author: Leland, J.,

text:
    Patrick Finn. v. John Finn.
    Pleading.—To an action declaring in the common counts for money paid, etc., the defendant pleaded that the supposed cause of action was for a one-third part of certain judgments paid by plaintiff, which judgments were rendered against said defendant and others in vacation upon certain promissory notes with warrants of attorney, and that at the time of executing the notes and warrants of attorney the defendant was a minor, etc. Held, Leland, J., dissenting, that the declaration being upon an implied promise to pay his proportion of such judgments the plea was a sufficient answer to the declaration, though not averring infancy at the time of the promise alleged in the declaration.
    Ebbob to the Circuit Court of La Salle county; the Hon. Josiah McRobebts, Judge, presiding. Opinion filed May 2, 1879.
    Mr. G. S. Eldbedge, for plaintiff in error:
    That a power of attorney executed by an infant is voidable merely, cited Hastings v. Dollarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450; Kemp v. Cook, 18 Md. 139; Ashton v. Langton, 30 E. C. L. 567; Cole v. Pennoyer, 14 Ill. 158; Reid v. Degener, 82 Ill. 508; Tyler on Infancy and Coverture, § 18.
    In some cases it has been held void: Saunderson v. Marr, 1 H. Bl. 75; Knox v. Flack, 22 Penn. 33; Fonda v. Van Horne, 15 Wend. 403; Laurence v. McArter, 10 Ohio 37; Bennett v. Davis, 6 Cow. 393.
    As to the force and effect of judgments by confession: Lake v. Cook, 14 Ill. 353; Bush v. Hanson, 70 Ill. 480; Osgood v. Blackmore, 59 Ill. 261.

      A plea of infancy is a personal one and may be waived; Blake v. Douglass, 27 Ind. 416; Simmons v. McKay, 5 Bush. 25; Beaubien v. Hamilton, 3 Scam. 215; Mains v. Cosner, 62 Ill. 465; Freeman on Judgments, 39, 102, 151.
    Messrs. Bioholson & Snow, for defendant in error;
    as to the contracts of infants, cited Metcalfe on Contracts, Ill. Robeson v. Works, 56 Me. 102; Addison on Contracts, 113.
    A judgment rendered by a court without having jurisdiction of the person is void: Wimberly v. Hurst, 33 Ill. 166; Wight v. Wallbaum, 39 Ill. 555; Eltson v. Chicago, 48 Ill. 514; Mulford v. Stalzenbach, 46 Ill. 303; Huls v. Buntin, 47 Ill. 396; White v. Jones, 38 Ill. 160; Miller v. Handy, 40 Ill. 449; Campbell v. McCahan, 41 Ill. 46; Goudy v. Hall, 30 Ill. 109; Clark v. Little, 41 Iowa, 497; McAuley v. Hargroves, 48 Ga. 50.
   Leland, J.,

dissenting. To a declaration containing the common counts, of which the one in the usual form for money paid, laid out and expended, is the only one it is necessary to notice, the following plea was pleaded among others:

2. “And for a further plea in this behalf, defendant says actio non, because he says that this suit is brought for the sole and only purpose of recovering from this defendant the one-tliird part of two certain judgments alleged to have been recovered in the County Court of this county, in vacation after December term, A. D. 1867, against said plaintiff, which said judgments plaintiff claims to have paid and satisfied in full. Defendant avers that both of said judgments were entered up by the clerk of said court in the vacation after the said December term, 1867, without any service of process against this defendant, or of notice of any kind whatever by virtue of, or by the supposed authority of two certain promissory notes, with a power of attorney attached to each of said notes; said notes being what are known and described as judgment notes, in and by which the makers thereof assume to waive service of process, and to authorize any attorney-at-law to confess judgment in any court of record, either in term time or in vacation, in favor of the payees or the assignees thereof for the amount of such notes respectively and for certain attorney’s fees; which said notes and each of them, were executed by plaintiff, one Bichard Finn, and this defendant. And defendant avers that at the time he executed said notes and powers of attorney, and each of them, he was an infant under the age of twenty-one years, to wit: of the age of eighteen years, to-wit: at the county aforesaid; and defendant therefore avers that said notes and the powers of attorney attached thereto, and the said judgments rendered thereon, were and are, as to this defendant, absolutely void in law; and this defendant is ready to verify; wherefore he prays judgment, etc.”

There was a bill of particulars filed by plaintiff, describing the judgments paid by him, as having been rendered against him, and defendant and another person, and claiming one-third of the defendant, and the plea seems to be not only to the declaration but also to the bill of particulars, and is hardly intelligible without the latter. The bill of particulars, however, describes three judgments, the plea mentions two only.

There was a demurrer overruled to the plea, and judgment for the defendant, which plaintiff seeks to reverse.

Without examining the question whether the judgments mentioned in the plea should be considered valid until reversed or vacated or absolutely void, but treating them as absolutely void, and a payment of them as a mere payment of the notes it seems to me that this plea instead of presenting a defense to the money paid on the judgments admits a cause of action. It is not denied and, therefore, it is admitted that at the time when the promises in the declaration mentioned were made the defendant was an adult. “Bo distinction exists in pleading between an implied promise and an express one. It is true that in evidence the law in many cases implies from certain facts that a promise has been made, but in pleading, the supposed promise itself should be alleged. ” 1 Chitty’s PI. 302. It may, therefore, be safely said that all alleged promises should always be considered express ones and admitted as such.

The allegation, therefore, in the declaration is that plaintiff paid the judgments, or amount due on the notes, at the request of a then adult defendant, who was one of the three makers of the notes, and that thereupon this adult defendant expressly promised plaintiff to pay him one-third of the amount paid. There is not only no statement in the plea that defendant at the time of making the said several supposed promises and undertakings in the declaration mentioned was an infant,” etc., as in the form, 3 Chitty’s PI. 909, but it substantially appears, on the face of the plea, that defendant was then an adult.

In pleading in suits at law, however, that which is not denied is admitted. It is therefore admitted that the promise in the declaration was an express one of an adult defendant. There is not even an argumentative denial of the promises of the defendant to pay plaintiff the one-third of the money paid on the judgments, by stating that those in the promissory notes were the only promises made by defendant. Of what consequence is it then whether the defendant was a minor or not at the time of the making of the promissory notes? His express promise as an adult to pay the one-third which, at his request the plaintiff had paid for him, was as valid to plaintiff surely as an express promise to a payee by an adult to pay a note which he had given while a minor would be to such payee.

Would a repetition of these admitted facts in a replication, make plaintiff’s case any better? What is the necessity for the same party saying the same thing twice? Would the following replication by plaintiff be any better than the allegations in the declaration: “ Prechidi non, because he says that said defendant, after he became twenty-one years of age, requested the plaintiff to pay for Mm the one-third, etc.; that plaintiff did so at such request, and that thereupon the defendant expressly promised to pay him the amount thus paid.” It seems to me that upon the well settled rules of pleading, conceding the declaration and plea both to be true, nothing was left to be done, if there were no other issue, except to assess the plaintiff’s damages as to the amount paid for defendant by plaintiff on the judgments.

It may be that the statement in the plea “ that this suit is brought for the sole and only purpose of recovering from this defendant the one-third part of two certain judgments, etc.,” amounts to an argumentative general issue to all the other counts, and to all causes of action which might be shown under the money paid, laid out and expended count, except the money paid by plaintiff on the judgments, which would have required the plea to have been specially demurred to for duplicity. 1 Chitty, PL 528. If the above statement in the plea be equivalent to the usual one that it was plaintiff’s only cause of action, but which .is not really said, then it would be argumentatively saying that defendant did not undertake and promise, except to pay the amount paid by plaintiff on the judgments, and would, pro tanto, be a general issue to the declaration.

If plaintiff, instead of conceding the plea to be true by demurring, had put in the foregoing special replication, and having other causes of action had desired to add a similiter to the general issue part of the plea, it perhaps would have been as artistic as the plea to have said as to so much of said plea as amounts to the general issue, and of which defendant may be supposed to have put himself upon the country, plaintiff doth the like.”

For the reasons aforesaid I think the demurrer should have been sustained to the plea, and that the judgment of the court below should be reversed.


source: Caselaw Access Project

author: Pillsbury P. J.,

license: Public Domain

text:
    Ferdinand W. Peck v. The Coalfield Coal Company, use, etc.
    1. Liability of Stockholdees.—In order to render a stockholder liable under the statute to the extent of his unpaid stock for the debts of the corporation, proceedings must be instituted against him at the same time that action is begun against the corporation on the principal cause of action.
    2. Special Remedy.—A general liability created by statute, without a remedy, may be enforced by any appropriate common law action, but when the provision for the liability is coupled with a provision for a special remedy, that remedy and that alone must be employed.
    Appeal from the Circuit Court of Will county: The Hon. Francis Goodspeed, Judge, presiding, Opinion filed May 6, 1879.
    Messrs. Cooper, Packard & Gurley, for appellant;
    that where the charter of a company does not prohibit payment of capital stock in anything but money, it may be paid for in something else, cited Phelan v. Hazard, 6 Cent. Law Jour. 109; Pell’s case L. R. 5 Ch. 11; In re Boglan Hall Co. L. R. 5 Ch. 346; Maynard’s case L. R. 9 Ch. 60; Schroeder’s case, 11 Eq. 131; Cleland’s case, 14 Eq. 387; Lichell’s case, L. R. 3 Ch. 119; Savage v. Ball, 17 N. J. 142; Smith v. N. A. etc. Co. 1 Nev. 423; Goodrich v. Reynolds, 31 Ill. 490; Spence v. Iowa Valley Co. 36 Iowa, 407; In re China, etc. Co. L. R. 4 Ch. 772; Carr v. Le Fevre, 27 Pa. St. 413; Foreman v. Bigelow, 7 Cent. Law Jour. 430.
    Stockholders’ liability can only be enforced in the manner-provided by the statute: Pollard v. Bailey, 20 Wall. 527; Erickson v. Nesmith, 4 Allen, 236; Baker v. Backus, 32 Ill. 82; Tarbell v. Page, 24 Ill. 47; Steele v. Dunne, 65 Ill. 298; Taylor v. New Eng. M. C. 4 Allen, 579; Pease v. Underwriters’ Union, 1 Bradwell, 287.
    A stockholder cannot be made liable for debts of the corporation incurred after he ceases to be a stockholder: 1 Redfield on Railways, 197; Angell and Ames on Corporations, § 534; Handrahan v. Cheshire Iron Works, 4 Allen, 396.
    The liability of the stockholder is extinguished by a judgment against the corporation, where the person was not summoned and had ceased to be a stockholder before judgment: Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 Cush. 86; Liddale v. Rawcliffe, 1 Cr. & M. 490; Thompson v. Hewitt, 6 Hill, 254; Byers v. Franklin Coal Co. 106 Mass. 137; Cambridge Water Works v. Somerville Dyeing Co. 4 Allen, 239; Erickson v. Hesmith, 4 Allen, 233; Mason v. Cheshire Iron Works, 4 Allen, 398.
    The remedy is in equity under the statute relating to insolvent corporations, against the corporation and stockholders for the benefit of all the creditors: Richardson v. Aikins, 87 Ill. 138; Turpin v. Haines, 10 Chicago Legal News, 74.

