue, Chicago, shall he applied to pay interest on scdd note or the principal thereof; so long as any portion thereof remains unpaid)—then and from thenceforth these presents and everything therein contained shall cease and be null and void.”
    It appears that April 12, 1877, said Walker, and Emma, his wife (he having married again), executed to said Bowen a further chattel mortgage, which was recorded as such, to secure Walker’s note for $4,500, being part of the same indebtedness as above, which chattel mortgage contained in the defeasance clause, the same provision as above as to the rents of said north thirty feet of lot 13, and in the same words; that during all these transactions as to said Walker’s individual indebtedness to Bowen, the said Mary Louise was the lawful owner of said lot 13, was a minor under eighteen years of age, and said Walker was guardian of her estate, of all of which matters Bowen had knowledge.
    The case shows that on the very next day after said Mary Louise attained the age of eighteen years, December 22,1881, her father, the said Walker, still sustaining the relation of guardian of her estate, obtained from her a quitclaim deed of all her interest in said lot 13, at the same time making his promissory note to her for §2,500, payable in five years, with interest; and to secure the same, he, together with his then wife, Emma J., executed a mortgage in due form upon said lot, to said Mary Louise, but which Bowen contended was not delivered to her before said Walker’s death, which occurred January 22, 1884, he then being insolvent. The evidence of said Mary Louise, which was competent as against said Bowen, tended, with other evidence, to prove a delivery at the time of making the same.
    The case also shows that, December 20, 1881, said Walker borrowed the sum of §1,500 of Rev. William A. Smith, and, for the securing the repayment of the same, he and his said wife executed a mortgage to said Smith upon said lot, which was afterward purchased by said Emma J. Walker with her own funds, to whom it was assigned; that December 14 1882, said Walker borrowed §1,000 of appellee McCarthy, to secure the repayment of which he and his said wife executed a trust deed of said lot to one Murphy, as trustee. The original bill was brought by McCarthy to .foreclose that trust deed as a mortgage, all persons who were proper parties being made parties defendant. Bowen, in his answer, set up said chattel mortgages, claiming that by them there was created a lien on said north thirty feet of said lot 13, in the nature of an equitable mortgage, to secure the said indebtedness of Sidney P. Walker to him, which was prior in time and in right to all the other of said incumbrances. But that claim was rejected by the chancellor, and a decree of foreclosure passed, adjusting equities between the other incumbrancers, who are content therewith, and Bowen alone appealed, and has assigned error.
    Mr. Edward Roby, for appellant.

      Messrs. Burke & Hollett, for Emma J. Walker et al., appellees.
    Mr. James Lloyd, for Mary L. Lloyd, appellee.
   McAllister, J.

The act entitled ec An act to protect mar-

ried women in their separate property,” went into force April 24, 1861. But before said act went into force, and in 1860, Sidney P. Walker intermarried with Josephine Spear, who was the owner in fee of the premises in question in this suit. Of that marriage only one child was bom, viz., Mary Louise Walker. But she was not born until after said act went into force, and December 21, 1863. Under that state of facts, the only estate which Sidney P. Walker had in his wife’s said real estate was that of a tenant during coverture; and she having died in the year 1864, such tenancy was thereby terminated. Rose v. Sanderson, 38 Ill. 247; Lang v. Hitchcock, 99 Ill. 550.

It appears, therefore, from the record in this case, that said Walker, at the time of the execution by him of the respective chattel mortgages to Bowen, the appellant, containing the clause upon which the alleged equitable mortgage of a portion of said real estate is jiredicated, had no estate whatever in said premises, and that the only connection he had with it was as guardian of the estate of his infant daughter, said Mary Louise, in whom the legal title was vested as heir of her deceased mother.

But it is claimed on behalf of Bowen, the appellant, that the title subsequently acquired by Sidney P. Walker by the quitclaim deed of his said ward to him after she attained her majority, inured to the benefit of him, said Bowen. We can not concur in that view, for the following reasons: The after-acquired title could not inure by virtue of the statute, because there was no deed or conveyance from Sidney P. Walker to Bowen, purporting to convey an estate in fee simple absolute in any portion of the premises in question. It could not inure by way of estoppel by covenant, because there was no covenant appropriate to that end. Holbrook v. Debo, 99 Ill. 372.

Upon the whole case, we think the decree appealed from is supported by the evidence, is right, and should be affirmed.

Decree affirmed.


text:
    Jeremiah Murphy v. William C. Holway.

      Statute of Limitations—Conditional Promise—Circumstances of Admission—Evidence.

    1. An acknowledgment of indebtedness, to remove the bar of the Statute of Limitations, must be of such a character as clearly to show a recognition of the debt, and an intention to pay it. If a new promise is conditional, a performance of the condition must be shown.
    2. The fact that the circumstances of the admission of an indebtedness are such as to affect different minds in different ways, so as to admit of a fair conclusion that no new promise was intended, is alone sufficient to prevent its operating as an avoidance of the bar of the statute.
    [Opinion filed April 11, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Thomas J. Walsh, for appellant.
    Messrs. McGaffey & Turnes, for appellee.
   Bailey, J.

