author: Mr. Justice Matchett

text:
    Chicago Title and Trust Company, Appellee, v. Anna M. Johnson et al. George M. Chamberlain, Appellant.
    Gen. No. 36,171.

      Opinion filed October 20, 1932.
    Rehearing denied November 2, 1932.
    Norman A. Beck, for appellant; Robert F. Bittrich, of counsel.
    Anderson & Anderson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Upon a verified bill of complaint filed April 2, 1932, praying for the foreclosure of a trust deed executed October 25, 1926, by Elmer J. Lavine and Ellen- M. Lavine, his wife, to secure 178 bonds of the aggregate amount of $48,000, on June 9, 1932, the chancellor appointed-a receiver for the premises conveyed to the trustee and described in the bill. The bonds were to be paid serially, and the last series matured on October 25, -1931. The trust deed contained a provision that upon the filing of any bill for the purpose of foréelos-„ irig, the court might at any time thereafter, either before or after, sale, without notice- and without regard to the solvency or insolvency of the persons liable for payment of the indebtedness secured and without regard to the then value of the premises, or whether the same should then be occupied by the owner of the equity of redemption as a homestead, appoint a receiver with power to collect the rents, issues and profits of the premises during the pendency of the foreclosure suit, and, in case of sale and a deficiency, during the full 15 months ’ statutory period of redemption.

The bill averred that bonds Nos. 1 to 20 and all interest were paid when due or taken up by the house of issue uncanceled; that on October 25, 1931, bonds Nos. 21 to 178 inclusive in the aggregate amount of $39,200 became due and payable; that neither the makers nor anyone in their behalf had paid any part of the principal so due, and that such default had continued for more than 20 days from October 25, 1931.

The bill- alleged that Paul Demos was on the date of filing the record owner of the title to the premises ; that George M. Chamberlain had or claimed to have some interest, lien or claim in and to the real estate which it was alleged was subsequent, inferior and subordinate to the right of complainant. It also alleged that the premises were improved with a three-story brick apartment building containing two four-room apartments, two six-room apartments, two offices and three stores, and that the premises were in need of repairs and redecorating in order to obtain suitable tenants for the portion thereof which was vacant and in order to keep the tenants then occupying the premises ; that by reason of the condition of the real estate market in the City of Chicago the value of the premises was greatly diminished, and that the premises were scant and insufficient security for the indebtedness; that complainant was informed and believes that a fair and reasonable value of the premises was less than $40,000, and that a receiver should be -appointed to take immediate possession, charge and control of the premises and collect the rents, issues and profits thereof.

■ Á summons issued 'April 2, 1932, but was not placed in the hands of the sheriff for service. An alias summons issued May 11,1932, and was duly served on Paul Demos, Elmer J. Lavine and Ellen Lavine and returned not found as to the other defendants. On June 7, 1932, the Lavines entered their appearance by their solicitor.

Notice of motion for the appointment of a receiver was filed in the office of the clerk of the superior court of Cook county on June 8, 1932. It was addressed to Otto G. Byden, 1611 Conway Building, Chicago, Illinois, and George M. Chamberlain, Phillips, Wisconsin, and stated that on June 8,1932, at the opening of court, or as soon thereafter as counsel could be heard, solicitors for complainant would appear before Judge Gentzel in the room usually occupied by him as a court room in the county building in Chicago, or in his absence before such other judge as might be hearing his motions of course, and move the court for the appointment of a receiver to take charge of the premises, and that in support of the motion they would read the verified bill .of complaint theretofore filed. Byden accepted service of the notice as of June 4th, and the affidavit of Bose Goebel was filed to the effect that she served the notice “by mailing a true carbon copy of the same on June 3, 1932, in a sealed envelope with return address on same> by registering same in the post office of the United States of America, at 160 North LaSalle street, Chicago, Illinois, requesting return receipt on same, addressed as follows: Mr. George M. Chamberlain, Phillips, Wisconsin.” The receipt of the post office dated June 3,1932, showing that a return receipt was requested is also of record.

On June 9, 1932, the order appointing the receiver *was entered. It states that the cause came on to be heard upon the sworn bill of complaint, upon the motion of solicitors for complainant and upon other evidence heard and considered by the court, and that “the court finds that George M. Chamberlain is the owner of the equity of redemption in the property hereinafter described and finds that the said G-eorge M. Chamberlain is a resident of Phillips, Wisconsin, and that due and timely notice of the pendency of this motion has been served upon him by registered letter mailed to him on June 3, 1932, and also by personal service on Otto Gr. Ryden, who has filed his appearance herein for Elmer J. Lavine and Ellen M. Lavine, defendants, and who appeared in open court upon the argument of this motion and opposed the appointment of a receiver herein, and the court having read and considered the said bill of complaint and other evidence and documents adduced before the court and the said motion having been fully argued by counsel and the court being fully advised in the premises, Doth Find: I. That the court has jurisdiction of the parties hereto and of the subject matter hereof,” etc.

On June 13,1932, without further notice so far as the record shows, an order was entered approving complainant’s bond in the sum of $500 and the receiver’s bond in the sum of $5,000, and said bonds were filed on that date. Complainant’s bond as filed and approved names as obligees, “Anna M. Johnson et al.” On June 22, 1932, complainant filed an amendment to its bill making “Mrs.-Chamberlain” party defendant, and on June 23, (1932, Paul Demos entered and filed his appearance. On June 30, defendants Lavine answered, and on July 1, 1932, George M. Chamberlain filed his appeal bond in the office of the clerk of the superior court of Cook county, and the same was approved by the clerk of the court on that date.

It is contended in the first place that the notice given to Chamberlain was insufficient under section 16 of the Practice Act (Cahill’s Ill. Rev. St. 1931, ch. 110, ¶ 16). That section provides, in substance, that before a party prosecutes or defends in his own proper person he shall enter his appearance in writing, and state where service of notice may be had upon him, etc. The record does not disclose that Chamberlain was in the trial court defending in his own proper person, or that he had filed his appearance, and this section of the statute is not applicable.

It is also, urged that the notice given did not comply with rules 21 and 22 of the circuit and superior courts, of which, by reason of the statute, we now take judicial notice. (See Cahill’s Ill. Rev. St. 1931, ch. 51, ¶ 58, section 2.) These rules, however, as we construe them, have no application to the service required upon nonresident defendants in a motion made for the appointment of a receiver.

Defendant relies upon Grabowski v. MacLaskey, 257 Ill. App. 484, and Chicago Title & Trust Co. v. Lauletta, 265 Ill. App. 564. Without discussing those cases at length, it is sufficient to say that in neither case were the rights of a nonresident defendant in any way involved. Defendant cites a number of cases, such as Haj v. American Bottle Co., 261 Ill. 362, where the court considered the notice required under the statute providing for the creation of an attorney’s lien. The distinction between such cases and this one is obvious. Moreover, we have held that a court of equity has jurisdiction to appoint a receiver for the property of nonresidents without any notice at all. McDougall Co. v. Woods, 247 Ill. App. 170. However, the finding here is to the effect that defendant received notice, and if he received the notice that was sufficient. Kinkade v. Gibson, 209 Ill. 246.

The order appointing the receiver directed that complainant should give bond in the sum of $500 with sureties to be approved by the court, and that the receiver should give bond in the sum of $5,000 with sureties to be approved by the court. The order was entered on June 9, 1932, and the bonds of complainant and of the receiver were not approved until June 13, 1932. - The obligees named in the bond given by complainant were “Anna M. Johnson et al,” and the record does not show that notice was given of the applications for orders approving these bonds. Defendant contends that the bonds should have been approved on the same day the order appointing the receiver was entered, and that further notice should have been given of the applications. It is also urged that the bond of complainant was defective in that George M. Chamberlain was not specifically named as one of the obligees.

This appeal, however, was unnecessary in order to protect the rights of defendant in any of these respects. As already stated, the order appointing the receiver was entered June 9, 1932, and prior thereto defendant received notice sent by mail. This appeal was taken by the filing of a bond in the office of the clerk of the circuit court on July 1, 1932. The record discloses no movement on the part of defendant either to have the order appointing the receiver set aside or to call any supposed defects in the bonds to the attention of the trial judge. Defendant perfected his appeal without making any complaint to the chancellor. He was technically within his legal rights in doing this, but the inference which will be drawn by this court from such circumstances has been pointed out in the recent case of Benson v. Liberty Trust & Savings Bank, 264 Ill. App. 382; Moreover, as before stated, this appeal was wholly unnecessary for the purpose of correcting any imperfections in the bonds. Haugan v. Carr, 263 Ill. App. 333. Defendant cites Watson v. Cudney, 144 Ill. App. 624, and other cases following that decision which has been much modified by the recent case of Central Trust Co. v. McGurn, 257 Ill. App. 45.

. There is no error in this record which would require reversal, and the order of the trial court is therefore affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely Matchett, J.,

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Robert A. Bain, Plaintiff in Error.
    Gen. No. 35,678.
    Heard in the first division of this court for the first district at the February term, 1932.
    Opinion filed November 14, 1932.
    Deneen, Healy & Lee, for plaintiff in error; Donald N. Schaffer, of counsel.

      John A. Swanson, State’s Attorney, for defendant in error; Angus Roy Shannon, Elwood G. Godman and Edward R. Johnston, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this writ of error Robert A. Bain seeks the reversal of an order committing him to jail for 10 days for a direct contempt of court, based upon alleged false testimony given by him as a witness upon a hearing upon the petition of the receiver in the case of Seaborg v. John Bain, Inc., a corporation.