      A corporation formed under the act of 1872 is not hound upon contracts made previous to incorporation: Western Screw Co. v. Cousley, 72 Ill. 531; R. R. I. & St. L. R. R. Co. v. Sage, 65 Ill. 328.
    Forfeited stock dissolves the connection of the stockholders, whose shares are forfeited with the corporation, and a creditor cannot charge them with the amount unpaid: Allen v. Montgomery R. R. Co. 11 Ala. (N. S.) 437; Macaulay v. Robinson, 18 La. An. 619.
    The sworn certificate of the officers of a company that the capital stock has been paid in, is conclusive evidence for the stockholders so far as to exempt them from personal liability for debts of the company: Stedman v. Eveleth, 6 Met. 114.
    The judgment obtained against the company without notice to the stockholders, cannot be res adjudioata as to him: Pierce v. Carleton, 12 Ill. 358; Moss v. McCulloch, 5 Hill, 131.
    A stockholder is not liable upon a claim for damages against a corporation, arising from negligence: Heacock v. Shuman, 14 Wend. 58; Cable v. McCune, 26 Mo. 371; Cable v. Goty, 34 Mo. 573.
    The non-joinder of one of several joint debtors, is fatal to the right of plaintiff to recover against those proceeded against by garnishee process: Rex v. Elliott, 1 N. H. 144; Hudson v. Fisk, 5 N. H. 538; Atkins v. Prescott, 10 N. H. 122; Weatherwax v. Paine, 2 Gibbs, 558; Wellover v. Soule, 30 Mich. 581; Pettes v. Spaulding, 21 Vt. 66; Wilson v. Allbright, 29 Greene, 125; Haskins v. Johnson, 24 Geo. 625; Elliott v. Smith, 2 Cranch, 543; Jewett v. Bacon, 6 Mass. 59; Hutchinson v. Eddy, 16 Ship. 485.
    Mr. Geo. S. House, for appellee;
    that where the statute gives a remedy, there must be a strict compliance with its provisions, cited Gray v. Coffin, 9 Cush. 192; Pollard v. Bailey, 20 Will, 527; Tarbell v. Page, 24 Ill. 47.
    As to the liability of a stockholder to a creditor: Culver v. Third Nat. Bank, 64 Ill. 528; Corwith v. Culver, 69 Ill. 502; Richardson v. Akin, 87 Ill. 138.
    In the construction of statutes, the intention of the legislature may be collected from the cause or necessity of the act: Wood v. Blanchard, 19 Ill. 38; Castner v. Walford, 83 Ill. 179.
    A statute should be construed, if possible, so that no clause or sentence shall be superfluous or insignificant: Dicker v. Hughes, 58 Ill. 41; City of Springfield v. Edwards, 84 Ill. 632.
   Pillsbury P. J.,

On the 7th day of November, A. D. 1877, H. Leroy Thayer, for whose use this proceeding is prosecuted, recovered a judgment in the Will Circuit Court against the nominal plaintiff herein for $5,963.20, by default, and on the 27th day of December of the same year he sued out of said court a garnishee summons against appellant, Peck, as a stockolder in said company.

The appellant was not summoned at the the time the suit was originally commenced against the company, but the basis of this proceeding is, that Peck was owing the company upon stock subscribed by him, which he had not fully paid up, and it is sought by this proceeding, instituted under the act relative to garnishment to obtain a judgment against him to satisfy that obtained by Thayer against the company. Interrogatories were filed and answered by the garnishee in the court below, and upon a hearing, judgment was rendered against the garnishee, and he appeals.

By the common law, a stockholder was not liable for the debts of the corporation, and such liability exists- only by virtue of some statute. The eighth section of the statute of this State, entitled Corporations, reads as follows:

“ Every assignment or transfer of stocks, in which there remains any portion unpaid, shall be recorded in the office of the Recorder ■ of Deeds of the county within which the principal office is located, and each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him, to be collected in the manner herein provided. No assignor of stock shall be released from any such indebtedness by reason of any assignment of his stock, but shall remain liable therefor jointly with the assignee until the said stock be paid in full. Whenever any action is brought to recover any indebtedness against the corporation, it shall be competent to proceed against any one or more stockholders at the same time to the extent of the balance unpaid - by such stockholders upon the stock owned by them, respectively, whether called in or not, as in case of garnishment. Every assignee or transferee of stock shall be liable to the company for the amount unpaid thereon to the extent, and in the same manner as if he had been the original subscriber.”

It is admitted by counsel for appellee that it is only by virtue of this section that appellant can be held liable, and claims that this proceeding is instituted under that section. We think the language of this section fairly construed means that a party can at the time he commences his action against the corporation have a summons issued in the nature of a garnishee process against any one or more of the stockholders of such corporation, and whose subscription to the capital stock has not been fully paid, warning them of the pendency of such suit, and by the service of such summons the creditor would prevent such stockholder from making payment to the corporation of any amount that may be due upon his subscription. We are inclined to the opinion that in order to hold the stockholder liable at law it is essential that such writ to the stockholder should be issued at the same time the suit against the corporation is commenced, as that apjiears to be the fair construction of the statute.

In Pollard v. Bailey, 20 Wall. 527, the Supreme Court of the United States held that:

“ The individual liability of stockholders in a corporation for the payment of its debts, is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation and provide for the manner of its enforcement. * * * The liability and the remedy were created by the same statute. This being so, the remedy provided is exclusive. A general liability created by statute without a remedy may be enforced by any appropriate common law action. But when the provision for the liability is coupled with a provision for a special remedy, that remedy and that alone, must be employed.”

Speaking on the same point, the Supreme Court of Massachusetts says:

“ When the statute confers a right and prescribes a remedy, that particular remedy, and that only can be pursued.” (Per Dewey, J., in Ericksen v. Nesmith, 4 Allen, on p. 236.)

Our own Supreme Court also say, in Baker v. Backus, 32 Ill. on p. 99:

“ The stockholders in such a corporation can only be responsible in the mode prescribed. in the act under which they became associated as a corporation. They are not individually liable, except under the circumstances and for the time specified in the act of incorporation.”

Under these authorities, we think the remedy provided by the eighth section is exclusive and must be pursued by the creditor if he would hold the stockholder at law.

The appellee in this case not having pursued such course, we think he cannot recover.

This proceeding being an ordinary garnishment after return of execution nulla bona, there is another reason shown by this record why the judgment cannot be sustained. It is a well settled rule of law in our State that judgment cannot be rendered against the garnishee in favor of the judgment debtor for the use of the execution creditor, unless the judgment debtor could recover in an independent suit against the garnishee. Richardson et al. v. Lester et al. 83 Ill. 55.

It appears in this case that the capital stock of the corporation was fully paid by the stockholders, appellant among the number, by deeding to the coal company about 1,000 acres of coal land, which was accepted by the company in full payment of all stock subscribed.

It is quite evident if the company was to bring an action against appellant upon his subscription to the capital stock, the conveyance of the land could be pleaded as full payment therefor, and upon the proofs in this record we fail to see how a recovery could in such case be sustained in favor of the company.

We are aware that the rule in this country in equity is, to treat the capital stock as a trust fund for the payment of debts owing by the corporation, and have no desire to limit the the operation of so beneficial and just a rule, but if a party pursues a legal remedy in the name of the corporation for his use, under which proceeding the liability of the garnishee to the company is the measure of his liability to the creditor, he can have no relief, unless he can show that the garnishee is indebted to the nominal plaintiff.

Judgment reversed.


author: Murphy, P. J.

text:
    Susan Martins v. Charles Green.
    Judgment not supported by the evidence.—Appellee claimed to recover of appellant for goods sold to one C. by her authority. The burden of proof was upon appellee to show that appellant authorized the purchase of the goods, and failing to establish that fact by a fair balance of testimony, the judgment is reversed.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. Pliny B. Smith, for appellant.
    Mr. Adolph Moses, for appellee;
    that the finding of a court has the same force as the verdict of a jury, and there being testimony to sustain the judgment, it should not he reversed, cited Bishop v. Busse, 69 Ill. 403; Wiggins Ferry Co. v. Higgins, 72 Ill. 517; T. W. & W. R. R. Co. v. Elliott, 76 Ill. 67; Plummer v. Rigdon, 78 Ill. 222; Miller v. Balthasser, 78 Ill. 202; McClelland v. Mitchell, 82 Ill. 35; Nimmo v. Kuykendall, 85 Ill. 476.
   Murphy, P. J.

