author: Mr. Presiding Justice McSurely

text:
    Katherine H. Murphy, Appellant, v. Benjamin E. Sincere and Thomas E. Hosty, Trading as Charles Sincere & Company, Appellees.
    Gen. No. 40,385.
    Opinion filed April 24, 1939.
    Denis E. Sullivan, Jr. and Edmond Sullivan, both of Chicago, for appellant; Edmond Sullivan, of conn sel.
    Marshall & Marshall, of Chicago, for appellees; Frank Gr. Marshall, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff as the owner of certain bank stock suffered a stockholder’s liability; she sought to recover from defendants, who she says were the actual owners of the stock at the time when her liability accrued, $3,500 she had paid on account. The case was tried by the court upon a stipulation of facts; the court found for defendants and judgment was rendered against plaintiff, from which she appeals. Defendants say they were merely agents, acting for other parties and not for themselves.

October 1, 1931, plaintiff became owner of 30 shares of capital stock of the Central Republic Bank and Trust Company; these shares were represented by stock certificate No. F-6222 and were registered in her name on the books of the bank; shortly before June 28, 1932, she placed in the hands of Rogers & Tracy, her brokers, this certificate to be offered for sale; they notified her that her stock could be sold for $9 a share and she ordered them to accept this bid.

Defendants are brokers dealing in stocks; among their regular customers were H. C. Dubay and Lillian Park. June 28, 1932, Dubay requested defendants to purchase 25 shares of Central Republic Bank and Trust Company stock for him; defendants learned from Rogers & Tracy that this bank stock could be purchased and Dubay was notified that 25 shares could be purchased at a net cost to him of $9.50 a share; he requested that these shares be bought at this price and on the same day, June 28, 1932, they were purchased through Rogers & Tracy.

On the same day Lillian Park made known to defendants that she wished to purchase 10 shares of stock of the Central Republic Bank and Trust Company; this was communicated to plaintiff’s brokers, Rogers & Tracy, and defendants were advised that they had five shares of this stock available at $9 a share; defendants notified Lillian Park that these five shares could be purchased for $10 a share net, and that the other five shares could be obtained from other brokers; she requested defendants to purchase the five shares from Rogers & Tracy, which was done. On the same day defendants made entries in their books showing these sales to Dubay and Park and on the same day written confirmation of them was made to Dubay and Park. On this day, June 28,1932, no other Central Republic Bank and Trust Company stock was purchased or sold by or through defendants except a purchase of two shares at the direction of another customer.

The following day, June 29, 1932, Rogers & Tracy delivered to defendants certificate No. F-6222 representing the 25 shares of stock purchased by defendants for Dubay and the five shares for Park; these were placed by defendants in what is called the customers’ box to await further instructions from Dubay and Park. The records show the specific purchases by Dubay and Park with the specific stock certificates delivered by plaintiff’s brokers, Rogers & Tracy, to defendants pursuant to the purchase made by Dubay and Park; no other stock of the bank was held by defendants which could be confused with these transactions. These shares remained in defendants’ box until July 20, 1932, when Lillian Park requested that her shares be delivered to other brokers in exchange for other shares, which was done. August 8, 1932, Dubay requested defendants to sell his 25 shares, which was done. The records of these sales were duly entered upon the respective accounts of Dubay and Park.

The decree in the stockholders liability case found that plaintiff was the registered owner of the stock in question on June 29, 1932.

The general rule is that title to stock passes directly to the customer on a purchase by his broker for the customer’s account, and this is true even though the broker retains possession of the stock certificate. Hobart v. Vanden Bosch, 256 Mich. 686, 691; Englehart v. Cassatt, 305 Pa. 117, 124; Allen v. Williams, 212 Ill. App. 114. No question is involved as to whether defendants had a lien upon this stock for any unpaid balance due from Dubay and Park. They had been customers of defendants for a considerable time prior to the instant transaction, and had accounts on the books of defendants.

Plaintiff argues earnestly that the fact defendants increased the price of 25 shares of the stock from $9 to $9.50, and of the five shares sold to Park from $9 to $10 a share indicates they were buying on their own account and not as brokers charging a commission for their services, citing Broderick v. Aaron, 264 N. Y. 368. In that case the holders of bank stock sold it to Bice & Co., dealers in securities, at a certain price, who within a minute thereafter agreed to sell the same stock to another party at an advanced price; an action was brought against the stockholders of record to enforce their statutory liability and they impleaded the members of the brokerage firm on the ground that they were the buyers and would be liable to the stockholders of record for the claim made against them; the court held that the brokers should be dismissed from the cause, holding that a broker who purchases stock is under no obligation to indemnify the seller for charges imposed after the broker sells the stock to a third party. In Toombs v. Lewis, 362 Ill. 181, a broker was instructed to sell shares at $38 a share; he sold at $38.50, retained the difference and also charged a commission; it was held that the retention of this difference did not convert the relationship of principal and agent into one of seller and purchaser. See also Johnson v. Winslow, 279 N. Y. Supp. 147, and McNulty v. Whitney, 273 Mass. 494.

We do not see how it could be successfully maintained that defendants bought the stock for themselves. Their long continued dealings with Dubay and Park would-indicate to the contrary. Plaintiff says that the mere fact that the physical possession of the shares remained in defendants ’ customers ’ box deprives Dubay and Park of ownership. This stock had been purchased under instructions from them and they had been duly notified that this had been done. If they chose to leave to defendants physical possession of the certificates, that was their affair and no convincing statements or decisions can be adduced to show that this fact deprived them of the ownership.

Plaintiff relies largely on the decision in Broderick v. Alexander, 268 N. Y. 306, where brokers were held liable to indemnify plaintiff for damages he suffered under the stockholders liability law. The court, however, was particular to point out the difference between the facts in that case and the facts in Broderick v. Aaron, supra. The opinion points out that the brokers in the Alexander case cannot claim the benefit of the decision in the Aaron case, as in the former case the brokers on the same day they purchased the stock from the record holder also purchased other large blocks of stock of the same bank and sold large blocks of the stock, and at the time the bank closed had not passed title to the stock they bought to any purchaser and could not identify any particular purchase of stock with any sale of stock made on that day. Defendants here never purchased large blocks of the stock in question or any stock for themselves; and the specific stock purchased by them for Dubay and Park was the specific stock delivered to them for the account of and the benefit of the owners, Dubay and Park.

In Schless v. Burley, 295 N. Y. Supp. 707, cited by plaintiff in her reply brief, the plaintiff ordered her brokers to sell 10 shares of bank stock; they offered to sell these to Burley & Co., brokers dealing in stocks; before accepting this offer and while plaintiff’s brokers were still on the telephone, Burley & Co. offered to other brokers these shares at an eighth of a point higher, and upon the latter’s acceptance Burley & Co. purchased the shares from plaintiff’s brokers. Burley & Co. were held to be purchasers and bound to indemnify the plaintiff on account of her stock liability.

The fundamental difference between this and the other cases cited by plaintiff and the instant case is that in those cases the purchases were clearly made by the brokers themselves for their own profit, while in the instant case the defendants were acting pursuant to specific orders from their regular customers. During all the transactions, from the time they received instructions from Dubay and Park to buy these specific shares for them and the final disposition of these shares as ordered by these customers, defendants were acting as agents for their principals.

We are of the opinion the trial court decided rightly for the defendants and its judgment is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Brandtjen & Kluge, Inc., Appellee, v. Norman W. Forgue and Nathan H. Roth, Trading as Forgue & Roth, Appellants.
    Gen. No. 40,402.

      Opinion filed April 24, 1939.
    Rehearing denied May 8, 1939.
    Herbert M. Wetzel and W. J. Early, both of Chicago, for appellants; Gf. H. Sugrue, of Chicago, of counsel.
    Collen & Kessler, of Chicago, for appellee; Joseph L. Kadison, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendants appeal from an order denying their motion to quash an alias capias ad satisfaciendum issued in a tort action brought by plaintiff charging defendants with malicious fraud and deceit.

The statement of claim alleged that plaintiff sold and delivered to defendants a printing press for $2,409; that defendants paid a deposit of $51 and delivered to plaintiff their promissory note for the balance of $2,358, payable in instalments with interest; that to secure this note defendants executed and delivered to plaintiff a chattel mortgage conveying the printing press sold and also three other items, namely, a Chandler & Price Craftsman Press, a Kluge Craftsman Feeder, and a motor; that at the time defendants executed and delivered this chattel mortgage to plaintiff they were not the owners of the three items last mentioned; that this was not known to plaintiff and that the mortgage of these three items was maliciously made, with intent to deceive and defraud plaintiff; that subsequently defendants failed to make any payments due on their note; that plaintiff instituted foreclosure proceedings on the chattel mortgage and then ascertained that the last three items above-mentioned were not the property of defendants, hence plaintiff did not and could not obtain possession of them.

Defendants admitted that they were not the owners of the equipment described but assert that the agent of plaintiff was duly informed of this.

The case was tried by the court without a jury and, crediting defendants with the amount received at the foreclosure sale, judgment for plaintiff in the sum of $659.75 was entered; the judgment order also contained the provision “that malice body execution issue.”

Capias was issued and returned no part satisfied and an alias capias was issued and returned no part satisfied, as defendants were not found in the city of Chicago. Subsequently defendants filed their written motion to quash the capias, which motion was denied, and defendants appeal from this order.

Defendants assert in this court that the finding of the court is defective and insufficient and that neither the finding nor the judgment shows that malice was the gist of the action, to which plaintiff replies that these points cannot be made on an appeal from a motion denying the petition to quash the writ, citing Freeman on Executions, vol. 1, par. 73a, p. 285, where the author says: “The motion to quash is, in no sense, a revisory or appellate proceeding directed against the judgment. An irregular or erroneous judgment will, as long as it remains in force, support an execution. Hence an execution will not be vacated because the judgment was erroneous or irregular, nor will such error or irregularity, antecedent to the judgment, be considered by the court on motion to quash the execution.” In Galena & S. W. R. Co. v. Ennor, 9 Ill. App. 159, 164, which involved an appeal from an order quashing a capias, the court held that errors in the finding and judgment, if any, could have been corrected by appeal, but that defendant “is estopped from doing so in a collateral and a summary proceeding.” This was followed in Indian Grave Drainage District v. Root, 28 Ill. App. 596. To the same effect is Clary v. Cox, 1 Ill. 235, which reversed the judgment of the circuit court quashing the execution.