He has petitioned this court for a writ of mandamus, commanding the trial judge to sign a bill of exceptions to show what was said or done in the matter, but we held that as this was alleged to be a direct contempt, criminal in its nature, it must on review be considered on the order alone, and that a bill of exceptions has no proper place in the record. People ex rel. Robert A. Bain v. Feinberg, 266 Ill. App. 306.

It follows that the order of commitment must be scrutinized carefully in order to determine whether it sets out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order. The order recites that the matter came on before the court on a petition of the receiver to discover assets belonging to the estate of John Bain, Inc.; .“that at said hearings Robert Bain testified that neither he nor his father, John Bain, nor his brother, John H. Bain, had any interest in the South Side Agency & Loan Corporation, a company conducting its affairs and business and having its office in the city of Chicago.” He further testified that neither of these persons held any stock directly or indirectly in this corporation and had no investment therein. The order recites “that it was necessary and material upon said hearing to ascertain and determine what financial interest, if any, the said John Bain, John H. Bain and Robert Bain had in said company. That at a subsequent hearing in said first above entitled cause held on November 18, 1931, with the same parties-present and represented as above found, the said Robert Bain again being called to testify and being sworn, testified that he had paid Mr. Crawford One Hundred Dollars ($100.00) at the time of the organization of said South Side Agency & Loan Corporation to be invested for him, in the stock of said Company, and that said Craw-' ford was holding said stock in said corporation for him, and also testified that the said company in reality belonged to John Bain, Robert Bain and John H. Bain, and that said respondent then and there admitted in open court that the said testimony given by him under oath at the previous hearing of the subject matter was not true.” The order then recites that Robert Bain “was and is guilty of a willful, deliberate and direct contempt”; . . . “that the said.conduct of Robert Bain was a direct contempt”; . . . “that it is ordered that the respondent, Robert Bain, on the facts as above found, occurring in open court, be and he is hereby for said contempt committed to the County Jail for a period of ten (10) days, or until otherwise discharged by the process of law.”

The order is fatally vulnerable in two respects. It does not affirmatively show that Robert A. Bain was present in court when the order was entered. That this is necessary has been repeatedly held. Rawson v. Rawson, 35 Ill. App. 505; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422; Barclay v. Barclay, 184 Ill. 471. It is argued that as the order recites that a hearing was had on November 18, 1931, the law will presume that the order of commitment was entered on that date and that Robert Bain was present in court at the time. In a criminal contempt proceeding no presumptions of law' obtain* Cases involving civil contempt are not in point. The presence of the alleged contemnor cannot be inferred but must be shown affirmatively by the record. Harris v. People, 130 Ill. 457; People v. McGrane, 336 Ill. 404; People v. Moran, 342 Ill. 478; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422.

Furthermore, the mandamus proceedings, which is an adjunct to the present cause, show that it was admitted by the demurrer to the petition that Robert A. Bain was not in fact present in court when the order of commitment was made.

The second reason for holding the order void is that no facts appear therein from which we can determine whether the alleged false testimony was material 'to the issues heard. The order must set forth the facts so fully and certainly as to show that the contempt was actually committed. People v. Hogan, 256 Ill. 496; People v. Rockola, 346 Ill. 27. The assertion in the order that it was material to ascertain what financial interest Robert A. Bain had in the South Side Agency & Loan Corporation, is merely a conclusion and does not show that this inquiry was material in an investigation of the assets of John Bain, Inc. People v. Freeman, 256 Ill. App. 233, is cited by counsel for the State as holding to the contrary, but an examination of the opinion and of the record in that case shows that the testimony is set forth in full in the form of questions and answers in the order of commitment. It was virtually a bill of exceptions, from which the reviewing court could ascertain the materiality of the testimony. The same is true in the case of People v. Rockola, 346 Ill. 27.

The instant order contains nothing from which we can determine the materiality of questions touching the interest of Robert A. Bain in another corporation different from the corporation which was the subject of the investigation.

For the reasons stated we hold that the order of commitment is void and it is therefore reversed.

Order reversed.

O ’Connor, J., concurs.

Matchett, J.,

specially concurring: I agree that the order must be reversed but do not assent to the statement that a bill of exceptions has no place in a record of this kind.


author: Mr. Presiding Justice McSurely

text:
    Sophia Gauss, Plaintiff in Error, v. Morris Simon et al., Defendants in Error.
    Gen. No. 36,010.
    Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.
    Rehearing denied November 28, 1932.
    Alfred M. Loeser, for plaintiff in error; George Yellen, of counsel.
    Samuel E. Davidson, for defendants in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, seeking in an action of assumpsit to recover upon certain promissory notes or bonds, upon a trial by the court suffered an adverse judgment which she seeks to have reversed. The suit was instituted on four promissory instruments for $500 each, dated July 1, 1929, and maturing July 1, 1931, secured by a deed of trust on certain real estate. The instruments contained a power to confess judgment, which was exercised, and judgment by confession was entered July 28, 1931. Subsequently this was vacated and the case went to trial upon a stipulation as to the facts.

The only question presented to us is whether plaintiff is barred from suing at law on the notes because of certain provisions in the deed of trust which defendants contend inhibit such a proceeding. The court found with the defendants on this proposition.

There is nothing in the language of the bonds themselves which could be construed as preventing the holder from bringing a suit at law. The provision in the trust deed said to do this is as follows:

“Article 11. The exclusive right of action hereunder shall be vested in said Trustee until its refusal to act, and no bondholder shall be entitled to enforce these presents in any proceeding in law or equity until after demanj has been made upon the Trustee accompanied by tender of indemnity, and a refusal of the Trustee to act. ’ ’

The second division of this court has recently considered similar language in a trust deed which it was contended barred any right of action at law, and held the provision “to restrict individual action only in the institution of foreclosure proceedings and not in the commencement of an action to recover upon the personal obligation.” Schatzkis v. Rosenwald & Weil, 267 Ill. App. 169. Supporting cases cited were Edgington v. Hefner, 81 Ill. 341; Rohrer v. Deatherage, 336 Ill. 450; Brewer v. Penn Mut. Life Ins. Co., 94 Fed. 347. We add Hazle v. Bondy, 173 Ill. 302, where the court said: “Suit on the notes against the makers, or taking judgment against them by confession, was a proper remedy, and, as we have frequently held, might be pursued concurrently with a proceeding to foreclose.” The above quoted provision in the instant trust deed clearly refers to the institution of foreclosure proceedings and does not bar plaintiff’s right to proceed at law upon the notes.

The trial court, upon the stipulation of facts, should have found for the plaintiff.

The judgment is therefore reversed and judgment entered in this court for $2,000, the amount of the notes, plus interest at the rate of seven per cent, as provided therein, from July 1, 1931, to this date, or $2,192.16.

Reversed and judgment in this court for plaintiff for $2,192.16.

Matchett and O’Connor, JJ., concur.


text:
    Ross J. Beatty, Appellant, v. Federal Fireproof Storage Company, Defendant. J. Leger & Son, Inc., Intervening Petitioner, Appellee.
    Gen. No. 36,069.

      Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.

      Charles H. Chapman, for appellant.
    Roy D. Keehn and Harry H. Pollack, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

' Plaintiff appeals from an adverse judgment in a replevin suit tried by the court in which right to the property was found in the intervener. The replevin writ alleged that the defendant storage company wrongfully detained from plaintiff 30 oil paintings. Defendant answered that it was a licensed public warehouse; that J. Leger & Son Company had placed in storage with it 100 oil -paintings and other goods and chattels; that it had been served with summons in four separate attachment suits and also by a distress warrant issued against J. Leger & Son, directed against the goods and chattels aforesaid.

J. Leger & Son, a corporation organized under the laws of New York, filed an intervening petition asserting that the pictures placed in storage and claimed by plaintiff were its property and that plaintiff had no right to them. Plaintiff filed an answer controverting these allegations of the petitioner and the issues were submitted to the court upon these pleadings.

The plaintiff sought to establish his right to the pictures by a bill of sale to him purporting to be executed by J. Leger & Son, Inc., by Sidney Leger, its president. The trial court was of the opinion that the bill of sale was not executed in conformity with the requirements of the charter of the intervening corporation and held it void. Leger & Son introduced in evidence a receipt from defendant, the storage company, showing that it had received for storage from Leger & Son 100 pictures with other chattels, which included the identical pictures sought in the replevin suit. Consequently the court entered judgment, based upon the asserted invalidity of the sale, in favor of the intervenor.

The trial court correctly found that Mr. Sidney Leger was president of J. Leger & Son, Inc. The bill of sale recites that, pursuant to certain conditions and agreements, J. Leger & Son, Inc., sold and transferred to the plaintiff the 30 pictures in controversy. J. Leger & Son vouched themselves to be the true and lawful owners of the pictures, with lawful authority to dispose of the same. It was dated January 5,1931, and signed “J. Leger & Son, Inc., by Sidney Leger, its president. ’ ’

The charter of J. Leger & Son stated that its purpose was to purchase, sell, dispose of and deal in works of art, including antiques, paintings and prints; to do business outside of the State of New York, but the office to be located in that city and State; that any contract, transaction or act of the corporation “or officers of the corporation” which shall be ratified by certain stockholders shall be valid and binding as though ratified by all stockholders, “but the foregoing shall not limit or prejudice the validity or binding force of any contract, transaction or act not so approved.” The particular words of the charter which it was thought prohibited the sale of the pictures by the president are these:

“In furtherance and not in limitation of the powers conferred by the Statute and of the other provisions of this Certificate of Incorporation, the Board of Directors is expressly authorized:
“(a) To sell, exchange, assign, convey or otherwise dispose of, from time to time, a part or parts of the properties, assets and effects of the corporation, less than the whole or less than substantially the whole thereof, on such terms and conditions as they shall deem advisable, without the assent of the stockholders, except as otherwise required by law.”