In September, 1876, Theodore Martins, in business at Mo. 46 Month Clark street, Chicago, as a grocery man, departed this life, leaving him surviving his widow, the appellant. At the time of his decease Charles Martins, his brother, was in his employ as clerk or assistant in and about such business. It is disclosed by the record, that after the decease of Theodore Martins, Charles, his brother, continued the business in the name of deceased, without any purchase of the stock in trade until the 13th day of January, 1877, when the appellant, having been appointed administratrix of her husband’s estate, executed a bill of sale of said stock and fixtures to Charles Martins, her late husband’s brother, and took a chattel mortgage back to secure the payment of the purchase price, $538.98; that at some time, between the decease of Theodore Martin and the 13th day of January, 1877, Charles Martins purchased of appellee and caused to be delivered at the store, goods of the value of $152.20, the amount of the recovery in the court below. The question raised is whether these goods were purchased by Charles Martins as the agent of the appellant, with sufficient authority from her to bind her by such purchase, or whether he purchased them on his own account. It is claimed by appellee that the business was carried on from September, 1876, to the 13th day of January, 1877, by the appellant on her own account, and that Charles Martins was her agent for the purpose of managing and conducting the same; and as a consequence had her authority as an incident to such general power to purchase the goods in question. It is claimed by the appellee that the fact that a bill of sale was given by appellant of the goods then in the store, and a chattel mortgage taken back on the 13th day of January, 1877, tends to show that the business had been conducted by her from the decease of her husband up to that time, and that when taken in connection with the testimony of young Jacobson, when he was employed' by Charles Martins to assist in the business, that appellant told him to tend the store, sell goods, drive the horse, etc., and that appellant used to come into the store frequently and look over the books, and get provisions, and that several times she got money—makes a case in which Charles Martins would be legally authorized to bind the appellant by his purchase of goods.

If this were all the testimony on the question, it might make a jyrima facie case, but on the part of appellant it is claimed she had no interest whatever in running the business;! that on the decease of her husband she gave the business over ■ to her brother-in-law, Charles Martins, who ran the same on' his own account and for his own benefit.

She testifies that she had no interest in the business, and as a consequence Charles had no authority from her to buy the goods in question on her account; that she did not know what was bought for the store, or anything about the condition of the business; that she never derived any profit from the business, or contributed anything to it, or exercised any control over it. That true it was she obtained provisions from the store for the house, but that they were charged to her on the books. Denies ever having got any money from Charles, except $5.00 to apply on the board of himself and his clerk, Jacobson, and $140.00, which she let him have when he went into the store, and also such moneys as were due to her husband at the time of his decease, and which Charles had collected and did not pay over to her; denies ever looking over the books at any time when in the store; denies ever giving Jacobson the direction what to do, as testified to by him; that she never knew appellee until after this suit was commenced; that she asked him why he had not told her about it before, to which appellee replied: because Charles Martins did not want him to tell her anything about it. She testifies that she told Charles Martins not to run the business in the name of her deceased husband, and he told her it was none of her business. This was substantially all the testimony in tire case.

It will be thus seen that the testimony of Jacobson to the alleged principal acts of the appellant tending to show that she exercised acts of ownership and proprietorship of the store, is flatly contradicted and explained away by the testimony of the appellant. She denies having given him any direction whatever about his duties at the store, and explains what money she received there, and testifies that such provisions as she got there were charged to her on the books, same as any other customer; and upon these material jooints, if she is entitled to credit, the testimony is evenly balanced. She is unimpeached, and apparently entitled to credence, and the burden being on the appellee to show authority in Charles Martins to bind the appellant, we think this proof fails to show it.

Her testimony is un contradicted except as to the directions Jacobson says she gave him about his duties, and her examination of the books.

In the light of her explanation of the money and provisions received, and her denial of the balance of Jacobson’s testimony, it is not easy to perceive by what evidence the verdict is sustained. We think the evidence entirely fails to make a case, and that it was error for the court to find and to give judgment for the appellee on the evidence submitted, and for which the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


author: Bailey, J.

text:
    Robert Fergus et al. v. The Cleveland Paper Company.
    Practice—Affidavit of merits—Plea denying joint liability.— Appellants, being sued as copartners, with their plea of the general issue, ' filed pleas, verified by affidavit, denying a joint liability. On motion, these pleas were stricken from the files for want of an affidavit of merits, and judgment rendered for the plaintiff as by default. Held, that the affidavits verifying the pleas denying a joint liability showed a defense to the entire cause of action, and were a sufficient compliance with the statute requiring defen- ' dants to file an affidavit of merits with them pleas.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. J. D. Adair, for appellant;
    that the affidavit was sufficient, and the court erred in striking the pleas from the files, cited Rev. Stat. 1877,738, §§ 29, 36; 37; 1 Gross’ Stat. 270, § 12; 2 Gross’ Stat. 288, § 123; Bank of North America v. C. D. & V. R. R. Co. 82 Ill. 493; Harrison v. Willett, 79 Ill. 482.
    Messrs. Conger & Gorton, for appellee;
    that the affidavit should state that the defendant believes he has a good defense to the suit upon the merits, to the whole or a portion of plaintiffs’ demand, cited Rev. Stat. 1877, 739, § 37; Filkins v. Byrne, 72 Ill. 101; Bank of Chicago v. Hull, 74 Ill. 106; Honore v. Home Nat. Bank, 80 Ill. 489.
    Where plaintiff has filed an affidavit of his claim, the defendant must file an affidavit of merits with his plea: Rev. Stat. 1874, 779, § 37.
    The language of the affidavit and of the statute are in no sense equivalent: Bank of North America v. C. D. & V. R. R. Co. 82 Ill. 493.
   Bailey, J.

This is a suit in assumpsit, brought by the Cleveland Paper Company against Robert Fergus and four others, upon an account for goods, wares, merchandise etc. In the declaration, the plaintiff seeks to charge the defendants jointly as co-partners, doing business under the name of The Fergus Printing Company. With the declaration, the plaintiff filed an affidavit in accordance with the provisions.of section 36 of the Practice Act, showing the nature of its demand, the amount due thereon, etc. Each of the defendants appeared and plead non assumpsit, and also filed a special plea verified by affidavit, denying his joint liability with the other defendants upon the promises and undertakings set out in the declaration. Ho other affidavit of merits being filed, on motion of the plaintiff, the pleas were stricken from the files, and judgment rendered against the defendants by. default for $411.84. The errors assigned call in question the decision of the court, striking the pleas from the files and rendering judgment by default.

It is provided by section 36 of the Practice Act, that if any plaintiff in any suit upon a contract express or implied, for the payment of money, shall file with his declaration an affidavit, showing the nature of his demand, and the amount due him ivom the defendant, after allowing to the defendant all just credits, deductions and set-offs, if any, he shall he entitled to judgment as in case of default, unless the defendant shall file with his plea an affidavit, stating that he verily believes he lias a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and if a portion, specifying the amount according to the best of his judgment and belief.

The only question to be considered, is whether the defendants’ affidavits verifying their pleas, denying joint liability, are a substantial compliance with the provisions of the statute. The language of the affidavits is manifestly different from that employed by the statute, yet we think the facts stated are broader, and more than an equivalent to those required by the . statute. The pleas denying joint liability, if true, are a defense to the entire suit, and the affidavits verifying the pleas, state in substance absolutely, and not upon the defendant’s belief merely, that they have such defense to the entire suit. The statute does not require the nature of the defense to be set out in the affidavit. These sworn pleas however, not only show the existence of a defense, but indicate its precise nature.

Very considerable warrant for the view we have taken, may be derived from the decision of the Supreme Court in Bank of North America v. Chicago, Danville and Vincennes Railroad Co. 82 Ill. 493. In that case the declaration contained a special count on a promissory note and the common counts, and a sworn plea was filed, denying the execution of the note set up in the special count. The plea was stricken from the files and the Supreme Court sustained such action, not upon the ground that the affidavit failed to follow the language of the statute, but that the sworn plea was no defense to the common counts, and as the entire cause of action might have been proved under the common counts, the defense thus presented did not necessarily go further than to affect the character of the evidence admissible in support of the plaintiff’s action. The conclusion is fairly deducible from the opinion, that had a sworn plea presented a defense to the entire declaration, it would have been held to be a substantial compliance with the statute. We think the court erred in striking the pleas from the files, for which error the judgment must be reversed and the cause remanded.

Judgment reversed.


author: Pleasants, J.

text:
    David Preston et al. v. J. Blackburn Jones.
    1. Payment by obdeb upon a thibd pabty.—Appellee being sued as indorser of a promissory note, pleaded payment by delivery and acceptance of an order for the amount upon a third party. It appeared that when called upon by appellants’ correspondent for payment, he gave the order to him to be sent to appellants. The order was sent, and appellants having failed to collect the amount due on it, retained it till it was produced on the trial: Held, that these facts raised no presumption that appellants received the order in full satisfaction of the amount due on the note.
    2. Evidence—Correspondence.—Appellee, in delivering the order to appellants’ correspondent, made him his agent in transmitting the proposition for settlement to them, and the correspondence between such agent and appellants, regarding the transaction, was admissible, as tending to show whether or not the order had been received and accepted by appellants in satisfaction of them claim.
    Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding..
    Mr. Morton Culver, for plaintiffs in error;
    argued that if a bank to whom paper is sent for collection, receives anything else than money, it is no payment; and if it takes anything else it becomes the agent of the payor, and its acts do not bind the sender unless specially notified, and cited German American Bank v. Nat. Bank of Missouri, 11 Chicago Legal News, 97; Nolan v. Jackson, 16 Ill. 272; Vickery v. McClellan, 61 Ill. 311; U. S. Life Ins. Co. v. Advance Co. 80 Ill. 549.
    Messrs. Steele & Jones, for defendants in error;
    that if a guarantor signs after delivery of the note to the payee, a new consideration must be shown for the guaranty, cited Parkhurst v. Vail, 73 Ill. 343; Pahlman v. Taylor, 75 Ill. 629; Boynton v. Pierce, 79 Ill. 145; White v. Weaver, 41 Ill. 409.
    There was evidence to support the verdict, and it should not be set aside: Varner v. Varner, 69 Ill. 401; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Clifford v. Lubring, 69 Ill. 410; Chapman v. Burt, 77 Ill. 337; C. & N. W. R. R. Co. v. Ryan, 70 Ill. 211; McClelland v. Mitchell, 82 Ill. 35.
    Plaintiffs in error, on affidavit being made for a continuance, admitted that the witnesses, if present, would swear to the facts stated, and such facts were read to the jury. This was not the reading of ex parte affidavits, but a statement of admitted facts: Rev. Stat. 740, §§44, 45; Utley v. Burns, 70 Ill. 162; C. & N. W. R. R. Co. v. Clark, 70 Ill. 276.
   Pleasants, J.

