text:
    John M. Pearson et al. v. Christian Zehr.

      Trespass—Contagious and Infectious Diseases—KVling of Horses by Live Stock Commissioners—Evidence—Experts—Instructions—Damages.

    1. In an action of trespass brought against live stock commissioners for entering upon private premises and killing ho;ses, said to be afflicted with glanders, und r the act of June, lk85, this court holds that the court below erred in admitting evidence as to the symptoms observed years before, of other horses supposed to have been afflicted with the same disease.
    2. As a foundation for the introduction of evidence in such cases, it must first be shown that the witness has knowledge of the disease in question, its symptoms, character and results, after which he may give his conclusion and opinion based uoon his experience.
    3. In the case presented, it is held that damages given in the sum of $2,100 are excessive, in view of the fact that the property destroyed was oniy valued at $800.
    [Opinion filed February 21, 1889].
    Appeal from the Circuit- Court of Tazewell County; tin? Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmers & Shutt, for appellants.
    Messrs. B. S. Prettyman and W. R. Curran, for appellee.
   Conger, J.

Appellee brought an action of trespass quare clausum fregit against appellants for breaking and entering his close with force and arms and killing certain horses and destroying certain harness of appellee and recovered a judgment for §2,100.

On the 18tli of July, 1885, the governor appointed appellants John M. Pearson and Hiram McOhesney, together with one D. W. Smith, live stock commissioners, in accordance with the provisions of the act approved June 27, 1885, entitled; “ An act to revise the law in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals.” They at once entered upon- the .discharge of their duties, and organized the board by the selection of John M. Pearson as chairman, and Clarence P. Johnson as clerk. Appellant John Caswell was the State Veterinarian, and W. L. Williams his assistant.

By said act it is made the duty of the commissioners “ to cause to be investigated any and all cases, or alleged cases, coming to their knowledge; of contagious or infectious diseases among domestic animals, and to use all proper means to prevent the spread of such diseases, and to provide for the extirpation thereof; they are authorized to. quarantine all suspected animals, farms or places; and shall have power to order the slaughter of diseased animals.”

In December, 1885, the commissioners received information that glanders existed among the horses of appellee upon his farm in Tazewell county, and they immediately took measures to ascertain the character and extent of the disease, and satisfied themselves that four of appellee’s horses were diseased with chronic glanders, and that one of the animals, though not diseased, had been exposed to the contagion of the disease. Appellee’s premises were placed in quarantine. At different times thereafter efforts were made by the board to slaughter the animals, and several requests were made to appellee to surrender the animals for that purpose. An offer to pay him §75 for the animal not diseased was repeatedly made. Such requests were declined, and on one occasion with a considerable show of force.

On the 29tli day of June, 1886, Pearson and MeChesney, members of the board, Caswell, the State Veterinarian, Will, iams, his assistant, and Johnson, the clerk of the board, went to appellee’s farm, and after offering to pay for the animals which had been exposed to the disease, the cost of the burial of the animals, and disinfecting the premises, Will iams,Caswell and Johnson, acting under the direction of the two members of the board present, killed the animals on the premises, and left them where they fell.

The issues upon which the cause was submitted to the jury were substantially, first, whether the animals killed were diseased with glanders, or had been exposed to it, and secondly, whether appellants exceeded the authority given them by the statute, and used more force and made more noise, etc., than was necessary.

Appellants contend that the court below erred in permitting witnesses for appellee to detail to the jury the symptoms of other diseased horses, which these witnesses supposed were affected with glanders, catarrh, epizootic, nasal gleet and other diseases. One of the witnesses, over objection of appellants, was allowed to give a detailed description of the action and symptoms of certain horses he had seen slaughtered in the army, which were said to have had the glanders. This ruling of the court we think was erroneous.. Ho doubt can be entertained that ordinary witnesses, farmers and others, engaged in caring for horses, would be competent witnesses as to diseases of such animals, that had come under their observation and notice sufficiently to give them experience regarding them. But whatever their degree of knowledge upon the subject, whether gained in a veterinary college, or by observation and experience alone, the rules governing the introduction of their evidence are the same. • Both should show first that they have knowledge of the disease under examination, its symptoms, character, results, etc., and this knowledge they may give to the jury, not by detailing the. symptoms of the various cases of disease that may have come under their notice, but the conclusions and opinions they have formed from such experience.

The opposite party may test the value of such opinions by inquiry into the experience and knowledge of such witness.

Counsel for appellee in their brief say:

“ The evidence complained of, concerning the disease or appearance of horses not in controversy, was not introduced •to show that appellee’s horses did not have the glanders, but to show that the witnesses were experienced and competent observers of the appearance of horses in health and disease, and competent to correctly detail to the jury the appearance of disease in the Horses in controversy, which, by examination and the exercise of their five senses, they had been enabled to learn. It is not pretended that any of these witnesses testified as to what the disease in appellee’s horses was, or expressed any opinion as experts.” This statement shows clearly the error of permitting the witnesses to give .the testimony complained of.

The only proper object of calling a witness in such case," and showing that he has a knowledge of certain diseases, would be to have him state whether, in his judgment, the animals in "question were affected with the disease, or to describe to the jury the symptoms and effect's usually attending spell disease, that they might compare the symptoms thus given with those proven by other witnesses.

We are inclined to think the damages allowed by the jury are excessive. The value of the property destroyed was about $800, while the amount of the verdict was $2,100. .

Very much of the noise and confusion charged upon appellants, was clearly occasioned by appellee, so persistently refusing to allow appellants to discharge their duty in a peaceable and quiet manner. By the opinion of the Supreme Court filed in this case, it is held, that under the pleadings and issues formed, appellee can not question the actions of appellants, unless they exceed the authority given them by the statute, and exercise such powers as are there given them, in an unjustifiable manner.

The seventh refused instruction of appellants, we thinly should have been given, for the reason that the jury might have thought the order of two of the commissioners would not have the same effect as though all three were present.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    Jonathan W. Harper v. A. R. Corbin & Co.

      Sales—Beef-Cattle—Failure to Deliver—Tender—Special Interrogatories—Refusal to Submit—Instructions—Amendment—Evidence.

    In an action to recover damages alleged to have been suffered through a failure to deliver beef-cattle according to contract, this court holds as erroneous the refusal of an instruction in behalf of the defendant, touching the stock included in the sale, the terms thereof and of payment, the substance of which was not contained in any instruction given, there being abundant evidence upon which to base the same.
    [Opinion filed February 21, 1889.]

      Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. O’Hara & Scofield and Manier & Miller, for appellant.
    Messrs. D. Mack & Son, for appellees.
   Wall, P. J.