But even if the propriety of the order denying the quashing of the writ were properly before us, we are of the opinion that the finding was sufficient to authorize a judgment that malice was the gist of the action. The statement of claim charged that the conduct of the defendants in giving to plaintiff a chattel mortgage on equipment they did not own free from any liens and incumbrances, was for the purpose of wilfully and maliciously deceiving and defrauding plaintiff, as said representations were untrue and known to defendants to be untrue. The finding of the court was that defendants, naming them, were ‘ ‘ guilty as charged in the statement of claim, $659.74, and costs and malice, body execution to issue.”

Section 5, ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.155], provides that execution may issue against the body of the defendant on a judgment obtained for a tort committed by such defendant when it appears from a special finding by the court, where the case is tried without a jury, that malice is the gist of the action.

Freeman on Judgments (5th Ed.) vol. 1, sec. 69, pp. 120-122, says in substance that the use of any particular words or form of words is no longer essential, but any words of the same meaning or significance are sufficient, “particularly on a collateral attack.” And that even where a form of judgment is prescribed by statute “a substantial compliance with the statute is all that is necessary.” The words in the finding and judgment, “and that malice body execution issue” must be given some significance.

Moreover, if there is any ambiguity in the judgment reference may be had to the statement of claim. In re Petition of Blacklidge, 359 Ill. 482, 489; In re Rosenberg v. Ott, 285 Ill. App. 50, 54; Freeman on Judgments (5th Ed.), vol. 1, sec. 77, p. 134. As we have heretofore stated, the statement of claim charges definitely that the actions of the defendants were wilful and malicious.

Defendants contend the judgment fails to state against whom the body execution shall issue and in whose favor, hence, it is argued, the finding and judgment are void. The finding contains the names of both defendants and likewise the judgment, which recites that plaintiff have judgment on the finding.

Any constitutional questions have been waived by appealing to this court. Such questions can be raised only by direct appeal to the Supreme Court. Chapter 110, par. 199, sec. 75, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.075]; People v. Terrill, 362 Ill. 61.

Defendants say that an affidavit and demand upon the defendants to deliver up their estate for the benefit of the creditor are necessary before a capias will issue. This is not necessary where the judgment is in tort based on malice. White v. Youngblood, 367 Ill. 632; In re Petition of Blacklidge, 359 Ill. 482; In re Petition of Monaco, 287 Ill. App. 540; Pappas v. Reabus, 299 Ill. App. 499.

The sufficiency of the statement of claim may not be raised for the first time in the Appellate Court. Section 42 of the Civil Practice Act, ch. 110, par. 166, Ill. Rev. Stat. 1937, provides: “(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.” Vlahos v. Andrews, 362 Ill. 593; Carson-Payson Co. v. Peoria Terrazzo Co., 288 Ill. App. 583.

We find no error in the denial by the trial court of defendants’ motion to quash the alias capias ad satisfaciendum and its order is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


text:
    Julia Fasking, Appellee, v. Sam E. Goldberg, Appellant.
    Gen. No. 40,412.

      Opinion filed April 24, 1939.
    Rehearing denied May 8, 1939.
    Zitteneield, Segal & Hochberger, of Chicago, for appellant; Irvtng S. Hochberger, of counsel.
    Raymond A. Cavanagh and James A. Dayton, both of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment of $775 in an action brought by plaintiff to recover double rental for premises leased by plaintiff to defendant when defendant did not surrender possession at the termination of the lease.

The lease to defendant ran from October 1, 1930, to April 30, 1936, at a monthly rental of $300; in July, 1935, plaintiff made a lease of the premises to a new tenant, the General Credit Company, to take effect May 1, 1936; defendant, the old tenant, was in possession under his lease, and after conferences it was apparent that he would not vacate the premises at the expiration date; thereupon plaintiff through her attorney and agent made an agreement with the new tenant that the rent for the new term would not start until such time as plaintiff was successful in forcing defendant to vacate the premises, and also refunded to the new tenant the $300 it had paid for the May rent; plaintiff brought forcible detainer actions against de- ■ fendant and obtained possession June 1, 1936, when the new tenant went into possession and commenced to pay rent.

Under one of the provisions of the lease to defendant he agreed to yield up immediate possession at the termination of the lease and to return the keys to the lessor, and failing so to do to pay as liquidated damages for the time such possession was withheld a sum equal to twice the amount of the rent reserved.

Defendant relies principally upon the decisions in Grand Union Tea Co. v. Hanna, 164 Ill. App. 570, and Gazzolo v. Chambers, 73 Ill. 75, which held that where the landlord has made a lease to a second tenant he has no right to prosecute a suit for possession of the premises or for recovery of rent accruing after the expiration of the lease to the first tenant; that these rights are in the second tenant only. This is the general rule, but is not applicable to the instant facts. Here the defendant was ousted from possession, whether by the action of the landlord or of the new tenant is not important. By a provision of his lease defendant agreed to pay the lessor double rent for such period of time as he held over.

Defendant argues that plaintiff testified that she did not recall having any agreement with the new tenant, the General Credit Company, with reference to rent for the month of May or in regard to possession of the premises. Plaintiff is a resident of the State of Wisconsin. She testified that Mr. Cavanagh, her agent and attorney, attended to everything “because I do not understand anything about it. He handles all my business for me; I left it to him”; that she was satisfied with any arrangement he might make with the new tenant.

Paragraph 14 of the lease provides that the lessee shall pay all attorney fees incurred and expended by the lessor in enforcing the covenants and agreements of the lease. Plaintiff paid her attorney $75 for services in the forcible detainer suits and $100 for conducting negotiations between defendant and plaintiff with reference to obtaining possession of the premises.

On the merits defendant makes no attempt to justify his holding over after the term of his lease expired. His position seems to be that he admits liability for double rent, not to plaintiff but to plaintiff’s new tenant, the General Credit Company. It is said there is pending in the circuit court a suit brought by the General Credit Company against this same defendant to recover, among other things, double rent for the same period for which judgment was rendered in the instant case. Manifestly, defendant cannot be made to pay double rent to plaintiff and also to the new tenant.

Resolved to its simplest elements, defendant wilfully held over for a month after his lease expired and then yielded possession to a forcible detainer judgment. By the unequivocal language of the lease, as above stated, he obligated himself, under such circumstances, to pay the lessor double rent and we do not see how this obligation can be avoided. The judgment is therefore affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Stanley Zielinski, Minor, By Stella Zielinski, Guardian Ad Litem, Appellant, v. David Pleason, Appellee.
    Gen. No. 40,433.
    Opinion filed April 24, 1939.
    John E. Taylor, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment against Stanley Zielinski of $400, with a special finding of malice and that body execution issue. Judgment was entered after a trial by the court in actions for damages growing out of a collision between automobiles at the intersection of Yates avenue and 75th street in Chicago.

Suit was started by Stanley Zielinski (hereafter called plaintiff) against David Pleason (hereafter called defendant) to recover damages to plaintiff’s automobile. Defendant filed a counterclaim against plaintiff, claiming damages to his car because of the negligence of plaintiff. His counterclaim contained a count charging plaintiff with wilful and wanton driving of his car. After trial the court found for defendant and against plaintiff, and from the judgment plaintiff appeals. Defendant does not appear in this court in support of the judgment.

The first point made by plaintiff is that he was a minor at the time judgment was entered against him, without the appointment of a guardian ad litem to represent him in the trial. A large number of cases are cited in support of this contention. For the most part they are not in point as they involve questions of defaults, heirship and suits in equity where the property rights of the minor were in issue.

Plaintiff relies principally upon the opinion in Bellchambers v. Ebeling, 294 Ill. App. 247, which was a tort action involving facts very much like those in the present case. It was there held that where the guardian. ad litem was appointed after the case was tried the appointment was too late, and that the court should for that reason have granted a new trial, and the judgment was reversed. The opinion in that case rested its conclusion largely on the opinion in Collins v. Hastings, 283 Ill. App. 304. Examination of the cases upon which rests the decision in the Hastings case shows that for the most part they are not in point. In one of them, Peak v. Shasted, 21 Ill. 137, the minor defendant was defaulted. McCarthy v. Cain, 301 Ill. 534, was a question of heirship. Simpson v. Simpson, 273 Ill. 90, were proceedings to probate a will. In fact, most of the cases cited in the Hastings case have no resemblance to the case at bar.

In Trolinger v. Cluff, 56 Idaho 570, is a comprehensive and thorough examination into this question, with numerous citations. The opinion in that case concludes by holding, substantially, that unless the minor makes some showing to the effect that he has a meritorious defense or has been misled or deprived of some legal right because of his minority he should not be allowed to have the judgment vacated because of his minority.

Illinois cases tending to support the rule that some injustice must be made to appear because of failure to appoint a guardian ad litem of a minor, before the judgment will be vacated, are Lemon v. Sweeney, 6 Ill. App. 507; People v. Humbracht, 215 Ill. App. 29, 35.

In the present case plaintiff himself commenced the litigation; there was no suggestion in his statement of claim nor in the. evidence that he was a minor; he participated in the trial by testifying, he was represented by the same attorney who appears in this court, and the trial proceeded without any suggestion that he was a minor or that his rights and interests, because of this, were in any way affected.

The attention of the court was first called to the minority of plaintiff when the motion for a new trial was made; the court in overruling this said that this minority was not made known at any time during the trial and that in all physical respects plaintiff could not be taken for a minor; after motion for a new trial was denied and judgment entered, upon the affidavit of plaintiff’s mother that he was 19 years of age, she was appointed guardian ad litem to act for him in any further proceedings in the cause. We are unable to see, and counsel for plaintiff does not point out, how in any respect the testimony and proceedings at the trial would have been different had a guardian ad litem been appointed before trial. As the late Elihu Boot said, “Justice is entangled in a net of form.”

However, we are of the opinion that upon the merits this judgment cannot stand.