Plaintiffs in error, who were bankers in the city of Chicago, sued defendant in error as guarantor of a promissory note made to them by W. P. Jones, of March 1,1876, at five months, for four hundred dollars. The defenses set up were, first, that he endorsed the note after it had been delivered to plaintiffs, and without consideration; and second, that he delivered to them and they received in full satisfaction of his liability, an order of Bartlett Waldron upon Hagar Waldron, adm’r, &c., for four hundred and forty-five dollars.

Upon the first issue it appeared that the note was for a balance due on a previous one, for which it was to be taken as an extension only when and upon condition that defendant should guarantee it, and that the old one was not surrendered or canceled nor the new one absolutely accepted until the latter was so guaranteed. Whether defendant at the time of his endorsement knew of this understanding between the plaintiffs and the maker was not distinctly shown, but this branch of the defense seems not to have been much relied- on. Mo instruction was asked of the county court, and no question is presented here in reference to it.

Upon the second issue the evidence showed that after the note matured, plaintiffs sent it for collection to Emil Karst, cashier of the Continental Bank of St. Louis, Missouri, where defendant then resided; that Karst notified him in the usual form; that defendant called and offered to turn over in satisfaction of the claim against him the order above referred to, saying it was good, and with proper care could be collected; that Karst disclaimed authority to receive it as proposed, and ' some evidence was introduced tending to show that he agreed to send it to plaintiffs, and if they should decline so to receive it he would return it to the defendant within a week. He did immediately send it to them, but with what proposition or statement, if any, was not proved. It appears, however, that they held it, made some ineffectual effort to collect it, and produced it on the trial. Plaintiffs offered in rebuttal certain letters, testified to be all the correspondence between them and Karst about the order, and particularly one of December 18, 1876, purporting to be signed by him and enclosing said order, but the court, upon objection by defendant, refused to admit them.

We are not advised as to the ground of the objection or of the ruling. The handwriting of Karst was not formally proved, but the witness stated that all of the letters signed “ Preston, Kean & Oo.” were written by him, and those signed “Emil Karst” received in answer to them respectively; and that of December 18 was further authenticated by the order enclosed, which defendant himself testified he delivered to Karst on that day for transmission to plaintiffs. This letter communicates no such proposition as that which defendant says Karst agreed to report. Its language is: “ J. Blackburn Jones called to-day and handed in the within order, Bartlett Waldron on Hagar Waldron, Sparta, 111., for $445, stating that the same would be paid within forty-five days, proceeds to be applied to the payment of his indorsement note, $400.”

We are of opinion that the evidence introduced failed to make out the defense. Upon this issue the burden was upon the defendant to, show, by a preponderance of evidence,'that plaintiffs accepted the order in satisfaction of his liability. Karst had no authority to make any agreement for them in relation to it. The proof, then, as against them, went no further than, to show that they received it, and having failed in' efforts to collect it, produced it on the trial. These facts raise no presumption that they received it in full satisfaction rather than as collateral security; and if they did, it was error to exclude evidence offered and tending to rebut such presumption.

In sending the order to plaintiffs, Karst was the agent of the defendant. Whatever proposition accompanied, it was therefore part of the res gestee, even if it was not the proposition of the defendant, and upon one or both of these grounds was admissible. Plaintiffs could not ratify an arrangement made by Karst with the defendant until they knew what it was, and the jury should not have been permitted to presume, merely from his sending and their keeping the order, as stated, that at the time of sending it he reported a particular proposition, especially when the clearest possible proof was offered that he in fact reported a very different one; yet this is about what was done by excluding the letter and giving the second instruction asked by defendant.

The trial resulted in a verdict for him, which the court ought to have set aside for the reasons above given, but refused, and entered judgment thereon against the plaintiffs for costs. Said judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    James Buchanan v. Gustav Goeing et al.
    1. Trespass—Levy oe execution.—The plaintiff in an execution is responsible for the acts of a constable in making a levy thereunder, only so far as he aids, directs or authorizes them to be done, or approves of them afterwards as done in his name or interest, and if these acts were several, then only for such as he so aids, directs, authorizes or approves.
    2. Excessive levy—Receipt op proceeds.—The levy upon the goods of strangers is a trespass, and the plaintiff in execution becomes liable there- • for by receiving the amount derived therefrom, which is an approval of the act; but, the goods being in parcels, an excessive levy is a further and independent'wrong, not necessarily or naturally growing out of the other. It would have been no less wrongful if the goods had been the property of the execution debtor, yet the mere receipt by the plaintiff in execution, of the amount of his debt, without notice of the excessiveness or extent of the levy, is not a ratification or approval of such excessiveness.
    Eeeob to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Messrs. Banning & Banning, for plaintiff in error;
    thatjie is not liable for the trespass of the constable beyond the amount he received on his debt, it not being shown that he instigated, directed or approved the trespass, cited Grund v. Van Vleck, 69 Ill. 478; Hyde v. Cooper, 26 Vt. 558; Adams v. Freeman, 9 Johns. *118; Coe v. Higdon, 1 Disney, 395.
    Plaintiff in error is not liable for an excessive levy which he never authorized or approved: Freeman on Executions, §§273, 303; 2 Hilliard on Torts, 157; 1 Chi tty’s PI. *86; Becker v. Dupree, 75 Ill. 167; Adams v. Freeman, 9 Johns *118; Hyde v. Cooper, 26 Vt. 557; West v. Shockley, 4 Harr. 288; Princeton Bank v. Gibson, 20 N. J. 140; Hopkins v. Smith, 7 J. J. Marsh, *264; Clay v. Sandefer, 12 B. Mon. 338; Brooks v. Ashburn, 9 Ga. 302; Guile v. Swan, 19 Johns. 382; Averill v. Williams, 1 Denio 503; Coe v. Higdon, 1 Disney 394; Kreger v. Osborn, 7 Blackf. 76; Berry v. Fletcher, 1 Dillon, 71.
    Having acted in good faith and without malice, plaintiff in error is not liable for exemplary damages: Hawk v. Ridgway, 33 Ill. 473; Gray v. Waterman, 40 Ill. 522; Johnson v. Jones, 44 Ill. 142.
    Messrs. Swett & Bates and Mi. E. B. Bliss, for defendant in error;
    that plaintiff in error had actual knowledge that the property was held by virtue of replevin proceedings and' was bound to know their legal effect, cited Rhines v. Phelps, 3 Gilm. 455; Johnson v. Camp, 51 Ill. 219; Jasper v. Purnell, 67 Ill. 358.
    As the jury did not give exemplary damages, plaintiff in error is not prejudiced by instructions given on that point: Gilson v. Wood, 20 Ill. 37; Hessing v. McCloskey, 37 Ill. 341.

      The question of intent is not involved: Olsen v. Upsahl, 69 Ill. 273; Wolf v. Boettcher 64 Ill. 316; Guille v. Swan, 19 Johns. 381.
    A liability may arise by directing or aiding the commission of the act: Snydacker v. Brosse, 51 Ill. 357; Develing v. Sheldon, 83 Ill. 390; Wolf v. Boettcher, 64 Ill. 316.
    By subsequent ratification, whereby, he becomes a trespasser ab initio: Page v. Du Puy 40 Ill. 506; Becker v. Dupree, 75 Ill. 167; Haskins v. Haskins, 67 Ill. 446; Herring v. Hoppock, 3 Duer, 20; Davis v. Newkirk, 5 Den. 92; 1 Chitty’s Pl. 80.
    In actions of tort, matters of justification must be specially pleaded; Olsen v. Upsahl, 69 Ill. 273; Taylor v. Morrison, 73 Ill. 565; Hahn v. Ritter, 12 Ill. 80.
   Pleasants, J.

This was an action of trespass guare elausumfregit and de bonis asportatis, brought by the defendants in error against the plaintiff in error.

They obtained a verdict for $933.33, of which $133.33 was remitted, and the County Court, after overruling a motion for a new trial, rendered judgment thereon for $800 damages, and for costs.

The material facts are, that plaintiffs below being in possession of a stock of pictures, picture frames, looking-glasses, etc., in a store on State street, and claiming to own the same by virtue of a’bill of sale from Joseph Keitz the former proprietor, of whom they had been employees, an execution in favor of the defendant, upon a judgment for $79, against said Keitz, recovered before a justice of the peace previous to the alleged sale, was duly issued and delivered to constable Worth, who by virtue, or under color thereof, levied upon the goods of the value of $1000, or more, and sold them as the property of said Keitz, for the aggregate sum of $450. ' No part of the proceeds was ever paid over to the plaintiffs, but the defendant received thereof from said constable the amount of his judgment and costs. Other creditors of Keitz had previously levied upon the goods, but plaintiffs had replevied them. Being told by Keitz that plaintiffs owned them, the defendant stayed all proceedings looking to the collection of his debt out of them, but being subsequently informed, also by Iieitz, that the sale to plaintiffs was only colorable, and that others of his creditors were levying upon them, he communicated these statements to his attorney and directed him to take such steps as he should think proper. While yet in the store, in charge of a custodian under defendant’s execution, one of the plaintiffs told him that the goods were theirs and proposed an arrangement for the speedy determination of t he question of ownership. Defendant then promised him to meet them at the office of his attorney on the next morning, but failed to appear, and about dark of the same day the constable removed all of the property from the store. Defendant had nothing to do personally with the suing out of the execution, the levy, or the sale, and gave no directions in reference thereto except to his attorney. What these were, if any beyond the general one above stated, or what his attorney did in the premises, does not appear, but the defendant on the trial offered to prove that he did not directly or indirectly authorize or approve of any levy upon or sale of more of said goods than was necessary to satisfy his judgment and costs, which offer the court refused.