The appellees recovered a judgment against the appellant in the sum of §215, for failure to deliver twenty head of beef-cattle, according to contract.

The evidence was conflicting as to the terms of the contract. The cattle were to be delivered in Chicago at $1.90 per hundred, but appellant claims that appellees were to advance money enough to cover the entire price, before the cattle were to leave his farm in Hancock county, and that this price or value was to be ascertained by weighing the cattle on his scales, the difference between the home weight and the Chicago weight to be afterward adjusted. . He claims, also, that a carload of hogs were sold at the same time, which also were to be paid for on the farm, according to their weight on his scales, and at the rate agreed on.

Appellees insist that they were not required by the contract to advance the value of the cattle at the rate agreed on for the home weight, but admit they were to make appellant safe.. They do not concede that the trade for the hogs was made at'the same time as the cattle trade, or that it had ar.y connection therewith.

At the hour specified for selecting and weighing the stock, appellee James Corbin went to the farm of appellant for that purpose, and on being asked whether he was prepared to pay, said he was not, but that he had money in bank and could draw upon it. Appellant was unwilling to take his check, and reminded him that he had so stated when the trade was made, and declined to proceed unless the money was forthcoming.

Corbin demanded the stock, and not getting it, went away; shortly after, one or two hours, he tendered appellant $1,250, which appellant refused to accept, and it is now insisted in his behalf that he was not bound to receive it, because it came too late, and because it was insufficient in amount. If appellant’s version of the contract is correct, the amount was not enough. Appellees insist that it was ample, because it covered the price of the hogs (about $900, as estimated,) leaving $350, which was margin enough to secure appellant against loss on the cattle, though not enough to include the value of the cattle, either on the farm or in Chicago.

We do not care to discuss the evidence in detail, though we feel constrained to say that, as it appears in the record, we should have been better satisfied with a verdict for the defendant.

We are not unmindful of the consideration that the jury had better means than we of settling the conflict in the evidence, and we are not prepared to say that the proof is in such a condition as to justify a reversal, on the ground that the verdict is not supported by the evidence.

The court refused the following instruction asked by the defendant.

7. “If the jury believe from the evidence that the sale of twenty head of cattle and sixty-five head of hogs was one transaction, the same to be selected and weighed on the Monday following the contract, by an hour named, and that the plaintiffs were, on such weighing, to receive and pay for the hogs, and advance the contract price of the cattle at their then weight before their shipment, notwithstanding the payment was to be finally made and adjusted by their weight in Chicago, then the jury should find for the defendant, unless they further believe from the evidence that the plaintiffs tendered the defendant, at the time fixed for payment and delivery, or offered to pay him, a sum sufficient to pay for the hogs, and also to pay for the cattle at their first weight.”

There was abundant evidence upon which to predicate this instruction, and we do not find that the substance of it is contained in any other that was given. The fourth instruction given for defendant comes nearer including the hypothesis of this than any other, but it does not contain the element that the money to be advanced should be the contract price at the home weight. It was error to refuse this, instruction. It is urged the court erred in giving instruction Ho. 1 for plaintiff, because it was based upon a view of the evidence not within the allegations of the declaration. In other words the plaintiff’s case, as proved, varied from the declaration. There seems to have been no objection to the admission of the evidence, nor was the attention of the court called to the point in any way, unless it was on the motion for new trial. One of the causes set out in that motion includes this objection to the instruction.

As tlie case must be remanded, it is unnecessary to pass upon the question thus raised, as the objection can be obviated by amending the declaration on or before another trial.

(It is urged the court erred in modifying certain instructions asked by the defendant, and -in refusing to submit certain questions to the jury for their special finding thereon.

There was no substantial mistake committed in any of said modifications, but no good reason appears for refusing to submit questions numbers six and seven. Those questions are directly to the point on an important feature of the case, and should be submitted on the next trial.

The judgment will be reversed and the cause remanded.

lieversed and remanded.


text:
    H. H. Orendorff & Company v. William Myers.

      Sal.es—Reaping Machine—Right to Return—Oral Instructions—Evidence—Damages.

      . 1. Where the evidence is sharply conflicting this court will not interfere with the verdict of the jury.
    2. In an action brought to recover the price of a reaping machine, the contention being as to whether the contract of sale resirved the right to refurn the same should it prove unsatisfactory, this court declines to interfere with a verdict for the defendant.

      [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Fulton County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Barrees & Grant, for appellants.
    . Messrs. Daniel Abbott and Gray. & Waggoner, for appellee.
   Wall, P. J.

Appellants brought an action against the appellee before a justice of the peace. The case was removed by appeal to the Circuit Court, where, on a trial bv jury, there was a verdict in favor of the appellee, against the appellants, for $25. The court overruled a motion for a new trial and judgment went according to verdict, from which an appeal is prosecuted to this court. The appellants, by their agent, sold to appellee a reaper and movier for the sum of $210, and took from appellee his old machines at $50, leaving a balance of $160. They disposed of the old machines received from appellee to other parties.

The mower, proving unsatisfactory, was returned by the appellee and was accepted by appellants ; the price of same, $50, was to be deducted from the balance above stated, which would leave $110. Appellee took the reaper a few days later, and finding it did not work well he notified appellants, and they sent a man to assist him with it, and to see what was necessary to remedy the trouble. After a good deal of trial it failed to perform to the satisfaction of appellee, and he returned it to appellants, who declined to accept it, but it was left on their premises, and appellee never had anything more to do with it. .

The main controversy as to the facts was whether, when the original trade was made, it was on condition that appellee might return the machine if it was not satisfactory to him on trial. This was affirmed on one side and denied on the other. It was also alleged by appellants that they furnish a bundle-carrier, which was extra, worth $12, and this was controverted by appellee, who insisted that it was a part of the reaper and not to be charged as an extra.

It is not very material, however, whether this was so or not) if, as appellee insists, he had the right to return the machine in the event that it did not give satisfaction. On the main point in controversy the evidence was so conflicting that it was especially the province of the jury to reconcile it, if possible, and if not, to accept that version which, upon the whole, seemed to them the more reasonable.

By consent of parties the court instructed the jury orally. It is contended now that the instructions so given did not properly advise the jury as to the burden of proof, but we think this objection is not well taken, and that the charge was substantially sufficient in this respect. It is also urged that the court should have instructed the jury, as requested, that if the defendant had the option of returning the machine if it did not work satisfactorily to him, yet such option could not be asserted arbitrarily or capriciously, but must have been based on such grounds as would have justified a reasonable man, acting in good faith, to return the machine. Assuming this to be a fair view to take of the condition asserted by the defendant and denied by the plaintiffs, we find nothing in the proof to warrant the position that the defendant-acted arbitrarily or capriciously, nor can we suppose the verdict would have been different, had such an instruction been given.