This was construed to mean that all sales of any of the chattels of the corporation must be made by the board of directors only. We cannot accept this construction. To hold that every retail sale, no matter how small, must be made by the board of directors Avould make it almost impossible for the corporation to carry on its business of selling paintings, antiques, prints, works of art, etc. We hold that the language of this section is designed only to restrict the sale of the whole or substantially the whole of the corporation’s property Avithout the consent of the stockholders, and does not apply to retail sales. This is a reasonable construction and is consistent Avith the purposes of the business of the corporation. A contract pertaining to corporate affairs within the general powers of such corporation, executed by the president on behalf of the corporation, would be presumed to be by authority of the corporation. Green v. Ashland Sixty-third State Bank, 346 Ill. 174; Bloom v. Vehon Co., 341 Ill. 200; Quigley v. Macqueen & Co., 321 Ill. 124; Lloyd & Co. v. Matthews, 223 Ill. 477; Nagle v. Hanson Co., 262 Ill. App. 160.

It was sufficiently proven that the bill of sale to plaintiff did not convey all or'nearly all of the company’s property. The warehouse receipt showed the storage of 100 oil paintings Avith other chattels. Six months after the bill of sale the intervenor was still conducting its business in New York City. We therefore conclude that the section of the charter invoked by the intervenor does not apply and that the delivery of the bill of sale, standing alone, made out a prima facie case in favor of the plaintiff.

Plaintiff’s counsel suggests in his argument, although the point is not made in the brief, that J. Leger & Son, Inc., had no right to intervene, on the ground that intervention in a replevin suit was unknown at common law and is purely of statutory origin, and that plaintiff’s motion to strike its petition from the files should have been allowed.

Plaintiff filed his answer to the intervenor’s petition and no motion was made to strike the petition until after the evidence upon the issue had been heard. The court had jurisdiction of the subject matter, and, as we have said under similar circumstances, plaintiff was estopped to assert that the proceedings were invalid. Hall Printing Co. v. Wells Warehouse & Forwarding Co., 241 Ill. App. 146. The statutes of Illinois are silent on the right to intervene in replevin, and so far as we are advised there are no decisions in- this State on this point. In 23 R. C. L. 925, it is stated that the right of a third party claiming the property to intervene in a replevin suit is generally admitted. See also Stieff v. Bailey, 27 Del. 508, 89 Atl. 366; Inventions Cory. v. Slease, 159 N. Y. S. 548.

We are asked to reverse without remanding. This is in many respects a blind case as to the merits. The record suggests many things which need explaining. The attorney for the intervenor stated at the opening of the trial that he proposed to show “that one of the rankest frauds ever perpetrated” had been imposed upon the intervenor and its president. The case went off upon the ruling of the trial court as to the validity of the bill of sale before the intervenor’s attorney was called upon to prove his charges. All of the material facts should be presented upon the second trial.

The judgment is reversed and the cause is remanded for further proceedings consistent with what has been said in this opinion.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


text:
    The People of the State of Illinois for the use of Isaac Marks and Arnold K. Marks, Trading as Marks & Company, Appellants, v. George F. Harding et al., Appellees.
    Gen. No. 36,015.

      Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.
    Poppenhusen, Johnston, Thompson & Cole, for appellants; Samuel J. Richman and Henry J. Brandt, of counsel.
    Schuyler, Weinfeld & Hennessy, for appellees George F. Harding and Hartford Accident and Indemnity Company; George W. Lennon and Henry E. Jacobs, of counsel.
    Cassels, Potter & Bentley, for appellee Columbia Casualty Company; George C. Bunge, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This suit was begun as an action in debt in the name of The People for use of Isaac and Arnold Marks, doing business as Marks & Company. Defendants are George F. Harding and the sureties on his official bond as county treasurer of Cook county, Illinois. The declaration was in two counts which in substance averred the execution of the bond of Harding in the form prescribed by the statute, the condition of it being that Harding should perform all the duties “which are or may be required by law to be performed by him as Treasurer of said County of Cook”; and the approval of the bond by the county commissioners. It was averred that Harding failed to discharge his official duties as required by statute and as fixed in the condition of the bond, in that he accepted 13 checks for the aggregate sum of $17,710.70 from Isaac Marks and Arnold K. Marks, which checks were given him with written instructions to apply -their proceeds to the payment of general taxes levied on certain real estate in Cook county; that Harding collected and received the proceeds from the bank upon which the checks were drawn but failed and refused to apply the same to the discharge of the taxes and wrongfully and unlawfully' took, appropriated and misapplied the funds.

An affidavit of claim was attached to the declaration, which averred that there was due to plaintiffs from defendants for the use of Marks & Company after allowing credits, deductions and set-offs the sum of $17,710.70.

The several defendants demurred generally to the declaration. . The court sustained the demurrers, and plaintiffs electing to stand by the declaration, the cause was dismissed with judgment against plaintiffs for costs.

Plaintiffs rely upon section 262, paragraph 277, chapter 120 of Cahill’s Ill. Rev. Stats, which provides:

“Cities, towns, villages or corporate authorities, or persons aggrieved, may prosecute suit against any collector or other officer collecting or receiving funds for their use, by suit upon the bond, in the name of the People of the State of Illinois, for their use, in any court of competent jurisdiction, whether the bond has been put in suit at the instance of the Auditor or not; and in case of judgment thereon the Auditor may, if he shall so elect, have a writ of inquiry of damages for any amount that may be due to the State treasury from such officer. Cities, towns, villages and other corporate authorities or persons, shall have the same rights in any suits or proceedings in their behalf as is provided in case of suits by or in behalf of the State. ’ ’

It is the contention of plaintiffs that under the facts as stated in the declaration they are “persons aggrieved” within the meaning of the statute; that they therefore can maintain their suit upon the official bond of the collector. They also contend that if the right to maintain such suit were not granted by the statute it would exist under the established and accepted rules of the common law, citing Murfree on Official Bonds, section 323, and City of Cairo v. Sheehan, 173 Ill. App. 464. In the last mentioned case, Sheehan upon his appointment as a police constable for the City of Cairo gave a bond conditioned that he would well and faithfully perform his duties as such police officer. The declaration averred that the bond was breached in that defendant while acting as such police constable assaulted plaintiff Robinson and arrested him without reasonable cause. A general demurrer was filed and sustained. It was contended in support of the judgment that the statute which required the execution of the bond did not provide that it should be given for the use and benefit of third persons; but the court held against this contention, saying that there was a sufficient averment that defendant committed wrongs by virtue of his office and while engaged in the performance of his duties, and that while the statute did not expressly provide that the bond should be for the benefit of third persons, the court would supply the provision by construction of the statute. The judgment was reversed and the cause remanded with directions to overrule the demurrer.

Plaintiffs cite a number of other cases where officials have been held liable upon their bonds. It was so held as to a county clerk (People v. Brown, 194 Ill. App. 246), as to a constable for an assault committed while in the performance of his duties (Greenberg v. People, 225 Ill. 174), as to a city marshal (People v. Morgan, 188 Ill. App. 250), and as to a treasurer of a municipal corporation (City of Fast St. Louis v. Flannigan, 26 Ill. App. 449). The diligence of counsel, however, has failed to discover any decision construing the particular statute upon which plaintiffs rely in this case, but we think it may be assumed, and conceded that under a proper and sufficient statement of facts the county* collector of Cook county and the sureties on his bond would be held liable to third persons for injuries sustained by them on account of any violation of the condition of the bond.

However, the real question for decision here is not whether the county collector or his bondsmen may be liable in such case, but whether the facts here averred are sufficient to disclose such liability. There is here no allegation of an assault upon or similar wrong to plaintiffs as was true in some of the cases cited and relied on.

The statute gives to “persons aggrieved” a right of action on the bond, but that phrase is modified by limiting the suit which may be brought to a collector or officer “collecting or receiving funds for their use.” The declaration describes a situation in which, defendant Harding as ex officio county collector was authorized and was in the performance of-his duties as collector, receiving payment iof taxes levied for the year 1927 upon.real estate in Cook county, Illinois. It avers that plaintiffs were taxpayers and that they made and delivered checks to Harding directing the application of the proceeds thereof to the payment of general taxes levied and assessed against certain tracts of real estate. It charged that it was the duty of Harding to apply these checks as directed, and that he failed to do so. The declaration shows, however, that in making these collections Harding was acting as the representative of the government authorities. Money which was paid to him by check or otherwise with directions to apply the same on taxes cannot be said to have been received by him for the use of the taxpayers making the payment; on the contrary, upon receiving such money the obligation was placed upon him to turn it over to the persons, municipalities, etc., for whom he had collected it, as provided by law. As was said of the defendant in People v. Cooper, 10 Ill. App. 384: “He has received the money for the use of the city, and he should account for it. It is not material that those from whom he has collected might have resisted payment.” (See also Cooper v. People, 85 Ill. 417.) Or as was said in People v. Gillespie, 47 Ill. App. 522: “The collector is an agent and as such received the money. The public is his principal for whom it was received. Wilkinson v. Bennett, 56 Georgia, page 290.” Or as was said in People v. Hoover, 92 Ill. 575: “Where a county treasurer in a county under township organization, who is also collector, receives taxes belonging, to the county, he will be considered as holding the same as collector until he reports them to the county clerk as required in section 290 of the Revenue Act, and until this is done his sureties on his bond as « treasurer are not liable for the same, but his sureties as collector are liable.” ,

The liability of the county collector of Cook county is to these public bodies and his liability in that respect is that of a surety. People v. McGrath, 279 Ill. 550; City of Chicago v. Southern Surety Co., 239 Ill. App. 628.