In this refusal, as well as in- overruling the motion for a new trial, we think the court erred.

The defendant was responsible for the acts of the constable, if at all, only for the reason that he aided, directed or authorized them, or approved of them afterwardsas done in his name or interest; and if they were several only for such as he so aided, directed, authorized or approved. In executing the writ, or in proceeding under color of it, the constable was.acting as a public officer or in his own sole wrong, and not as the agent of the defendant, except so far as the latter, by some of the means mentioned, made him such. Grund v. Van Vleck, 69 Ill. 478; Becker v. Dupree, 75 Id. 167.

The levy upon goods of strangers to make the amount of the execution, although it might have been under an honest mistake as to the ownership, was in itself a trespass, and the defendant became liable therefor by receiving that amount so made, which was an approval of that act.

But since the goods were in parcels the excessiveness of the levy was a further and independent wrong, not necessarily or naturally growing out of the other. It would have been no less wrongful if the goods had been the property of Keitz. There is nothing in the record tending to show that the defendant ever authorized or approved of that. The mere receipt of the amount of his judgment, with notice'of the plaintiffs’ claim, but not of the excessiveness or extent of the levy was not a ratification or approval of such excessiveness. Coe v. Higdon, 1 Disney (Ohio) 394. And in the absence of proof there is no presumption of law that the defendant or his attorney directed, authorized or approved of an act of the constable which would have been unprofitable as well as unlawful upon their own assumption of the facts.

We find nothing in the record to warrant an instruction on the subject of exemplary damages, or to support a verdict for more than the value of so much of the property as was reasonably necessary to make the amount of the defendant’s judgment against Keitz, including his costs, which appears to have been not over one-sixth of what was taken by the constable.

For the error above indicated, the judgment of the county court is reversed and the cause remanded.

Beversed and remanded.


author: Per Curiam.

text:
    John I. Brown v. Michael J. Davis.
    Advancing cause—Five-day bulb.—The rule of the Superior Court of Cook county, known as the “ five-day rule,” providing for the advancement of certain causes and their trial out of their regular order on the docket, is in violation of the Constitution and statutes regulating practice.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. S. K. Dow, for plaintiff in error;
    cited Nelson v. Akeson, 1 Bradwell, 165.
   Per Curiam.

Defendant in" error brought suit in the Superior Court of Cook county, returnable at the November term of that court, 1877, to recover upon a promissory note. At the December term the causé was advanced by the court and tried out of its order on the docket over the objection of the plaintiff in error, by virtue of the following rule of practice then in use in that court: “ Ordered, That in any case ex contractu, pending on an issue or issues of fact only, or only requiring the similiter to be added, if the plaintiff, or an attorney or agent of the plaintiff, shall make an affidavit that he or she believes that the defense is made only for delay, the plaintiff, by giving the defendant’s attorney, or the defendant, if he or she do not appear by attorney, five days previous notice, with a copy of such affidavit, that the plaintiff will bring on said case for trial at the opening of court on a day to be specified in such notice, or as soon thereafter as the court will try the same, may proceed to a trial at the time specified in said notice, unless it shall be made to appear to the court by affidavit of facts in detail, that the defense is made in good faith, when the case will remain to be tried in its regular order on the trial calendar.”

This action of the court was excepted to at the time.

It has been repeatedly held by this Court that the rule above referred to was in violation of the Constitution and statutes passed in pursuance thereof, and was therefore void, and of no effect. Nelson v. Akeson, 1 Bradwell, 165; Sea v. Glover, Id. 365.

It was error to advance and try the cause out of its order on the docket, for which the judgment of the court below will be reversed and the cause remanded.

Beversed and remanded.


text:
    John Jenkins v. Elizabeth Jenkins.
    Husband and wife—Sep abate maintenance.—To maintain an action for separate maintenance two facts must concur; the complainant must be living separate and apart from her husband, and she must be so living without fault on her part. So, where the evidence fails to show that it is without the fault of the complainant that she is living separate and apart from her husband, the action cannot be maintained.
    Appeal from the Circuit Court of Cook county; the Hon. W. W. Fabwell, Judge, presiding.
    Mr. Abthub D. Rich, for appellant;
    that the decree can only be for separate support while the parties remain separate, cited 2 Bishop on Marriage and Divorce, § 361; Whorewood v. Whorewood, 1 Ch. Cas. 153.
    Desertion for the purpose of bringing suit will not be excused inlaw: Doyle v. Doyle, 26 Mo. 545; Simons v. Simons, 13 Tex. 468.
    If the wife voluntarily abandons her husband, or is compelled to on account of her own wicked conduct, she will not he entitled to separate maintenance: 1 Bishop on Marriage and Divorce, § 573; Wahle v. Wahle, 71 Ill. 510; Ross v. Ross, 69 Ill. 569; Angelo v. Angelo, 81 Ill. 251; Bevier v. Galloway, 71 Ill. 517.
    Persons furnishing necessaries to a married woman living separate from her husband, are bound to make inquiry as to the causes and circumstances of the separation, or they give credit at their peril: McCutcheon v. McGahay, 11 Johns. 282; Rutherford v. Coxe, 11 Mo. 347.
    Oomplainant already has a proceeding for divorce pending against the defendant, in which she prays for alimony, and relief in this suit should not be granted: Stevens v. Stevens, 1 Met. 279; Dunnock v. Dunnock, 3 Md. Ch. 140; 2 Bishop on Marriage and Divorce, § 320.
    The defense of another suit pending may be made by answer as well as by plea or demurrer: 1 Daniels’ Ch. Pr. 715; Mitford’s Eq. Pl. 362; Story’s Eq. Pl. §851; Cooper’s Eq. Pl. *272; Beames’ Pleas in Eq. 138; Curtis’ Eq. Prac. 164; Simpson v. Brewster, 9 Paige, 246; Tarleton v. Vietes, 1 Gilm. 470.
    Messrs. E. & A. Van Burén, for appellee;
    that pendency of former suit should hare been set up by plea, cited Story’s Eq. Pl. §783.
    The offer to receive the'wife back is no defense to this action, and if it were it should be so broad as to restore her to all the rights and privileges of a wife: Ahrenfelt v. Ahrenfelt, Hoff. Ch. 47; Thompson v. Thompson, 2 Dallas, 128; May v. May, 62 Pa. St. 206; McClurg’s Appeal, 66 Pa. St. 366; Kinney v. Kinney, 1 Yates, 78.
   Murphy, P. J.

On the 7th day of June, 1878, the appellee exhibited her bill in chancery in the Circuit Court of Cook county against her husband, the appellant, praying for a decree directing the defendant therein to pay her a sum sufficient for her reasonable support and maintenance, and a further sum sufficient to enable her to prosecute her said suit.

This bill was filed in pursuance of Section 22, Ch. 69, of the Bevised Statutes of 1877, which provides as follows: “ That married women who without their fault now live or may hereafter live separate and apart from their husbands, may have their remedy in equity in their own names respectively against their said husbands for a reasonable support and maintenance while they so live separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition of the parties in life and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce.” It will be seen that to maintain the action under the foregoing statute two facts must concur: first, the complainant must be living separate and apart from her husband ; and secondly, she must be so living without fault on her part. In this case it is conceded that the appellee is living separate and apart from her husband, and the only question litigated in the court below and discussed in this court is whether she was so living without fault on her part.

The record discloses that the parties were married on the 14th day of April, 1867, in Canada West, and that immediately thereafter they removed to Chicago, where the appellant has since resided, and where the appellee has also resided, except a portion of the time she has been back in Canada; that the relations of the parties were unhappy, they never having been able to so live together as to constitute a great ornament to the society in which they moved, or reflect much honor upon themselves.

In 1869, appellee filed her bill in chancery against her husband, praying for a divorce, which, after some time, she dismissed on her own motion and returned home; remained there until 1872, when she filed a second bill for a divorce, which, upon full hearing in the Superior Court, was dismissed for want of equity.

The grounds alleged in both these bills were extreme and repeated cruelty. In 1874, she filed her third bill, alleging as a ground for divorce, in addition to the charge of cruelty, the further charge of adultery. Upon the trial of this cause, a jury was impaneled to try the issues, and returned a verdict against the appellee, upon which a decree of divorce was entered; also a decree for alimony and solicitor’s fees. From this decree appellant appealéd to the Supreme Court, where, by an opinion of that Court, filed on the 21st day of January, 1878, the decree of the court below, in all its parts, including the decree for alimony and solicitor’s fees, was reversed, and the cause remanded, the Court remarking in the concluding sentence of its opinion:

“ Defendant ought not to be required to pay further counsel fees or alimony.”