If there was a condition such as defendant asserted, there was evidence to justify the conclusion that he acted reasonably in returning the machine. The judgment will be affirmed.

Judgment affirmed,.


author: Wall, J.

text:
    Frank P. Drennan v. R. C. Huskey et al.

      Trust Deeds—Foreclosure—Loan Agents—Commission—Usury—Practice—Decree-—Preservation in Record of Facts in Support of—Mechanic's Lien.

      1. In chancery causes the record must show upon its face the facts necessary to support the decree.
    2. This rule does not apply to statutory proceedings of a chancery character, such as a mechanic’s lien.
    3. When sufficient facts are recited in the decree they will be presumed to have been correctly found, unless the evidence preserved disputes such presumption.
    4. Upon a bill brought to foreclose a trust deed, this court holds the claim that the transaction involving the making of the loan which it was given to secure was usurious, was unsupported by the evidence.
    5. In the case presented, upon the contention that, as the decree finds usury and stales that unpreserved oral testimony was introduced, there was evidence to support the finding, this court holds, in the absence from the record of the particulars as to the deduction referred to, that such finding can not be sustained. '
    [Opinion filed January 21, 1889.]
    In error to the Circuit Court of Christian County; the Hon. Charles S. Lane, Judge, presiding.
    Messrs. Frank P. Drennan and W. M. Provine, for plaintiff in error.
    The application which Huskeys signed and swore to, constituted and appointed said Bunn as their agent and attorney to procure for them this loan. This is not denied by Huskey or any other witness. Bunn testifies that he was only acting as the agent of Huskeys in making this loan, which testimony is not contradicted by any one. Hence it is clearly proven, by positive proof as well as by all the circumstances surrounding this transaction, that Bunn was only a loan broker, engaged in the business of loaning other persons’ money. That the taking of commissions by him as such agent did not render the transaction usurious, there being no proof of any arrangement between Bunn and the lender, and no knowledge of the same on the part of the lender, has been held in the following cases: Phillips v. Roberts, 90 Ill. 492; Kilholz v. Wolf, 103 Ill. 362; Brown et al. v. Scottish Am. Mort. Co., 110 Ill. 235; Hoyt et al. v. Pawtucket Inst. et al., 110 Ill. 390; Cox v. Mass. Mut. Life Ins., 113 Co. Ill. 382; Chandler v. Roberts, 17 Ill. App. 539; Halderman et al. v. Mass. Mut. Life Ins. Co., 120 Ill. 390.
    In case of Drennan v. Bunn, at the November term, 1887? of this court, it was held that the identical bonds in question in this suit were not tainted with usury. The proof in that case was substantially the same that it is in this. Cooper v. Nock, 27 Ill. 301; Hewitt v. Dement, 57 Ill. 500; Ferguson v. Sutphen, 3 Gilm. 547.
    It is incumbent on the party seeking to sustain a decree in his favor to preserve the evidence, etc. Mass v. McCall, 75 Ill. 190; Updike v. Parker, 11 Ill. App. 356; Morrison v. Collins, 98 Ill. 510.
    A case will not be helped out by presuming that evidence was heard, which does not appear in the record. Brooks v. Martin, 64 Ill. 389.
    If the record does not contain all the evidence it is for the party in whose favor the decree was rendered to supply the omitted part. Brooks v. Martin, 64 Ill. 389.
    Mr. George B. Burnett, for defendants in error.
   Wall, J.

The plaintiff in error filed his bill in chancery in the Circuit Court of Christian county to obtain a decree of foreclosure upon a certain deed of trust given to secure the indebtedness set out in the bill.

That indebtedness was evidenced by two certain bonds, aggregating $1,800, signed by B. C. Huskey and Eva J. Huskey, his wife, payable to Thomas J. Bunn, or bearer, six years after their date (April 15, 1874), with interest at the rate of ten per cent, per annum, the interest to be paid semi-annually as per coupons attached.

Though the bonds were payable to said Bunn he was really acting in the capacity of an agent or loan broker, the money being furnished by one Loomis, of Hartford, Connecticut, and the name of Bunn being used only for the sake of convenience. Bunn and. one S. M. Moore, who lived near Huskey and through whom Huskey first applied for the loan, charged Huskey by a special agreement with him a commission of eight per cent, for procuring the money, of which commission Bunn received five and Moore three per cent. The lender, Loomis, furnished the entire sum loaned, and from this the commission was retained by Bunn and Moore respectively. With these commissions the lender had nothing to do and they were clearly a matter between the borrower and his agents, Bunn and Moore. The interest was paid for several years, and finally, a default having been made, the property was advertised for sale under the deed of trust. It was then ascertained that Mrs. Huskey had died and therefore it would be necessary to proceed by bill in chancery to foreclose. The complainant having purchased the bonds and taken an assignment thereof, filed this bill against R. Huskey, Alma Huskey sole heir of Eva J. Huskey, deceased, Powell, the trustee, and Fisher, the tenant. The answer of the Huskeys set up usury as a defense,'and that a sum equal to the principal had been paid. The decree upon a final hearing was for the defendants, upon which error is now assigned.

In the ease of Drennan v. Bunn, which was before us at a former term, we had occasion to inquire whether these bonds were tainted with usury, and upon substantially the same state of facts as above set forth we held in the negative. It is unnecessary to repeat the considerations upon which we, reached that conclusion and we need only say we see nothing to induce a change of the ruling then made upon the point.

It is urged, however, that as the decree finds there was usury, and as it is recited that there was oral testimony which has not been preserved, it is to be presumed there was evidence to support the finding.

Originally the practice in chancery required the evidence to be reduced to writing so that the record contained the proof upon which the findings as to contested points were based, and when the evidence in the record failed to support the decree as to such points there was ground for revérsal.

In this respect the practice was and is precisely opposite in proceedings at law, where the rule is, that unless from evidence preserved in the record it appears the judgment is erroneous, it will be affirmed.

An analogous difference between proceedings at lawr and in chancery has always prevailed. At law the plea is held to admit an allegation in the'declaration not denied, while in chancery, if the answer neither admits nor denies, the allegation must still be proved.