Even if the taxes which were paid to defendant Harding as county collector had been illegally collected by him, payment being voluntary and to a public officer, it could not be recovered by plaintiffs. That rule is practically universal, and only a few of the many authorities will be cited. Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535; Schoden v. Schaefer, 184 Ill. App. 456; 21 R. C. L. 142.

Construing the language of the statute upon which plaintiffs rely in the light of the actual facts set up in the declaration, we hold that the plaintiffs are not “persons aggrieved” within the meaning of that statute, and that the funds collected and received by Harding were not “for their use.” Nor would we arrive at a different conclusion if the case made by the. declaration is considered independently of the statute. It is true that the declaration alleges that the proceeds of the checks were not used to pay taxes and were appropriated and misapplied by the collector. It by no means follows that the obligations of plaintiffs for the payment of their taxes were not discharged; on the contrary, when, as the declaration avers, the checks ' were turned over to the county collector with directions to apply the same to the payment of specific taxes the obligations of plaintiffs in that respect were fully discharged. When the money went into the collector’s hands under the directions set forth in the declaration, plaintiffs’ taxes were paid. Thenceforth the obligations of the official were to the taxing bodies whom he represented in making these collections rather than to the persons from whom the payment was received.

It is true that plaintiffs as taxpayers had an equitable right to see that this money was properly applied, for in equity the taxpayers are owners of the property of the municipality, but that is a right which may be enforced only by a suit in equity. Jones v. O’Connell, 266 Ill. 443; Hays v. Martin, 240 Ill. App. 340; People v. Holten, 287 Ill. 225. This suit is not in equity but is a suit at law. It would be an extraordinary rule which would make it possible that money voluntarily paid in the discharge of an obligation due to the State for taxes might be recovered from the official to whom it was paid and who was authorized to receive it. Such rule would, as counsel for defendants contend, “lead to endless confusion and conflict of rights as between the taxpayer and the tax consuming divisions of government and bring even the tax assessing powers into constant , embarrassment, vexatiousness and jeopardy.” We think no .case announcing such doctrine will be found in the books.

It is suggested that the county collector failed to make certain book entries required by the statute. The evident purpose of such provision is that evidence of the payment might be preserved as a matter of public record. That provision of the statute is for the benefit of the public as well as persons concerned, and the failure to comply with it could not furnish a sufficient basis for a suit by a taxpayer to recover money paid to the proper official.

The judgment of the trial court is affirmed.

Affirmed.

McSurely, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    Nu-Way Boiler and Engineering Company, Appellant, v. Rubin Morensky et al., Appellees.
    Gen. No. 35,888.

      Heard in the first division of this court for the first district at the April term, 1932.
    Opinion filed November 14, 1932.
    George E. Billett and Joseph E. Mitchell, for appellant.
    Reeda & Peace and Herman Herson, for appellees; William Reeda, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Complainant filed its bill against Rubin Morensky, the owner of certain real estate in Chicago, and other parties, praying that it be decreed to have a lien on Morensky’s real estate for the balance due it for the cost of installing a boiler and smokestack. The cause was referred to a master who recommended that a decree be entered in accordance with the prayer of the bill.. Exceptions were sustained to the master’s report and a decree entered finding that complainant was not entitled to the lien; its bill was dismissed and it prosecutes this appeal.

The record discloses that in 1926 Rubin Morensky as landlord entered into a lease -with the Uptown Family Laundry Company, lessee, whereby the landlord agreed to build an addition to the laundry building on the premises, which was then being occupied by the laundry company. The lease provided that the tenant should install a new boiler to be placed in the additional structure and also a smokestack, at the tenant’s expense. The landlord constructed the addition and the tenant entered into a written contract with the complainant whereby the complainant agreed to install the boiler and erect the smokestack. After making provision for the work to be done and the payment to be made by the tenant, the contract contained the following condition: “It is agreed that the machinery above specified shall remain our property until fully paid for in cash; and the acceptance of a note shall not constitute such payment, and that the same, being now a chattel, shall so remain, and although it inay be enclosed in masonry, it shall not become a part of the realty but remain personalty, and, in the event of failure to pay for the same, we shall have the right to take possession thereof and to remove the same from the premises without being liable for trespass. The receipt by us of a note or notes for the purchase price shall not be considered a ‘payment’ under this contract or a waiver of the title herein.”

The contract price for the work was $4,345. The tenant paid $875 of this amount and executed its judgment notes for the balance. Each note contains the following : ‘ ‘ The express conditions of sale and purchase of machinery, for which this note is given, are such that the title, ownership or possession of said machinery, to-wit: Boiler Masonry and Stack shall not pass from the said Nuway Boiler & Engineering Co., Inc., until this note with interest is paid in full, but the title to said property shall remain in Nuway Boiler & Engineering Co., Inc., until said purchase price with interest is fully paid; and the said Nuway Boiler & Engineering Co., Inc., have full power to declare this note due and take possession of said machinery at any time they may deem this note insecure, even before the maturity of the same; it being also agreed, understood and contracted by the signer or signers of this note, individually or collectively that said machinery shall not become a fixture of any realty on account of being annexed thereto, before the full payment of principal and interest of this note. ’ ’

The boiler was installed, the smokestack erected, the laundry company proceeded to operate its laundry, and a few months thereafter was forced into bankruptcy. Complainant'filed its claim in the bankruptcy proceedings, which was allowed, and later received a small dividend.

Morensky alleged in his answer that the boiler and smokestack were trade fixtures and not an improvement of the freehold, and that complainant’s claim was against the laundry company alone. To the master’s report recommending that a decree be entered in accordance with the prayer of the bill, Morensky filed objections pointing out that the master had ignored and overlooked the provisions of the contract and notes. The master overruled the objections, but no reference is made to the provision of the contract and notes. The decree entered sustains the exceptions to the master’s report and..specifically finds that it was the intention of the complainant and the laundry company that the boiler and smokestack should remain personal property in accordance with the provisions of the contract. The court further finds that the boiler and smokestack were trade fixtures installed by the laundry company for its special benefit and could be removed with but slight injury to the building, and that the interest of the laundry company in the boiler and smokestack was sold by the trustee in bankruptcy.

Complainant contends that the boiler and smokestack became a part of the real estate and therefore it was entitled to a lien and that the reservation of the title by complainant in its contract with the laundry company “manifested merely an effort to secure an additional or superior lien. ’ ’ ín support of this it cites Clark v. Moore, 64 Ill. 273; Phelps Lumber Co. v. McDonough Mfg. Co., 202 Fed. 445; Hooven, Owens & Rentschler Co. v. Featherstone’s Sons, 111 Fed. 81; Chicago & Alton R. Co. v. Union Rolling Mill Co., 109 U. S. 702, and other cases. We think none of these cases is in point.

In the Clark case (64 Ill. 273) the parties seeking to enforce their lien did not reserve the title in themselves but only attempted to reserve a lien upon it.

The Phelps Lumber Co. case (202 Fed. 445) was a suit to enforce a lien for certain saw mill machinery. The court there said (p. 447): “It is contended that the appellee waived the right to claim a mechanic’s lien by inserting in the contract the condition that the machinery and property supplied should remain its property until fully paid for. To sustain their contention, counsel cite authorities to the proposition that by agreement between the parties personal property may be made to retain its character as such, notwithstanding that it be attached to the realty, and that such an agreement may be implied from a conditional sale ; and decisions are cited which determine the respective rights of the contracting parties and third persons as to property so conditionally sold and attached to real estate. Those authorities are all aside from the question which is before us. The question here is whether the appellee’s right to claim a mechanic’s lien has been waived by the terms of the contract. The authorities are uniform in holding that such a condition in a contract is but additional security to the vendor, and does not in any way affect his right to claim a mechanic’s lien upon the machinery and property to which it may have become attached as part thereof.” The court then cites the Hooven case, supra, and the Union Rolling Mill Co. case, supra, in support1 of its position. We are unable to understand why the authorities cited by counsel for defendant mentioned in the quotation were not in point, if they, as the quotation says, are to the effect that by agreement of the parties personal property may be made to retain its character notwithstanding it is attached to the realty. Moreover, the court said the question as to whether the property furnished became a part of the realty was not raised.

The Hooven case (111 Fed. 81) was a suit to enforce payment of the balance of the purchase price of an engine. The court said (p. 95): “Nor did the fact that in its contract for the sale of its engine the appellant secured from the contractor, Featherstone’s Sons, the stipulation that ‘the engine,’ etc., ‘shall remain our • property as security for deferred payments until fully paid for in cash,’ waive the lien upon the real estate of the respondent granted by the statute, . . . This stipulation is not inconsistent with the grant of the statute. The former retained a lien upon the engine as security for the purchase price; the latter created a lien not only upon the engine but upon the real estate of the respondent upon which it was placed. The former was a lien by contract, the latter by statute; and neither is destructive of the other. The retention by contract of title to materials furnished as security for the purchase price by the claimant of a mechanic’s lien is not inconsistent with, and will not estop the vendor from enforcing, his statutory lien.” We think the contract in that case is not the same as the contract before us, which contains a provision not only that the title shall remain in the seller but that he may remove it in case it is not paid for in full. There is no reason in law why this provision in the contract is not valid and binding. The language in the contract in the instant case is clear, specific and unambiguous, and we are unable to understand why it should not be given full force and effect. The court specifically found that the boiler might be removed with little or no damage to the property, but apparently complainant does not want the property back. It wanted to ignore the provisions of its contract and to endeavor to enforce payment against the landlord. In face of the specific language used in the contract complainant ought not now be permitted to stultify itself by saying that the language there deliberately used- does not mean what it says. Obviously, if the landlord was objecting to complainant’s removal of the boiler, a different question would be presented.

