text:
    The St. Louis, Vandalia and Terre Haute Railroad Company v. The Town of Summit.
    „ „ __ 1. Trespass quare clausum—When maintained—Possession.—In order to maintain the action of trespass quare clausum, the plaintiff must he in possession of the premises, except in cases where the land is unoccupied, and there is no adverse possession.
    2. Highways .—Where the locus in quo was a National road, the fee being in the State, the town having only the care and superintendence of it and the duty of keeping it in repair, there is no such possession as will enable the town to maintain this action. No such possessory right in a road exists in a corporation.
    3. Practice—Pleading—Distinction between trespass and case. —Although the statute has abolished the technical distinction between these forms of actions, it does not affect the substantial rights of the parties, so as to operate to give any other remedy for acts done than such as before existed; nor does it abrogate the well settled rule that the proofs must correspond with the allegations. If the declaration is trespass quare clausum fregit, then there must be a possession in order to support it.
    4. Damages—Evidence as to.—By its charter, appellant was only bound to restore the highway in such a manner as not to impair its usefulness, and it not appearing how appellant was in any way bound to repair the bridge in question, it was error to admit evidence of how much it would probably cost to repair the bridge. Damages which necessarily result from the injury complained of, may be shown under the ad damnum, but special damages must be specifically set forth in the declaration.
    Appeal from the Circuit Court of Effingham county; the Hon. John H. Halley, Judge, presiding.
    Messrs. Gilmore <& White and Mr. John G. Williams, for appellant;
    argued that the town had no such possession as would support the action, and cited Connor v. President, etc. 1 Blackf. 88; Panton Turnpike Co v. Bishop, 11 Vt. 198; City of Champaign v. McMurray, 76 Ill. 353.
    As to the measure of damages: Murphy v. City, 23 Wis. 365; Abbott v. Mills et al. 3 Vt. 529.
    Mr. William B. Cooper and Mr. B. F. Kagay, for appellee;
    that the town was chargeable with the duty ■ of keeping the road in repair, cited Troy v. Cheshire R. R. Co. 3 Foster, 103.
    The town has such an interest in the road as will authorize a recovery, and if the injury be. permanent, the cost of maintaining a new road may be recovered: Troy v. Cheshire R. R. Co. 3 Foster, 103; 4 Cush. 63; 1 Redfield on Railways, 252.
    A statute giving railroads the right to pass over highways, does not preclude parties damaged from recovering therefor: Ellicottville Plank Road Co. v. Buffalo R’y Co. 20 Barb. 644.
    The right of eminent domain can only be exercised upon making due compensation: 1 Redfield on Railways, 231.
   Baker, J.

This is an action of trespass quare clausum fregit, prosecuted by the appellee against the appellant. The locus in quo is that part of the Rational or Cumberland road that is located in the township of Summit, in Effingham county.

The case was submitted to a jury at the September term, 1877, of the Effingham Circuit Court, and a verdict was returned into court finding the appellant guilty, and assessing the damages at $2,000.

Motions for a new trial, and in arrest of judgment were overruled, and a judgment was rendered by the court on the verdict of the jury.

The case is brought by appeal to this court, and numerous errors are assigned.

The National road was laid out and constructed by the general government, under an act of Congress passed in 1820, between Wheeling, in West Virginia, and a point on the bank of the Mississippi river, and so much of the lands of the United States as were included in the road were by said act reserved and excepted from sales of the public lands. In 1856 Congress conveyed and transferred to the State of Illinois so much of the Cumberland or National road as lay within the State of Illinois. U. S. Stat. at Large, 1856, p. 7.

Thus the fee in the road was reserved to the United States by the act of 1820, and conveyed to the State by the act of 1856. The State has never divested itself of the title that it received from the general government, and still continues to be the owner in fee of the road.

The State has, however, from time to time made provision for working and keeping in repair this in common with the other public roads and highways. In 1859 the board of supervisors in all counties under township organization were given entire control of all the State roads in their respective counties. Laws of 1859, 194. Afterward, in 1861, this was changed, and the care and superintendence of highways and bridges therein was delegated to the commissioners of highways of the several towns in all counties under township organization. Thus it appears that in Effingham county, it having been under township organization since a time anterior to the passage of either of these acts, the control and care of the National road was at one time committed to the supervisors of the county, and at another time to the commissioners of highways in the several towns, the state retaining the ownership and fee of the road.

By the act of 1861 it was made the duty of the commissioners of highways “to give directions for the repairing of roads and bridges in their respective towns, and to cause the building of bridges when the public interests or necessity require it, to lay out and establish roads, to regulate the roads already laid out and to alter and vacate roads,- and to cause the highways and bridges which are or may be erected over streams intersecting highways to be kept in repair.” Laws of 1861, 246. The same care and superintendence over highways is committed to such commissioners, and the same duties imposed upon them by the act of April 11, 1873.

The first question that arises upon this record is as to whether the plaintiff below had such possession of the locus in quo as would enable it to maintain trespass.

The gist of the action of trespass, quare clausum fregit, is the injury to the possession, and the general rule is that without actual possession trespass cannot be supported. The English doctrine is, that as to real property, there is no such constructive possession as will enable the plaintiff to support this action. 1 Chit. PL 176,177, and notes.

With us the rale is relaxed, and when the plaintiff is the owner and the lands are unoccupied, or there is no adverse possession, trespass can be maintained. Dean v. Comstock, 32 Ill. 173; Smith et al. v. Wunderlich et al. 70 Ill. 426.

The title to the National road being in the State, and not in the town of Summit, it is clear that there can be no construetive possession in the town, upon the principle that the possessiou follows the title when there is no adverse possession. The town, through its commissioner of highways, had merely the care and superintendence of the road, and the duty imposed upon it of keeping it in repair, etc.

The only evidence in the case tending in the least to show actual possession in the plaintiff, was the testimony of several witnesses, who stated that the National road through Summit township had been worked by the road labor in that township, as other highways were worked. We do not understand that this was such possession as would sustain the action of trespass qua/re clausum fregit/ in fact, it was a mere performance of the duty imposed by statute upon the town authorities to keep the highways in repair. It has been held that commissioners of sewers could not maintain an action of trespass against commissioners of a harbor for breaking down a dam erected by the former, as such commissioners, across a navigable river, as the authority to be exercised by them on behalf of the public does not vest in them such a property or possessionary interest as would entitle them to maintain such action, and the proprietors of a navigation, having by statute a mere easement or right to use land for the purposes of the navigation, do not acquire such interest in the soil of a bank adjoining to and formed out of the earth excavated from a new channel, made for the first time under the act, as will enable them to maintain trespass. 1 Chitty Pl. and Notes, 176.

The case of Connor v. The President and Trustees of New Albany, 1 Black. 88, was trespass guarne clausum fregit and seems to be very much in point. The court says: “A street in a town is a public highway. It is a subject of common use, and not of exclusive possession, an incorporeal hereditament, in which all persons possess equal right, the right of passing over it, and is in its nature incapable of being- reduced into possession. But it is a subject of government, and the government of it is, by the act regulating the incorporation of towns, placed in the hands of the corporation. They have the power to keep it in repair, to remove nuisances, etc.; but this power is no more than a supervisor possesses over a common highway, and is certainly of a very different nature from a possession, either absolute or qualified. Consequently, no possessory right exists in the corporation, by which the action can be supported.” So in the case at bar, the National road is a public highway, the ownership of which is in the State. It is for the common use of ■all. The public have the right to pass and repass, and it is incapable of being reduced into possession. So, also, said road is the subject of government, and under the control of the State, and the State has, for the time being, imposed the care and superintendence of it upon certain township officers, and has made it their duty to keep it in repair, etc., and has imposed fines and penalties, to be recovered in the name of the town, for obstructing or encroaching upon the same. Rev. Stat. 121, §§ 58, 59, 60 and 61. In this case there is no such possession as will support trespass gtiare clausum fregitj but the remedy in ordinary cases for obstructing or encroaching upon the road would be by suit in the name of the town, for the penalties imposed by the statute.

But it is urged in this suit that an action on the case would lie, and that the distinction between trespass and case was abolished by our statute before the commencement of this suit. Laws 1871-2, 342.

The Supreme Court say, in the case of Blalock v. Randall, 76 Ill. 228: “The statute does away with the technical distinction between the two forms of action, but does not affect the substantial rights and liabilities of parties, so as to operate to give any other remedy for ants done than before existed.” We understand the statute to accomplish these objects and these only; to abolish the technical distinction between the two forms of action so that you may join counts in trespass with counts in case, and may call your action trespass or case— it is wholly immaterial which—and may sue out your writ in either form of action, and may then count in either trespass or case, or both, at your option. But your count, if in case, must contain all the elements of a good count in case, or if in trespass, must contain the elements of a count in trespass. The change goes only to the matter of the form of action, and does not change substantial rights and liabilities. ¡Nor do .we understand that this statute repeals that old and more than well settled principle, that in all actions the proofs must correspond with the allegations. Where a declaration is filed showing a good cause of action in either trespass or case, it is wholly immaterial whether you call your action trespass or case, but such facts must be alleged as show a legal cause of action in the one form or the other, and the facts that are alleged in the pleading must be supported by the proofs. If the declaration is in trespass qum-e clausum fregit, then there must be a possession in order to support it—either actual, or in case the premises are vacant and unoccupied, a constructive possession that follows ownership and title.

Even if there was in this case such possession as would sustain trespass, it is difficult to see how the plaintiff could recover in such action. The public highways in the State are of general concern, and are fully and completely under the control of the legislature, and in the case of this particular road the fee itself was and is in the State, and the legislature had full power to make other arrangements in regard to the same, or vacate it or dispose of it as it deemed proper.