When the Legislature provided that oral evidence might be heard in chancery causes, it was urged that such testimony need not be preserved, but it was held that the practice had not been changed, and it was still necessary that the record should, upon its face, show the facts requisite to support the decree, though it would be sufficient if such facts appeared in the findings of the decree. This Avas first announced in White v. Morrison, 11 Ill. 361, where it Avas said, “When this statute is acted on, the testimony of the Avitnesses, or the facts proved by them, ought still to appear in the record. It may be stated in the decree, in a bill of exceptions, in a certificate of the judge or in a master’s report; Ave conceive it to be the duty of the Circuit Court to see that the testimony is incorporated in the record in some of these ways. This court avOI not presume that any other proof Avas made than what is thus stated in the record.”

The practice thus declared has since been adhered to, though it is not applicable in such statutory proceedings of a chancery character as mechanics’liens. Kelly v. Chapman, 13 Ill. 530; Ross v. Derr, 18 Ill. 246. Where sufficient facts are recited in the decree it will be presumed they are correctly found un’ess the evidence is preserved and sIioavs the contrary. Cooley v. Scarlett, 38 Ill. 316; McIntosh v. Saunders, 68 Ill. 128.

When the findings of the decree are relied upon, it is essential that the specific facts proved on the hearing should be set out. The findings are merely substituted for the evidence itself, and Avhile such details as the questions and answers, the- expressions of the Avitnesses, their names and the like may be omitted, yet the findings must recite such specific facts as will support the decree. White v. Morrison, supra ; Ward v. Owens,. 12 Ill. 283; Moore v. School Trustees, 19 Ill. 83; Hughes v. Washington, 65 Ill. 245; Marion v. Collins, 98 Ill. 510.

The recital in the present decree upon which reliance is had is as follows: “ And the court further finds that there was deducted from said principal the sum of one hundred and forty-four dollars ($144) in advance, which sum so deducted was usury and forfeited all interest.”

This is clearly not sufficient. It does not appear how, or for what purpose, or by whom the deduction was made, but from the fact that it was made and made in advance, the conclusion is drawn that it was usury. It does not even appear that the sum was deducted on account of interest. The phrase, “ Which sum so deducted was usury and thereby forfeited all interest,” merely expresses the inference drawn by the court from the preceding statement that the sum named had been deducted from the principal in advance. But if this language were construed to be declaratory of the fact that the deduction was usurious, still the finding is deficient, for without the particulars attending the deduction and giving it color, it can not be determined whether the transaction was indeed usurious. We regard it, however, as but the statement of a conclusion of law from the fact preceding.

The party affected by the decree can not be deprived of his right to present the facts found by the court upon the evidence, and inquire whether they support the conclusions reached. Hughes v. Washington, supra. The record contains the depositions of Huskey, Moore and Bunn, all concurrent and establishing the point that the deduction of $144 was for the commission of the two latter as agents of the former, for procuring the loan. There was no other deduction. This was the deduction referred to, and its character and purpose appear beyond all dispute from the testimony of the chief actors in the transaction. We can not infer that there was evidence contradicting this proof, merely from the use of the expression above quoted, but, if we could, the expression must be held insufficient as a recital of facts necessary to maintain the decree.

It follows that the decree must be reversed and the cause remanded.

Reversed and remanded.


text:
    Charles Stockon v. Bennett Lochnitt.

      Replevin—Writ of Retorno—Landlord and Tenant—Cross-Error—Evidence—Costs.

    1. A tenant can not maintain replevin for the recovery of fence rails, originally removed with the consent of his landlord, their owner.
    2. In the ease presented, this court holds as erroneous the action of the trial court in setting aside its order for the return of property replevied, subsequent to a verdict .in behalf of defendant in accordance with its instruction.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. J. C. Creighton, A. McCaskill, J. G. Drennan and J. C. McBride, for appellant.
    The law is well settled that where a house or fences are built upon the land of another in pursuance of an understanding between him and the owner of the land that it is to be removed, in such case it is regarded as personal property, and may be replevied. Chatterton v. Saul, 16 Ill. 149; Dooley v. Crist. 25 Ill. 551.
    The intention and agreement of the parties, under which it was built into the fence, controls. Goff v. O’Conner, 16 Ill. 421.
    The agreement of appellee, in case appellant would let him have the rails to put upon his land for a temporary purpose with the agreement to return them to appellant, estops him from afterward claiming them as real property.
    Where an act is done or a statement made by a party which can not be contradicted or controverted without fraud on his part and injury to others whose conduct has been influenced by the act or promises, the character of estoppel will attach to what would otherwise be mere matter of evidence, and the party will be precluded from denying and disproving it. The International Bank of Chicago v. Bowen, 80 Ill. 541; Voge v. Breed, 14 Ill. App. 538; Simpson v. Wrenn, 50 Ill. 222; Carpenter v. Falter, 4 Ill. App. 45.
    The rails in question have been from the beginning treated as and admitted to be personal property by all the parties interested therein. The defendant can not protect his tortious possessions on the ground that the title to the rails has vested in the owner of the fee. Ballou v. Jones, 37 Ill. 95.
    Mr. James M. Taylor, for appellee.
    There can be no doubt that these rails were part of the real estate. Tyler on Fixtures, 116; 2 Kent Com., 347, note; McLaughlin v. Johnson, 46 Ill. 163.
    But, whatever the condition of the rails, Stockon could not recover. “ It is an inflexible rule in replevin that the plaintiff must show himself to be the owner of the identical articles for which the suit is brought, or that he is entitled to their immediate possession. Wells on Replevin, Secs. 168,634.
   Wall, P. J.

The appellant, Stockon, brought an action of replevin for 1,200 rails against the. appellee, Lochnitt, before a justice of the peace. The case was icmoved to the Circuit Court by appeal, where a trial was had before the court and a jury. After the evidence for the plaintiff had been submitted, the court, on motion of the defendant, instructed the jury that the- plaintiff had no cause of action, and a verdict was accordingly rendered for the defendant, and thereupon the court gave judgment against the plaintiff for costs, and awarded a writ of retorno habendo. The plaintiff excepted to these rulings, and, without moving for a new trial, prayed and was granted an appeal to this court.

On a subsequent day of the term, the court, at the instance of the plaintiff, set aside the order for a return of the property, to which ruling the defendant excepted, and prayed an appeal to this court, which was granted.

The plaintiff, having perfected his appeal, now assigns as error the instruction requiring the jury to find for the defend-■tan; and the defendant (appellee) assigns cross-error upon the •ruling of the court in setting aside the order for the writ of replevin.

The evidence tended to prove that several years before the .bringing-of this suit, this fence belonging to Hill, Lochnitt was permitted by the consent of Hill to move these rails south ■of the line on the Anderson land, in order that Lochnitt might cultivate a hedge on the line, the rails to be afterward returned .to Hill; but instead of returning them after the hedge was grown Lochnitt put them in another fence on the Anderson land. We think it not necessary to state all the circumstances in proof, and will merely say that we are of opinion the appellant had no such interest in these rails as to enable him to maintain replevin for them. They were not his and they had been removed without his action or fault, but by the permission of Hill, the owner, who and who alone had the right to complain of Lochnitt’s neglect to return them.