The accident happened about 9:30 a. m.,' October. 8, 1937; plaintiff was driving west on 75th street in a Packard car and defendant was driving north on Tates avenue in a Plymouth car; the accident took place at the intersection of these streets. There is a stop sign on 75th street and a “ Slow-Danger ” sign on Tates. Plaintiff says he stopped before crossing Tates, looked both ways and started across; when he got to the center of Tates defendant’s Plymouth hit the rear end at the side of his Packard. Another witness who was on the northeast corner of 75th and Tates testified that plaintiff stopped his car at the street intersection and then shifted gears and went on. This witness did not see the Plymouth car. Another witness was following plaintiff’s car, driving a truck west on 75th street. He testified that plaintiff came to a stop at Tates before proceeding.

Two witnesses and defendant and his daughter testified to the effect that plaintiff did not stop at the intersection. Defendant and his daughter testified that they looked to the right and saw no cars approaching. Both these witnesses testified that the Packard struck defendant’s car. The daughter said plaintiff’s car was going about 40 miles an hour and that its front hit the side of their Plymouth.

They were shown photographs of the respective cars taken shortly after the accident, showing their condition. They showed beyond question that the left rear of plaintiff’s Packard was struck by the front end of the Plymouth. The testimony of the witnesses for defendant was so indefinite and manifestly untrue in certain respects that it is difficult to place any reliance upon it.

Considering the evidence as a whole, we are of the opinion that it did not justify any finding of malice on the part of plaintiff, Zielinski. We are also of the opinion that defendant failed to prove he was in the exercise of due care. It is impossible to believe that he looked to the right and failed to see the other automobile. Koenig v. Semrau, 197 Ill. App. 624; Johnson v. Kushler, 269 Ill. App. 553, 561; Crowe Name Plate & Manufacturing Co. v. Dammerich, 279 Ill. App. 103.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    John J. Mulroy, Administrator of Estate of Rose Ann Mulroy, Deceased, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 40,454.

      Opinion filed April 24, 1939.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Thomas E. Ryan, for appellee; G. A. Buresh, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on four industrial insurance policies issued by defendant to Rose Ann Mulroy and upon trial by jury there was a verdict for plaintiff for $1,110, on which judgment was entered, from which defendant appeals.

On a former appeal by defendant we reviewed another judgment entered in favor of plaintiff on this cause of action (293 Ill. App. 630). We reviewed the evidence in detail, held the verdict of the jury was clearly and manifestly against the weight of it, reversed the judgment and remanded the cause for another trial. With a single exception, presently noticed, the evidence is now substantially the same as offered on the former trial.

The defense on both trials was that the policies of insurance had lapsed by reason of the nonpayment of premiums prior to the death of the insured. On both trials the plaintiff offered evidence tending to show the payment of premiums to Joseph J. Leach, who was at one time an agent of the defendant but whose employment, the evidence indicated, had been ended prior to these alleged payments. The evidence on the former trial also tended to show that at the time of the supposed payments Leach was employed by another company and was in another State. On the first trial Leach was not produced as a witness. After the cause was remanded by this court defendant caused the deposition of Leach to be taken in Chicago in April, 1928. Mr. George, attorney for plaintiff, was present and cross-examined. The testimony of Leach was positive and to the effect that he had ended his employment for defendant prior to the time when the alleged payments of premiums were made to him, and that no such payments were in fact made to him; that at the close of his employment he turned the books over to Mr. Marshall of defendant company, and that at the time he quit Mr. Hayes of defendant company went around with him and checked his accounts; that he was not in Chicago at the time of the alleged payment of premiums on July 2,1930. His testimony showed that Leach at the time of giving his deposition lived in Detroit, Michigan, where he was a district manager for the Modern Woodmen.

When the cause came on for trial before the jury - Mr. George, attorney for plaintiff, took the witness stand and testified he was present when Leach’s deposition was taken in April, 1928; he further said that he recognized Leach at that time as a man he formerly represented as attorney in a criminal proceeding wherein Leach entered a plea of guilty in 1926 in the municipal court of Chicago, to a. charge of larceny. He then introduced a transcript of proceedings in the municipal court in which Joseph Leach entered a plea of guilty to a charge of larceny of property to the value of $14, on which the record showed a finding of guilty with judgment on December 6,1928. Objections of defendant to this evidence were overruled. The exhibit was admitted and a motion to strike the evidence denied, as was a further motion at the close of all the evidence to find the issues for defendant.

Plaintiff invokes the rule of law that where two juries have made identical findings upon separate trials and the verdict has been approved by two judges, a reviewing court should be reluctant to reverse the judgment in the absence of some intervening error of law. Egbers v. Egbers, 177 Ill. 82, 86; Blackhurst v. James, 304 Ill. 586, 592, 593; Avey v. Medaris, 272 Ill. App. 207, 209, 210. Plaintiff also calls our attention to People v. Hanisch, 361 Ill. 465, 468; Rambke v. Bieser, 289 Ill. App. 136, 146, as expounding the right of plaintiff to a trial by jury, the sanctity of which should be upheld. We are not unaware of the rule and are not unmindful of the sanctity of the right of trial by jury, as many cases decided by this court illustrate. The rule, however, excludes cases in which error of law has intervened. This, we hold, has happened in this case. The admission of this testimony of the attorney and of the transcript was erroneous. The appeal was argued orally and it was then suggested that a conviction of the crime of petty larceny was not for an infamous offense, and that a record of a conviction for that offense was not admissible for the purpose of discrediting the testimony of a witness. Plaintiff insisted it was, citing McLain v. City of Chicago, 127 Ill. App. 489. The opinion of this court in that case held evidence of the conviction of the crime of petty larceny admissible for such purpose. This opinion was filed June 26, 1906, and was bas*ed on a construction of section 7 of division 2 of the Criminal Code then applicable. By the common-law conviction of a felony or infamous offense operated to disqualify the person convicted as a witness. This disqualification was removed by sec. 1 of ch. 51 of the act approved May 29, 1872 (Ill. Rev. Stat. 1937, p. 1627 [Jones Ill. Stats. Ann. 107.067]). The section in substance provided that such persons should not be disqualified but that the conviction might be shown for the purpose of affecting the credibility of the witness, the fact of such conviction to be proved like any other fact. By act approved May 29, 1911 (Laws of Illinois 1911, p. 290) the legislature amended section 7 of the Criminal Code by naming specifically the crimes which should be deemed infamous, including larceny, “if the punishment for said larceny is imprisonment in the penitentiary.” By section 1 of the act approved May 28, 1879 (Ill. Rev. Stat. 1937, ch. 38, § 389 [Jones Ill. Stats. Ann. 37.330]) larceny of property exceeding the value of $15, or from the person of another, is declared punishable by imprisonment in the penitentiary from one to ten years. By the same s’ection, where the value of the property stolen is $15 or less, or is not stolen from the person of another, the statute declares the person convicted shall be confined in the county jail or sentenced to labor in the workhouse of the county jail or town where the conviction is had, or on the streets or alleys of the city, or on the public roads of the county, or those subject to repair under the direction of the sheriff as the county board may provide, for not exceeding one year and a fine not exceeding $100.

In People v. Waltyn, 191 Ill. App. 86 (opinion filed December 31, 1914) this court said:

“Under the common law petit larceny was a felony, but in this State it is made a misdemeanor by statute (Hurd’s, R. S. 1912, ch. 38, sec. 168, J. & A. ¶ 3793), and in 1911, the legislature removed the offense from the category of infamous crimes. (Hurd’s R. S. 1912, ch. 38, sec. 279, J. & A. ¶ 3972.) Before the passage of this last act it was necessary to prosecute defendants charged with petit larceny by indictment. People v. Russell, 245 Ill. 268. Such is not the case since the passage of the last-mentioned act. If the common law rule of pleadings governs the present case, it would seem clear that it is not necessary to use the word ‘feloniously’ in an information charging petit larceny.”

In Lingle v. Bulfer, 322 Ill. 606, the Supreme Court said: “Records were introduced in evidence for the purpose of impeaching Bulfer, showing a conviction and imprisonment in the penitentiary in 1907 for conspiracy to obtain signatures by false pretenses; also, record of pleas of guilty and fines in 1909 in each of four cases on a charge of conspiracy, and of imprisonment in the house of correction in 1910 upon a plea of guilty to petit larceny. The fact of such fine and imprisonments was not denied by Bulfer. . . . This court has held that that section of the Evidence act allowing the introduction of evidence of the conviction of a crime for the purpose of affecting the credibility of a witness does not cover or include proof of those offenses not made infamous by the common law and which are only statutory offenses, punishable by fine and imprisonment in the county jail. (Matzenbaugh v. People, 194 Ill. 108.) The record of convictions complained of was not competent under the rule above stated and it is presumed the same was not considered by the chancellor.”

It therefore appears the court erred in overruling the objections to the introduction of the evidence tending to show the witness had been convicted of petit larceny and in refusing to strike out such evidence. This evidence introduced in the manner described could not fail to prejudice defendant’s cause with the jury. This court is still of the opinion that the verdict of the jury is contrary to the manifest weight of the evidence. The judgment is therefore reversed and the cause again remanded.

Reversed and remanded.

MpSubely, P. J.? and O’Cohhob, J.? concur,


author: Mr. Justice O’Connor

text:
    Village of Clarendon Hills, Appellant, v. The Century Indemnity Company, Appellee.
    Gen. No. 40,294.

      Opinion filed April 24, 1939.
    Rehearing denied May 8, 1939.
    Jambs H. Coonce, of Chicago, for appellant.
    Dent, Weichélt & Hampton, of Chicago, for appellee ; Louis L. Dent, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff filed its second amended complaint in chancery against defendant to reform a bond executed by defendant to John Jasper Butler, collector of the Village, conditioned that he faithfully perform the duties of the office; that through mistake the bond as executed was a fidelity bond and not an official bond; that Butler was short in his accounts $1,545.88, and the prayer was that the bond be reformed and enforced. Defendant’s motion to strike was sustained, the suit dismissed and plaintiff appeals.