It was stipulated in this case that any evidence admissible under a good plea might be admitted under the plea of the general issue. The ninth section of the act amending the act incorporating the appellant provides, among other things, that “ Whenever it shall be necessary for the construction of said railroad, to cross any road or highway lying on the route of said road, it shall be lawful for the company to construct their railroad across, upon, or by the side of the same, provided that the said company shall restore the road or highway thus traversed or crossed to its former state, or in a sufficient manner not materially to impair the same in its usefulness.” Thus it appears that a license was given to the corporation by the supreme power of the State, and by virtue of that license the company entered upon the National road and constructed its railroad across, upon and by the side of the same, and that by virtue of such license it has continued to operate its railroad across and upon the said road. It is difficult to see why such license is not a full and complete defense to an action of trespass, as appellant of lawful right entered upon and constructed its said road upon said highway.

The attention of the court is called by counsel for appellee to the case of Ellicottville, etc., Plank Road Co. v. Buffalo, etc. R. R. Co. 20 Barb. 644. That was an action prosecuted by the plank road company against the railroad company for a trespass committed by entering upon the plank road and for tearing up the plank and grading, etc. The plank road company was a private corporation, duly organized under the laws of the State, and was in the actual use, occupation and enjoyment of the plank road, toll-gates,” etc. The liability in that case is distinctly put upon the ground of the inviolability of private property, “ whether belonging to individuals or private coi-porations.” The court say: “The legislature could not give to this railroad company a right to enter upon the plaintiff’s road, and in any way to impair its usefulness or diminish its value, without making or becoming liable to make the plank road company just compensation. This statute is construed as granting only the right which the public had in these streams of water, water-courses, streets, highways, plank roads, turnpikes and canals, and not as attempting to grant any right to violate private property without the consent of the owners.”

■>. The distinctions between that case and the case at bar are obvious; in that case the plank road was the property of and in the actual use, possession and occupancy of the plaintiff; in this case the plaintiff had no possession and had only the care and superintendence of the highway; in that case the plaintiff was a private corporation with vested rights of property, and in this case the plaintiff is merely one of the political subdivisions of the State, with a mere duty imposed upon it by the State of keeping the highway in repair, and that care, superintendence and duty liable to be taken away and devolved updn others at the legislative will.

Our attention is also called to the case of The Town of Troy v. Cheshire Railroad Company, 3 Foster, p. 83. The declaration is in case, and alleges that there was a public highway in Troy leading from Troy toward Keene, and which the town was liable to repair, and-that there was upon the highway and forming a part of it, a valuable stone bridge, in good repair and suitable for the accommodation of the public; that the defendant had built a railroad partly upon and over said highway, and did in constructing their railroad cause obstruction and injury to the said highway and to said bridge, by demolishing and destroying the bridge and converting to their own use the material thereof and by erecting upon the site of the bridge a railroad bridge impassable by the public travel, and by occupying with the rails, embankments and excavations of the railroad a part of the highway, etc., and by placing upon said highway a large quantity of stones, and by creating upon the traveled part of the highway a fence, etc., by means of which the highway was narrowed and rendered unsafe, etc.

It will be seen that the case above referred to differs materially from the case at bar as presented by the pleadings; that being an action on the case, alleging no possession by the plaintiff or trespass by the defendant, but alleging the injury complained of according to the' real facts of the case. Aside from the question of damages, which we will hereafter refer to, the only point decided in the case is that towns that are required by law to construct and keep in repair highways and bridges within their boundaries," have a qualified interest in the roadways and bridges that they have erected, and may maintain an action upon the case for the destruction or obstruction of the road, or the conversion of the materials. The case of Harrison v. Parker, 6 East. 154, is cited several times in the opinion of the court. In that case Harrison, under a grant of authority from Sir GL Warren, built a bridge on the land of Warren for public use, and covenanted to keep it in repair and not to demand toll. He sued the defendants in trespass, alleging' in the first count of the declaration that these defendants broke down and damaged plaintiff’s bridge, etc.; and the second and third counts were for similar trespasses. The fourth count was on the asportavit for taking and carrying away the goods and chattels of the plaintiff and converting them, etc. At the assizes a verdict was found for the plaintiff. Afterward in the Court of King’s Bench it was held that the action might be maintained by the plaintiff on the fourth count for the asportavit, as there was a qualified right of property subsisting in the plaintiff after the dedication of the bridge to the public, and that upon severance of the materials of the bridge they returned to him again as his absolute property, so as to enable him to maintain a possessory action for the materials subsisting in the shape of several chattels. Lord Ellenborough, C. J., in delivering his opinion, says: If it were necessary to decide whether trespass were maintainable by the plaintiff for pulling down the bridge, it might be proper to consider whether any property in the soil had passed to him under the grant, but on the fourth count it is not necessary to decide that question.”

In fact, we have been unable to find any case where it has been held that a party with no' property in the soil, and not in actual possession or occupancy of a road or bridge, could maintain trespass guare clausum fregit, merely upon the ground that such party was charged with the duty of beeping it in repair. We feel clear that the proper common law remedy for an injury would be in case.

Even were the declaration snch as to permit a recovery, the present judgment would have to be set aside and the cause remanded for errors, in admitting improper testimony against the objections of the appellant, and in refusing proper and giving improper instructions to the jury, and for the further reason that the damages assessed by the jury, are altogether excessive and not justified by the evidence in the case.

The facts of the case, as shown by the evidence, are about as follows: The National road was laid off by the general government eighty feet wide, and was graded for the width of thirty feet. The town of Summit has never spent any money in repairing the road, but ordinary road labor has been done upon that part of the road within the town. The appellant constructed its railroad upon the national road for about 800 feet through Ewington, on the west bank of the Little Wabash river; through Ewington the railroad cut is between twelve and eighteen feet deep, and across this cut the railroad company built a bridge for the wagon road; about thirty feet on the north side of the national road was left by the railroad for the use of the public, except for a short distance at or near the bridge. For a very short distance the railroad occupies all or nearly all of the national road. But to obviate the difficulty the railroad condemned or attempted to condemn, and graded a strip of ground north of and parallel with the old road for a road for the accommodation of the public, and to furnish a way from the east edge of Ewington; and also opened a road south of the railroad that leads back to the national road west of the bridge across the railroad cut, these two pieces of road, one on the north and the other on the south side of the railroad, being connected by said bridge.

It appears from the evidence that at the time that the railroad was constructed there was an old bridge across the Little Wabash river on the national road; that the railroad did not touch the national road at either end of the river bridge; that the center line of the railroad was twenty feet south of the line of the national road; that it was about one hundred feet from the railroad to the old bridge, and that the whole width of the public road was open there. This old bridge, from innate defects and its own weight, fell down about one year after the railroad was built, and there is nothing whatever in the evidence showing or tending to show that the railroad company had anything whatever to do, directly or indirectly, with the destruction of this bridge. It is, however, in evidence that this part of the road was considered somewhat dangerous by some on account of the liability of horses to get frightened at the cars.

Upon the trial, against appellant’s objections, the court permitted appellee to ask its witnesses “what it would take to place the road in its old condition, including the bridge, grading and everything,” and questions of similar import, but of slightly variant phraseology, and permitted the witnesses to answer, they stating various sums, ranging from $1,000 to $5,000. Moreover, the court refused to give the following instruction, which was asked by the appellant: “ In determining plaintiff’s damages in this case the jury are not to take into consideration the value of the bridge which formerly crossed the Wabash river in Summit township, or what it would take at the time defendant’s road was constructed to put said bridge in good repair.”

We are wholly unable to perceive how it became the duty of appellant to repair said bridge, it being upon a portion of the National road that was not • even touched by its railroad, or upon what theory of law or justice it was liable to pay the value of a bridge for the destruction of which it was in no way accountable, and which it does not appear to have meddled with in the least. We are satisfied that the verdict of the jury for $2,000 damages was predicated to a very considerable extent upon the opinions of witnesses based upon the supposed value of this bridge. There was error in permitting questions of the character above indicated to be asked and answered, and. also in refusing to give the instruction mentioned.

Again,witnesses were permitted, against the objection of appellant, to make estimates of the cost of restoring the National road to the same condition, at the same grade and in the same place as the old one. There was error in this. The appellant had a license from the State to build its railroad across and upon the highway, and to maintain it there. The occupation of the appellant was necessarily permanent in its character, and surely it never was contemplated by the legislature, when it required the appellant to restore the highway in a sufficient manner not to materially impair the same in its usefulness, that the appellant would fill up cuts twelve or eighteen feet deep, and thereby cover up its road-bed and tracks to that depth, if or is it to be supposed that appellee intends to perform any such labor.

We have heretofore seen that, under the statutes of the State, it is the duty of the town to keep so much of this highway as lies within its limits in repair. For this purpose it is authorized to apply the road labor of the township and to assess and collect a road tax. It is also authorized to alter or widen the road, and to have the damages of the owners of the land, if not released or agreed upon, assessed by a jury, and such damages are to be paid by the town, and the town, out of the funds raised for road and bridge purposes, and by availing itself of the road labor of the township, is required to make and pay the expenses of grading and opening the road thus altered'or widened. Out of this liability grows the right, if any such right it has, of the town to maintain an action for damages, upon a count properly framed, against the appellant. The damages that it would be entitled to recover, if any, would be measured by its liability, and would be altogether compensatory in their character. In this case, while the railroad company occupies a portion of the public highway under license from the State, yet it was required to restore the highway in a sufficient manner not materially to impair its usefulness. If it has already done this, then it has already performed all that was required of it, and it is not bound to respond in damages to the town. If it has not done so, then the town will have to perform the duty that appellant should have performed, so that the public may safely pass and repass upon the highway, and for any expenses that the town would necessarily incur in procuring right of way, or in opening or grading the new portion of the road so as to make it . equally safe and convenient to the old portion, or for any extra expense of keeping in repair the road as remodeled, over and above the expense of keeping in repair the old road, and for any expense of removing obstructions upon the portion of the old road retained within the new highway, the town would perhaps be entitled to recover as compensation. In this case, the injury and nuisance is necessarily of a permanent character and will continue without change. The continuance of the state of facts produced by the acts of appellant will necessarily follow, as it must be presumed that appellant will continue to occupy such portion of the highway as its road is built upon, and it is a permanent diversion of that property to a new use. The ingredients above mentioned, growing out of the acts of appellant and the liability of appellee, would probably constitute the measure of damages, and if so may be recovered, not as prospective damages, but as compensation for the injury, sustained. In this connection, see The Town of Troy v. Cheshire R. R. Co. 3 Foster, 83.