The instruction to find for defendant was properly given, .but it was error to set aside the order for the writ of retorno.

It is provided by Sec. 22, Ch. 119, entitled Replevin:

“If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a non-suit, or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the meantime have become entitled to the possession of the property.” The case having originated before a justice of' the peace the pleadings were ore tenus, and every defense may be considered as pleaded which appeared under the evidence.

There was involved here a denial of the ownership and right of possession claimed by the plaintiff. As between the p'aintiff and defendant the possession of the latter was lawful .and should have been undisturbed.

. By the verdict and judgment the right of property was adjudged against appellant; he had no right to the possession as against defendant, and no reasons are suggested by counsel .for not applying the peremptory provision of the statute above quoted. The judgment will be reversed and cause remanded, with directions to enter a judgment for defendant below for costs and for a return of the property, as was first ordered. The appellee will recover his costs in this court.

lieversed and remanded.


text:
    Virginia B. Lochnitt v. Charles Stockon et al.

      Replevin—Writ of Retorno—Impeachment of Witness—Dismissal of Suit—Parties—Evidence.

    1. In an action of replevin brought to recover a lot of fence rails, this court holds that it was proper, after a certain witness had been interrogated upon cross-examination as to statements and promises he had made with reference to the property in question, to allow him to be contradicted for the purpose of impeaching his testimony.
    2. A plaintiff in replevin, without title, may properly be ordered to return the property to the person from whom it was taken, although he was simply in possession thereof in the right of its owner.
    3. When an action of this sort brought against several p- r-rnns results in a judgment against all but one of them, the omission to bring him info court upon appeal by the rest, amounts to a dismissal of the suit as to him.
    [Opinion filed January 21, 1889.]
    Appeal from the Circuit Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
    Mr. James M. Taylor, for appellant.
    Messrs. A. McCaskill, J. C. McBride, J. C. Creighton and J. G. Drennan, for appellees.
   Wall, P. J.

This was replevin by appellant against the appellees, commenced before a justice of the peace, where the judgment was for plaintiff as to Stockon and Newitt, and against the plaintiff as to Hill. Stockon and Newitt appealed, and the case was tried de novo in the Circuit Court. The omission to bring Hill into court on the appeal and trying the cause in that condition, amounted to a dismissal of the suit as to Hill. Callaghan v. Myers, 89 Ill. 566. There was a verdict for defendants, and a judgment for costs, and for a writ of retorno habendo, from which an appeal is prosecuted to this court. The property in suit consists of a part of the rails in controversy in the case of Stockon v. Lochnitt, decided at this term [ante, p. 214].

After that suit had been brought and while it was pending this case was commenced.

Stockon, having obtained the rails under the writ of replevin in that case, they were left temporarily upon the premises of Newitt, who, however, claimed no interest in them.

Stockon claimed them in behalf of Hill, his landlord, as stated in that case.

It is objected that the court erred in permitting Bennett Lochnitt to be interrogated on cross-examination as to statements made by him as to the ownership of the rails by Hill, and his promise to return them, and then allowing the defendants to contradict him as to these statements. This was for the purpose of impeachment, and we think the matters so inquired of were sufficiently connected with his statements in chief, and with the point in dispute, to wit, the ownership of the property, to warrant the admission of the impeaching testimony. These statements called for by the cross-examination were not collateral or irrelevant.

It is objected, next, that the verdict is contrary to the evidence. We think it is not, to the extent necessary to justify the interference of an appellate court. The evidence was conflicting, but there was enough to support the verdict, and it was for the jury to reconcile it and to give the greater weight to such portion as was to them most convincing.

It is urged, also, that it was error to award a return of the property. We need not repeat what was said on a similar question in the other case. Here, as in that, the ownership Was the main question; all pleas which would present that question are presumed to be interposed, and the finding was against the plaintiff. The jury, no doubt, were convinced the property was not in the plaintiff, but was in Hill, who had been made a party to the suit, and in whose favor there was a judgment before the justice of the peace. While it is true the other defendants had no ownership, yet they had possession when the present suit was brought, and were holding in the right of Hill. It is but just and proper that the plaintiff, if she could not maintain her claim, should be required to make return, and this is precisely what the statute says shall be done. Vose v. Hart, 12 Ill.378; King v. Ramsay, 13 Ill. 619; Underwood v. White, 45 Ill. 438; Constantine v. Foster, 57 Ill. 38; McNamee v. Bradley, 69 Ill. 299; Wills on Replevin, Sec. 492-3.

It is not necessary to consider the cross-errors.

Judgment affirmed.


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    The People of the State of Illinois v. The Commissioners of the Wild Cat Special Drainage District.

      Drainage—Formation of District—Quo Warranto—Insufficient Petition —Discretion of Court—Abatement—Demurrer.

    1. Where the various steps for the organization of a drainage district are taken in conformity with the statute, the finding of the court binds all who might have objected thereto.
    2. Upon a contention that the petition was not signed by a sufficient number of persons to comply with the statute, it appearing that the signature which professed to carry with it the bulk of the lands which lay within the bounds of the proposed district, was that of a corporation, it is held: That the right of such corporation to hold real estate can not be inquired into in a proceeding of this character.
    3. The court may decline to proceed with an inquiry in the nature of a quo warranto, when it appears that the interests involved are of a private character.

      4. The proceeding may he abated upon demurrer in the discretion of the court, when the pleadings disclose a state of facts that would have warranted a refusal for leave to file in the first instance.

      [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Champaign County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. R. C. Weight and Bay & Slauson, for appellant.
    Mr. Francis M. Wright, for appellee.
    The case as presented to the court below upon the demurrer strongly appealed to its discretion, and it was mainly upon this view that it was disposed of—that the discretion exercised in granting leave to file the information and subsequently to amend it several times, had then, as appeared from the facts as disclosed by the pleadings, been exhausted and abused.
    It is familiar that in proceedings by quo warranto the court may, in the exercise of a sound legal discretion, refuse leave to file the information. People v. Hamilton, 24 Ill. App. 609, and cases there cited.
    In People v. Hamilton, supra, the language of the court is perfectly applicable to the case at bar: “Had the facts disclosed by this plea appeared upon the face of the information the court would have been justified in refusing permission to file it. When it appears that the writ was improvidently issued the court may well decline to" grant the relief sought.