The substance of the allegations of the second amended complaint is that John Jasper Butler was appointed village collector September 16, 1931; that he qualified and continued in that office until June, 1933; that before entering upon his duties he applied to defendant for a bond; that about the time he was appointed he gave to the Village a bond executed September 28, 1931, by himself as principal and defendant as surety; that all parties intended the bond to be in compliance with par. 87, ch. 24, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.178]; that the bond was accepted by the board of trustees of the Village but was not exhibited at that time; that by reason of the mistake of defendant and Butler the bond was not an official bond for the village collector, but a fidelity bond; that by mistake of defendant and Butler the position of Butler, as stated in the bond, was “Office Clerk” instead of “Village Collector,” and by mistake plaintiff, the Village, accepted the bond thinking it was in compliance with the statute; that defendant, in drawing up the bond, which was on one of its printed blank forms, filled out the wrong form.

It was further alleged that Butler collected $1,545.88 which he failed to turn over to the village treasurer, as the ordinance of the Village required, and the prayer of the complaint was that the bond be reformed so as to carry out the intention of the parties.

Section 4, art. 6, par. 87, ch. 24, Ill. Rev. Stat. 1937, provides that all officers of a village, whether elected or appointed, shall, before entering upon their duties take and subscribe to an oath which is set forth, and that all such officers, except aldermen and trustees, shall, before entering upon their duties, ‘ ‘ execute a bond with security, to be approved by the . . . board of trustees, payable to the . . . Village, in such penal sum as may, by resolution or ordinance, be directed, conditioned for the faithful performance of the duties of the office and the payment of all moneys received by such officer, according to law and the ordinances of said . . . village. . . . Such bonds shall be filed with the clerk.” The provisions of this section, in legal contemplation, enter into and form a part of the bond in suit.

Defendant contends that the second amended complaint was insufficient because (1) “there is no allegation of any antecedent agreement to the -effect that a Village Collector’s bond should be given”; that (2) “there is no allegation that the alleged mistake was mutual or common to plaintiff and defendant”; (3) that the mistake was not one of fact but of law; (4) that the allegations of the complaint show the plaintiff was guilty of negligence in that it did not read the bond; and (5) there is no allegation that Butler, in obtaining the bond, was acting as agent for plaintiff or that plaintiff ever asked defendant for a bond of any kind.

There are needless repetitions in the allegations of the complaint, contrary to the provisions of section 33 of the Civil Practice Act (sec. 33, ch. 110, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann, 104.033]). We refer to but one, e. g., reference is made 14 times to paragraph 78 [87] of the statute above referred to when once would have been sufficient. Section 33 of the Civil Practice Act provides that “All pleadings shall contain a plain and concise statement of the pleader’s cause of action.” Nor is the complaint concise, as suggested in the forms found in the appendix to the rules of civil procedure of the district courts of the United States recently adopted by the Supreme Court of the United States. See also Reiter v. Illinois Nat. Casualty Co., 291 Ill. App. 30; Kelly v. Boettcher, 85 Fed. 55. The court in the Kelly case said: “Lord Keeper Bacon made an order that no bills should contain more than 15 sheets of paper; and Lord Chancellor Egerton followed it with another, to the effect that no sheet could contain more than 15 lines, and an excess of the alloted quantity furnished good ground for demurrer. Story Eq. Pl., sec. 266, note 1.”

We think it clear it was unnecessary to allege that there was an antecedent agreement between plaintiff and defendant. Plaintiff would not be a party to the agreement. The bond was to be furnished by Butler as the statute provided; he obtained it from defendant surety company and presented it to plaintiff. We are also of opinion it sufficiently appears from the allegations that Butler, the village collector, applied to the defendant surety company for a bond to be given by him to the Village which should comply with the provisions of paragraph 87 above mentioned; that through a mutual mistake of Butler and defendant the wrong form of bond was filled out by defendant, and through mistake and oversight this bond was approved by the Village officials. This is sufficient.

We are further of opinion that the alternative allegations of the complaint to the effect that if it were held there was no mistake in the preparation of the bond, then defendant, through its agent, intended to defraud the plaintiff, are merely conclusions of the pleader and wholly insufficient.

The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to overrule defendant’s motion to strike the second amended complaint.

Reversed and remanded with directions.

McSurely, P. J., and Hatchett, J., concur.


author: Mr. Presiding Justice Burke

text:
    First District.
    Franklin MacVeagh and Company, appellee, v. Wasyl Korpan, appellant.
    Gen. Nos. 40,125, 40,126.
    Opinion filed February 27, 1939.
    E. A. Ferrari, for appellant. Allen, Darlington & Moore, for appellee; Glynn J. Elliott, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.


text:
    Morris B. Rome and Gertrude Rome, appellants, v. D. Warshafsky, Inc., appellee.
    Gen. No. 40,282.
    Opinion filed February 27, 1939.
    Julius E. Epstein, for appellants. No appearance for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.


text:
    William H. Westney, appellant, v. Kentucky Manufacturing Corporation, Inc., appellee.
    Gen. No. 40,425.
    Opinion filed February 27, 1939.
    Ouerrey & Bosomburg, for appellant; George A. Bosomburg, of counsel. David Sehissell, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.


text:
    Emma L. Morrissey, appellee, v. Raymond L. Morrissey, appellant.
    Gen. No. 40,430.

      Opinion filed February 27, 1939.
    Rathje, Hinckley, Barnard & Kulp, for appellant. William L. Quinlan, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.


text:
    George A. Bosomburg, appellant, v. Birk Brothers Brewing Company, appellee.
    Gen. No. 40,249.
    Opinion filed February 27, 1939.
    G. A. Bosomburg, pro se. Henry L. Phoenix, for appellee; Richard C. Murphy, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    City National Bank and Trust Company and Central Republic Trust Company, appellants, v. Marjorie W. Emery, appellee.
    Gen. No. 39,692.
    Opinion filed February 27, 1939.

    Bell, Boyd & Marshall, for appellants; Thomas L. Marshall, David A. Watts and Victor M. Harding, Jr., of counsel. William H. Beebe and Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellee; William H. Beebe, Isaac E. Ferguson, Charles E. Zekas and Homer Kripke, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Harold R. Jones, appellant, v. Paul J. Leitzell, appellee.
    Gen. No. 40,337.
    Opinion filed February 27, 1939.
    Rehearing denied March 24, 1939.
    Michael B. Roderick, for appellant. Richard R. Klein, for appellee and Paul J. Leitzell, pro se; Richard R. Klein, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Jacob Stangle, appellee, v. Thomas Muscato et al., defendants. Appeal of B. M. Patton, appellant.
    Gen. No. 40,364.

      Opinion filed February 27, 1939.
    Rehearing denied March 24, 1939.
    Paul G. Sullins and Walter H. Shurtleff, for appellant. Levy, Sonnensehein & Mitchell, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Alexander H. Spitz, appellee, v. A. H. Marrettick, appellant.
    Gen. No. 40,259.
    Opinion filed February 27, 1939.
    Charles H. Goodnow, for appellant. Spitz, McKenna & Elmes, for appellee; Ignatz Spitz, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Stanley Slomski, trading as Archer Grocery, appellee, v. E. Swierenga and Robert Swierenga, trading as Swierenga Brothers, appellants.
    Gen. No. 40,285.
    Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    George A. Bosomburg, for appellants. Raymond R. Stern, for appellee; Cíela Guthrie, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    John G. Gruenewegen, appellee, v. Christine H. Roner et al., appellants.
    Gen. No. 40,302.
    Opinion filed February 27, 1939.
    Harold V. Snyder, for appellants. Isadora J. Stein and James R. Glass, for appellee; Louis I. Shapiro, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Erling E. Saland, appellant, v. John J. Hallihan, appellee.
    Gen. No. 40,326.

      Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Ray E. Lane, for appellant. Otto Kernel", Attorney General, for appellee; Earl B. Dickerson, Assistant Attorney General, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Joseph Glass, appellee, v. Stanley Maresh, appellant.
    Gen. No. 40,363.
    Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Benjamin H. Vanderveld, for appellant. George B. Cohen and Abraham H. Cohen, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Richard C. Mazer, individually and executor of estate of Kathie Mazer, also known as Katherine Mazer, appellee, v. Charles J. Schaefer and William A. Schaefer, appellants.
    Gen. No. 40,382.
    Opinion filed February 27, 1939.
    James F. Burns, for appellants; Francis J. Garvey, of counsel. Jacob Stagman, for' appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Frank C. Paderewski, plaintiff in error.
    Gen. No. 40,391.
    Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Ray E. Lane and George G. Rinier, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court,


text:
    Jennie Reid, appellant, v. John F. Dolan and Alice E. Dolan, appellees.
    Gen. No. 40,398.

      Opinion filed February 27, 1939.
    Edward L. S. Arkema, for appellant. George McMahon, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Charles Nadenik, appellee, v. George E. Nadenik, individually and administrator de bonis non with will annexed of estate of Anna Cejka, deceased, et al., appellants.
    Gen. No. 40,409.
    Opinion filed February 27, 1939.
    Rehearing denied March 13, 1939.
    Francis J. Kennedy and Thos. A. McCaffrey, for appellants. Harry Hoffman, for appellee; Irving Hoffman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Ida Slavik et al., appellants, v. Central Trust Company et al., appellees. Appeal of Emma Dicus.
    Gen. No. 40,278.
    Opinion filed February 27, 1939.
    A. G. Dicus and Edwin Hamilton, for appellant. Francis M. Lowes, for certain appellee. Bobertson, Crowe & Spence, for certain other appellee; Egbert Bobertson, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    Harry A. Michael et al., appellants, v. Craig B. Hazlewood et al., appellees.
    Gen. No. 40,299.
    Opinion filed February 27, 1939.
    Shulman, Shulman & Abrams and Joseph & Teitelbaum, for appellants. Sonnensehein, Berkson, Lautmann, Levinson & Morse, Winston, Strawn & Shaw, Kirkland, Fleming, Green, Martin & Ellis and Coneannon, Dillon, Bostelman & Snook, for appellees; Herbert M. Lautmann, Walter H. Jacobs, Joseph B. Fleming, Thomas B. Martineau, Frank B. Gilmer and Bernard Baruch, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    Home Owners’ Loan Corporation, defendant in error, v. Signe Nielsen, plaintiff in error.
    Gen. No. 40,333.