Those damages which necessarily result from the injury complained of may be shown under the ad damrmm, but where the damages, though the natural consequences of the act complained of are not the necessary result of it, they are termed special damages, which the law does not imply, and they must therefore be specified in the declaration or the plaintiff will not he permitted to give evidence of them at the trial. This principle would probably apply to some of the elements of damages above indicated, such as expense of right of way, which, even if not already procured by appellant, might be donated or released, and it might be necessary as to such damages to specify in the declaration and moreover show either actual'payment or legal liability to pay on the part of appellee.

The judgment of the court below is reversed and the cause remanded..

Eeversed and remanded.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    Jonathan Edwards v. Benjamin F. Sams et al.
    1. Correcting mistake—Power on court op equity.—A court of equity has unquestioned power to correct mistakes in the record of a court. Where the parties to the record seek a correction, it may be made upon motion and proper notice in the court where the mistake occurred; but this rule does not apply to one who was not a party to the record, and was not chargeable with notice of the mistake.
    2. Diligence—Intervening rights.—Appellant cannot be charged with want of diligence, he bringing his bill within ten days after discovery of the mistake, nor is he obliged to aver that no intervening rights of third parties had accrued. The law will not presume that such rights have accrued, and it is not necessary that such fact should be negatived in the bill.
    • Appeal from the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.
    Mr. Andrew D. Duff and Messrs. Barr & Lemma, for appellant;
    that if a subsequent judgment be first docketed a purchaser under it will take a title free from the prior undocketed judgment, cited Freeman on Judgments, § 343.
    The public can act upon no other means of information than the official records of the court as kept by the proper officer; McCormick v. Wheeler, 36 Ill. 114; Sattler v. The People, 59 Ill. 68.
    Errors of fact in a record may be corrected in the court when made at a term subsequent to the judgment: Mains v. Cosner, 67 Ill. 536; Rev. Stat. 1874, 782, § 67; C. &. St. L. R. R. Co. v. Holbrook, 72 Ill. 419: Howell et al. v. Morlan, 78 Ill. 162; Cook v. Wood, 24 Ill. 295.
    Where no rights of third parties have intervened, there is no limitation as to time when judgments may he corrected between parties to the record: Church et al. v. English, 81 Ill. 442.
    The judgment may be corrected by the minutes kept by the judge: C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Howell et al. v. Morlan, 78 Ill. 162.

      The court will amend a clerical mistake, when it is apparent from the files in a cause: Lyon et al. v. Boilvin, 2 Gilm. 629; Coughran v. Gutchens, 18 Ill. 390.
    • Endorsements of the clerk upon the files are evidence for this purpose: Atkins v. Hinman, 2 Gilm. 437.
    A court of equity, in cases of accident or mistake, can amend a record: Coughran v. Gutchens, 18 Ill. 390; Owens v. Ranstead, 22 Ill. 161; Robins v. Swain, 68 Ill. 197.
    Mr. William J. Allen, for appellee;
    against the right to amend, cited C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419.
    Until the amendment is made, the date of the judgment must be held conclusive: Hogden et al. v. Guttery, 58 Ill. 431; Lilly et al. v. Shaw et al. 59 Ill. 72.
   Allen, J.

This was a bill filed by appellant against appellees, to the September term of the Jackson Circuit Court for-1877. Complainant alleges that he is a resident of Hew London, in the State of Connecticut. That James Y. Logan, of said county of Jackson, was the owner in fee of certain lands in that county described in bill. That said Logan, to secure the payment of a $5,000 loan made by the Equitable Trust Company, of Hew York, made a trust deed to complainant, and that by the terms of the deed Logan was to have five and a half years to redeem the lands, by paying principal and interest, according to terms of trust deed.

That deed bears date Hovember 2, 1874, but was acknowledged and filed for record March 25, 1875, in the recorder’s office of said county; that when deed was filed for record, the records of Jackson county disclosed no judgment against Logan which was a lien on said lands, and charges that in fact there was no such judgment.

Bill charges that appellant, for the first time, was informed within ten days before bringing, their bill that there appears now upon the record of said court a judgment against Logan, and in favor of F. Smith & Co., for $1,443.96, purporting to have been rendered on the 24th day of March, 1875, one day prior to the filing of appellant’s deed of trust for record in the recorder’s office. Bill charges that no such judgment was rendered on that day. That record of court shows that court was in session on the 25th day of March; that 25th day of March was first Thursday of said term. That suit was pending in that court by F. Smith & Co. v. Logan. That a motion for default by plaintiff against defendant in that suit was made on Thursday, 25th, but that no judgment was rendered. That plaintiff in that suit asked and obtained leave to amend jurat on affidavit of merits. That affidavit had to be sent to St. Louis for amendment to jurat, and that in fact no judgment was rendered until 9th day of April following in that suit.

That plaintiffs in that judgment, F. Smith & Co., had execution issued on the pretended judgment of March 24, and levied upon lands described in deed, and that at a sale on said execution, F. Smith & Co. became the purchasers, at amount of judgment, interest and costs. That they hold a certificate of purchase, and that they will be, unless restrained, entitled ta take, and will take, a deed for the premises on that certificate at the end of fifteen months from date of sale. That lands will not be redeemed. That clerk’s computation of interest on nóte shows that it was made on the 9th day of April. • That the date of said judgment, as it appears of record, was entered by mistake of clerk, and in fraud of the rights of appellant. That appellant has no remedy at law.

Bill prays that F. Smith & Co. may be restrained from transferring their certificate of purchase to a third party, and that, the court may correct the mistake in date of judgment, and decree the trust deed to be declared a prior and superior lien upon the lands described therein, and for general relief.

Upon this bill a temporary injunction was granted by the judge, August 15, 1877. At the September term, 1877, a general demurrer was interposed by appellee to the bill, and demurrer sustained and injunction dissolved. Decree against appellant for costs.

The demurrer to this bill admits everything that is well stated in the bill, and the only question is, did the bill contain enough to entitle the appellant to have the judgment corrected, or to have his deed declared a prior lien upon the land?

The demurrer admits that judgment was not rendered until the 9th of April. Demurrer admits that it was a mistake of ■ the clerk that judgment appears to have been rendered upon the 24th of March; it admits that appellant’s deed was filed for record several days before judgment was rendered in favor of F. Smith & Go. against Logan, because these facts are well stated in the bill. But appellee denies the power of a court of equity to correct this mistake, and insists that the mistake could only be corrected on notice and by a motion in the court where the mistake occurred, saving such rights as may have accrued to third parties in the meantime.

That a correction might have been made by the parties to that suit upon motion we do not question. Appellant was no party to that suit, and hence was in no position to avail himself of this method of redress. The decision in Cairo & St. Louis R. R. Co. v. Holbrook, 72 Ill. 419, is not applicable to this bill, and the same may be said of' Hodgen v. Guttery, 53 Ill. 431. These were mistakes where parties to the record sought a correction, and when they were at all times charged with the notice of the mistake. But we apprehend that such a rule would not be applied to one who was no party to .the record, who was not chargeable with notice of the mistake, and whose rights were seriously affected by such mistakes.

In Griffin v. Ketchum, 18 Ill. 330, the court, in discussing the time within which a motion to amend a record or correct a mistake may be made, say that while a cause is pending such errors may be corrected, and that upon notice to the other party theymay still amend after the case is finally determined, except in so far as the amendment may affect the rights of third parties ; and after reviewing the cases in which it was held that amendments could be made upon notice, say, undoubtedly a court of equity, by virtue of its jurisdiction in cases of accident and mistake, upon proper application by bill, and full proof, would grant relief by decree, adjusting and protecting the rights of all persons to be affected thereby.” Here is a clear recognition of the doctrine that a court of equity will go beyond a court of law “ in correcting mistakes in the record of a court.”

In Owens v. Ransted, 22 Ill. 161, it is said “ that the power of a court of chancery to correct a mistake in a case like this, when properly made out, cannot be questioned.” In Robbins v. Swain, 68 Ill. 198, where the cleric had improperly entered a decree for sale of a tract of land not included in a foreclosure, the court say, although the mistake “ might have been corrected after notice, it is equally within the province of a court to make the correction upon bill filed for that purpose. That this mode of relief is more satisfactory and complete.”

In case of Owens v. Ransted, supra, the learned justice, in delivering the opinion of the court, says: “We think in all cases, if a sheriff or ‘ other officer] by fraud and collusion with a party, or by mistalte, makes a false return, a court of equity has full power to interfere and give relief, and to permit the party injured to aver against the truth of the return, and show it to be false, although it is a matter of record.”

We'think no decision will be found construing the doctrine laid down in that decision.

The bill avers that a knowledge of the facts as to the mistake of the clerk and of the sale on execution of the land came to him within ten days before this bill was filed. He cannot be charged with want of diligence, then, in not moving sooner in this matter. Appellee says the bill is insufficient because it does not aver that no intervening rights of third parties had accrued. We do not regard this objection as well taken.

The bill asks that F. Smith & Co. may be restrained from transferring the certificate of purchase “ which they had,” and that no deed shall be taken by them under their purchase. The law will not presume that intervening rights have accrued, and it was not necessary that that fact should be expressly negatived in the bill. Under the statements in the bill we hold that the injunction ought not to have been dissolved, and for the reasons above we reverse the decree of the Circuit Court, and remand the cause for further proceedings in that court.