In the Union Rolling Mill Co. case (109 U. S. 703) it was held that under the statute of Illinois one who had delivered rails to a railroad might have a valid lien on them and that such a lien was not affected by special agreement that the contractor should have a lien on the rails until payment, and that the possession of the railroad company should be the possession of the contractor. In that case the title was not reserved by the seller, but he merely sought to retain a lien on the rails.

That we are right in our holding that complainant is not entitled to a lien, we cite Ley Fuel Co. v. Weisman, 265 Ill. App. 185; Holt v. Henley, 232 U. S. 637; In re C. A. Gambrill Mfg. Co., 283 Fed. 349.

In the Ley Fuel Co. case (265 Ill. App. 185) it was held that a lien could not be enforced against real estate where an automatic coal burner was installed in a building under a conditional sales contract by which the seller retained title until the burner was fully paid for. In that case the fuel company installed a coal burner in an apartment.building belonging to Weisman under a contract providing that the title to the burner should remain in the seller until the purchase price was fully paid; that if there was a default in payment, the seller might immediately remove and repossess the boiler. Default in payment was made and the seller sought to enforce a mechanic’s lien. A decree was entered dismissing the bill, and on appeal the decree was affirmed. Mr. Presiding Justice Jett, after referring to our Mechanic’s Lien Statute, said (p. 187): “The rights of the parties were fixed and determined at the time of the execution of the contract.

“We are of the opinion the court correctly held that appellant is not entitled to a mechanic’s lien because the rule is well settled that a mechanic,’s lien must attach, if at all, as of the date of the making of the contract. In this case it is apparent that there was no intention to have a lien attach when the contract was entered into by the parties, but to the contrary it was agreed that the relation of buyer and seller should not exist and that the seller was to retain title and ownership of the burner with the right of removal because of a breach, , . .

“The appellant cannot, after the failure of the purchaser to comply with the contract, change the terms and intention of the parties thereto merely by electing to abandon the title to the burner and seek a lien for the recovery of the purchase price.” We think that case is in point here. In that case the contract was between the complainant and the defendant and it was held that a mechanic’s lien would not be enforced contrary to the express terms of the contract. A fortiori, should the complainant here be defeated because the contract is between it and the laundry company, the tenant, and not with the defendant, the landlord.

In the Holt case (232 U. S. 637) the proceeding involved the relative rights of the trustee in bankruptcy, the mortgagee, and the original owner of a sprinkler plant placed on the property of the bankrupt subsequent to the making of the mortgage under a conditional sale contract. A petition was filed in the District Court in the bankrupt proceedings for leave to remove the sprinkler system. This was opposed by the mortgagee, the trustee in the trust deed, and the trustees in bankruptcy. The District Court and the Court of Appeals decided in favor of the defendants and held that the sprinkler system could not be removed. 190 Fed. 871; 193 Fed. 1020. On appeal to the Supreme Court of the United States the judgments of the District Court and Circuit Court of Appeals were reversed and the petitioner was given leave to remove the sprinkler system. The Supreme Court there said (p. 638): “By the agreement the system was to remain Holt’s property until paid for, and Holt was to have a right to enter and remove it upon a failure to pay as agreed. It also was to be personal property during the same time. A large part of the price has not been paid.” The court then refers to the Code of Virginia and the Bankruptcy Act, which we think unnecessary to refer to here, and continuing said (p. 640): “The retention of title by him (Holt) and his refraining from recording it both were perfectly lawful.” The court then passes on the claim of the mortgagees and said: 1 ‘ The system was attached to the freehold, but it could be removed without any serious harm for which complaint could be made against Holt, other than the loss of the system itself. Removal would not affect the integrity of the structure on which the mortgagees advanced. To hold that the mere fact of annexing the system to the freehold overrode the agreement that it should remain personalty and still belong to Holt would be to give a mystic importance to attachment by bolts and screws. ’ ’

In In re C. A. Gambrill Mfg. Co. (283 Fed. 349), there was a claim for a mechanic’s lien. The court said (p. 350): “The claimant admits that this attempted reservation of title is ineffective for failure to record.” But in announcing the rule of law covering such reservation of title the court further said: “It is true that as between claimant and bankrupt, and before the recording requirements of the state law, between the claimant and the rest of the world, an agreement that, until paid for, the property furnished should not become a part of the realty, would have been enforceable. Holt v. Henley, 232 U. S. 637.”

To the same effect is Rothery v. Dohrse, 122 Neb. 259, 240 N. W. 296, where it was held that a tenant had a right to remove a boiler which he had installed, the evidence showing that it was the clearly expressed intention of the tenant at the time he installed the boiler that it would remain a trade fixture.

For the reasons stated, the decree of the circuit court of Cook county is affirmed.

Affirmed.

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


text:
    William Henry, Plaintiff in Error, v. Laurence Flynn et al., Defendants in Error.
    Gen. No. 35,894.

      Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.
    Rehearing denied November 28, 1932.
    Ehrhardt, Russell, Murphy & Quigley, for plaintiff in error; Walter T. Quigley and Walter P. Murphy, of counsel.
    John J. Kelly, Ring, Uhlir & Cuchna, Joseph J. Augustus and Ralph L. Peck, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error William Henry seeks to reverse the order entered by the circuit court of Cook county striking his appeal bond given by him in the probate court of Cook county on appeal from an heirship entered in that court to the circuit court of Cook county, and denying his motion for leave to file a new bond.

The record discloses that the estate of Edward Flynn, deceased, was being administered by the probate court of Cook county and a contest arose as to who were his heirs. After a hearing as provided under the act of June 10, 1909, the court entered an order finding who were the heirs of the deceased. Other parties, who claimed to be heirs of the deceased in that proceeding, being dissatisfied, including William Henry, who prosecutes this writ of error, prayed for and were allowed a joint and several appeal to the circuit court of Cook county upon their filing their appeal bond in the sum of $1,000, to be approved by the court and conditioned according to the statute. Thereafter, December 30, 1930, William Henry submitted his appeal bond to the probate court, where it was approved and ordered filed. On February 6, 1931, a transcript of the proceedings in the probate court was filed in the office of the clerk of the circuit court of Cook county, and on March 3rd following all of the heirs as found by the probate court, who were not specifically named as obligees in the appeal bond, filed their motion in the circuit court to strike the appeal bond and to dismiss the appeal, the ground being that all of the heirs of the deceased were not named as obligees in the bond. March 14, 11 days after filing this motion, the same parties filed what they designated their special appearance, which they said was for the sole purpose of questioning the jurisdiction of the court by moving to strike the appeal bond of William Henry; ■ but this motion was unavailing because by filing their motion they submitted to the jurisdiction of the court. On the same date William Henry filed his cross motion by which he sought leave to file a new appeal bond in lieu of the one theretofore filed by him. And on March 28 the court entered an order striking the appeal bond, refusing the motion of Henry to file a new bond, dismissing the appeal, as above stated, and Henry sues out this writ of error.

For convenience William Henry will hereinafter be referred to as plaintiff and the other parties as defendants.

The defendants have filed a motion in this court to dismiss the writ of error on the ground that the proceedings in the probate court for the establishment of heirship are purely statutory; that the statute allows an appeal from the probate court to the circuit court and from the circuit court to this court, and that in such a proceeding the method of review by appeal is exclusive. The motion has been reserved to the hearing.

In support of their contention the defendants say that the appeal from the probate to the circuit court and from the circuit court to this court is provided for by section 124 of chapter 3 of our statutes, being the chapter on the Administration of Estates. Cahill’s St. ch. 3, ¶ 126. That section is as follows: “Appeals shall be allowed from all judgments, orders or decrees of the county court (probate court) in all matters arising under this Act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court to the supreme court, as in other cases, and bonds with security to be fixed by the county or' circuit court, as the case may be.” And the other argument is that the establishment by a probate court of heirship of a deceased is a purely statutory proceeding, and since an appeal is allowed from such order by section 124, this method of review is exclusive; and Sebree v. Sebree, 293 Ill. 228; Grier v. Cable, 159 Ill. 29; Williams v. Runyon, 230 Ill. App. 199; People v. McGoorty, 270 Ill. 610; Holman v. Brown, 215 Ill. App. 247; Wentworth v. Sankstone, 233 Ill. App. 48, and other eases are cited.

The question whether a writ of error would lie from this court or from the Supreme Court to review the order or judgment of a circuit court in a proceeding brought to that court from the probate court, establishing heirship, has not been squarely decided in this State.

The Sebree case was a proceeding in the probate court of Cook county to establish the heirship of the deceased. The probate court heard the evidence and made a finding. An appeal was taken to the circuit court, where there was a hearing de novo and a further appeal was prosecuted to the Supreme Court. One of the contentions made was that the circuit court had no jurisdiction because the appeal from the probate court should have been to this court, as provided in section 8 of the Appellate Court Act, Cahill’s St. ch. 37, ¶ 40. The court said (p. 234): “Under said section appeals are to be taken from the county or probate courts to the Appellate Courts ‘in suits or proceedings at law or in chancery, ’ and if this be a suit or proceeding at law or in chancery the contention of appellant is right.