      Opinion filed February 27, 1939.
    William C. Smith, for plaintiff in error. John M. Quinlan, for defendant in error; William E. Dever, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    William Burke Harmon et al., appellees, v. Michele Vinci, appellant.
    Gen. No. 40,359.
    Opinion filed February 27, 1939.
    Taylor, Cuttone, Partridge & Parker, for appellant; Ode L. Rankin, of counsel. Barre Blumenthal, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Dearborn-Lake Garage, Inc., appellant, v. Sol D. Golby, appellee.
    Gen. No. 40,468.
    Opinion filed February 27, 1939.
    Donald J. Seeley, for appellant. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Hibbard, Spencer, Bartlett and Company, appellant, v. City of Chicago, appellee.
    Gen. No. 40,687.
    Opinion filed March 3, 1939.
    Rehearing denied March 6, 1939:
    George A. Mason and Mason & Mason, for appellant; Howard F. Bishop, Edwin D. Lawlor, George A. Mason, Jr., John V. Norcross, Daniel S. Wentworth and Weightstill Woods, of counsel. Barnet Hodes, Corporation Counsel, for appellee; Joseph F. Grossman, First Assistant Corporation Counsel, and J. Herzl Segal, Assistant Corpo- ' ration Counsel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    James W. Breen, appellant, v. City of Chicago et al., appellees.
    Gen. No. 39,982.

      Opinion filed March 13, 1939.
    James W. Breen, pro se. Barnet Hodes, Corporation Counsel, 'and Jacobson, Merrick, Nierman & Silbert, for appellees; David Silbert, J. Sherman Dudley, Joseph F. Grossman and Karl H. Lundquist, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    Miller Ice Company, appellant, v. George E. Crim, appellee.
    Gen. No. 40,554.
    Opinion filed March 28, 1939.
    Poorman & Poorman, for appellant. No appearance for appellee.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice J. J. Sullivan

text:
    Mary Klenner, appellant, v. Aetna Life Insurance Company, appellee.
    Gen. No. 39,867.
    Opinion filed March 28, 1939.
    John Benedek, for appellant. Defrees, Buckingham, Jones & Hoffman, for appellee; Matthew Wills and William Ray Forrester, of counsel.
   Mr. Justice J. J. Sullivan

delivered the opinion of the court.


text:
    H. F. Bosten, appellee, v. Western United Gas and Electric Company, appellant.
    Gen. No. 40,403.
    Opinion filed March 28, 1939.
    Alsehuler, Putnam & Johnson and Charles H. Pegler, for appellant; Edward F. Streit, of counsel. Beverly & Klaskin and Emerson C. Whitney, for appellee; A. A. Glaubaeh, of counsel.
   Mr. Justice J. J. Sullivan

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Abraham J. Eisenberg et al., appellees. Philip A. Paulson et al., appellees. Appeal of Mayer Karasik, appellant. Mayer Karasik, appellant, v. Philip A. Paulson et al., appellees.
    Gen. No. 40,216.
    Gen. No. 40,217.
    Opinion filed March 28, 1939.
    Edelson, Edelson & Wise, for appellant; Clarence Edelson and William N. Wise, of counsel. Judah, Reiehmann, Trumbull, Cox & Stern and A. Edmund Peterson, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    George Christian, appellant, v. Peter Smirinotis, appellee.
    Gen. No. 40,378.
    Opinion filed March 28, 1939.
    Walter B. Prendergast, for appellant. James F. Lyons, for appellee; Elwyn E. Long, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Sophie Engel, appellant, v. Chicago City Railway Company et al., appellees.
    Gen. No. 40,546.
    Opinion filed March 28, 1939.
    Joseph F. Elward, for appellant. Frank L. Kreite,' Warner H. Robinson and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Presiding Justice D. E. Sullivan

text:
    Chicago Title and Trust Company, appellee, v. Joseph Chaet et al. Appeal of Lionel J. Livingston, appellant.
    Gen. No. 40,218.
    Opinion filed March 29, 1939.
    • Maurice L. Davis, for appellant. Kirkland, Fleming, Green, Martin & Ellis, for appellee; Andrew C. Hamilton and Daniel S. Wentworth, Jr., of counsel.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


text:
    Ignazio Danile et al., appellees, v. Society San Biagio of St. Biagio Platani, also known as Societa San Biagio Platani, appellant.
    Gen. No. 40,307.
    Opinion filed March 29, 1939.
    Gans Mazzone, for appellant; Clarence M. Shapiro and Earl V. Cates, of counsel. Leo L. Donohoe, for appellees; Maurice B. Marehello, of counsel.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


text:
    H. McFarlane and Company, appellee, v. Beloit Dairy Company, appellant.
    Gen. No. 40,317.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    Ryan, Condon & Livingston, for appellant; N. S. Channin, of counsel. Heile, Cavender, Milchrist & Kaiser, for appellee.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


text:
    Ford Roofing Products Company, appellee, v. Gerald P. Servatius et al. Appeal of Richard J. Fitzpatrick et al., appellants.
    Gen. No. 40,329.
    Opinion filed March 29, 1939.
    Tage Joranson, for appellants. Marcus L. Silver, for appellee.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


text:
    Joseph Fisher and Lafayette Fisher, trading as Fisher and Fisher, appellees, v. Max Rosenberg, defendant, and Ravenswood Apartment Corporation, appellant.
    Gen. No. 40,338.
    Opinion filed March 29, 1939.
    Harvey M. Bawson, for appellant. Arthur S. Flank, for appellees.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


text:
    Dr. F. H. Willis, appellee, v. Joseph A. Rushton, appellant.
    Gen. No. 40,404.
    Opinion filed March 29, 1939.
    Edwin M. Ashcraft, III and Crittenden C. Jarvis, for appellant. William R. Wiley, for appellee.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice 5. E. Sullivan

text:
    Norman B. Pitcairn and Frank C. Nicodemus, Jr., appellants, v. Gus Dreyfuss, appellee.
    Gen. No. 40,435.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    John Gibson Hale, for appellants. Blanksten & Lansing, for appellee; Harold S. Lansing, of counsel.
   Mr. Presiding Justice 5. E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice‘D. E. Sullivan

text:
    Oscar Schorow, appellee, v. Bessie Schorow, appellant.
    Gen. No. 40,451.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    Teed, Kammermann & Johnson and Joseph D. Motto, for appellant; Hugh E. Johnson, of counsel. Louis I. Gordon and Abraham Miller, for appellee; Abraham Miller, of counsel.
   Mr. Presiding Justice‘D. E. Sullivan

delivered the opinion of the court.


text:
    Ida Rosche, appellee, v. John Rosche, appellant.
    Gen. No. 40,461.
    Opinion filed March 29, 1939.
    Samuél L. Cohen, for appellant; Morris K. Levinson, of counsel. Litsinger, Healy, Reid & Bye, for appellee; John W. MeElroy, of counsel.
   Mr. Presiding Justice D. E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Burke

text:
    Michael Gidwitz, appellant, v. Armour and Company et al., appellees.
    Gen. No. 40,258.

      Opinion filed March 29, 1939.
    Arnold I. Shure, for appellant. Kirkland, Fleming, Green, Martin & Ellis, for appellees; Robert N. Golding, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Wasson-Pocahontas Coal Company, Inc., appellant, v. Indemnity Insurance Company of North America, appellee.
    Gen. No. 40,314.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    Arthur Chittiek and John A. Niemeyer, for appellant. McKinney, Folonie & Grear, for appellee; C. Oscar Carlson, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Thomas Brown et al., appellants, v. Guy A. Richardson et al., trading as Chicago Surface Lines, appellees.
    Gen. No. 40,481.
    Opinion filed March 29, 1939.
    Frank E. Auster, for appellants. Frank L. Kriete, Anson H. Brown and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Guardian Bancorporation v. James A. Low. In re petition of John W. Bennett and Edward M. Colbach, appellees, v. James A. Low, et al., appellants.
    Gen. No. 40,226.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    Allen G. Mills, for appellants. Bennett & Colbaeli, pro se; Joseph M. Griffen, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    James A. Burgess, appellee, v. John Raklios and Company, Inc., appellant.
    Gen. No. 40,263.

      Opinion filed March 29, 1939.
    Kirkland, Fleming, Green, Martin & Ellis, for appellant; David J acker, John M. O’Connor, Jr. and Charles M. Bush, of counsel. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Sophie Cimaroli, appellant, v. City of Chicago, appellee.
    Gen. No. 40,275.
    Opinion filed March 29, 1939.
    Paul G. Sullins, for appellant. Barnet Ho des, Corporation Counsel, for appellee; Alexander J. Besa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Pullman Trust and Savings Bank, appellant, v. Lucian Jarecki et al., appellees.
    Gen. No. 40,301.
    Opinion filed March 29, 1939.
    Wellington G. Brown, for appellant. A. Robert Pakulaz, for certain appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    In re estate of Samuel H. Weiss, deceased. Abe Berkovitz, appellee, v. West Side Trust and Savings Bank and Rose Weiss, executors of estate of Samuel H. Weiss, deceased, appellants.
    Gen. No. 40,332.
    Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939:
    Bernard J. Brown, for appellants. Kamfner, Halligan & Marks, for appellee. Edwin A. Halligan and Samuel M. Lanoff, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Glenn Thompson and Mildred B. Thompson, appellants, v. Florence Otis et al., appellees.
    Gen. No. 40,362.