Beversed and remanded.


author: Tanner, P. J.

text:
    Robert S. Reynolds, Adm’r v. Calvin B. Dishon et al.
    1. Reviving judgment—Riens per descent.—The statute authorizes the plea of riens per descent where a recovery is sought against the heir, foi the indebtedness of the ancestor; but if the lands described in the scire facias to revive the judgment, had not descended to the heirs, no judgment could be rendered against them, and such plea would be improper.
    2. Foreclosure of mortgage—Presumption of satisfaction.—If the proceedings to foreclose a mortgage upon the land and subject it to sale were fatally defective, such mortgage could not, after the lapse of nearly twenty years, be interposed as an obstacle to the revival of the judgment, and subjection of the land to sale thereunder. And if such proceedings were valid, but'no conveyance to the purchaser was ever executed, it will be presumed after the lapse of nearly twenty years, that the land had been redeemed from such sale.
    Appeal from the Circuit Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding.
    Mr. W. S. Day, for appellant;
    that the law presumes redemption from the mortgage sale after the lapse of time here shown, cited Rucker v. Dooley, 49 Ill. 377; Schrader v. Peach, 77 Ill. 615.
    A sheriff can only convey land by deed containing apt words of grant: Johnson v. Bantock, 38 Ill. 111; Johnson v. Baker, 38 Ill. 99; Miami Co. v. Heirs of Halley, 7 Ohio, 11.

      Scire facias lies against the heir only to the extent of his inheritance: 8 Bac. Abr. 611.
    The judgment should find the value of the lands, and if worth more than the widow’s homestead, order that they be sold to satisfy the judgment: 6 Iowa, 39; 4 Halstead (H. J.), 32.
    Mr. A. N". Dougherty, for appellees;
    that the assignment of errors is of facts, and not of a judgment or decree of court, and therefore not cognizable in this court, cited Rev. Stat. 1877, 76, § 8; Beaubien v. Hamilton, 3 Scam. 213.
    The judgment was in favor of the plaintiff, and he cannot bring it into this court by appeal: Addix v. Fahnestock et al. 15 Ill. 448.
    Upon the plea interposed, the court could render no different judgment: Statute of Frauds and Perjuries, § 13; Ryan v. Jones, 15 Ill. 1.
   Tanner, P. J.

The appellant sued out a sci/re facias, directed to Josephine T. Dishon as the widow, and to the appellees as the heirs of Henry Dishon, deceased, for the purpose of reviving a judgment in the Circuit Court of Union county. The widow set up a right of homestead in the premises, and the heirs plead riens per descent, rml tiel record and the Statute of Limitations.

The evidence shows this state of facts: John Moreland, in October, 1858, recovered a judgment in said court for $500, with cost, against Henry Dishon and Calvin B. Dishon. In 1859 Henry Dishon died without having paid said judgment. Subsequently Moreland died, and the appellant was duly appointed administrator of his estate. On the 30th day of ¡November, 1853, Henry Dishon was the owner in fee of lots numbered 33 and 34, in “ Grammar’s Donation to Jonesboro,” and on the said day he executed and delivered a deed of mortgage for said lots to Lorenzo P. Wilcox, to secure the payment of $1,500 in three installments, the last to fall due in three years from that date. His wife joined in the mortgage and relinquished her dower in the lots. On the second day that Moreland obtained his judgment, Wilcox foreclosed or attempted to foreclose his mortgage by scire facias, and an execution was awarded against the lots for the sum of $1,500. Th'e judgment of foreclosure does not describe the lots, but simply directs an execution against the “ mortgaged premises.”

In December following the rendition of the judgment of foreclosure, .a special execution was issued and delivered to the sheriff, as appears by his indorsement on the 7th óf December. On the 15th of January following the execution was returned, indorsed, “ Sold on the 1st day of January, 1859, to Lorenzo P. Wilcox, for the sum of $1,537. I hereby return this fi.fa. satisfied on this 15th day of January, 1859.”

The premises were occupied by Henry Dishon at his death as a homestead, and his widow has occupied them as such ever since, and at the institution of this proceeding they were worth 82,500. Letters of administration were never sued out upon the estate of the said decedent. That in 1859 or 1860 the amount of money necessary to redeem the premises from the sale was tendered to the then sheriff of Union county, but he did not accept it.

The court upon the foregoing facts found the right of homestead to exist in behalf of Josephine T. Dishon, widow of Henry Dishon, deceased, and for the appellees on the plea of mens per descent, and against them upon the pleas of mil tiel record_ and the Statute of Limitations, and rendered judgment in the following words: “It is therefore adjudged and ordered by the court that the said judgment be revived against the said defendants, to be satisfied out of any property hereafter descended to them from the said ancestor.”

The appellant took exceptions to the rendition of the foregoing judgment, and assigns for error,

1. The court erred in finding for the appellees on the first plea.

2. The court erred in not finding for the plaintiff on the first plea and in not finding the value of the premises and ordering that they be sold to satisfy said judgment.

The plea of mens per descent, we think, presented no issue in this proceeding. The Rev. Stat. 1874, Ch. 542, § 13, authorizes this plea where a recovery is sought against the heir for the indebtedness of the ancestor, and this is the use assigned to the plea in the works on pleading. If the lands described in the scire facias had not passed by descent to the appellees, it was a matter of no moment to them that such lands should be subjected to sale - in satisfaction of the judgment against their ancestor. In such case no judgment could be rendered against them.

If the defects attending the proceeding to foreclose the Wilcox mortgage and subject the lots to sale were fatal, it seems clear that the mortgage could not at that late day be interposed. as an obstacle to the revival of the judgment and the subjection of the mortgaged premises to sale in behalf of the appellant. It also seems equally clear that if the foreclosure of the mortgage and the sale of the lots were regular and valid, but that no deed of conveyance was ever executed to the purchaser thereof after the lapse of nearly twenty years, it would be but reasonable to presume that the premises had been redeemed from such sale. This view falls within the reasoning of the court in Rucker v. Dooley, 49 Ill. 377. A revival of "the judgment can only operate upon the premises described in the scire facias, and if the title is not in the appellees they can in no wise be affected thereby, neither could it be prejudicial to the rights of the widow of Henry Dishon. The statute affords to her a complete shield.

We are of the opinion that the appellees were the owners of the lots described in the writ in fee simple, and that the judgment obtained by John Moreland against Henry Dishon and Calvin B. Dishon should have been revived and an execution ordered for the sale of the premises described in the scire facias.

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

Reversed and remanded.


text:
    The City of Anna v. Cornelius O’Callahan.
    1. Municipal officer—Interested in contract.—If a municipal officer contracted to furnish an article to the corporation or city, and had an interest in its sale, he would come within the prohibition of the statute forbidding such contracts by a city officer; but if he only ordered the article by authority of the city and advanced the money to pay for it, he would not.
    2. Authority to purchase.—One member of a committee of the city council cannot, without the concurrence of the other members of the committee, or a majority of them, authorize the purchase of an article for the use of the city.
    Appeal from the Circuit Court of Union county; the Hon. Monroe C, Crawford, Judge, presiding.

      Mr. Alexander J. Hisbit and Mr. W. 0. Moreland, for appellant;
    that appellee, being an .officer of the city at the time, could not become interested in a purchase for the use of the city, cited Rev. Stat. 1874, 225, § 78; Smith v. Eureka Flour Mills Co. 6 Col. 1; Maddox v. Graham, 2 Met. 56; Abbott’s Dig. Law of Cor. 668.
    Corporations and their officers can only act within the scope of the powers conferred by the charter, and such powers are to be strictly construed: 1 Dillon on Mun. Cor. 173; Minturn v. Larue, 23 How. 435; Thompson v. Lee Co. 3 Wall. 320; Thompson v. Richardson, 12 Wall. 349; Clark v. Davenport, 14 Iowa, 495; Messiam v. Moody’s Ex. 25 Iowa, 163; Nichol v. Mayor, etc., 9 Humph. 252; Leonard v. Canton, 35 Miss. 189; Douglass v. Placeville, 18 Col. 643; Argentine v. San Francisco, 16 Cal. 282; Wallace v. San Jose, 29 Cal. 180; Lafayette v. Cox, 5 Ind. 38; Bank v. Chillicothe, 7 Ohio, 31; Collins v. Hatch, 18 Ohio, 523; Smith v. Madison, 7 Ind. 86; Kyle v. Molin, 8 Ind. 34; Willard v. Killingworth, 8 Conn. 247; Brady v. Mayor, etc., 20 N. Y. 312; Hodges v. Buffalo, 2 Denio, 110; Halsted v. Mayor, etc., 3 Comst. 480; Boom v. Utica, 2 Barb. 104.
    The journal showing proceedings of the common council was competent evidence: Bev. Stat. 1874, 224.
    Appellant is not required to file a bond on appeal: Rev. Stat. 1874, 242.
    An unauthorized contract, however advantageous, does not bind a corporation: Jeffersonville v. Ferry Boat, 35 Ind. 19; Seibrecht v. New Orleans, 12 La. An. 496; Wood v. Waterville, 5 Mass. 294; Jones v. Lancaster, 4 Pick. 149.
    Assent of the corporation must be shown: 1 Dillon on Mun. Cor. 479.
    The common council cannot authorize an expenditure exceeding the annual tax levy: Rev. Stat. 1874, 227; Weston v. Syracuse, 17 N. Y. 110; 1 Dillon on Mun. Cor. 204.
    Persons contracting with a municipal corporation, must inquire into the power to make the contract: 1 Dillon on Mun. Cor. 463; Root v. Wallace, 4 McLean, 8.
    Where the charter prescribes what contracts and under what formalities the officers may contract, there must be a compliance with it: Butler v. Charleston, 7 Gray, 12; Appleby v. Mayor, etc. 15 How. Pr. 428; Baltimore v. Erchbach, 18 Md. 276; White v. New Orleans, 15 La. An. 667; Abbott’s Dig. on Corporations, 442.
    Individual members of the city council cannot bind the city by their contracts: Lottman v. San Francisco, 20 Cal. 96; Leavenworth v. Rankin, 2 Kan. 357; Abbott’s Dig. on Corporations, 520; Cowen v. West Troy, 43 Barb. 48; Johnson v. Common Council, 16 Ind. 227; Brady v. Mayor, etc. 20 N. Y. 312.
    Mr. Matthew J. Inscobb, for appellee;
    insisted that the statute prohibiting a city officer to become interested in contracts for the city, has no application in this case, and cited Bev. Stat. 1874, 240, § 169.
    All exceptions must be taken at the time of trial: Bev. Stat. 1874,782, §60; Clemson v. Kruper, Beecher’s Breese, 210; Buckmaster v. Beames, 4 Gilm. 443; Dickhut v. Durrell, 11 Ill. 72; Lincoln v. Claflin, 7 Wall. 132; Grimes v. Butts, 65 Ill. 347; St. L. A. & T. H. R. R. Co. v. Dorsey, 68 Ill. 326; Brown v. Clement, 68 Ill. 192; Seibelv. Vaughn, 69 Ill. 257.
    The bill of exceptions does-not purport to contain all the evidence: Ottawa Gas Co. v. Graham, 35 Ill. 346; Buckland v. Goddard, 36 Ill. 206; Ballance v. Leonard, 37 Ill. 43; Estey v. Grant, 55 Ill. 341; Goodrich v. City of Minonk, 62 Ill. 121; Wilson v. McDowell, 65 Ill. 522; Culliner v. Nash, 76 Ill. 515; Henry v. Holloway, 78 Ill. 356.
   Allen, J.