After all this, and whilst the case so reversed by the Supreme Court remains pending, the appellee on the 5tli day of May, 1878, accompanied by one Mrs. Smith, whose part in all the unhappy history between the parties to this suit appear to have been anything but that of a ministering angel of peace, returned to the residence of her husband, and claimed to have returned to resume the duties and privileges of a wife As to just what transpired then and there, the testimony is in conflict, and the view taken by the court of the case renders it unnecessary at this time to reconcile or harmonize it. But of one fact there seems no doubt, and that is, that appellant ordered Mrs. Smith to leave his premises, which in the light of the history of her previous conduct in the premises was every way justifiable. Appellee claiming she was also ordered to leave by appellant, thereupon the appellee filed this bill for separate maintenance, under the statute as above given. The right of action, as we have seen, depends upon the question of fault on her part. If she is without fault in thus living apart from her husband, then •this action is maintainable; otherwise, not. On the trial in the court below, appellant offered to prove the filing of these various bills by appellee against appellant, and that she had not returned in good faith to resume the sacred duties of wife, on the 5th day of May, 1878, but that, accompanied by her overzealous and meddlesome friend, Mrs. Smith, she went there for the discreditable purpose of' obtaining facts for the foundation of further litigation with her husband, which proof was objected to by the appellee, and the objection sustained by the court, and exceptions taken by the appellant. This we think was error in the court below, and for which the decree of the court below is reversed and the cause remanded for further proceed» ings not inconsistent with this opinion.

Reversed and remanded.


text:
    Henry Willetts v. Christopher Cotherson.
    1. New promise after discharge in bankruptcy—Sufficiency.— A different rule prevails 'as to the revival of a debt discharged by bankruptcy, and one barred by the Statute of Limitations. In the former case, the promise to pay must he shown to be clear, distinct, unequivocal and express. Neither payment of interest, nor part- payment of principal, nor declaration of intention to pay, will suffice.

      2. Part payment as evidence.—The fact of part payment would be admissible for the purpose of identifying the debt in reference to which an express promise to pay, otherwise of uncertain application, might be proved, but not as tending of itself to prove a sufficient promise to pay the balance.
    Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.
    Mr. James S. Murray, for appellant;
    that the promise must be express, direct and unequivocal, cited Allen v. Ferguson, 18 Wall. 3; Fraley v. Kelly, 67 N. C. 78; Stern v. Nursbaum, 47 How. Pr. 489; Yoxthemer v. Keyser, 11 Pa. St. 364; Merrian v. Bayley, 1 Cush. 77; Porter’s Adm’r v. Porter, 31 Me. 169; Stewart v. Reckars, 24 N. J. L. 427.
    Mr. Wallace L. DeWole, for appellee;
    that a new promise after discharge in bankruptcy will revive the debt, cited Classen v. Schœnemann, 80 Ill. 304; Allen v. Ferguson, 18 Wall, 1; Hilliard on Bankruptcy, 264.
   Pleasants, J.

This was an action originally brought before a justice of the peace to recover a balance remaining due upon a promissory note. Appellant, who was defendant below, by his assignment of errors questions the action of the Circuit Court in admitting the fact of part payment after his discharge in bankruptcy as evidence to prove a new promise sufficient to avoid the bar of such discharge, and in giving and refusing instructions.

His petition in bankruptcy was filed June 26, 1875, after the note had become due, and his discharge recites a composition with his creditors on the basis of fifteen per centum, and discharges him from the payment óf the debts therein mentioned, among which was the one in question.

On the 4th of January, 1876, he paid appellee $25 of the amount due under the composition, leaving a balance of about $15, and on the 11th of May following let him have a horse, estimated at $100, to apply on the note, but said nothing at that time about paying any more.

Appellee testified that appellant repeatedly after he went into bankruptcy said he would pay him “ all that was coming to him ”—“ every cent that he owed him,” but never when the note was present, and that appellant owed him other money besides that mentioned in the note. He was not definite as to the time, place, or particular conversation, nor did he state any in what purported to be /the language of appellee, or more distinctly referring to the note. Another witness stated that at the request of appellee he went to appellant and asked for the money for him, but did not present the note, and that appellant said: “ I have no money here, but come down next week and I will settle with you.”

On the other hand, appellant testified that he never at any time after his discharge promised to pay the balance remaining on the note, but always said it was impossible.

The sufficiency of this evidence to support a finding of a reviving promise which woxild avoid the bar of the statute of limitations might be conceded, and yet well doubted as to the bar of a discharge in bankruptcy. We think it would be insufficient unless the finding was under proper instruction as to the law, which distinguishes the two cases in respect to the kind and measure of proof required. In the former it has been held that the promise may be implied from a part payment, or any declaration or other act recognizing its present existence; while in the latter it cannot, but must be shown to have been clear, distinct, unequivocal and express. Neither payment of interest, nor part payment of principal, nor declaration of intention to pay, will suffice. Allen v. Ferguson, 18 Wall. 3, and the cases there cited.

The Circuit Court refused all of the instructions asked by the defendant which declared this distinction, and gave one for the plaintiff that the jury might properly take into consideration, the fact of part payment after his discharge in bankruptcy, if proved, together with the other evidence in the case, in deciding whether the defendant promised to pay the balance of said debt at any time after such discharge.

We are inclined to think that this was error, that the fact of part payment would be admissible for the purpose of identifying the debt in reference to which an express promise to pay, otherwise of uncertain application, might be proved, but not as tending of itself to prove a sufficient promise to pay the balance; and that defendant was entitled to have the jury pass upon the evidence, with the distinct understanding that the law required an express and unequivocal promise. If the promis to settle,” which is not equivalent to a promise to pay, and the circumstance of part payment, had been excluded from tlxe scales, it is uncertain on which side the evidence would have preponderated in the minds of the jurors. The judgment having been entered for plaintiff upon a verdict for $171.75, which the court refused to set aside, it is for the reasons above stated reversed, and the cause remanded.

Reversed, and remanded.


text:
    E. W. Stanwood v. Harmon R. Smith, Adm’r.
    1. Payment—Application.—In the absence of any agreement between the parties to make the application of an open, unstated account between them in payment of notes held by one against the other, no such application could he made.
    2. Pbomissoby note—Account — Statute of limitations.—And where suit was brought upon the notes within sixteen years, the limitation of the notes, and it appeared that more than five years had elapsed after the cause of' action upon the account had accrued, the Statute of Limitations operated against the account, and in the absence of any agreement to that effect, the account will not he considered as paid by an application upon the notes.
    Appeal from the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.
    Mr. Walter G. Goodrich, for appellant;
    that to take a case oiit of the bar of the Statute of Limitations, there must be an unequivocal promise, cited Kimnel v. Schwartz, Breese, 278; Ayers v. Richards, 12 Ill. 147; Parsons v. Nor. C. & I. Co. 38 Ill. 430; Wachter v. Albee, 80 Ill. 47; McGrew et al. v. Forsyth, 80 Ill. 596; Mullett v. Shrumph et al. 27 Ill. 110.

      Against the right to set off a stale claim: Keener v. Crull, 19 Ill. 189.
    The law in force at the time of making the contract, will govern: Crabtree v. Hagenbaugh, 25 Ill. 233; Dickson v. C. B. & Q. R. R. Co. 77 Ill. 331.
    Claims against an estate must be presented within two years: Dickerson v. Sutton, 40 Ill. 403; Wells v. Miller, 45 Ill. 82; Shepard v. Rhodes, 60 Ill. 301.
    In a case like this, the Statute of Limitations need not be specially pleaded: Thompson v. Reid, 48 Ill. 118.
    A demand barred by the statute cannot be set off: Angelí on Limitations, Chap. 2, § 23.
    Messrs. Wilson & Perry, for appellee ;
    that this court will not review the finding of the court below, because neither exceptions to the finding nor any motion for a new trial are embodied in the bill of exceptions, cited Bills v. Stanton, 69 Ill. 51; Force Mfg. Co. v. Horton, 74 Ill. 310; Nimmo v. Kuykendall, 85 Ill. 477.
   Murphy, P. J.

On the 21st day of March, 1863, Hiram Longley, in his lifetime, made his promissory note for $500, and on the 27th day of January, 1864, he made his other promissory note for $500, each due one day after date, payable to the'order of Andrew J. Hayward, with interest at the rate of ten per cent, per annum. Some time in the year 1872 said Hayward departed this life, these notes at the time being in his possession. Pliny Hayward was appointed executor of his last will and testament, and immediately entered upon the discharge of his duties as such. In the course of his duties as executor, he sold and transferred the notes above mentioned to the appellant, by indorsement thereon, in consideration of the payment of $500 to one of the legatees under the will of said A. J. Hayward, deceased, and-some other trifling consideration. On the 15 th day of February, 1877, Hiram Longley departed this life, these notes, still out-standing. On the 8th day of ¡November, 1877, the appellant presented the notes against said Longley’s estate, in the Probate Court of Cook County, for allowance.

The appellee set up, by way of defense thereto, an alleged account for the board of said A. J. Hayward and his family, in his lifetime, which account was open and unstated between the parties, and was in the nature of a cross-action against the estate of said Hayward.

On the hearing the court found the issues for the defendant in that court, from which appellant took an appeal to the Circuit Court. At the trial in the Circuit Court a jury was waived, and the cause submitted to the court for trial. The court found the issues joined for the defendants, from which judgment appellant brings the record here, and asks a reversal on the ground that the finding of the court should have been the other way, for the amount of the notes.

It thus appears that after the decease of A. J. Hayward, the payee of the notes, they were sold for a valuable consideration, indorsed over by his executors to the appellant, who brings suit to recover on them. The defense relied upon by the appellee in the court below, was payment. It appears that in the lifetime of Andrew J. Hayward and Hiram Longley, deceased, they had dealings to a very considerable amount; that Hayward and his family boarded with Longley, who was a hotel-keeper, for a long time, the account for which, after Hayward’s decease, amounted to $4,283.87. This account bears date, and the liability accrued thereon, June 1st, 1863. Hnder the Statute of Limitations then in force, the right' of action thereon would be barred in five years from that time, and the right of action on the notes would not be barred under sixteen years, within which time this action was instituted. This account is relied upon as a payment of these notes, and it is urged by the appellee that the Statute of Limitations did not run against the account, for the reason that it was applied in payment of the notes, and was itself thus paid.

We have examined the record carefully, and find no proof of any agreement between the parties to make the application of the account in payment of these notes, and in the absence of such agreement no such application could be made.