      “ The issue of the writ does not end the discretion of the court,and if the case made by the pleadings is such that leave to file would have been refused in the first instance the court may decline proceeding to judgment. Commonwealth v. Cheely, 56 Pa. St. 270.”
    This was the view held in the court below, and had the same facts appeared on the face of the information as appeared in the pleadings when the demurrer to the replications was heard, the learned judge in the court below would have refused permission to file it; and his discretion not having ended, upon the authority of People v. Hamilton, supra, the court exercised that discretion, and declined proceeding further.

      By the plea it is shown that every step required by the statute to give the County Court jurisdiction had been taken; its findings were regular in all respects and the organization of the district duly declared. The only answer to all this was that the Illinois Agricultural Company was an illegal corporation and could not hold title to lands, and that said lands did not need a system of combined drainage anyhow.
    Who owned the lands if not the Illinois Agricultural Company? The pleadings are silent. Why does it not own the lands ? Because it is said the corporation is illegal and can not. Such a question can not be raised in this case. It could only be raised by a direct proceeding against the Illinois Agricultural Company in the nature of quo warranto, or in a suit between it and the person claiming the legal title. If this corporation is not capable of holding a legal title to land, it does not follow that it is not the owner of it in the sense of the statute as regards the organization of a drainage district. It is not contended another owns the land—only the corporation is incapable of holding the legal title. If it has the possession, control and the enjoyment of the rents and profits, with no other person or persons adversely claiming these emblements of ownership—not even the title itself, then is not the corporation illegal, though it may be in its purpose of existence the owner, both in law and equity, for the purpose of organizing a drainage district, or must the court first try the legal title of all the owners as in an ejectment suit?
    The question endeavored to be raised by the counsel for the people, that the Illinois Agricultural Company could not acquire title to lands because of its supposed legal disqualification, does not, and can not arise in a collateral proceeding like the case at bar, because the title will vest in the corporation, and the question as to whether the corporation has exceeded its power may be raised only by the State or a stockholder, in a direct proceeding against it. Hough v. Cook County Land Co., 73 Ill. 23; Alexander v. Tolleston Club. 110 Ill. 65; Barnes v. Suddard, 117 Ill. 237.
   Wall, P. J.

This was a proceeding by information in the nature of quo warranto to test the validity of the organization of the Wild Cat Special Drainage District of Champaign County.

The plea averred that a petition was presented in proper form, signed by the Illinois Agricultural Company and B. J. Gifford, owning a major part of the land and constituting more than one-third of the owners of the.land in the proposed district; that due notice of a hearing was given, which was attended by the petitioners, and by Helen M. Truitt, who owned all the land in the proposed district not owned by petitioners, that the court upon the hearing found in favor of the petitioners, and appointed commissioners and fixed a time for hearing their report, and for completing the organization of the district; that at the time fixed the parties all appeared; and the court upon consideration found that a combined system of drainage was necessary, and an order was made declaring the district duly organized and appointing permanent commissioners. The proceedings set up by the plea are conceded to be regular. To this plea three replications were filed: first, that the petition was not signed by the number of land owners required by law, that the Illinois Agricultural Company was not the legal owner of any lands in said district, and that, except Gifford, the signers of the petition Avere not land OAvners; second, that the Illinois Agricultural Company did not legally own any land in the district, that said pretended corporation was not organized according to law and had acquired no right to the land; third, that the lands in said district did not require combined drainage, and were sufficiently drained before the filing of said petition. A demurrer was sustained to these replications and judgment Avas entered for defendant from Avhich an appeal is prosecuted to this court.

The filing of a proper petition gave the County Court jurisdiction of the subject-matter, and the. posting, publishing and mailing of notices in the manner required by the statute, gave the court jurisdiction of the persons of the owners of the lands. Hence, whatever it was authorized to find upon the hearing must be binding upon all avIio might have interposed objections to the organization of the district.

Whether the corporate poAvers of the Illinois ..Agricultural Company included the right to own lands can not be inquired of collaterally.

The matters set up in the replications, as to whether the petition was signed by the proper number of land owners and whether the district required the system of drainage prayed for, were within the scope of inquiry confided by law to the County Court.

Quo warranto is an appropriate remedy only in those cases where the public have, in theory at least, some interest in the controversy. High on Ex. Bern., Sec. 620. It may well be doubted whether, in the present case, any public interest appears. While in form the proceeding is in behalf of the people to test the right to exercise a corporate franchise, yet in fact, the interests involved are mainly private, if not wholly so. The court may decline to proceed with the inquiry when such an aspect is disclosed. The issuing of the writ does not end the discretion of the court, and if the case made by the pleadings is such that leave to file would have been refused in the first instance the court may abate the proceeding. This may be accomplished by demurrer. The People v. Hamilton, 24 Ill. App. 609.

The demurrer was properly sustained and the judgment will be affirmed.

Judgment affirmed.


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    John C. Edwards et al. v. Michael Hushing et al.

      Replevin—Omnibuses and Horses—Agency—Chattel Mortgage—Fraudulent Procurement of Execution of—Practice—Refusal by Court to Submit Case to Jury—Tender—Evidence—Opening and Closing.

    1. In an action of replevin brought, to recover property seized under a chattel mortgage, given to secure a promissory note and the payment of rent, this court holds as erroneous the action of the trial court in taking from the jury the question as to the execution of the mortgage, and whether it was fraudulently procured.

      2. In the case presented, it was error to permit the defendant to open and close the case, the onus being upon the plaintiff, in view of his replication averring tender, and fraud in procuring the execution of the instrument.
    3. A court may decline to submit a .case to the jury and direct a verdict for defendant where it is apparent that the evidence will not warrant a verdict for the plaintiff, and that such verdict if returned must be set aside.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Montgomery County ; the Hon. J. J. Phillips, Judge, presiding.
    Mr. A. Oller, for appellant.
    Messrs. Palmer & Shutt, for appellee.
   Wall, P. J.

This was an action of replevin by the appe1lants against the appellees for two omnibuses and two horses. Several pleas were filed, but all were withdrawn except -the second, which set up as a defense that the property was taken and detained under a chattel mortgage made by plaintiffs to the defendant Mary McWilliams, to secure the covenants of a lease, and the payment of a note for $19, and seizure of the property for the amount due on the note, and for unpaid rent due on the lease. To this plea there wore replications, first, denying the execution and delivery of the chattel mortgage; second, that after the seizure plaintiffs had tendered $30, which was all that was due; refusal by defendants to accept, and money brought into court; third, denying that the right of property was in the said Mary McWilliams. After the first trial of the cause, the plaintiffs, by leave, filed an additional replication, in which it was -averred that the execution of the mortgage was procured by fraud in this, that Robert McWilliams, the husband and agent of Mary McWilliams, by misrepresenting the contents of the chattel mortgage, and by fraudulently misreading the same to the plaintiffs, induced them to sign it, and that plaintiffs, not suspecting the instrument contained anything other than, or in addition to the articles,as read over by said Robert, did sign and acknowledge the same, when in fact it contained the■ words “one other bus,” whereby was mortgaged one of the omnibuses in question, which plaintiffs did not intend, and expressly refused to include in said mortgage. On this last replication and the evidence, and ruling of the court regarding it, arises the principal controversy in the case.