      Opinion filed March 29, 1939.
    Rehearing denied April 12, 1939.
    McNab, Holmes & Long, McKinley, Price & Quindry, John Tone Kelly and Collins, Halloway & Kelly, for appellants. Cassels, Potter & Bentley, for certain appellee; John E. Whitman, Leslie H. Vogel and Anthony S. Eas, of counsel. Otto M. Hamer, for certain other appellee; Chester D. Kern, of counsel. Kirkland, Fleming, Green, Martin & Ellis, for certain other appellee; William H. Symmes, David Jacker and John M. O’Connor, Jr., of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Peter Bohr, plaintiff in error.
    Gen. No. 40,464.
    Opinion filed March 29, 1939.
    Clarence W. Shaver, for plaintiff in error; Louis E. Levinson, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Albert Cervenka, appellee, v. Lawndale National Bank et al., appellants.
    Gen. No. 40,288.
    Opinion filed April 10, 1939.
    Klenha & Greenfield and Kerner, Jaros & Tittle, for appellants. Thomas H. Biley, for appellee; James E. McGrath, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Marie Eckwall, plaintiff below, v. Hubert J. Eckwall, defendant below. Appeal of Melville R. Thomson, appellant.
    Gen. No. 40,312.
    Opinion filed April 10, 1939.
    Lloyd M. Brown, for appellant, and Melville B. Thomson, pro se. No appearance for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Oscar Nelson, plaintiff, v. Prudential State Savings Bank, defendant. Charles H. Albers, appellant, v. Jacob Betten and Minnie Betten, individually and as executors of estate of Mabel M. Eddy, deceased, appellees.
    Gen. No. 40,348.
    Opinion filed April 10, 1939.
    Frederick H. Ohetlain, for appellant; Kent G. Chetlain, of counsel. Ditehburne & Lounsbury, for appellees; Charles E. Lounsbury, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Maxwell Landis, appellant, v. Timothy Klapperich and Emil Rosenthal, appellees.
    Gen. No. 40,431.
    Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    Alvin Landis, for appellant; Sidney T. Feinberg, of counsel. Irving L. Block, for appellee Emil Rosenthal.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Mary Stark, appellee, v. New Home Benefit Association, appellant.
    Gen. No. 40,439.
    Opinion filed April 10, 1939.
    David J. Maddox, for appellant. Norman & Norman, for appellee; Edward W. Norman and Irving R. Norman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    In the matter of estate of Joseph J. Reiter, deceased. Appeal of Helen Dold, appellant, v. Marie A. Reiter and Agnes A. Reiter, administratrices of estate of Joseph J. Reiter, deceased, appellees.
    Gen. No. 40,449.
    Opinion filed April 10, 1939.
    Paul A. F. Warnholtz, for appellant; Frederick J. Bertram, of counsel. Joseph A. Ricker, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Hatchett

text:
    Lunde and Buswell, Inc., appellant, v. Tremont Motors, Inc., appellee.
    Gen. No. 40,462.
    Opinion filed April 10, 1939.
    Howard E. De Long, for appellant; E. C. Frank Meier, of counsel Freeman & Freeman, for appellee; Earl Freeman, of counsel.
   Mr. Justice Hatchett

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, complainant, v. Max Astrahan et al., defendants. Norman M. Mertes, appellee, v. Gertrude Levine, appellant.
    Gen. No. 40,478.
    Opinion filed April 10, 1939.
    Meyer W. Rosin and Landis, Landis & Landis, for appellant; Alvin Landis, of counsel. Robert B. Shapiro, for appellee; Sidney C. Merman, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Arthur L. Pellegrini, appellee, v. William A. Bredenbeck, appellant.
    Gen. No. 40,330.
    Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    James A. Dayton, for appellant. Reuben Stiglitz, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Richard Allan Dillman, minor, by Willis E. Dillman, his father and next friend, appellant, v. Consumers Sanitary Coffee and Butter Stores, appellee.
    Gen. No. 40,351.
    Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939.
    Royal W. Irwin, for appellant. John A. Bloomingston, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Brenda Holter, appellee, v. Forest Webb Holter, appellant.
    Gen. Nos. 40,379, 40,563.

      Opinion filed April 10, 1939.
    Rehearing denied April 24, 1939 for Gen. No. 40,563.
    H. M. Phipps and Teed, Kammermann & Johnson, for appellant; Hugh E. Johnson, of counsel. Walter A. Myer, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Truman W. Wells, appellee, v. Edward B. Lindberg, individually and trading as Lindberg and Stringham. Lindberg and Stringham, Inc., appellant.
    Gen. No. 40,405.
    Opinion filed April 10, 1939.
    David T. Alexander, for appellant. Maurice S. Weinzelbaum, for appellee; Emanuel Morris, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Minnie Meyers, appellee, v. Albert J. Horan and Michigan Ohio Building Corporation, appellants.
    Gen. No. 40,427.
    Opinion filed April 10, 1939.
    Nettland & Nettland, for appellants. Leo Miller, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Oscar S. Stein, appellant, v. Illinois Publishing and Printing Company, appellee.
    Gen. No. 40,446.
    Opinion filed April 10, 1939.
    Kamfner, Halligan & Marks, for appellant; Edwin A. Halligan and Samuel M. Lanoff, of counsel. Edward G. Woods, for appellee; Edward G. Woods and E. D. Salinger, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Anton Baruski, executor of estate of Wacklow Mankavick, deceased, appellant, v. Stanley Warnis and Theresa Warnis, appellees.
    Gen. No. 40,394.

      Opinion filed April 24, 1939.
    Arthur V. Goebel and George Spitz, for appellant; John M. Kanne, of counsel. Harry I. Parsons, for appellees; William J. Drennan, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Louis J. Borowsky, appellee, v. Lloyd O. Gilbert, appellant.
    Gen. No. 40,424.
    Opinion filed April 24, 1939.
    Rehearing denied May 8, 1939:
    Harry J. Guyon and Eli B. Huron, for appellant; John T. Murray, of counsel. Harold A. Fein, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Presley L. Neville, appellee, v. R. B. Sawyer, appellant. John Croft, appellee, v. R. B. Sawyer, appellant. John W. Dobbins, appellee, v. R. B. Sawyer, appellant.
    Gen. No. 40,465.
    Gen. No. 40,466.
    Gen. No. 40,467.
    Opinion filed April 24, 1939.
    Rehearing denied May 8, 1939 for Gen. No. 40,465.
    William R. Wiley and Cassell Patton, for appellant. Hugo J. Thai, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois, petitioner, v. James Farley, respondent.
    Gen. No. 40,627.
    Opinion filed April 24, 1939.
    No appearance for respondent. Thomas J. Courtney, State’s Attorney, for petitioner; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    People of the State of Illinois, defendant in error, v. Leslie Rhodes, plaintiff in error.
    Gen. No. 40,368.

      Opinion filed April 24, 1939.
    W. G. Anderson, for plaintiff in error. John E. Cassidy, Attorney General, for defendant in error; Mortimer Porges and Philip J. Simon, Assistant Attorneys General, of counsel.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    West Suburban Finance and Thrift Company, appellant, v. Latrobe Building Corporation et al., appellees.
    Gen. No. 40,561.
    Opinion filed April 24, 1939.
    Ode L. Rankin, for appellant. Alfred F. Beck, for certain appellees. Harold L. Reeve and Charles F. Grimes, for certain other appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Riess

text:
    Third District.
    P. N. Chiasson, appellee, v. National Triangle Securities, Inc., appellant.
    Gen. No. 9,158.
    Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    William Mumford and Barry Mumford, for appellant. A. W. Schimmel, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Mrs. Florence Engelking, appellee, v. Springfield Brewing Company, appellant.
    Gen. No. 9,150.
    Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Lowell D. Ryan and George E. Drach, for appellant. C. Victor Car-dose, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Selma Adair, administratrix of estate of James Adair, deceased, appellee, v. The Alton Railroad Company, appellant.
    Gen. No. 9,160.

      Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    William L. Patton, for appellant; Silas H. Strawn, of counsel. Roscoe O. Bonjean and S. S. DuHamel, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Justice Hayes

text:
    Motor Acceptance Company of Illinois, appellant, v. Lawrence Ehrhart, appellee.
    Gen. No. 9,161.
    Opinion filed January 24, 1939.
    Rehearing denied April 4, 1939.
    Alexander W. Jamieson and Gumbart & Grigsby, for appellant. Harris & Harris, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.


text:
    Stuart E. Pierson, administrator de bonis non with will annexed of estate of David Meade Fishback, deceased, appellee, v. Louise Fishback et al., appellant.
    Gen. No. 9,139.
    Opinion filed January 31, 1939.
    Rehearing denied April 4, 1939.
    Gilbert K. Hutchins, for appellant; Jack McDonald, of counsel. William G. Vogt and A. B. Johnson, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.


text:
    Irene Katherine Thielen, appellant, v. Vincent Paul Thielen, appellee.
    Gen. No. 9,176.
    Opinion filed March 6, 1939.
    George W. Sprenger, for appellant. Wayne O. Townley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Murphy

text:
    Fourth District.
    Ike Moore, appellee, v. Metropolitan Life Insurance Company, appellant.
    Opinion filed January 13, 1939.
    Wheatley & Combe, for appellant. Harry J. Flanders, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.


text:
    Union Trust Company of East St. Louis, executor and trustee of the last will and testament of Joseph Karner, deceased, appellee, v. Dora Karner et al., defendants, and Maurice S. Karner, appellant.
    Opinion filed March 13, 1939.
    H. Chouteau Dyer and John M. Earns, for appellant. Philip G. Listeman and Louis Elingel, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.


author: Per Curiam.

text:
    Rudy Phillips, next friend of Bluford W. Logsdon, plaintiff, v. William L. Ford, defendant.
    Opinion filed March 13, 1939.
    Ely & Derrick, for plaintiff. Joseph L. Bartley and C. R. Roedel, for defendant.
   Per Curiam.


text:
    Ben Emge, appellee, v. Illinois Central Railroad Company, appellant.
    Opinion filed March 13, 1939.
    Kramer, Campbell, Costello & Wieehert, for appellant; Charles A. Helsell, of counsel. Beasley & Zulley, for appellee.
   Per Curiam.


author: Lacey, J.

text:
    The People of the State of Illinois, use, etc. v. William Price et al.
    1. Justice of the peace—Failure to pay money collected/—It is the duty of a justice of the peace to pay over all moneys that may come to his hands under any judgment or otherwise by virtue of his office, subsequently to the commencement of his term of office, regardless of the time when the claims were received by him for collection.
    2. Expiration of term—Successor.—When one justice retires and another succeeds to his office, the docket, and all papers pertaining to his office should be turned over to the latter, who should proceed to the completion of all unfinished business. The rule is the same whether the incumbent succeeds himself or another, and if the claims were received by the justice during his first term of office, they passed to himself as his own successor when he qualified for the second term.
    3. Burden of proof.—It was erroneous to instruct the jury, that because the justice was a public officer, the law would presume that he would do his duty and pay over the money collected, and that such presumption must be overcome by a preponderance of evidence. If the money was proved to have been collected by the justice, it would malee a prima facie case in favor of the plaintiffs and shift the burden of proof upon appellees to show that the money had been paid over.
    4. Estoppel.—The judgments rendered by the justice, and afterwards collected by him, were' collected by virtue of his office, and the justice and the sureties on his official bond are estopped to deny that fact.
    5. Evidence—Competency.—The judgment docket of the justice, showing the two judgments in favor of appellants, and the testimony of the constable tending- to show that he paid them to the justice, were competent evidence, and the court erred in refusing to admit them.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. K. Essick, for appellants.
    Messrs. Sweet & Day, for appellees.
   Lacey, J.