This account, it will be remembered, is an open, unstated account, and in the absence of any agreement to that effect, could not be treated as payment of the notes, or as anything but a cross-action in favor of the appellee, and subject to the operation of the Statute of Limitations, the same as any action on open account. It appears that some time in 1868, Longley called upon A. J. Hayward, and had some talk about the state of the accounts, but nothing is shown to have been said or done by Hayward which we think was sufficient in law to take a case out of the operation of the "Statute of Limitations, and that therefore the account was barred; and as a consequence, as we have seen, was no defense to the notes. We think the finding and judgment of the court below should have been for the appellant for the amount of the notes; that it was error to find for the appellee; for which error the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


author: Garnett, P. J.

text:
    First District
    October Term, 1888.
    The National Park Bank of New York v. Ferdinand E. Halle et al.

      Trusts—Conveyance of Personal Property to Secure Notes—Equity— Jurisdiction—Pleading.

    1. A conveyance of personal property in trust to secure notes of the grantor is valid.
    2. Where a debtor conveys personal property in trust to secure an indebtedness due from him, and the trustee fails or refuses to apply the property so conveyed for the purposes of the trust, a bill lies to compel such application.
    3. Where an inconsistency appears between an averment of a bill and a written instrument attached thereto as an exhibit, the latter will prevail, and a demurrer does not admit the truth of the averment.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Appellant filed its bill in equity, alleging the following facts: In the summer of 1887, Ferdinand E. Halle made two promissory notes, payable to the order of Isidor Cohnfield, for the accommodation of the latter. One of the notes was for the sum of §3,556.17, dated July 22, 1887, and payable to Cohnfield’s order four months after date, at 83 Green street, in the city of New York; the other was for §4,378.59, dated July 29,1887, and payable to Cohnfield’s order four months after date, at the same place. The payee then and there indorsed the notes and appellant discounted them, paying to Cohnfield in money the face of the paper, less interest. Halle made another note for §5,385.47, dated August 1, 1887, payable four months after its date, to the order of Cohnfield, also for his accommodation, which was indorsed, sold and transferred to John Munroe & Company before maturity, and all three of said notes remain unpaid, and Halle and Cohnfield now owe complainant §8,234.76. Prior to October 27, 1887, Cohnfield, by his agent, executed a written instrument by which there was transferred to Halle certain merchandise and fixtures at 138 and 140 Wabash avenue, Chicago, to secure the payment of said three notes, the purpose of the transfer being recited in the document. Tlie complainant informed Halle that said notes had not been paid, and requested him to hold the security for payment of the notes belonging to complainant, but was informed by Halle that he had sold the merchandise to the defendants Ascher and Barnard; and complainant is informed that the value of such merchandise exceeds the sum due on all three of the notes; that Cohnfield is insolvent, and such pretended sale-was merely colorable, and made for the purpose of protecting such merchandise and placing the same beyond the reach of complainant, and thus enabling Halle to control the same or its proceeds for his own benefit. That Halle, Ascher and Barnard have colluded together and hold possession 'of said merchandise, and conceal the same to prevent its application toward the payment-of said notes. The bill prays that an account be taken of the amount due on said notes, and that on final hearing the court may decree the lien of complainant on said merchandise and fixtures, and direct the same to be sold for payment of the notes, etc.
    Halle, Ascher, Barnard, Cohnfield and the several' members of the firm of John Munroe & Company were made defendants.

      A general demurrer to the bill, filed by Halle, Ascher and Barnard, was sustained by the court and the bill dismissed as to them, which order is the subject of complaint on this appeal.
    Messrs. John and Walter Mattocks, for appellant.
    Subrogation is asked for in the sense of substitution and is a right to which complainant is entitled, nor should it be controlled by the technical doctrine of subrogation as applied to sureties. Equity favors the surety by subrogating him'to the place of the creditor upon payment or his offer to pay the debt. Moore v. Topliff, 107 Ill. R. 241. The complainant, which is the creditor in this case, simply asks for its legal and equitable rights, to wit, a foreclosure for its benefit of the security given to the surety and trustee. The authorities will support the position claimed by complainant’s counsel, even though the prayers for relief conflict, or ask for technical relief, to which the complainant is not entitled. In such cases it has repeatedly been held in this State that the proper relief may be afforded. McMillan v. James, 105 Ill. 194, 203; Hubbard v. U. S. Mortgage Co., 14 Ill. App. 40; Allen v. Woodruff, 96 Ill. 18; Lockridge v. Foster, 4 Scam. 569; Walden, v. Lewis, 71 Ill. 542 ; Beaver v. Slanker, 94 Ill. 186 ; Holden v. Holden, 24 Ill. App. 106.
    “ Collateral securities given by a debtor to his surety are considered as a trust for the better security of the creditor’s debt, and chancery will see that their intention be fulfilled.” 4 Kent’s Com., p. 307.
    And a suit will lie direct against the trustee in favor of the party entitled to the fund. Weston v. Barker, 12 Johns. 277; Compton v. Jones, 4 Cow. 13.
    In Wright v. Morley, 11 Ves., p. 12, the court says; t!I conceive that as the creditor is entitled to the benefit of all the securities the principal debtor has given to the surety; the surety has full as good an equity to the benefit of all the securities the principal gives to the creditor.”
    The rule laid down in Story’s Equity Jur., 13th Ed., p. 527, is as follows: “If a surety has a counter bond or security from the principal, the creditor will be entitled to the benefit of it, and may in equity reach such security to satisfy his debt.” Citing Massachusetts, Vermont, New Hampshire and United States court authorities.
    This rule is followed in Vail v. Foster, 4 New York, p. 314, and the following cases are cited in support of the doctrine: Moses v. Murgatroyd, 1 Johns. Ch. 129 ; Curtis v. Tyler, 9 Paige, 432; Weston v. Baker, 12 Johns. 279, 11 Ves. 12; Ten Eyck v. Holmes, 3 Sandf. Ch. 428.
    And the identical doctrine had been held in Cumberland v. Codrington, 3 Johns. Ch. 261, citing Helson v. Blight, 1 Johns. Cases, 205; Weston v. Baker, 12 Johns. Rep. 279.
    In Alabama the principle contended for is recognized and adopted in Ohio Life v. Ledyard, 8 Ala. 866 ; Saffold v. Wade, 51 Ala. 214; the court distinctly holding in the latter case that the creditor need not exhaust his legal remedies before becoming entitled to the securities.
    Field, in his Legal Briefs, lays down the rule as follows:
    “ A creditor is entitled to the benefit of securities held by a surety. It seems to be now generally recognized as a sound principle, both at law and in equity, that a creditor is entitled to the benefit of everything which a surety has received from the debtor by way of security for the performance of the obligation, and may, upon the maturity of the obligation, compel the application of such security to its satisfaction.” Citing Lea v. Hinton, 5 DeG., M. & G. 833; Wright v. Morley, 11 Ves. 13 ; Kramer’s Appeal, 37 Pa. St. 71; Vail v. Foster, 4 N. Y. 312 ; Martin v. Campbell, 29 Barb. 188 ; Pratt v. Adams, 7 Paige, 615; Ten Eyck v. Holmes, 3 Sandf. Ch. 428; Field’s Legal Briefs, Vol. 4, p. 15, Sec. 23.
    Messrs. Kraus, Mayer & Stein, for appellees.
    An accommodation maker of a note is liable the same as the maker of a note not for accommodation; his liability to a third person taking the note before maturity for value is that of principal and not of surety. Diversy v. Moore, 22 Ill. 330; First National Bank v. Morgan, 6 Hun, 346; Clopper v. Union Bank of Maryland, 7 Ha. & J. (Md.) 92; Farmers & Mechanics’ Bank v. Rathbone, 26 Vt. 19; Willcock v. Windsor, 3 Barn. & Ad. 43; Fentum v. Pocock, 5 Taunt. 192; Yallop v. Ebers, 1 Barn. & Ad. 698; Price v. Edmunds, 10 Barn. & Cres. 578; Harrison v. Courtauld, 3 Barn. & Ad. 36; Strong v. Foster, 17 Com. Bench Rep. (84 Eng. Com. Law Rep.) 201.
   Garnett, P. J.

We must decline to follow the leadings of counsel in their industrious examination into the intricacies of the doctrine of subrogation. To refute or approve what has been so well said on both sides of that question is wholly unnecessary, as the question of trust raised by appellant lies at the root of the case. The pleader who prepared the bill, by the allegation therein, undertakes to give the legal effect of the so called bill of sale, and charges that it was made as security to Halle, who was merely a surety so far as Cohnfield was concerned. But the instrument itself is an exhibit to the bill and made a part thereof, the effect being equivalent to setting it out in haee verba in the bill.

In the statement of the facts, we have given merely the legal effect of the averments, for the purpose of brevity. The averment in the bill that the property was transferred to Halle, as his security, is not inconsistent with the fact that it was also to be general security for the payment of the notes in the hands of any holder. The instrument executed by Cohnfield’s agent being made a .part of the pleading, was equivalent to the insertion of an additional allegation that the security was given generally to insure the payment of the notes. If any inconsistency should appear between the averment and the writing, the latter must prevail, and a demurrer does not admit the truth of the conflicting averment in such case. North v. Kizer, 72 Ill. 172; Greig v. Russell, 115 Ill. 484.

The transfer to Halle was made after the execution and discount of the flrst two notes, and would seem to be embraced within a'class of instruments recognized by Sec. 1, Chap. 95, R. S., entitled “ Mortgages.” We are not aware of anything which prevents the making of a deed of trust conveying personal property to a trustee to secure notes held by the grant- or’s creditor. Such was, without any question, the transaction presented by the appellant’s bill.