The plaintiffs and two other witnesses, Hattie Hecker and Augusta Marburger, strongly support the allegations of the replication, while another witness, Seago, though not going so far, corroborates them. Here were five witnesses whose testimony, with more or less force, tended to prove the issue thus presented by the plaintiffs.

The justice of .the peace' before whom the instrument was acknowledged, stated that he went to the plaintiffs, taking the mortgage, saying he had come to get them to acknowledge it, and that he asked them if he should read it to them, and they said it was unnecessary ; that McWilliams had read it to them. It had been signed before he went there, and he then certified to the acknowledgment.

The testimony on behalf of plaintiffs is more or less contradicted by the testimony of Bobert McWilliams, Ben McWilliams and B. N. Paden, as to the circumstances attending the execution of the mortgage.

In this state of the proof, the court instructed the jury that there was no evidence tending to prove the replication denying the execution of the mortgage, and not sufficient evidence tending to prove the replication charging the mortgage was procured by fraud and circumvention, and that the only question for the consideration of the jury was as to the amount due from plaintiffs on the mortgage. It is assigned as error that the court thus took from the jury the question as to the execution of the mortgage, and whether the instrument was procured by fraud and circumvention.

With reference to the acknowledgments of deeds, it has been held repeatedly that the certificate of the officer can not be impeached, even as between the immediate parties to the instrument, without clear and satisfactory proof of fraud, collusion or imposition, and that the unsupported evidence of the grantor will not avail for such purpose.

Giving the same weight to a certificate of acknowledgment of a chattel mortgage, the point here is whether there was such want of evidence of fraud as to justify the court in taking the question from the jury. The officer did not collude with McWilliams, and there is nothing to induce the belief that the mortgagee was guilty of any improper conduct; but if the testimony of the plaintiffs and their witnesses is to be credited, there was gross misconduct, amounting to actual fraud, on the part of McWilliams, the agent of the mortgagee, and for whose action she is responsible; and while such proof is contradicted, yet, had the jury found the issue for ■the plaintiffs,' we can not say the court would have been required to set aside the verdict. The rule on this point was announced in Simmons v. C. & T. R. R., 110 Ill. 348.

Where the evidence, with all the inferences justifiably to be drawn from it, is so insufficient to support a verdict for plaintiff that such a verdict if returned must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for defendant. And so we think the court may direct the jury on any issue when the evidence is in such a state. The converse, of course, is true. In our opinion it was error to take this question of fact from the jury.

We do not determine, for we are not called on to do so, whether the jury should have found the one way or the other, but hold merely that the evidence offered by the plaintiffs was of such a character as to entitle them to have the jury pass upon it.

The court permitted the defendant to open and close the case, and this was, we think, erroneous.

Although there was but one plea justifying the taking and detention under the mortgage, yet, by the replications of tender of the amount due, and that there was.fraud in procuring the execution of the instrument, the onus as to these matters was upon the plaintiffs, and holding the affirmative as to these, they had the right to open and close.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Jarrett Seymour et al. v. Marion S. Seymour.

      Garnishment—County Court—Jurisdiction—Assumption of Debt of Another—Novation—Estoppel—Interest.

    1. Where property is conveyed with the understanding that the grantee shall assume certain debts of the grantor, his creditors agreeing to look to the former for payment, it amounts to a complete novation.
    2. A general statement of a garnishee as to the sum in his hands previous to the beginning of suit, does not estop him from showing, upon trial, the correct amount.
    8. The County Court has jurisdiction of garnishment proceedings, where the balance in the garnishee’s hands, after deductions and credits, is less than $1,000.
    [Opinion filed February 21, 1889.]
    In error to the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.
    Messrs. Morrison & Whitlock, for plaintiffs in error.
    This case was decided by the court below, as shown by the record of the judgment, for want of jurisdiction. The court, in rendering its opinion, was evidently following the doctrine announced in the case of Haines v. O’Conner, 5 Ill. App. 213. The doctrine announced in that case, while binding in that case,.has not, so far as we have been advised, been regarded by the profession as a recognized authority. Nor has it been so regarded by the Appellate Court of other districts in this State. In the case off The Home Insurance Co. v. Kirk, 23 Ill. App. Reports, 16, the court say: “ In so far as the case of Haines v. O’Conner conflicts with the views here expressed we do not approve of it.” And certainly it seems to us that the reasons and authorities cited in the latter case are entitled to greater consideration than in the Haines case. True, it can-not be said that the Haines case has been overruled, as under the statutes it is not authority, except in the ease decided; but even admitting that principle of law to be correct, we insist that it would not be applicable in this case.
    The evidence shows, as testified by McCurley and in substance not contradicted by Seymour, that on the day the attachment suit was instituted, and before it was so instituted, McCurley went to Seymour and asked him how much he owed Jarrett Seymour, the debtor, to be attached, and that Seymour, the garnishee, then told him it was between $450 and 8500, and that he (McCurley) then, acting on that statement, instituted the suit. The garnishee, in substance, admits this. This would be an estoppel in pais, for on this statement alone the suit was instituted. But for this statement McCurley would not have incurred the expense of litigation. People v. Brown, 67 Ill.435; Smith v. Newman, 38 Ill. 230; Mills v. Graves, 38 Ill. 455.
    It may, however, be insisted that there was no intent on the part of the defendant in error to deceive McCurley, hence that there was no fraud—one of the conditions of an estoppel in pais. While it is sometimes stated by text writers that an intent to deceive, or, in other words, an active fraud, is necessary to constitute an estoppel, still the authorities, we insist, do not justify that position so broadly stated. It is not necessary that the party should willfully intend to mislead. Cont. Nat. Bank v. Nat. Bank, etc., 50 N. Y. 575; Sharply v. Abbott, 42 N. Y. 443; Manfr’s and Traders Bk. v. Hazard, 30 N. Y. 226; Blair v. Wait, 69 N. Y. 113; Hill v. Blackwilder, 112 Ill. 283.
    Silence, where a party lias the opportunity to speak, and in good faith ought to speak, will work an equitable estoppel. Veile v. Judson, 82 N. Y. 32; Abbott v. Herman, 7 Maine, 118; Preston v. American Linen Co., 119 Mass. 400; Blackwood v. Jones, 4 Jones’ Eq. (N. C.) 45; Hall v. Fisher, 9 Barb. 17.
    Again, Seymour, the garnishee—admitting that he acted honestly, and as to this action is an innocent party and is liable to suffer-—was negligent, and has subjected himself to the application of the rule of law that where one of two innocent parties are to suffer, he whose negligence has contributed to that condition must be the sufferer. Indeed, we are at a loss to understand how it could be possible that he should not know how much he owed his grantors. At the time he assumed the payment of the notes he certainly knew, or ought to have known, how much he was to pay. No prudent business man would assume the payment of unknown amounts; and McCurley had the right to presume, at the time he held the intercourse with him, that he (Seymour) did know how much of Jarrett Seymour’s indebtedness he had assumed. If a party negligently makes a statement of facts in ignorance, which induces another to act, he will be held estopped. Souzy v. Collins, 40 Iowa, 540; Calhoun v. Richardson, 30 Conn. 210.
    Mr. Charles A. Barnes, for defendant in error.
    In a garnishee proceeding the garnisheeing creditor will have no greater rights to recover of the party garnisheed than would the execution debtor, in whose name the suit is brought. Richardson v. Lester, 83 Ill. 55; Dressor v. McCord, 96 Ill. 389; Crownover v. Bamburg, 2 Ill. App. 162.
    Where one enters into a simple contract with another for the benefit of a third, such third person may maintain an action for breach, and such contract is not within the statute of frauds. Eddy v. Roberts, 17 Ill. 505; Arnold v. Lymam 17 Mass. 400, and cases cited. See also Eggleston v. Buck, 24 Ill. 262; Brown v. Strait, 19 Ill. 88.
    In this country the right of a third party to bring an action on a promise made to another for his benefit, is generally asserted, and is the prevailing rule with us. Bristow v. Lane, 21 Ill. 194, and cases cited. See also Reid v. Degener, 82 Ill. 508.
    Novation may be where the debt remains the same, but a new creditor is substituted for the old. This is also called delegatio for the reason that all three parties must assent to the new bargain. In every novation the old debt is wholly extinguished by the new. An important rule of novation is that the extinction of the debt destroys also all rights and liens appertaining thereto. 2 Bouv. Law Dic., 242, title Novation.