Appellee brought suit for $31.20 against appellant before a justice of the peace, and recovered a judgment for that sum and costs. An appeal was taken by appellant to the Circuit Court of Union cpuntv, and the cause was tried by a jury in that court, which resulted in a verdict for appellee for that sum. A motion was entered by appellant for new trial. That motion was overruled by the Circuit Court and judgment rendered on verdict for $31.20, which appellee claims to have ' paid for a pump ordered by the city authorities through him for one of the public wells of the city, and its payment is resisted by appellant on two grounds: 1. That appellee had no authority to order the pump. 2. That as an officer of the city he could not make a contract for its purchase. The evidence shows that appellee was at the time the pump was procured, the city clerk.

That at that time the city council had a committee of three of its members, whose duty it was to look after the city wells. That Bohannon, Henderson and Trent were members of that committee.

The evidence of the appellee is that Bohannon told him to order the pump; that he, Bohannon, said he had the concurrence of Henderson, another member of the committee, in making the order. That in pursuance of the order he wrote to St. Louis and procured the pump, and paid the charges on same, amounting to $31.20. That he had no authority to do so from any one but Bohannon; but that after the pump was put in the well Henderson said to appellee that it was a valuable improvement.

Bohannon testifies that he had a conversation with appellee about the well, and that he (Bohannon) recommended the pump, but that he had had at that time no conversation with Henderson about the pump.

Henderson testifies that he never had any conversation with Bohannon about the pump; that he knew nothing about it until after it was purchased and put in the well.

Trent, the chairman of the committee, testifies that he knew nothing about the pump till the appellee’s bill was presented for payment, and that he was opposed to putting a pump in the well.

Sec. 78, Rev. Stat. 1874, 225, provides that no officer of a city shall be “interested in any contract Work or business of the city,” etc., and appellant insists that appellee in this transaction comes within the provision of this section, and he is not entitled to recover. If appellee contracted to furnish a pump, and had an interest in its sale to the city, then he would be within its purview. If he only ordered a pump by authority of the city and advanced the money to pay for it, then he would not. The construction of the section given by appellant would prevent the city from procuring any material which it might need, for this could only be done through some one or more of its officers. This very narrow construction would prohibit the clerk or any one else belonging to the city government from purchasing even the necessary stationery for the business of the city council. "We think that this objection of appellant is not well taken.

There are some other points made by appellant, but they are, iti the opinion of the court, not of sufficient importance to require comment.

The only remaining question to be considered is, did the evidence in this case support the verdict of the jury? This court would not be inclined to reverse a cause when the evidence was conflicting, or even when the court might think the weight of evidence was against the finding.

In this case the appellee says the only “authority he had to order the pump was from Bohannon.” Bohannon could not make the order without a concurrence of other members of the committee, or at least a majority of them. The other members of the committee on improvement repudiate the order, deny that Bohannon was authorized by them to give any such order, and deny that since the pump was procured they have in any way ratified the order for its purchase.

We think the evidence fails to show any authority to order the pump that could bind the city to pay for it, and that the court erred in overruling the motion for a new trial, and for this reason this cause is reversed and remanded.

Reversed and remanded.


author: Baker, J.

text:
    The People of the State of Illinois v. John W. Neal et al.
    Appeal—Final obdeb.—This court has jurisdiction only in matters of appeal and writs of error from the final judgments, orders and decrees of the Circuit and other courts.
    Appeal from the County Court of Hamilton county; the Hon. Cloyd Crouch, Judge, presiding. "
    Mr. John C. Edwards, for appellants.
    Messrs. Walker & Hale, for appellees;
    that a motion to discharge hail is addressed to the discretion of the court, and its decision thereon cannot be assigned for error, cited Bruner v. Ingraham, 1 Scam. 556; Adams v. Bartlet, 5 Gilm. 170; Walker v. Welch, 14 Ill. 277; Bancroft v. Eastman, 2 Gilm. 259; Morrison v. Silverburgh, 13 Ill. 552.
   Baker, J.

This was a scwe facias on a forfeited recognizance at the December term, 1877, of the County Court. On motion of appellee, based on affidavit, the default on the recognizance was set aside. The State’s attorney excepted to the ruling of the court, and prayed an appeal to this court, which was allowed.

The appeal was inadvertently allowed and improperly taken. This court has jurisdiction only in matters of appeal and writs of error from th% final judgments, orders and decrees of Circuit, County and other courts. Laws of 1877, page 70, §8, and page 77, § 123.

Ho final order or judgment was rendered by the County Court; the case is still m fieri in that court, and until it is finally disposed of no appeal lies. Gage v. Eich, 56 Ill. 297; Phelps v. Fickes, 63 Ill. 201.

The appeal must be dismissed.

Appeal dismissed.


text:
    James Collins v. Filman A. Montemy, Adm’r.
    1. Promissory rote—Days of grace,—Promissory notes, other than such as are payable at sight, or on demand or presentment, are entitled to days of grace, and suit cannot he brought thereon until after the expiration of the days of grace.
    2. Premature action—Objection on trial.—A cause of action must exist at the time suit is instituted, and where a demand has not matured at the time of bringing suit, the objection may be made on trial. The suing out of the summons is the commencement of the suit.
    Appeal from the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.
    Messrs. Pollock & Son and Green & Carpenter, for appellant;
    that the law presumes that all pleadings before a justice are oral, cited Wilson v. Bevans, 58 Ill. 232; Town of Lewiston v. Proctor, 27 Ill. 414; Williams v. Corbett, 28 Ill. 262; Frye v. Tucker et al. 24 Ill. 181.
    On appeal from a justice the case is tried de novo: City of Alton y. Kirsch et al. 68 Ill. 261; Minard v. Lawlor, 26 Ill. 302.
    Where a suit is prematurely brought, advantage may be taken of it on the trial: 1 Chitty’s Pl. 453; Archibald v. Argall, 53 Ill. 307; Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497.
    If the justice had jurisdiction, the Circuit Court can only inquire into the merits between the parties: Vaughn v. Thompson, 15 Ill. 39; Swingley v. Haynes, 22 Ill. 214; Thompson v. Sutton, 51 Ill. 213; Allen v. Nichols, 68 Ill. 250; Zuel v. Bowen, 78 Ill. 234.
    The summons issued by the justice was the commencement of the suit, and no demand maturing 'after that time could be given in evidence: Rev. Stat. 1874, 640, § 17; Feazle v. Simpson et al. 1 Scam. 30; Daniels v. Osborn et al. 71 Ill. 169.
    Plaintiff must show an indebtedness existing at the time of bringing suit: Hamlin et al. v. Race, 78 Ill. 422; McCoy v. Babcock, 1 Bradwell, 414.

      Mr. T. S. Casey and Mr. C. H. Patton, for appellee;
    that an action is premature is matter in abatement only, cited Archibald v. Argall, 53 Ill. 307; Palmer v. Gardiner et al. 77 Ill. 143; Chitty’s Pl. 453.
    By pleading to the merits, appellant waived his dilatory plea in abatement: Thomas v. Lowy, 60 Ill. 512; Pearce et al. v. Swan, 1 Scam. 266; Gilmore et al. v. Nowland, 26 Ill. 200; Mills v. Ex’rs of Bland, 76 Ill. 381; Lindsay v. Stout, 59 Ill. 491; Conly v. Good, Beecher’s Breese, 135; Adams v. Miller, 12 Ill. 27; Wilson v. Nettleton, 12 Ill. 61.
   Baker, J.

This was a suit brought by appellee against appellant before a justice of the peace, and a judgment was rendered by the justice against the appellant, and appeal was taken to the Circuit- Court of Jefferson county, where the case was submitted to a jury, with a like result. A motion for a new trial was overruled by the court, and appellant excepted and brings the record to this court. The points referred to by us in this opinion are fully covered by the rulings of the court below, the exceptions there taken, and the errors here assigned.

The summons was issued by the justice of the peace on the 11th day of November, 1875; was made returnable on the 16th day of that month, and was served on appellant by the constable on the 12th day of said month of November.

The suit was predicated upon a promissory note, dated February 12, 18.75, and due nine months after date. This would make it mature on the 15th day of November, 1875. In all computations of time, a month shall be considered to mean a calendar month, and a day shall be considered a thirtieth part of a month. Rev. Stat. Ch. 98, § 16; Ch. 74, §10; Ch. 131, § 1, tenth clause. Promissory notes other than such as are payable at sight, or on demand, or on presentment, are entitled to days of grace. Rev. Stat. Ch. 98, § 15.