“A suit or proceeding at law, as that term is used in said section 8, has been defined to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law; and a proceeding in chancery is to be understood to mean a suit or proceeding instituted or carried on in substantial conformity with the forms and modes prescribed by the rules in chancery. . . . In all of its essential features the proceedings had upon the petition of the appellant for an order declaring her to be the widow of the deceased are purely statutory. The mere fact that an issue was made up and the trial thereon conducted in the same way in which suits at law are tried, cannot, of itself, have the effect of converting a merely statutory proceeding into a suit or proceeding at law. ’ ’ And the court there held that the appeal was properly taken from the probate to the circuit court and not to the Appellate Court.

In the McGoorty case, supra (270 Ill. 610), an original petition for a writ of mandamus was filed in the Supreme Court to compel Judge McG-oorty of the circuit court of Cook county to allow an appeal to the Appellate Court from an order entered by him in a proceeding under the Workmen’s Compensation Act. The writ was denied. Section 19 of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 219, involved in that case, provided that judgments of the circuit court entered in a workmen’s compensation case should be reviewed only by the Supreme Court upon a writ of error. The court there said it was contended that an appeal was authorized in that proceeding to the Appellate Court by virtue of the provisions of section 8 of the Appellate Court Act, Cahill’s St. ch. 37, ¶ 40, as supplemented and modified by sections 91 and 118 of the Practice Act, Cahill’s St. ch. 110, ¶¶ 91 and 118, and that section 19 of the Workmen’s Compensation Act was contrary to our constitution, and void. This contention the court held untenable and said that the legislature had the power, in such a special statutory proceeding, to provide for a method of review, and on page 621 said: “In statutory proceedings the legislature has the power to provide how such cases shall be reviewed, if at all, and has provided that certain classes of cases shall be reviewed by the Supreme Court, only.”

Section 124 of chapter 3, which we have above quoted, was first enacted in 1845, and re-enacted as part of “an act in regard to the administration of estates” in 1872, while the statute that authorizes probate courts to find and declare heirship of deceased persons was not passed until June 10, 1909. That act is an independent act and cannot be said to be an amendment of the Administration Act. It is entitled as an independent act and consists of three sections. Section 1 validates heirships theretofore made by any court in this State having probate jurisdiction. By section 2 all courts exercising probate jurisdiction are authorized to ascertain the heirship of a deceased person whose estate is being administered in that court and to enter their finding of record, and by section 3 such order declaring such heirship is made prima facie evidence of such heirship. Nowhere in that act is any provision made for an appeal. If we hold that the act of 1909 is not an amendment of the administrative act of 1872, it may be doubted whether section 124 authorizes an appeal from an order entered by a court exercising probate jurisdiction in a proceeding to establish the heirship of a deceased person. It might be contended that these two acts should be construed as pari materia, but we do not pass upon these questions because our Supreme Court and this court have said that an appeal from the probate court to the circuit court in a proceeding to establish heirship is governed by section 11 of the Probate Court Act, Cahill’s St. ch. 37, ¶ 341. Welch v. Worsley, 330 Ill. 172; Williams v. Runyon, 230 Ill. App. 199. Section 11 of the Probate Court Act (Cahill’s 1931 Statutes, p. 940) provides: “Appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties in all matters except . . . upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo.”

The Welch case was a proceeding originating in an estate pending in the probate court of Cook county to establish the heirship of the deceased. An order was entered by that court finding and declaring the heirs of the deceased, and an appeal was taken to the circuit court of Cook county, where there was a trial de novo, and an order entered by that court finding other persons than those found by the probate court to be heirs of the deceased. From the judgment of the circuit court an appeal was taken to the Supreme Court and that court transferred the case to this court for want of jurisdiction. In this court the judgment of the circuit court was reversed with a finding of fact and a writ of certiorari was allowed by the Supreme Court and a writ of error awarded to review the judgment of this court. The court there said (p. 175): “The order of the probate court denying the prayer of the petition of plaintiff in error and dismissing it was a final, appealable order, and under section 11 of the Probate Court Act (Smith’s Stat. 1923, p. 624; Cahill’s Stats. 1923, par. 341) the appeal was properly taken to the circuit court. Sebree v. Sebree, 293 Ill. 228.” In the Supreme Court it was contended that the finding of fact made by this court was final and conclusive under section 120 of the Practice Act, Cahill’s St. ch. 110, ¶ 119, but this contention was denied by the Supreme Court holding that a proceeding in the probate court to find the heirship partakes of the nature of a proceeding in chancery and therefore the finding of fact by this court was not conclusive. The jurisdiction of the Supreme Court reviewing chancery cases coming from this court on disputed questions of fact was conceded, as indeed it must be. The court then discussed the facts in the case and passed on the merits. The court referred to the Sebree case and said (p. 176): “defendants in error further contend that such a proceeding to make a new finding of heirship is purely a statutory and in no- respect a chancery proceeding. They rely on Sebree v. Sebree, supra, where this court said: ‘The proceeding under the statute relating to proof of heir-ship or to allow an award is informal. No provision is made for an answer nor any pleadings had. The proceeding here was purely statutory and is not a suit or proceeding at law or in chancery within the meaning of section 8 of the Appellate Court act, and the appeal, therefore, was properly taken from the probate court to the circuit court.’ The language quoted was used in construing section 8 of the Appellate Court act, and the holding was that the proceeding was not a suit or proceeding at law or in chancery within the meaning of section 8 of the Appellate Court act, and that the appeal was properly taken to the circuit court. There was no question in that case of the right or power of this court to review the facts in such a proceeding. ...

“Whether or not the finding of facts by the Appellate Court in this case is conclusive on this court depends upon the question whether or not, in the determination of plaintiff in error’s petition to set aside the former finding of heirship and have herself declared the sole heir of Charles F. Swig-art, the prohate court was called upon to exercise chancery powers.” And it was there held that in such a proceeding the probate court was called upon to exercise chancery powers. And as authority for this holding, the court quoted the entire act of June, 1909, above referred to, and held that such proceedings partake of the nature of a chancery proceeding.

In McCormick v. Meisenheimer, 337 ¶. 65, it was held that a proceeding for the probate of wills was entirely statutory and that in such a case, where a particular form of review is given, all other forms are excluded, but since the act in regard to wills did not expressly provide a particular form of review by the Supreme Court, either by appeal or writ of error, a review might be had in such case by writ of error under the Practice Act. In that case a motion was made to dismiss the writ of error on the ground that a proceeding to probate a will is purely statutory, and that the statute did not expressly allow such proceeding to be reviewed by writ of error; but the court denied this contention and said (p. 68): “In the Wills act no form of review in this court, either by appeal or writ of error, is expressly given. ... We are of the opinion that as no right to either a writ of error or an appeal is given by the Wills act, but that such right, if it exists, must be found in the general laws upon the subject, the reasoning of the court by which it arrived at the conclusion that the proceedings in the circuit court for the probate of a will could be reviewed in this court upon appeal applies with equal force to a right of review upon writ of error. . . . It has been assumed by this court, without any discussion, for many years, that a writ of error would lie in cases of this kind. . . . We can perceive of no reason why, if an appeal in a case of this character is allowed under the general provisions of the Practice act, as held (Chandler v. Fisher, supra) a right to review by writ of error is not allowed by the same provisions of that act. ’ ’

Under the holding in the cases cited, while the question is not free from difficulty, we are constrained to hold that in the instant case a writ of error will lie under section 91 of the Practice Act, Cahill’s St. ch. 110, ¶ 91, and the motion to dismiss the writ of error is therefore denied.

Was the appeal bond executed by William Henry and. approved by the probate court sufficient, and did the court err in striking it from the files and in denying Henry’s motion to file a new bond? We think both these questions must be answered in the affirmative. The objections made to the bond by the defendants is that all of the obligees were not named in the bond. The obligees named in the bond are, “Patrick Flynn, et al., and James Gr. Butler and John Butler.” The argument of the defendants is that there were 20 obligees — the heirs of the deceased as found by the probate court. The record discloses that the probate court found that the deceased left him surviving as his only heirs at law 20 “first cousins,” 18 on the paternal side and two on the maternal side of the deceased. It will be noticed that in the bond but one of the 18 cousins on the paternal side is mentioned, namely, Patrick Flynn, and this is followed by “et al.,” while the two cousins on the maternal side are expressly mentioned in the bond. We think the bond was sufficient because the record clearly discloses the names of the 20 cousins and it is obvious that it was intended that the bond would run to all of the cousins as obligees.

In Bacchus v. Moreau, 4 La. Ann. 313, it was held that on appeal from a judgment a bond made payable to one of the parties “et al.” was good; that the expression et al. must be construed as referring to all the other appellees and the bond would be available to all of them. The court there said (p. 314): “Caubette has asked the dismissal of this appeal, on the ground that no bond was given in favor of the other parties to the proceeding, and that they have not been cited. The bond is given in favor of Caubette 'et al.’ Under these expressions, which must be considered as referring to all the other parties in the cause, the bond would have been available to all the appellees, and cannot therefore be considered defective.”

Executing and filing the appeal bond is the means provided by law for transferring the cause from the probatq to the circuit court and is in the nature of process to remove the cause to the circuit court. In re Voislowsky, 264 Ill. App. 398. Moreover, counsel for the defendants O.K.’d the draft of a written order which was on the same day entered by the probate court approving the appeal bond. The order is as follows: “And now comes William Henry and tenders his bond in the sum of One Thousand Dollars for his appeal from the order of this court entered on the 15th day of December 1930 determining the heirship in this estate and the court having examined the same finds that said bond is in due form and it is therefore ordered that the said bond be and the same is hereby approved and the same is ordered filed. ” The O.K. by counsel for the defendants was to save their time so that the draft might be handed to the judge without their waiting around the court. The order expressly states that the court finds that the bond is in due form and this is approved by counsel for the defendants. In these circumstances we think the defendants are not in a position to object to the bond because all of the defendants were not expressly named as obligees. We are further of the opinion that the court should have allowed Henry’s motion for leave to file a new bond. Dunaway v. Campbell, 59 Ill. App. 665; Pence v. Pettett, 211 Ill. App. 588; Schofield v. Thomas, 231 Ill. 114.