This cause, was tried at the September term of the Circuit Court of Champaign county, and resulted in a vervict and judgment for appellees.

The cause of action was the official bond of I. H. Hess, police magistrate of Champaign city, signed by appellees as his' security. It was in the penal sum of $2,000, dated April 19, 1872, with the usual recitals, and with the following condition: “If the said I. H. Hess shall justly account for and pay over all moneys that may come to his hands under any judgment or otherwise by virtue of his said office, etc. . . . then this obligation to' be void, otherwise to remain in full force.”

In the fall or summer of 1875, Hess died; he was his own successor in office, having held a term prior to this one. The breaches assigned in the bond were the alleged defalcations of Hess in not paying over moneys collected by him, belonging to appellants, during his last term of office; part collected on judgments rendered by him and part without. All as was declared collected by virtue of his office, and during his last term.

The defense set up was that the claims were not collected by Hess by virtue of his office, but as the private agent of appellants. There was some uncertainty or want of evidence as to the time Hess received the claims, or at least a portion of them, for collection, whether during his first or last term of office. The court on the trial, at the request of appellees, gave the following instructions:

1.' “The court instructs the jury that the defendants are not liable for any claims received by Hess, as justice of the peace for collection prior to the 19th day of April, 1872.”

4. “The court instructs the jury that the burden of proof is upon the plaintiffs to show by evidence that the claims here sued on were placed in the hands of Hess after the 19th day of April, 1872, and if the evidence fails to show when the claims were placed in the hands of Hess for collection, then in such case plaintiffs would not make out their case.”

The assignment of errors on the giving of these instructions for appellees against appellants’ objections we think well taken. It was wholly immaterial as to when and in what way the claims were received by Hess. By the terms of his bond he was to pay over all moneys that might come to his hands under any judgment or otherwise by virtue of his office,” not that he should pay over such moneys only as should be received on judgments or otherwise coming to his hands, subsequently to the commencement of his term of office. All moneys received by virtue of his office were to be paid over regardless of the time when the claims were received.

The evidence shows that all collections made by Hess were made subsequent to April 19, 1872, and the judgments rendered were subsequent to that time.

When one justice retires and another succeeds to his office, the statute requires -that the “ docket, statutes and all papers relating to the business transactions before him, shall be turned over to the latter, who shall issue execution and proceed to the completion of all unfinished business. The functions of the .outgoing justice entirely cease and those of the new one commence.” Stat. 1874, 653, §§ 108-109. All moneys shall be paid over by the justice taking upon himself the duties of his office, “ collected on any judgment or otherwise by virtue of his office.” Stat. 1874, 63S,‘§ 5.

The rule is the same whether the incumbent succeeds himself or another. The old justice does no act and is. responsible for nothing done by the new justice after the succession..

If these claims were received by Hess during his first term of office as justice, they passed to himself as.his- own successor when he qualified for the second term. The only issue is, did any money come to his hands by virtue.of. his. office?.. Green et al. v. Wardell, 17 Ill. 280; Morley v. Town of Metamora, 78 Ill. 394.

Then again, the court below gave the jury, at the request of appellee and against the objection of appellants, instructions Nos. 8 and 10, which is claimed to be error. The instructions are in substance that appellants could not make out a case against appellees by proving that I. H. Hess collected money belonging to Farrar and Wheeler, but that they must show by a preponderance of evidence that I. H. Hess did not pay over the money to them.

That the law would presume that Hess, because an officer, would do his duty, and that he paid over the money collected, and that the burthen of proof was on appellants to overcome such presumption. The instructions were erroneous. The law does not in this kind of a case compel the plaintiff to prove a negative. If the money were proved to have been collected by the justice of the peace it would make a prima facie case in favor of the appellants and shift the burthen of proof on the appellees, to show that the money had been paid over. Grove v. Brown, 11 Ill. 431; Johnson v. Maples et al. 49 Ill. 101; Howard v. Slagle, 52 Ill. 336.

One other question—we must hold, that the judgments rendered by Hess, and afterward collected by him, were collected by virtue of his office, and that both Hess and his securities, the appellees, are estopped in law from denying that fact.

As to whether the other claims collected by Hess and not paid over, were collected by virtue of his office, or as the private agent of appellants, we express no opinion, for the reason that the question may be passed upon by another jury.

The court below also erred in not admitting in evidence the judgment docket of Hess showing the two judgments in favor of appellants, the one against McNabb and Diviney and the other against Price.

This evidence and the evidence of constable Weller, tending to show that he paid them to Hess, should have been admitted to the jury, leaving them to pass upon the sufficiency of the proof. For these reasons the cause is reversed and remanded.

Reversed and remanded.


text:
    Patrick Murphy v. J. H. McDonald.
    Trial of right of property—Appeal must be prated for "when judgment rendered.—In cases of trial of right of property, the statute requires that an appeal should be prayed for on the day of entering judgment in the cause. So, where the record showed that such appeal was not prayed for until three days after rendering judgment, it was error for the county court to overrule a motion to dismiss the appeal,
    Appeal from the County Court of Morgan county; the Hon. E. P. ICirby, Judge, presiding.
    Mr. G. W. Smith, for appellant;
    that the appeal should be prayed on the day of entering the judgment, cited Pearce v. Swan, 1 Scam. 266; Rev. Stat. 1874, 652, § 102.
    Mr. George J. Dod, for appellee;
    as to the manner in which appellant took possession of the property in controversy, and that the sale to him was fraudulent se, cited Ticknor v. McClelland, 84 Ill. 471; Lewis v. Swift, 54 Ill. 436.
   Per Curiam.

This was a case of the trial of the right of property in which appellant was plaintiff and appellee defendant, had before D. C. Gallon, a justice of the peace of Morgan 'county. Final judgment in favor of appellant was rendered, and the docket was signed by the justice on the 28th day of August, A. D. 1878.

The justice afterwards made the following entry on the justice docket: “The defendant, J. H. McDonald, made demand for an appeal to the County Court, and a bond filed August 31st, 1878, and transcript made up.”

The appellant in the County Court moved to dismiss appeal for the reason that the record did not show that an appeal was prayed on the day of entering the judgment in said cause before the justice. This motion the County Court denied, and the appellant excepted to the ruling of the court.

Judgment having been rendered against appellant for costs, he appeals to this court, and assigns for error, among other matters, that the County Court erred in refusing to dismiss appeal. We think the error is well assigned; the statute requires that the appeal shall be prayed for on the day of entering judgment. Statute 1874, 652, § 102.

In this case the record shows that the appeal was not prayed for till August 31st, while the judgment was rendered August 28th. For this error of the County Court, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Higbee, P. J.

text:
    John H. Hutchinson et al. v. John A. Crain et al.
    Instructions — Misreciting testimony—Undue prominence to parts op the testimony.—An instruction which misrecites portions of the testimony, and which calls the attention ol' the jury to particular portions of the evidence, by italicizing the same, is erroneous. Such an instruction is well calculated to influence the jury to the prejudice of the opposite party, and for that reason should not have been given.
    Error to the County Court of Morgan county; the Hon. E. P. Kirby, Judge, presiding.
    Mr. Oscar A. De Leuw, for plaintiffs in error;
    contending that one member of a firm cannot bind the firm by acts or for purposes not within the scope of the firm business, cited McNair v. Platt, 46 Ill. 211; Brewster v. Mott, 4 Scam. 378; Richardson v. French, 4 Met. 577; Baron v. Young, 7 Miss. 1; Ulery v. Ginrich, 57 Ill. 531; Hedly v. Bainbridge, 3 Ad. & E. 316; Cooke v. Branch Bank, 3 Ala. 175.
    To bind the firm on a note not given in the course of the firm business, such note must be in the hands of an innocent holder without notice: Whaley v. Moody, 2 Humph. 495; Emerson v. Harmos, 2 Shep. 271; Bank v. Gilliland, 23 Wend. 311; Austin v. Vandermark, 4 Hill, 259.
    The burden of proof to show the concurrence of the other partners in the unauthorized acts of one of the firm, is upon the holder of such note: Leverson v. Lane, 13 C. & B. 278; Parsons on Contracts, 162; Metcalf on Contracts, 118; Darling v. March, 22 Me. 188.
    Mere knowledge of the partners is no proof of assent: Elliott v. Dudley, 19 Barb. 326; Mercein v. Andrews, 10 Wend. 463.
    The court should have allowed evidence to show that liehoe was solvent and Barrett insolvent at the time of signing the note: Bank v. Bowen, 7 Wend. 158; Joyce v. Williams, 14 Wend. 141; Wilson v. Williams, 14 Wend. 146; 3 Binn. 520.
    Admissions by other parties of liability should be explicit, and not by way of inference: Elliott v. Dudley, 19 Barb. 326; Sweetsen v. French, 2 Cush. 309; Shireff v. Wilks, 1 East. 48; Wells v. Westerman, 2 Esp. 731; Edwards on Bills, 103; 14 Wend. 577.
    Messrs. Mohrison, Whitlock & Lippihcott, for defendants in error;
    that the assent of the partners is an adoption of the note, though in the hands of a party who took it with notice, cited Edwards on Bills, 106; Com. Bank. v. Warren, 15 N. Y. 133.
    Such assent may be implied from facts and circumstances: Gansevoort v. Williams, 14 Wend. 133:
    Subsequent recognition of an unauthorized act, is equivalent to previous authority: Byles on Bills, 36.
    If the other partners on being informed of the unauthorized act of one of their firms do not dissent or give notice to the payee, they will be bound: Foster v. Andrews, 2 Pa. 160.
    It is the province of the jury to reconcile conflicting evidencé, and their verdict should not be disturbed: City of Chicago v. Torgerson, 60 Ill. 200; City of Galesburg v. Higley, 61 Ill. 287; Fitch v. Zimmer, 62 Ill. 126; Robinson v. Parish, 62 Ill. 130; Stenger v. Swartwout, 62 Ill. 257; Peru Beer Co. v. First Nat. Bank, 62 Ill. 265; Cass v. Campbell, 63 Ill. 259; Chapman v. Stewart, 63 Ill. 332; C. A. & St. L. R. R. Co. v. Stover, 63 Ill. 358; Vogt v. Buschman, 63 Ill. 251; Tucker v. Watte, 64 Ill. 416; McNellis v. Pulsifer, 64 Ill. 494; McLain v. Farden, 83 Ill. 15; Corwith v. Coulter, 82 Ill. 585; Pafineau v. Belgarde, 81 Ill. 61.
   Higbee, P. J.