But it is urged by appellee that it should be made to appear that the objection was raised before the justice and by plea in abatement; such is not our understanding of the law. The suing out of the summons was the commencement of the suit. Rev. Stat. ch. 79, §17; Feazle v. Simpson, 1 Scam. 30.

The cause of action must exist at the time of the institution of the suit, and where the demand has not matured at the time •of the institution of the suit, and the general issue is pleaded, the defendant may avail himself of the objection on the trial. Harlow v. Boswell, 15 Ill. 56; Nickerson v. Babcock, 29 Ill. 497; Daniels v. Osborn, 71 Ill. 169; Hamlin, Hale & Co. v. Race, 78 Ill. 422; and authorities there cited. In this latter case the Supreme Court say: “ We had supposed no rule was more inflexible or better established than that a plaintiff cannot recover for money not due at the institution of the suit.”

It is a good plea in abatement to the action of the writ that it was prematurely brought, but as this is ground of demurrer or non-suit, it is very unusual to plead it in abatement. 1 Chit. Pl. 422, 453.

We are referred, however, by appellee, to the cases of Archibald v. Argall, 53 Ill. 307, and Palmer v. Gardner, 77 Ill. 143. We do not regard either of these cases as militating at all seriously against the conclusions we have reached in this case.

In Archibald v. Argall supra, the defense was not that the money was not due for the goods sold under and by the terms of the contract of purchase, but that by a subsequent agreement dehors the contract of sale, the plaintiff agreed to extend the time for the payment of the account. The court held that the matter stated in the special plea filed in that case, was in abatement and not in bar of the action. The distinction between that case and the case at bar is obvious; and again in the plea filed in that case, there was no consideration stated to sustain the promise to extend the time of payment, and the plea was bad on that account.

Palmer v. Gardner supra, was a bill in chancery to enjoin the collection of two judgments theretofore recovered at law. One ground alleged in the bill was that the note upon which these judgments were predicated was only due one day by its terms when suit was brought, and days of grace were not allowed. In that case, the Supreme Court say: “As to the question of the days of grace, the bill is loose and defective. It merely states conclusions. It should have given the date on which the note was in terms payable, together with the date of the commencement of the suit, that it might be determined whether the suit was prematurely brought. The bill only-states that it was.” How this fully disposed of this chancery case, so far as this question was concerned, and that which is subsequently said in arguendo, and without any reference to authority, in regard to the necessity of pleading in abatement, was wholly unnecessary for the decision of the case.

We are of the opinion that the court below erred in overruling appellant’s objections to the introduction of the note in evidence, and in permitting it to be read to the jury; and also in overruling the appellant’s motion for a new trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Tanner, P. J., took no part in the decision of this case.


author: Allen, J. Baker, J. Tanner, P. J.

text:
    Jeremiah Bennett v. John T. Pulliam.
    1. Plea of set-off—What may be shown undeh.—A plea of set-off is in the nature of a cross-action and under a general replication to such plea evidence may be given, that the subject matter of the set-off is a partnership asset between plaintiff and defendant.
    2. Fobmeb adjudication.—When plaintiff, under his general replication to defendant’s plea of set-off, alleged that the wood, the value of which was sought to be set-off against his demand, was partnership wood, it was competent for the defendant to show that in a former suit between them, the question of partnership in the wood had been decided adversely to the plaintiff, and this could be done under the pleadings as they then stood; defendant was not obliged to plead former adjudication to plaintiff’s replication.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Edward L. Thomas, for appellant;
    against the instruction given for appellee, cited Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; Adams v. Smith, 58 Ill. 117.
    Appellee having sworn to a fact as existing, he is estopped to claim anything contrary to such sworn statement: Bigelow on Estoppel, 23; Smith v. Newton, 38 Ill. 230; Flower v. Elwood, 66 Ill. 438; The People v. Brown, 67 Ill. 435; Flanigan v. Turner, 1 Blackf. 491.
    Messrs. Wilderman &Hamill, for appellee;
    that under the pleadings, evidence of partnership in the wood was admissible, cited 2 Greenleaf’s Ev. § 135; Wann et al. v. McNulty, 2 Gilm. 355; Whitesides v. Lee et al. 1 Scam. 548.
    Erroneous instructions will not be ground for reversal if the .evidence sustains the verdict: Hall v. Groufe, 52 Ill. 421; Watson v. Woolverton, 41 Ill. 242; Gilchrist v. Gilchrist, 76 Ill. 281.
    The doctrine of estoppel is based upon a fraudulent purpose and a fraudulent result: Davidson v. Young, 38 Ill. 152; 2 Story’s Eq. Jur. § 1543; Mills v. Graves, 38 Ill. 465; People v. Brown, 67 Ill. 435.
   Allen, J.

This was an action of assumpsit brought by appellee against appellant and James Fincher in the St. Clair Circuit Court, to the April term, 1877, on a promissory note for $300, dated Nov. 5, 1875, payable to appellee and signed by appellant and Fincher.

Fincher filed his several pleas, “non assumpsit” and “ release,” and afterward suit was dismissed as to him.

Appellant severally filed his plea “ general issue ” and “ set-off; ” afterward the plea of general issue was withdrawn, leaving only the plea of set-off. To this plea appellee filed a general replication, and upon this plea and replication the cause was tried by a jury at the September term, 1877.

The jury found for appellee, and assessed his damages at $387.30.

Appellant moved for a new trial, which motion was overruled by the court, and judgment was rendered on verdict of jury for $387.30 and costs. An appeal was prayed by appellant and was allowed to this court.

Upon the trial appellee introduced the note in evidence and rested.

Appellant then introduced in support of his plea of set-off, evidence to prove that appellee had received between 400 and 500 cords of wood from appellant, worth $1.50 per cord.

Appellee introduced evidence tending to prove that the cord-wood received from appellant was partnership wood which he and appellant owned jointly. To this evidence of appellee appellant objected, but the court overruled the objection.

Appellant then offered to introduce evidence tending to show that in a former suit between appellee and appellant, the question of partnership had been submitted in that trial, and that the jury found that no partnership had existed. To this evidence appellee objected, and the court sustained the objection. After the evidence was closed, the court, on behalf of appellee, gave the jury the following instructions:

1. If plaintiff and defendant were partners in wood, etc., the jury should not allow set-off.

2. The court instructs the jury that in the former trial in this court between Pulliam and Bennett, the jury which tried said cause between Pulliam and Bennett had nothing whatever to do with the question of whether Bennett and Pulliam were partners in business in matters that were not submitted to said jury, and the jury in this case are instructed that they have nothing whatever to do with the finding or decision of the former jury in the case of Pulliam v. Bennett.

3. If Fincher was not released by agreement, then the jury must find for plaintiff.

4. If plaintiff and defendant were partners, then they must find for plaintiff.

Defendant objected to giving above instructions severally. Objection overruled and defendant excepted.

The first error assigned is that improper evidence was permitted to go to the jury by the court on behalf of appellee.

It is insisted that appellee, under his general rejoinder to appellant’s plea of set-off, could not introduce evidence tending to prove partnership in the wood. We think this objection is not well taken

If this were a suit by appellee for the value of the wood, the defendant could, under “ non assumpsit,” introduce evidence of partnership. A plea of set-off is in the nature of a cross action, and a general replication to such plea performs the same office that a plea of general issue would in an action of assumpsit.

“ The defendant may plead ‘ non assumpsit ’ when there is a partnership between defendant and plaintiff.” Saunders on Pleading and Evidence, Vol. 2, 648.

The second error assigned is the refusal of the court to permit appellant to introduce evidence to show that this question of partnership in the wood had been adjudicated in a former trial between appellee and appellant, and that in that suit the jury found that no partnership existed.

To determine the correctness or incorrectness of the ruling on this point, we must again revert to the pleading. Appellant in his plea claims compensation for wood. Appellee replies generally: you have no right to such compensation in this suit. Appellant makes his proof that appellee got the wood. Appellee replies: the wood I got was partnership wood. Appellant proposes to show that in a former suit this question of partnership was litigated, and it was found no partnership existed; shall he not be permitted to do so? Appellee says he must plead former adjudication. Plead it how; rejoin it to appellee’s general, replication? This he could not do, for he could not know that appellee would attempt to set up partnership. If appellee had replied specially, as he could do, that the wood was partnership wood, then appellant could have rejoined the former adjudication, and he must have done so before his proof would have been admissible; but to hold that appellant could,not rebut proof of partnership offered by appellee under the issues as they were in this suit, and as appellee himself had made them, was in our judgment error in the Circuit Court.

Exception was taken to the second instruction given for appellee by the court, and the giving of that instruction is assigned for error.

That instruction assumes that in a former trial between these parties, the question of partnership in this wood was not inquired of by the jury, or if the jury did make such inquiry they had no right to do so. How whether the jury did or did not inquire into and pass upon that question, was a question of fact upon which the court could not instruct, and whether they" had a right to inquire into that question would depend upon the pleadings in that suit. Under the pleadings in that case, whether they could consider the question of partnership would be a question of law, but what the pleadings were was a question of fact upon which the court could not pass in an instruction. We regard the instruction as erroneous in that regard, and when we consider the latter part of that instruction in connection with some of the testimony in this trial, it may have misled the jury.

It appears from the testimony of appellant on this trial that, in a former trial between him and appellee, this question of partnership in this wood was in some way involved in the trial of that cause. When asked by counsel for appellee if he had not testified on former trial that wood was partnership property, he answered that he did, but he (appellee) outswore me. My understanding was that he (appellee) went down there (meaning to the Pierce land, where the wood was) as my partner, but he (appellee) denied it, and swore it all the same. He (appellee) swore he went down there to work for me. What appellee swore in that regard was also introduced; he says I had no settlement with Bennett (appellee) before I went on the Pierce land. Bennett never settled with me by giving me mill and partnership timber on Pierce land.” There never was any understanding about it (the partnership), for I never accepted his proposition.