This suit was brought by William C. Holway against Jeremiah Murphy before a Justice of the Peace, and afterward taken by appeal to the Circuit Court where, as the result of the jury trial, judgment was rendered in favor of the plaintiff for §100 and costs. The plaintiff’s claim is for a board bill, the defense being the Statute of Limitations, and the plaintiff alleging a new promise. The plaintiff’s cause of action accrued more than five years before the commencement of the suit, and the principal controversy in the case arises upon the question of a new promise.

It seems that the plaintiff at the time the debt accrued, took into his possession certain goods and chattels belonging to the defendant, as security for his debt, and that he has never returned them to the defendant. By way of showing a new promise, the plaintiff testified that about two weeks before commencing his suit, he called on the defendant in company with one John Deacon, and presented to him his bill for board and that the defendant said that he owed the bill but wanted the plaintiff to return the property he had taken from him. Deacon testifies to the same interview and says that the defendant’s words were: I owe the bill, but I want yon to return my property.” The defendant’s version of the int££erview is as follows: “I told him that if he would return my notes and other property to me, I would pay him his bill.”

The new promise, as testified to by the defendant, was only-conditional, and as there is no pretense that the condition has ever been performed, such promise would clearly be insufficient to avoid the bar of the statute. But as the jury have found the issues for the plaintiff, we must assume that they have believed the account of the interview given by the plaintiff and 1ns witness, and the.question is whether their testimony is sufficient to establish a new promise.

The law, as generally recognized by the authorities is, that, to remove the bar of the Statute of Liipitations, it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay. The acknowledgment must be of such a character as to clearly show a recognition of the debt, and an intention to pay it. Carroll v. Forsyth, 69 Ill. 127. In the case here cited the court approve and adopt the following language of Mr. Justice Story in Boll v. Morrison, 1 Pet. 362: “If there be no express promise, but a promise to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, if the expression be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inference which may affect different minds in different ways, we think they ought not to go to the jury as evidence of a new promise to revive the cause of action.”

In the present case, if we accept as true the testimony of the plaintiff’s witness, the language of the defendant, on being presented with the plaintiff’s bill was, “I owe you the bill, but I want yon to return my property.” This language must be considered and interpreted in the light of the previous and existing relations between the parties, as disclosed by the evidence. The amount of the bill as presented was §206. The defendant testifies, and in this his testimony is not disputed, that at the time the bill was accruing, as he was unable to pay his board, the plaintiff asked him for security, and in compliance with such request, he assigned to the plaintiff a note for §300 secured by mortgage on land at Janesville, Wisconsin. About six months afterward, on returning one day to the plaintiff’s house, he found that his trunk and all his wearing apparel, except what was on his person, and all his books, had been seized by the plaintiff, there being in his trunk, in addition to other articles of value, the mortgage above mentioned and a note for §200 also secured by said mortgage, and that the plaintiff had never returned to him said| notes, wearing apparel or boobs, or rendered any account of them. The plaintiff testifies that some two years afterseizing said trunk, books, etc., he realized from a sale of the trunk and contents and books, the sum of §5.10, and applied the same on the account; that he had lost or mislaid the §300 note, and on making search for it had been unable to find it; that soon after receiving it he sent it to Janesville for collection, and it was returned to him uncollected.

Under the foregoing circumstances what implication is to be drawn from an acknowledgment of the debt, coupled with a demand for a return of the property held by his creditor as security? It would, we think, scarcely give rise to an implication of a promise to pay the debt and leave the securities in the creditor’s hands. The demand for the return of the securities would rather repel the presumption of a promise or intention to pay, or would give rise to an implication of a conditional promise, viz., that of payment on the return of the securities.

But it may be said that it was for the jury to construe the defendant’s admission, and that their finding should be held to be conclusive. It is doubtless the peculiar province of the jury to determine controverted questions of fact, and even where the mere evidential facts are undisputed, but are of a doubtful tendency, and are capable of leading different minds to different conclusions, it is ordinarily for the jury to determine the ultimate facts at issue, and their finding should not be disturbed unless clearly wrong. The present case, however, would seem to be, in a certain sense, an exception. The fact that the circumstances of the admission of an indebtedness are such as to affect different minds in different ways, so as to admit of a fair conclusion that no new promise was intended, is alone sufficient to prevent its operating as an avoidance of the bar of the statute; or, as held by Mr. Justice Story in the passage above quoted, such evidence is insufficient to go to the jury.

We are of the opinion that the verdict is unsupported by the evidence, and for that reason the judgment must be reversed and the cause remanded.

Judgment reversed.