This was an action of assumpsit brought by defendants in error against plaintiffs in error in the County Court of Morgan county on the following promissory note:

“886.25. Waverly, III., January 1st, 1878.
“ One day after date we or either of us promise to pay Crain & Manson or order eight hundred and eighty-six dollars and twenty-five cents, for value received, to bear ten per cent, interest from date until paid. If the interest is not annually paid, to become as principal and bear same rate of interest.
“ negotiable and payable without defalcation or discount.
“[Signed.] ' J. E. Barrett,
“Hutchinson Bros. & Co.”

To the declaration defendants, John M. Hutchinson and Jesse S. Allen, filed a plea of non-assumpsit sworn to.

A judgment was rendered against all the defendants below, from which they prosecute a writ of error to this court, and errors are assigned upon the instructions given and refused, and in overruling a motion for a new trial.

It is conceded that the firm of Hutchinson Bros. & Co. were securities on this note only, and that no part of the consideration of the same was received by them. It further appears by the evidence in the case, that the firm name to the note was signed by Daniel B. Hutchinson, in the absence of Allen, who testifies that he had no knowledge of the note until sometime after it was given, and that he never authorized the firm name to be signed to it.

Plaintiffs below sought to show by declarations and conversations of Allen, made after the execution of the note, that he had assented to its execution or ratified it afterwards. The evidence upon this subject w^as rather vague and unsatisfactory, and was contradicted by Allen. At the instance of defendants in error the court gave, among .others, the following instruction:

3d. “ That upon the question of the ratification of the signature of the firm name of Hutchinson, Bro. & Cos. to the note •in suit in this case, the jury are instructed that they should consider all the facts and circumstances appearing in the evidence in this cáse, and if they find from the evidence that after the signature of said firm name to said note, that the defendant Allen admitted his liability thereon, and said in substance to the witnesses that he would have to pay said note, and that ‘ it would break him up,’ and made attempts to get Barrett to indemnify him for being such security, then these facts, if proven, should be considered by the' jury in determining the question of such ratification. And if the jury, from all the evidence in the case, believe that said Allen, after the signa-, ture of said firm name to said note, with a knowledge of the facts in the case, did ratify the same, their verdict should be for the plaintiffs as to said Allen.”

This instruction should not have been given, for two reasons. In the first place it misrecites the evidence; Crain does not say that Allen said “he would have the note to pay.” His statement in his evidence is that Allen said “ he’d be broke np if he had it to pay.”

Barrett says in his examination in chief: “Allen was security for me- on some other paper * * * In February, I proposed to Allen to go to Missouri and buy a mill, and he got mad and said, by about the time he’d paid off these notes he’d be ruined. * * * I understood him to mean this note sued on as well as the others on which- he was security. On his cross-examination he says in reference to the same conversation. I said to Allen, suppose you sell out here, and lets go to Missouri in the milling business. He just remarked that I had him in such a fix that he had nothing to sellout; that John M. and David Hutchinson had nothing, to pay with, and he would have to pay it. Following this he says that Allen said, if he had the Moffit note and also this one to pay, it would take all he had.

Take all these statements together, and they do not justify the recital in the instruction, made still more emphatic by italicizing the same. Again,-when the evidence is slight or is highly contradictory, it is unfair to select isolated portions of the evidence and give them prominence by calling the attention of the jury especially to them. Frame v. Badger, 79 Ill. 441.

The jury may well infer, from such prominence given to particular portions of the evidence, that they strike the mind of the Court as controlling features in the case. If any portion of the evidence bearing upon a particular point in issue is thus made prominent, it would seem but fair that all the evidence touching the same matter on both sides should be stated. Such a course would be less likely to work injury to either party. The practice of reciting the evidence in instructions does not seem to meet with the favor of the Supreme Court of this State. In the case of Frame v. Badger, supra, it is said: The Court should always instruct that if the facts averre'd in the issue are proven, reciting them, then they should find for the party in whose favor they shall find the facts; or, if either party holding an affirmation fail to prove the affirmative facts, the jury may be told that if they so find they should find against him.

We think in this case the giving the instruction complained of was well calculated to influence the jury to the prejudice of plaintiff in error, Allen, and for that reason, that the judgment should be reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas E. Richards et al. v. Thomas J. Rape, use, etc.
    1. Replevin—Remedy on bond—Return of property.—Where a' replevin bond was executed to a constable holding the property by virtue of a writ of attachment, and upon the failure of the plaintiff in replevin to prove his right to the property, it was returned to another constable holding an execution against the property issued under the attachment suit, which had in the meantime ripened into a judgment; held that the property was properly returned, and there was no breach of the bond. The bond was for the benefit of the plaintiff in attachment, and the property was returned to the only party authorized at the time to take it and apply it to the payment of the judgment.
    2. Subsequent surrender by the constable.—A subsequent surrender of the property by the constable under a claim of exemption does not affect the rights of the surety on the replevin bond. His obligation was satisfied when the property was returned, and he cannot be held responsible for the use made of it after its return.
    Appeal from the County Court of Sangamon county; the Hon. J. H. Matiieny, Judge, presiding.
    Mr. Robert L. McGuire, for appellants; that the property was exempt, cited Laws of 1877, 102.
    Messrs. Hamilton & Rosette for appellees.
   Higbee, P. J.

‘This suit was commenced by appellees against appellants, to recover on a replevin bond, and resulted in a judgment in favor of the plaintiffs below, from which appellants appeal to this tiourt.

On the 5 th day of December, 1877, Rebecca Payne, as executrix, commenced a suit by attachment against Richards before a justice of the peace. The writ was delivered to Caleb Mower, a constable, who levied upon ahorse as the property of Richards, and also served said writ by reading to him. Judgment was rendered against Richards, and an execution issued by the justice and placed in the hands of J. J. Warren, .a constable of said county, for collection.

While the horse was in the possession of Mower, and before the judgment was rendered, Richards, claiming that the horse was exempt from execution, procured a writ of replevin for the horse, to be issued by another justice, and placed it in the hands of appellee, Rape, to be executed. " Thereupon Richards, as principal, and White as his security, executed the replevin bond sued on in this case. The bond is to Thomas J. Rape, constable in the county of Sangamon and State of Illinois, and to his successors in office, conditioned as follows:

“ The condition of this obligation is such that, whereas, on • the 8th day of December, 1877, the said-T. E. Richards sued out a writ of replevin before John D. Iieedy, Esq., a justice of the peace in and for said county of Sangamon, against Caleb Mower, defendant, for the recovery of the following described goods and chattels, to wit: one bay stallion about nine years old, named Morgan. Row if the said T. E. Richards, plaintiff, shall prosecute his suit to effect and without delay, and make return of the said property, if the return thereof shall be awarded, and save and keep harmless the said constable inreplevying the said property, then this obligation to be void,” etc.

Upon receiving the bond, Rape .executed the writ and delivered the horse to Richards, who subsequently delivered him to White, his security.

The replevin suit was decided against Richards, and a return of the horse awarded on the 19th day of December, 1877. Warner then having the execution in his hands, called on White, who delivered the horse to him, and he was levied upon and taken into possession by Warner.

The only question presented by the record for our decision is, was this a sufficient return of the property to discharge the obligation of the bond? Appellants insist that the return could only be made to Mower.

The object of a replevin bond under our statute is not merely to indemnify the constable, but also to furnish an additional remedy to the defendant in case the plaintiff fails to maintain his suit. The replevin act requires the constable to take this bond before executing the writ, and to return it with the writ to the justice, and makes him liable to the defendant in damages in case he fails to do so. These provisions are for the ben. efit of the defendant, and the act further expressly provides that the defendant may maintain an action for his own use, in the name of the constable, for any breach of the condition of the bond, and recover such damages as he has sustained. This he can do without first proceeding against the constable. Petrie, use, etc. v. Fisher, 43 Ill. 442. The real defendant in interest in the replevin suit was Mrs. Payne, and not the constable who levied the attachment. It was her rights intended to be secured by the bond. Mower, the constable who levied the attachment, neither had or claimed to have any personal right in the horse. He simply held him for Mrs. Payne, the plaintiff, by virtue of the writ of attachment. When that proceeding ripened into a judgment, an execution was issued and placed in the hands of constable Warren for collection, and the horse delivered to and levied upon by him to satisfy the same.

This suit is brought for the use of Mrs. Payne, the real party in interest, to recover for the alleged failure to return the property, when in fact it was returned to satisfy the very same debt for which she originally caused it to be taken. Mower had returned his attachment, and no longer had any right to the possession of the property. The bond was made for the benefit of Mrs. Payne, and the property was returned to the only party authorized at the time to take it, and apply it to the payment of her judgment, and this fully satisfies the requirement of the bond. But it is said that after the horse was surrendered up to Warren, ¡Richards again claimed it as exempt from execution, and that the constable, after causing it to be appraised by three disinterested persons, gave it up to him. This certainly cannot affect the rights of White, the security on the bond. His obligation was satisfied when the property was returned, and he cannot be held responsible for the use made of it after- its return.

For these reasons the judgment of the court below is' reversed.

¡Reversed.