In answer to question whether he had not taken mill and interest in timber for his debt against Bennett (appellant) his answer was, no sir, I never did.

From these extracts of appellee’s testimony on former trial, and appellant’s testimony on the present trial, then it is manifest a partnership in this timber on the premises described was set up by appellant against the claim of appellee in that suit, and that appellee was repelling the idea of a partnership between them, and while the real merits in that suit was not presented in this, yet the jury, after hearing the testimony called out by appellee in his cross-examination of appellant, the jury are instructed that they have nothing to do with the finding or decision of the jury in the former case.

Such an instruction might be understood by them to mean that as they had nothing to do with the finding of the jury in the former trial, they must disregard the evidence on this trial of what was sworn to on the former trial.

We regard this instruction as erroneous, and for these reasons reverse the decision of the Circuit Court.

Eeversed and remanded.

Baker, J.

In the conclusion reached that this judgment should be reversed and the cause remanded, I altogether concur. I think that the evidence in this record clearly shows there was no partnership between Bennett and Pulliam. Therefore, appellant’s set-off for the wood should have been allowed by the jury. To form a partnership, at least so far as the parties themselves are concerned, the assent of both of the contracting parties is required. While the evidence shows assent on the part of Bennett, it also shows clearly there was no assent whatever on the part of Pulliam. Either both parties must be bound, or neither. The court erred in overruling the motion for a new trial.

I do not understand, however, that, the offer of appellant in the Circuit Court went to the extent of proving there had been an issue and former adjudication between the parties on the question of partnership. The question of a partnership seems to have been incidentally raised in some manner, in some former litigation. I cannot concur in all that is said in the opinion filed upon this subject.

Tanner, P. J.

I concur in the reversal of the judgment, but place it upon the ground stated in the opinion of Judge Baker.


text:
    William C. Buchanan v. Bartow Iron Company.
    ' Corporation—Personal liability of director or officer.—Under the general incorporation law creating a personal liability against the officers and directors of corporations for indebtedness exceeding the capital stock, such officers and directors are liable only to the creditors as a whole, and not to any individual creditor for the amount of his individual debt, and this liability can be enforced only in chancery. The object of the statute is to furnish a remedy and relief to the creditors generally, and a common fund to which they may, on terms of perfect equality, resort for the satisfaction of their debts.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    Mr. James M. Dill, for appellee.
   Baker, J.

Appellant was president of the Belleville Hail Mill Company, a corporation organized under the general law of 1857, and judgment was recovered against him in the Circuit Court by appellee, in an action of assumpsit for a debt of $4,935.37, contracted by the said nail company with the assent of appellant.

The supposed liability of appellant is predicated upon § 16 of the general incorporation law of 1872, Bev. Stat. 288. That section reads as follows: “ If the indebtedness of any stock corporation shall exceed the amount of its capital stock, the directors and officers of such corporation, assenting thereto, shall be personally and individually liable for such excess to the creditors of such corporation.”

In this case the first count of the declaration avers an indebtedness of $100,000, and the second and third counts aver an indebtedness of $150,000 in excess of the capital stock of the company, and the proofs show an indebtedness of over $100,000 in excess of the capital stock of the company, thus indicating that there are creditors other than appellee.

We are of the opinion that the liability of the appellant under this section, if he be liable at all, is solely and only in a court of chancery, and is to the creditors as a whole, and is not to any individual creditor for the amount of his individual debt. We think that this is so, from a consideration of the several provisions of the statute itself, from the reason, justice .and very nature of the case, and from the authorities.

Upon examination of the several sections of this act that impose liabilities upon parties other than the corporation itself, we find it is provided in the eighth section that each stockholder and assignee of stock shall in a certain contingency be liable for the debts of the corporation, to a certain specified extent; that it is provided in the eighteenth section that any pretended officers or agents of any real or pretended corporation, shall in a certain contingency be jointly and severally liable for certain specified debts and liabilities; that it is provided in the nineteenth section that directors, officers or agents of corporations shall in a certain other specified event be jointly and severally liable for certain other specified debts; and that it is provided in the twenty-first section that certain officers of corporations shall, in a still other specified event, be jointly and severally liable for all damages. These three first mentioned sections fix a liability for the debts themselves, and ' ex necessitate rei a liability to the persons to whom the debts are owing. The last mentioned section imposes a liability for damages suffered, and of course to be recovered by the party damnified. Sec. 16 is otherwise. It provides that in a certain contingency the directors and officers of a corporation shall be liable for an excess of indebtedness over capital stock, personally and individually, to the creditors of the corporation. The liability is not for any debt or debts, as in the- cases of the other sections, but is for an excess of indebtedness, and the liability is not to the persons who hold the contracts of indebtedness in excess, and is not, as in the other sections, to certain specified creditors, or to specified persons damnified, but to the creditors as a class. It appears to us that the use of a phraseology in this section, so variant from the language of the other sections, is evidence of a legislative intent as to cases falling under this sixteenth section, different from the legislative intention in regard to the cases of the other sections.

We do not claim, however, that under the declaration this case falls within the twenty-fifth section of the same act, where provision is expressly made for a suit in equity. But this latter section, in its full scope and import, is fully in accord with our interpretation of § 16, and provides in express terms for the cases of that section the same remedy that it impliedly provided for the case of the sixteenth section.

It is not readily seen why, in the event the company has ceased to do business, or has failed to pay an execution for ten days after demand, the legal title to the excess should be vested in the creditors as a whole, whereas otherwise the cause of action should be in an individual creditor. Ho legislative intention to make such difference is expressly indicated in reference to the liability imposed by this section.

The reason, justice and equity of the case lead us to the same conclusions. Granted it is eminently proper that, in the event of an excess of indebtedness over capital stock, the directors or officers assenting thereto should be individually and personally liable for such excess. But why should this excess belong to one creditor more than another? The interests of the particular creditor whose indebtedness was last contracted are not more jeopardized than the rights and interests of those prior creditors whose debts were contracted before the limit was reached, and who have no lien or claim against the property representing the capital stock that the last creditor of them all has not. Why in reason should this last creditor have all the security that other creditors have, and at the same time exclusively have this personal liability in addition? ITis equities are no greater, if so great, as theirs, and the statute has given this right to the excess in express terms, not to him, but to the creditors of the corporation.

If this liability is to be considered simply as a penalty, and not as intended also to furnish an equitable fund for the payment of the debts of the corporation, then the right to recover this penalty either belongs to the creditors as a whole, orto that creditor who first sues therefor. If it can be recovered by one creditor alone, then it belongs to one creditor as much as another, and. without regard to priority of indebtedness. If a penalty only, then the penalty should be in gross for the total amount of the excess, and that creditor who first sues, be he a creditor within or without the limit, can recover it, and his recovery will be a bar to any subsequent suit by any other creditor for such penalty or excess.

We do not believe that this was the intention of the law. The import and object of this statutory provision goes far above and beyond this; it was intended to furnish a remedy and a relief to the creditors generally, and a common fund to which they might, on terms of perfect equality, resort for the satisfaction of their debts.

This view of the law seems to be supported by the authorities.

The act of Congress of May S, 1870, authorizes the formation of corporations within the District of Columbia, and provides, among other things, that “ if the indebtedness of any company organized under this act,- shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of the company.”

It will be noticed that this language is almost identical with the language used in §16 of our statute.

. The Supreme Court of the United States had this provision of the act of Congress before them in the case of Horner v. Henning, 93 U. S. 228. The unanimous decision of the court was, that a suit at law could not be maintained under this provision; that this statutory liability constituted a common fund for the benefit of all the creditors; .that they vrere entitled to share in it in proportion to the amounts of their debts, so far as it might be necessary to pay such debts; and that the appropriate and only remedy was in a court of chancery.

Mr. J ustice Miller, in delivering the opinion of the court, says: The remedy for this violation of duty as trustee is in its. nature appropriate to a court of chancery. The powers and instrumentalities of that court enable it to ascertain the excess - of the indebtedness over the capital stock, the amount of this which each trustee may have assented to, and the extent to which the funds of the corporation may be resorted to for the payment of the debts; also, the number and names of the creditors, the amount of their several debts, to determine the sum to be recovered of the trustees, and apportioned among the creditors, in a manner which the trial by jury and the rigid rules of common law proceedings render impossible. This course . . . adjusts the rights of all concerned on the equitable principles which lie at the foundation of the statute.”

We would refer, also, to the cases of Sturges v. Bouton, 8 Ohio State, 215; Merchants’ Bank v. Stevenson, 5 Allen, 398; and Pollard v. Bailey, 20 Wall. 520; and many other cases might be referred to that throw light upon the questions here involved.

We regard the conclusions that we have reached as being in entire harmony with the decisions of our own supreme court, and as not at all in conflict with the cases cited by appellee. We-admit the general doctrine that where the statute creates a legal liability, an implied promise arises out of such liability, and that an action of assumpsit may be maintained. If the legal liability here was a liability to appellee individually as a creditor, or was for the amount of his debt, then the rule would apply. But the liability is to the creditors of the corporation as a body; and if so, then the only appropriate and available remedy is by bill in chancery.

In the case of Culver v. Third National Bank of Chicago, 64 Ill. 528, the action was - based on the liability imposed by Sec. 9 of the act of February 18,1857, which is as follows: “All the.stockholders of every such company shall be severally, individually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company prior to the time when the whole amount of its capital stock shall have been paid in, and a certificate thereof made as hereinafter required.” This section, in express terms, declares the liability to be for all debts and contracts made by such company prior, etc., and that the Supreme Court should have held that an action of assumpsit could be maintained against the stockholders for one of these debts, or on one of these contracts, is exactly in harmony with the distinction we make.