The defendants further contend that the questions raised by plaintiff are not properly preserved for review because there was no bill of exceptions nor certification of evidence filed in the instant case, and it is argued that the defendants’ special motion to strike the appeal bond, and the motion of plaintiff for leave to file a new bond, not being preserved, cannot be considered. We think there is no merit in these contentions because in the judgment order appealed from it is expressly stated that the defendants’ motion to strike the appeal bond is allowed and plaintiff Henry’s cross motion for leave to file a new bond is denied, and it is from this order that the appeal is prosecuted by Henry. This order is obviously a part of the record without any bill of exceptions.

The order and judgment of the circuit court of Cook county is reversed and the cause remanded for further proceeding’s in accordance with the views expressed in this opinion.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


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    D. L. Tarjan for the use of Irene M. Lefkow and John Korowske, Appellee, v. National Surety Company, Appellant.
    Gen. No. 36,039.

      Heard in the first ' division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.
    Rehearing denied November 29, 1932.

      Dent, Weichelt & Hampton, for appellant.
    Irene M. Lefkow, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

. Plaintiff brought suit on an appeal bond executed by the defendant as surety in an. appeal from a judgment of the municipal court to this court. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor of $1,365, and the defendant appeals.

The theory of the plaintiff was that the judgment entered by the municipal court in his favor, and in which the defendant executed the appeal bond, was affirmed in this court, that it had not been paid and therefore there was a breach of the condition of the bond. The defense was that the judgment had been paid by the judgment debtor in a garnishment proceeding brought in the municipal court in which the judgment debtor was garnisheed.

The record discloses that plaintiff, Tarjan, had brought suit in the municipal court of Chicago against Peter S. Sarelas, and on April 12, 1930, recovered a judgment for $1,250. From that judgment Sarelas appealed to this court, giving his bond in the usual form for $2,500 signed by the defendant as surety. This is the bond involved in the instant case. The judgment was affirmed by this court April 15, 1931. May 23, 1930, plaintiff Tarjan assigned his judgment to one of the usees in the instant case, Irene M; Lefkow, who had acted as one of his attorneys. And June 6, 1930, this assignment was filed in the municipal court in the proceeding in which the judgment was entered, and a note made of such assignment on the half-sheet by the clerk. Afterwards, on October 15, 1930, Irene M. Lefkow assigned $750 of this judgment to the other usee, John Korowske, and this assignment was likewise filed October 18, 1930, in the municipal court proceedings, and a note entered on the half-sheet,

September 23, 1924, the North Shore Trust & Savings Bank recovered judgment in the municipal court of Chicago against Tarjan for $1,068. A few days after the judgment in the case of Tarjan v. Sarelas, 261 Ill. App. 647 (Abst.), was affirmed by this court, as above stated, Sarelas told Peter Ziagos, who worked in a butcher shop and whom he had known for some time, that the North Shore Bank had the judgment against Tarjan, and that Tarjan had obtained the judgment against Sarelas in which the appeal bond was given, and Sarelas suggested that Ziagos could buy the bank’s judgment for considerably less than the amount of the judgment. And very shortly thereafter, on April 21, 1931, Ziagos paid the bank $300 and took an assignment of that judgment which on April 23, 1931, he filed in the office of the clerk of the municipal court in the proceeding in which the judgment was rendered. On the same day Ziagos filed an affidavit for garnishee summons in that case, together with interrogatories. Two days later Sarelas answered the interrogatories, admitting his indebtedness to Tarjan of $1,250, being the amount of the judgment Tarjan held against him. Three days later, April 28, Sarelas and Ziagos entered into a written stipulation whereby judgment was entered against Sarelas as garnishee for $1,331.95, being the $1,250 judgment and interest thereon, and thereupon the judgment was satisfied in open court. Sarelas testified that he obtained a check for $1,331.95 from James Sotos, and he offered the check in evidence. It is drawn by Sotos to the order of Sarelas, on the Washington Park National Bank, and bears the indorsement of Peter Ziagos, but it is dated April 30,' two days after the judgment was satisfied of record in open court.

Sarelas, called by the surety company, testified that he knew nothing about the assignment of the judgment by Tarjan to Lefkow nor of the assignment by Lefkow to Korowslce. There is other evidence to the effect that Sarelas was studying law; that he and Tarjan had a number of law suits, one against the other; that Sarelas was present at the trial of a case in the municipal court in which the files in the case in which the judgment for $1,250 was rendered, were in court and that they were examined by Sarelas and his counsel. This was before Sarelas claimed to have paid the judgment.

The court, in deciding the case, rendered an oral opinion in which he said there were two questions involved — one a question of law as to whether the filing of the assignments by the two usees in the municipal court was constructive notice to Sarelas that the judg- ' ment had been assigned, and the other question one of fact as to whether Sarelas had actual notice of the assignment of the judgment. The court then said: “The testimony of Sarelas was to the effect that he told Ziagos to go and get this judgment, ... he told Ziagos to go and buy this judgment. . . . Ziagos says, very conveniently, he left all of that to his attorney. . . . This Appellate Court opinion . . . became part of the records ... on the 15th day of April, 1931. On the 21st of April, according to Sarelas’s own testimony, Ziagos buys this judgment and the assignment from the bank to Ziagos is dated April 21st, a week after the filing of the opinion of the Appellate Court. The check to Ziagos on the garnishment is April 30, 1931. The date of the assignment to Mrs. Lefkow is June 6th, 1930, almost a whole year [before] and there was a trial between these two people in the municipal court of Chicago in October, 1930, in which these records were brought up. Sarelas was represented by an attorney in all these proceedings. There is no question, and there is no doubt in my mind that there was notice, and there was knowledge on the part of Sarelas as to this assignment. There is no question, too, in my mind that the maneuvering and the manipulating of these judgments was intended to deprive this assignee of the benefits she would have derived.”

We are in entire accord with the finding of the trial court. A careful consideration of all the evidence in the record leads us to the conclusion .that Sarelas was scheming with the aid of Ziagos to beat Tarjan or his assignee out of the judgment. A few days after the judgment was affirmed by this court Sarelas advised Ziagos to buy the judgment of the bank against Tarjan. Ziagos was working in a butcher shop; he had never bought judgments and of course knew nothing about them, as he testified. He pays $300 for a judgment of nearly $1,100, which with interest would amount to about $1,400. He and Sarelas worked together. As soon as the judgment is assigned to Ziagos he sues out a garnishment summons and serves Sarelas; Sarelas answers that he is indebted to Tarjan in the amount of the judgment, $1,250, and consents to a judgment being entered against him for the amount of the judgment with interest, and he testified that he knew Ziagos had paid to the bank but $300 for the judgment. And although the judgment is entered on April 28 and satisfied on that "date in open court, the check for the amount of the judgment which Sarelas say's he gave Ziagos is dated April 30. The whole proceedings have the earmarks of a transaction that was merely colorable, as said in the case of People v. Viskniskki, 255 Ill. 384. If Sarelas’ efforts in this regard fail of their purpose, it is not that he did not do enough but because he did too much.

What we have said renders it unnecessary to pass on the number of legal propositions argued by counsel for the defendant with which we agree, but they are of little or no importance on this appeal. One of the contentions made by defendant in this respect is that the court erred in receiving in evidence the two assignments of the judgment to Lefkow and Korowske, as above stated, on the ground that the record of these assignments in the proceedings in the municipal court was not constructive notice to Sarelas that the judgment had been assigned. If Sarelas had no notice that the judgment had been assigned, the mere filing of the assignments with the clerk, as in the instant case, was not sufficient notice. Schmidt v. Shaver, 196 Ill. 108. But the filing of them, together with all the evidence, might tend to show actual notice to Sarelas, in which case the assignments were properly admitted. Moreover, they were entirely proper to show that the judgment has been assigned.

Further complaint is made that at the close of the case counsel for defendant submitted findings of fact and propositions of law which he asked the court to mark “refused” or “held”, but the court refused to do so, contrary to section 61 of the Practice Act, Cahill’s St. ch. 110,c¶ 61. While it is the duty of the court in such a case to mark the findings of fact or propositions of law as provided in section 61, yet his refusal to do so is not necessarily reversibly erroneous,, and in this case it is clear that the refusal of the court did not prejudicially affect the defendant. The object of such findings of fact and propositions of law is to ascertain the theory upon which the judge decided the case. Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576; Gibbons v. Paducah & Illinois R. Co., 211 Ill. App. 138. In the instant case, the court rendered an oral opinion which we have above referred to. It clearly gave his reasons in the case. No substantial purpose would be served had the court- literally complied with section 61 of the Practice Act.

Moreover, an examination of the record shows that some of the findings of fact- and propositions of law submitted were not in the English language and therefore cannot be considered, because section 18 of the schedule of the Constitution of 1870 provides that judicial proceedings shall be conducted and preserved in the English language. Carlin v. Millers Motor Corp., 265 Ill. App. 353. The second and third finding of fact and the third, fourth, fifth and sixth propositions of law submitted contained the symbol “and/or” eight times. We condemned the use of this freakish fad in Preble v. Architectural Iron Workers’ Union, 260 Ill. App. 435. That we are right in our conclusion in this respect is seen by reference to the July, August, and September numbers of the American Bar Association Journal, pp. 456, 524 and 574, respectively.