The writing relied on in the bill states in unambiguous terms that the property granted shall be held by Halle as security for the payment of the notes in question; and to make it more plain that both grantor and grantee understood it alike, Halle signed and delivered to Cohnfield, at the same time, a receipt (a copy whereof was also made part of the bill of complaint) acknowledging that the bill of sale “ was received as security for certain promissory notes,” which were therein accurately described. If the same instrument had been executed and delivered to appellant as grantee, we should have no difficulty in describing it as a chattel mortgage. Jones on Chattel Mortgages, Sec. 1. As it was in fact executed and delivered to Halle, we feel quite as little embarrassment in saying it was a conveyance to him in trust to secure the payment of the three notes above described. Smith v. Gillman, 80 Ala. 296. What might be the result if the conveyance had been merely to indemnify Halle, is a different question. See Jones v. Quinnipiack Bank, 29 Conn. 25; Daniel v. Hunt, 77 Ala. 567; Constant v. Matteson, 22 Ill. 546. The construction we have here given to the trust instrument is in keeping with a natural and necessary equity which flows from the relations of the parties, and is a substantial execution of their intentions. Hampton v. Phipps, 108 U. S. 260.

Equity is the proper forum for the enforcement of appellant’s lien. In Constant v. Matteson, supra, the court said that where a debtor conveys property to a trustee for the payment of his debt he then appropriates it to that specific purpose, and if the trustee fails or refuses to so apply it the court will compel him to do so. The enforcement of the duties of trustees and protection of property impressed with a trust, on application of the cestui que trust, is a favored head of equity jurisdiction, and is called into exercise in a great variety of cases.

We perceive no reason why the appellant should be barred of his remedy by foreclosure on the equity side of the court. Gaar v. Hurd, 92 Ill. 315; Cushman v. Hayes, 46 Ill. 153; Jones on Chat. Mort., Sec. 776.

It is unnecessary to comment on any other point raised in argument. The court erred in sustaining the demurrer and dismissing the bill as to Halle, Ascher and Barnard. The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Elise Burcky v. The Town of Lake.

      Municipal Corporations — Closing of Street — Viaduct—Damages to Adjacent Property—Measure of—Instructions.

    In an action against a municipal corporation to recover damages to lands because of the closing of part of a street and the erection of a viaduct over railway tracks crossing such street, it is held: That t.he closing of the street and the ere.-tion of the viaduct must be considered as a whole; that as long as the lands remained undivided the plaintiff was entitled to the benefit of all adjacent highways for access to the whole block; that the defendant is not exempt from liability merely because the viaduct was built on private property; and that the plaintiff is entitled to recover, if damages resulted from the improvement, although subsequent improvements have more than offset such damages.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. Alex. Clark, for appellant.
    Mr. R. P. Hallett, for appellee.
   Garnett, P. J.

Appellant was plaintiff in the court below in an action against appellee to recover damages alleged to have been suffered by her land situated at the northwest corner of State and Sixty-first streets in said town, caused by the closing of a portion of Sixty-first street and the erection of a viaduct on a strip of land adjoining the south line of that street. The land said to be affected fronts 337 feet on State by 558 feet on Sixty-first, and was owned by appellant prior to, and at the time of the commencement of this suit. A little distance west of this land, several railroad tracks belonging to the Chicago, Rock Island & Pacific Railroad Company, and the Labe Shore & Michigan Southern Railroad Company crossed Sixty-first street at about right angles, and immediately south of and adjoining the street those companies owned a large tract of land and an extensive yard furnished with numerous tracks to facilitate switching and other usual railroad business.

The town and the companies considering the railroad crossing at Sixty-first street dangerous, on the 26th day of February, 1885, a contract (admitted to have been in all respects duly authorized and properly executed) was entered into between said companies and appellee, wherein the companies agreed to erect, according to a plan attached to the agreement, on. a strip of land twenty-five feet wide belonging to them and adjoining the south line of Sixty-first street, a viaduct extending from a point 170 feet east of the east line of Wentworth avenue to a point 210 feet west of the west line of State street, the town agreeing to build the approaches thereto from Wentworth avenue and State street; when completed it was agreed that the viaduct and approaches should become a public highway, and that the town should have full and exclusive control thereof, and should forever, at its own expense, maintain and repair the same, and pay all damage that might resul t to any person, except said companies, from the construction and continuance of the viaduct and approaches; it was also agreed by the town, that as soon as the companies should complete their part of the work in building the viaduct, it would, by proper ordinance,vacate that part of Sixty-first street commencing 139 feet, east of the east line of La Salle street and running to a point 198 feet further east, the latter point joining the west line of appellant’s land. In pursuance of the contract the viaduct was built and completed aboutlSTovcmber 1, 1885, and by ordinance passed December 30, 1885, the 198 feet of Sixty-first street above described, was vacated. By this means all access to the plaintiff’s land from the west was cut off. Since the completion of the viaduct it has been used as a public highway, under the control of appellee, and a street car line has been built and operated thereon. The ground of the plaintiff’s complaint is that her property was greatly depreciated in value by depriving it of access from the west by way of Sixty-first street, and by the increased noise by the use of the viaduct, and the blowing of quantities of dust therefrom upon her land.

On the trial the proof was contradictory, but evidence was given tending to support the plaintiff’s allegations of damage. The jury found a verdict for the defendant. Plaintiff’s motion for a new trial was overruled and judgment entered on the verdict.

The arrangement between the town and the railroad companies and their ensuing action must be considered as a whole. The closing of the street alone may have had a depressing effect on the value of appellant’s property, but accompanied by the building of the viaduct, such depression might have been entirely overcome.

The first instruction asked by the plaintiff was framed trpon the theory that she might recover damages caused by the closing of the street, without considering the effect of the building of the viaduct. That instruction was properly rejected.

The second instruction requested by the plaintiff was for the same reason misleading and should have been refused, because it failed to make any allusion to the viaduct as an element in the inquiry as to damages. But the addition made thereto by the court was faulty in directing the jury that only that part of the land situated on Sixty-first street, and to which the only access was by way of that street, was the subject of inquiry as to the injury. Plaintiff’s land was an entire tract, not subdivided, and every part thereof was accessible from Sixty-first street. There was no practical method of dividing it into two parts, one of which only could be reached from that street. The plaintiff always liad kept the land undivided, and so long as it thus continued, she was entitled to the benefit of all adjacent highways for access to the whole block. The question of damages to the whole block was submitted to the jury by the second instruction for the defendant, and we are unable to see how the jury could reconcile this with the addition made by the court to the second instruction asked for by the plaintiff. The property being undivided, the question of damage and benefit should have been presented in their relation to the whole block.

The sixth instruction given for the defendant was as follows:

“ The jury are instructed that, it being admitted in this case that the viaduct in question is constructed upon private property, and not upon the public street, the plaintiff is not entitled to recover against the defendant for any injury or damage which she claims to have sustained in respect of the property described in the declaration by reason of the construction of said viaduct.”

The assumption that the town is not liable merely because the viaduct was built on private property of the railroads, can not be maintained. The land in all highways except those created by statutory dedication, is private property, the only interest of the municipality being an easement for the public benefit. The practical effect of the contract between the town and the railroad companies and the execution thereof, was to secure to the town an additional easement which enlarged the highway fronting the south line of plaintiff’s property. Had the easement been acquired by condemnation, it would have differed only in the manner in which it could be used by the public. By the terms of the agreement the use of the twenty-five feet of land belonging to the railroads, is limited to the purposes of a viaduct. It is none the less a public highway and has been so treated by the defendant, the railroads and the public. A device of that character can not deprive a citizen of substantial rights secured by the fundamental law. If private property has sustained material physical damage by the mak ing and using of a public improvement in a public highway, the injured owner may recover such damage, aud this rule applies to damages to private property, caused by the building and use of a viaduct in a highway adjoining thereto. Lewis on Eminent Domain, Sec. 495; Provision Co. v. City of Chicago, 111 Ill. 660; City of Chicago v. McDonough, 112 Ill. 85; City of East St. Louis v. Wiggins Ferry Co., 11 Ill. App. 254.

Damages sustained by the drifting of dust and dirt from a station and embankment erected by a railroad company to and upon plaintiffs property have been held recoverable. Turner v. S. & R. Railway Co., 10 M. & W. 425.

Evidence was given tending to show that, at the time of the trial, the property was of greater value than prior to the improvement complained of. The plaintiff does not deny this, but claims the increase in value was due to other improvements made shortly after the building of the viaduct. Whether the plaintiff was right on this point, should have been left to the jury under a correct statement of the law. If the closing of the street and the erection of the viaduct had the injurious effect attributed thereto in the declaration, the plaintiff was entitled to recover, although the depression in the value of the property was more than off-set by improvements subsequently made which caused a reaction in the value and made the land worth more than at any other time.

The seventh and eighth instructions given for defendant in substance charged that the plaintiff could not recover anything beyond the permanent loss she had suffered; that if, immediately after the vacation of a portion of Sixty-first street and the construction of the viaduct, the market value of the premises was less than it was immediately before that time, but soon thereafter the premises increased in value by reason of the construction of the viaduct, “and became as valuable as they were before the said vacation and construction of said viaduct,” then the plaintiff could not recover. We conceive these instructions to be open to serious objection. The permanent injury referred to must have been understood by the jury as an injury which continued in spite of beneficial improvements made afterward, and which sustained no necessary connection with the works causing the damage.

The viaduct and street closing may have caused very serious damage to the plaintiff, and that damage may have, to some extent, disappeared in a short time, upon the discovery that the viaduct was not so.grave a detriment as was at first supposed, and still a large share of the shrinkage in value may have remained until other improvements, subsequently made, proved so advantageous as to swell the value to its highest previous limit.. The evidence would have warranted the jury in finding that this supposed order in decline and rise in value and the supposed cause thereof, was in conformity with the facts, but the instructions referred to command them to allow no damages in the event of such finding. In that we' think the court below erred. The appellee can not off-set any damage it may have caused the appellant, as averred in the declaration, by benefits she may have derived from improvements made by others. The benefit of the latter, in the nature of things, the appellant may take without surrendering any part of any just claim she may have against the appellee. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Gary, J., took no part in this decision.