It may he suggested that the words shall he liable to the creditors ” occur alike in § 9 of the act of February 18, 1857, and in § 16 of the act of 1872, now under consideration, and that, therefore, they should be interpreted alike. This does not follow. Expressions found more than once even in the same statute do not necessarily have the same signification. Potter’s Dwarris on Statutes, 128. ISTor does it state all of the case. In the latter act these general words alone are used; but in the former act, in connection therewith, are words of limitation, and the whole of the words therein, taken together are, “ shall he liable to the creditors for all debts and contracts.” Thus we see that these additional words so qualify and limit that which otherwise might be a liability to creditors generally as to make it a liability for the debts and contracts of the individual creditor. The fact that the legislature omitted from the statute of 1872 the qualifying words used in the act of 1857, is a circumstance tending to manifest the legislative intention. Bedell v. Janney, 5 Gilm. 207. In the construction of a statute, every part of it must he viewed in connection with the whole, so as to make all its parts harmonize, if practicable, and give a sensible and intelligent effect to each. It is not to he presumed that the legislature intended any part of a statute to he without meaning. Potter’s Dwarris, 144; Kent’s Com. 462. If the section under consideration is to be construed as meaning just what the section quoted from the act of 1857 means, then the words “ for all debts and contracts ” in the latter act, are wholly without meaning, and altogether superfluous.

Steele v. Dunne, 65 Ill. 298, is brought upon the same ninth section in the act of 1857, and is to the same effect.

Butler v. Walker, 80 Ill. 345, was predicated upon Sec. 16 of the general act for incorporating and regulating insurance companies, adopted March 11, 1869. That section provides that “ the trustees and corporations of any company organized under this act, shall be severally liable for all debts or responsibilities of such company to the amount by him or them subscribed, until the whole amount of the capital of such company shall have been paid in, and a certificate thereof recorded as hereinbefore provided.” Here the liability is for all debts and responsibilities, just as in the two preceding cases it is for all debts and contracts, and the case is identical in principle with those cases, and still further corroborates our view.

In our opinion, an action at law cannot be maintained on the liability imposed by Sec. 16 of the act of 1872, and the Circuit Court erred in overruling the motion in arrest of judgment.

As there is no provision made by statute for changing an action at law into a bill in chancery, it would be a work of supererogation to remand this cause. The case, will not be remanded; but the judgment of the Circuit Court will be reversed, and a judgment will be rendered in this court against the appellee for costs of suit. Moreover, we are informed that many other cases are depending upon the determination of this suit, and this course will facilitate a review of our decision in the Supreme Court, should such review be desired.

Reversed.

Tanner, P. J., dissenting


text:
    Samuel W. Dunaway v. John Goodall et al.
    1. Pleading—Amendments—Plea in abatement not amendable. —A plea in abatement is a dilatory plea, not going to the merits of the action, and is not amendable. The statute allowing amendments to pleadings does not embrace pleas in abatement unless they go to the merits of the action.
    2. Statute—General and particular expressions—Construction —Rule.—Where, in a statute, a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of the exception.
    Appeal from the Circuit Court of Williamson county; The Hon. Monroe 0. Crawford, Judge, presiding.

      Mr. William J. Allen, for appellant;
    that leave to file an amended plea in abatement should not have been granted, cited Trinder v. Durant, 5 Wend. 77; 2 Arch. 239; 1 Chitty’s Pl. 440; Cook v. Tarwood, 41 Ill. 115; Feasler v. Schriever, 68 Ill. 322.
    Both are in effect pleas in abatement: 1 Chitty’s Pl. 453; Archibald v. Argali, 53 Ill. 307; Palmer v. Gardiner, 77 Ill. 143.
    The plea avers no sufficient consideration for the agreement pleaded: Archibald v. Argall, 53 Ill. 307.
    A judgment quod, recumret is not proper on a dilatory plea: 1 Bouv. Law Die. 760.
    The judgment should have been that the writ be quashed; Scott v. Waller, 65 Ill. 181; Spaulding et al. v. Lowe et al. 58 Ill. 96; Cushman v. Savage, 20 Ill. 330.
    Mr. William M. Clemmens and Mr. Andrew D. Dufe, for appellees;
    that amendments to pleadings where no statute intervenes, are always in the discretion of the court, cited Jackson v. Warren, 32 Ill. 331; State Bank v. Buckmaster, Beecher’s Breese, 176.
    The statute allows such amendments: Rev. Stat. 1874, 778, § 24; 137, § 1.
    All pleas in abatement are not dilatory pleas: Humphreys v. Phillips et al. 57 Ill. 132; Buckles v. Harlan, 54 Ill. 361; Wallace et al. v. Cox, 71 Ill. 548; Drake v. Drake, 9 Chicago Legal News, 222.
    The judgment as to recovery of costs was correct: Rev. Stat. 1874, 298, § 10.
    Technical objections to a judgment as to matters of mere form will, not be regarded on appeal: Hofferbert et ux. v. Klinkhardt, 58 Ill. 450; Rev. Stat. 138, §§ 6, 7.
   Tanner, P. J.

This was an action of assumpsit brought by the appellant against the appellees in the Circuit Court of Williamson county. The appellee interposed a plea in abatement to the action, setting out, in substance, that after the several causes of action occurred, they had entered into a contract with the appellant by which he, for a consideration mentioned in'the plea, was to forbear suing upon the indebtedness averred in the declaration, until the appellees could be relieved from the financial embarrassment under which they then suffered, and that although they should be so relieved within the period of one year, suit should not be instituted until the-expiration of that time. A demurrer was interposed to this plea and sustained by the court. The appellees then asked and obtained leave over the objections of the appellant to file an amended plea in abatement.

The amended plea differed from the original by averring that for the consideration stated in the first plea, the appellee was not to sue on said indebtedness for the space of five years, unless the appellees should sooner become relieved from their pecuniary embarrassments.

To this plea a demurrer was also interposed and overruled by the court, and an exception taken to the ruling of the court by the appellant and he stood by his demurrer, and the court rendered judgment as follows:

“ It is therefore ordered by the court, that the defendants recover of the said plaintiff their proper costs in this behalf expended.”

The appellant brings the cause to this court and assigns for error the rulings of the Circuit Court in allowing an amended plea in abatement to be filed after sustaining a demurrer to the original plea.

It seems to be a rule that pleas in abatement are not amendable, because they are dilatory and do not go to the merits of the action. Tidd’s Practice, 638; Chit. Pl. 465; Trindon v. Durant, 5 Wend. 72, and authorities there cited.

In Brownell v. Yarwood, 41 Ill. 115, the court say: “After the defendant has filed a plea m abatement to the action which has been disposed of by the court, it is irregular to file another plea of the same character, and it may be [stricken from the files.” Pleas in abatement are not favored by the courts, and we are not aware of any well adjudicated cases in which they are held to be amendable at common law; this view, we think, is not shaken by the authorities cited by the appellees. If such pleas could be at any time amendable in our State, the right therefor must be statutory.

The twenty-third section of the Practice Act, in force July, 1872, provides that “ at any time before final judgment in a civil suit, amendments may be allowed in any matter either of form or substance in- any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense.” If this section could be construed favorably for such pleas in regard to amendments, the statute of amendments in force July, 1874, clearly prohibits the amendment of such plea. The first section of the latter act provides “ that the court in which any action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment.” This section is in all respects the same as the statute construed in 5 Wend, supra, in which it was held not to confer power upon the courts of New York to allow amendments to be made to pleas in abatement. However, our legislature left no difficulty for the courts in respect to the construction of this section. The last paragraph of the last section of the act provides that “ no part of this act shall extend to any plea in abatement.”

If the first section can be construed as giving authority to allow amendments to such pleas, the last section of the act takes it away. When a general intention is expressed, and the act also expresses a particular intention, incompatible with the general intention, the particular intention is to be considered in the nature of the exception.” Churchill v. Crease, 5 Bing. 180; Terrington v. Hargraves, Ib. 492; Sedg. St. & C. L. 60.

The next question that presents itself for our consideration is, if the twenty-third section of the Practice Act of 1872 conferred upon the courts the power to allow amendments in this character of pleas, was it taken away by the prohibitory clause in the last section of the statute of amendments in force July, 1874? We think there is no difficulty in determining this question.

The twenty-third section of the Practice Act, and the first section of the statute of amendments are statutes mpari materia, and are to be taken as one statute, and construed together, in order to arrive at the intention of the law-making" body. Smith’s Com.; Bruce v. Schuyler, 4 Gilm. 273.

If the twenty-third section .of the Practice Act, and the first section of the statute of amendments are statues m jpwri materia, and the power is conferred upon the courts to allow amendments to pleas in abatement by both, a repeal or limitation of one, in this regard, would be a repeal or limitation of the other. The last section of the statute of amendments is subsequent in point of legislative contemplation to both, and must be regarded as a repeal or limitation of both.

The cases referred to by appellants in support of the rulings of the Circuit Court do not militate against this view. In those cases the pleas raised the question of jurisdiction of the court over the person, under the provisions of the statute of our State, and are therefore not in conflict witli the statute of amendments. In Safford v. Sangamon Ins. Co. 83 Ill. 528, the views of the court are expressed by Judge Dickey in these words: “A plea in abatement to the jurisdiction of the court is a meritorious plea, and not to be regarded as a mere plea in abatement, but one necessary to the protection of a substantial-light, granted by the statute, and so the exception in the" statute of amendments forbidding the amending of a plea in abatement does not embrace pleas of this character.”

The plea in the case at bar is in the ordinary form of pleas to abate actions prematurely brought, and does not go to the merits of the case, but only to the right of the appellees to sue at the time the suit was instituted. After a careful consideration of authorities, and the several provisions of the statutes in reference to amendments, we must conclude that the plea in this case is embraced in the prohibitory features of Chap. 7? sec. 11, Bev. Stat. 1874.

The Circuit Court, on sustaining the demurrer to the plea, should have dénied leave to amend the plea, and required the appellees to plead to the declaration.

The judgment of the Circuit Court is reversed and the cause remanded.

• Beversed and remanded.