In the July number the editor-in-chief, Major Edgar B. Tolman, in an editorial condemned the use of this symbol and referred to it as “ a labor-saving (?) symbol” and there said: “With regret we are compelled to note that even Congress has fallen into the use of this áccuracy-destroying symbol.

“The use of this symbol arises in part from a doubt as to which of the two words should be used. Is it any solution of this doubt to leave the question to be solved by construction at a later time?

“We venture the assertion that any man who knows the meaning of the two words and the established distinctions in their use can take a modern contract or statute, bristling with this symbol, strike out every one of them and substitute the proper one of the two words, to the great clarification of the meaning of the instrument or act.

“In short, we believe the symbol to be a device for the encouragement of mental laziness even in the drafting of private contracts.” And in the August issue Major Tolman, in discussing this symbol, said: “On the other hand, shall we look upon the use of this symbol as a blessing in disguise which imports into statutes and judicial procedure room for polemic controversy which might not be discovered if the old-fashioned words were used, thus providing for the practitioner unexpected sources of employment like those which flow from ‘the jolly testator who makes his own will’ ? ”

In the September number of the Journal Mr. John W. Davis of New York, a lawyer of the first order, says: “Nothing has heartened me more of recent years than the leading éditorial in your current issue on the conjunction ‘and/or.’ I expect to spend my declining years in a crusade against this pollution of the English language. It is a bastard sired by Indolence (he by Ignorance) out of Dubiety. Against such let all honest men protest. ’ ’

■Hon. George W. Wickersham, a former attorney general of the United States, in the same issue says: “I read with interest your editorial in the July number of the American Bar Association Journal on the growing use of that barbarism ‘and/or.’ It is one of the worst examples of ‘journalese’ and assuredly has no place in any composition written by one who has a knowledge of the English language. The primary requisite of any juridical language necessarily is exactness. If a writer means to use the conjunctive he should employ the word ‘and,’ and if he means to express the disjunctive he should use the word ‘ or, ’ but to use this expression ‘and/or’ is indicative of confused thought, which should have no place in either a statute or a legal document. The English language, derived as it is from different racial origins, at best lacks precision such as the Latin languages enjoy, and if we import into it such barbarisms as ‘ and/or ’ we make confusion worse confounded. I agree entirely with the expression of your belief in the July Journal that the symbol is ‘a device for the encouragement of mental laziness even in the drafting of private contracts, ’ while its use in pleadings and court proceedings and in legislative acts is utterly unjustified.” Mr. Frederick A. Scott, Statute Revision Commissioner of Connecticut, also there states that he has succeeded in preventing the use of “and/or” in any public act, although he has found it increasingly difficult to do so. And Mr. Clarence D. Meyer of Elizabeth, N. J., Supreme Court Commissioner, writes the editor of the Journal that the stupid use of the conjunctions “and/or,” should be condemned. “I have always classed their use as another -American craze.’ The English language can be made expressive or plain enough without such unsightly hieroglyphic, and I sincerely hope- that other editors will emulate your example in ridiculing this silly practice.” Surely a “labor-saving (?) symbol”; “accuracy destroying symbol”; “pollution of the English language”; “that barbarism”; “has no place m any composition written by one who has a knowledge of the English language”; “unsightly hieroglyphic” cannot be said to be in the English language. And the Supreme Court of Oregon has condemned the use of this symbol. Kornbrodt v. Equitable Trust Co., 137 Ore. 386.

A further complaint is made that plaintiff’s statement of claim does not state a cause of action because it does' not comply with the provisions of section 18 of the Practice Act, the contention being that in par. 4 it is alleged that the beneficial plaintiffs, Lefkow and Korowske, became subrogated to the rights of Tarjan, but the times at which the assignments were made are alleged in a videlicet, and that' this is insufficient. There is no merit in the contention. Bishop v. Dignan, 223 Ill. App. 178. Under the system of pleading in the municipal court of Chicago, plaintiff is required to state his cause of action in plain, simple language so as to inform the defendant of the claim made against him. That defendant understood the claim made is demonstrated because it filed an affidavit of merits setting* up its defense. No question as to the sufficiency of. the pleadings seems to have been mentioned in the trial court and it is equally obvious that the raising of- it here for the first time is an afterthought and without merit.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Angelina Baldassare, Formerly Angelina Annina, Appellee, v. Federal Union Life Insurance Company of Cincinnati, Appellant.
    Gen. No. 36,106.

      Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed November 14, 1932.
    Rehearing denied November 28, 1932.
    Clyde L. Todd, for appellant.
    Livingston & Kaufman, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover on a policy of life insurance issued on the life of plaintiff’s husband. There was a verdict and judgment in plaintiff’s favor for $1,173.85, and defendant appeals.

The record discloses that on February 6, 1920, defendant issued its policy of insurance for $1,000 payable on the death of the insured, Giorgio Annina, to ■his wife, Angelina Annina. The annual premium was $20.41, and the only dispute in this case is whether the semiannual premium of $10.61, which fell due February 6, 1926, ivas paid. Plaintiff takes the position that it was paid by her on that date, and defendant’s position is that the premium was not paid at that time or at any. other time, and that the policy had lapsed prior to the time the insured died, which was June 1, 1926. The insured’s wife, Angelina Annina, after the death of the insured married and her name is now Angelina Baldassare.

The evidence is to the effect that a representative of the insurance company called at plaintiff’s home from time to time and collected insurance premiums as they became due, including the premium on the policy in question; that sometimes the premium was paid to the agent by the insured, Giorgio, and sometimes by his wife, Angelina. She testified that on February 6, 1926, when the premium came due, the agent of the company called at her home; that her husband, the insured, was not at home and that she paid the agent in currency $10.61, and was given a receipt by the agent for the money, but that she did not keep receipts and threw it away. The agent for the company testified that he called at the home of the insured on or about February 6, 1926, to collect the premium and that he took Avith him the receipt of the insurance company for the annual premium, which he was to sign as the authorized agent upon receiving payment of the premium; that when he called at the home of the insured on the evening in question he saw plaintiff and asked her for the premium but she was unable to pay the money at that time, and that he returned the receipt to the company’s office. The receipt is in the record. He further testified that he never received payment of the premium or any part of it. Other evidence offered by defendant was to the effect that the company had not received the premium. There is other evidence in the record that the insured was borrowing money on his policy and that a few days after February 6, 1926, the company gave him a check for $56.35, being the amount the assured could then borrow on the policy. This check is dated February 15, 1926.

There is other evidence that the premium had been paid, as well as evidence to the contrary. In such a situation we think the court should have been somewhat more liberal in the admission of evidence as to the conduct of the parties after the insured died, as their conduct would throw light upon the ultimate question for decision, namely, whether the insurance company had been paid, and we think all of the evidence on this point should be fully developed. Standard Brewery v. Healy, 209 Ill. App. 272. As the record now stands, we think the verdict and judgment is against the manifest weight of the evidence, and for this reason, as well as for the exclusion of the evidence as stated, the judgment must be reversed.

The defendant contends that plaintiff was an incompetent witness because she was the widow of the insured and that she was not made competent under section 5 of the Evidence Act, Cahill’s St. ch. 51, ¶ 5. Under the common law the wife or widow was an incompetent witness, as was anyone who was a party in interest to the suit. Some of the hardship occasioned by this now barbaric rule of the common law was abrogated by our legislature in 1867, when it provided that a party to a suit was not disqualified as a witness. Section 5 of that act provides that the husband or wife is not competent to testify for or against each other as to any transaction or conversation occurring during the marriage “except in cases where the wife would, if unmarried, be plaintiff or defendant, . . . or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband, in all of which cases the husband and wife may testify for or against each other, in the same manner as other parties may.” It has been held that section 5 permits a husband or wife to testify but they may not do so where the facts or circumstances concerning which they testify came to their knowledge only by reason of the marriage relation. Monaghan v. Green, 265 Ill. 233.

In the instant case we think the wife was a competent witness under the statute. She testified that she paid the premium in question and obviously she was acting as the agent of her husband in so doing.' She was also competent to testify, under the common law, to this fact under the rule that is spoken of as the “necessity of the case.” Walbank v. Walden W. Shaw Livery Co., 186 Ill. App. 128; Bolkhardt v. Edwards, 230 Ill. App. 640; Kirman v. Hutchinson, 254 Ill. App. 469. Since the evidence discloses that there was no one but plaintiff present when the agent of the insurance company called to collect the premium the evening of February 6, the wife was a competent witness under the common law because of the necessity of the case. If she could not testify, plaintiff’s version of the matter could not be presented.

' Complaint is also made by defendant that the court erred in refusing to permit Mr. Mathias, an attorney who represented the insurance company, to testify as to admissions made to him by counsel for plaintiff when there was a discussion between counsel some time before suit with an apparent view of settling the matter. The argument is that counsel for plaintiff made admissions to the effect that the premium had not been paid. We think the court rightly excluded this evidence. This conference was out of the presence of plaintiff and she could not be bound by any statements made by him under such circumstances. The conversation between counsel was what is sometimes called “lawyer’s talk” and clearly inadmissible. 6 Corpus Juris, p. 650; Hicks v. Naomi Falls Mfg. Co., 138 N. C. 319.

For the reasons stated the judgment of the municipal court of Chicago is reversed and the cause remanded for a new trial.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.