      An agreement consented to by a mortgagee, whereby the • grantee of the mortgaged premises assumes payment of the mortgage note as part of " the purchase money, constitutes a novation which discharges the original mortgagor'and renders the grantee the sole debtor. Brown v. Kirk (Mo. App.), 3 West. R. 762.
    Where the garnishee, having bought property from the-defendant and debtor, assumed as part of the agreed price the payment of a debt due to a third person, the promise inured to the benefit of' that person, and the defendant’s right of action was suspended until his creditor repudiated the transaction. Bank v. Coleman, 81 Ala. 170.
    Where the three parties agree to the novation the original debt is extinguished and a new contract made. Applying these rules to this case, Jarrett Seymour ’ sold the land to Marion Seymour, and in consideration thereof Marion was to pay certain indebtedness. Jarrett Seymour and the father of Marion went to see the creditors to see if they would consent to the new arrangement. They agreed to release Jarrett and look only to Marion. Marion then guaranteed to pay the notes- by indorsement on the back of them. By this mutual arrangement was not Jarrett released, the old debt canceled and a new contract made ? In other words, was there not a novation? If so, who did Marion Seymour owe—Jarrett or the creditors? We claim he owed the money to the creditors, Ransdall, Evans and Robert Seymour, and so, not being liable to Jarrett Seymour, except for what balance there might be, he could not be garnisheed by a creditor of Jarrett Seymour’s, except for the balance of $8.64, which he admitted and brought into court and deposited with the clerk, where it now remains subject to the order of McCurley. If our view of the law is correct, then this court should sustain the cross-errors herein, even if it should be held that the County Court had jurisdiction.
    The court below held that the County Court did not have jurisdiction of this cause, because the amount he heM to be in the hands of the party garnisheed exceeded $1,000, the limit of jurisdiction in the County Court This question has never been passed upon by our Supreme Court, but the first district of this court held, in the case of Haines v. O’Conner, 5 Ill. App, 2L3, that “in legal contemplation, the plaintiff and the matters between him and the garnishee constitute the case, and it is the amount claimed or the value of the property in controversy as between them, and not the amount claimed as between the attaching creditor and the defendant, which constitutes ihe test as to jurisdiction. That is, although the amount •e'aimed by the attaching creditor does not exceed §1,000, yet, when a third party is garnisheed, the amount owing by him to the value of the effects in his hands belonging to the defendant in the attachment, will then become the test as to that proceeding, and if it exceeds §1,000 the County Court-has no jurisdiction.”
    This opinion was rendered by an able judge (McAllister) who has adorned the bench of our Supreme Court, and-the reasons given for this view in this opinion, and the case cited of Moore v. Woodruff, 5 Ark. 214, well express the endless litigation and costs that would be as intolerable as unwarrantable if the law were otherwise. This decision has veiy recently been followed in this court in the case of Powell v. Hyndman, appeal from Greene county, not yet reported. After stating the facts, and that the amount involved exceeded §1,000, the opinion says: “ Upon the authority of Haines v. O’Conner, 5 Ill. App. 213, the County Court erred in refusing to dismiss the cause for want of jurisdiction. For this error the judgment is reversed.”
    We thus have this view of the law sustained by the first district, and approved by the third.
    We have not been able to find a case anywhere, holding the contrary view. Counsel for plaintiff in error cite the case of Home Ins. Co. v. Kirk, 23 Ill. App. 19, and rely solely upon it for a reversal of this cause, and without that case this writ of error would never have been taken. In this case the court does not squarely decide the question of jurisdiction, but discussed the question as to how a judgment in garnishee proceedings should be entered, and that the jurisdiction of a justice of the peace in garnishee proceedings can not be questioned by one not a party thereto in a collateral proceeding. We insist there is no conflict. Even if there were, we have the first and third districts in fayor of our position, as against this opinion from the second.
    The question of estoppel in pais, argued by plaintiff in error, it seems to us, does not apply to this case. Ti.e evidence shows that when McCurley asked Marion Seymour the amount he owed Jarrett Seymour, nothing was said as to why the question was asked, or that any attachment suit was proposed. To this question Marion replied, as his evidence shows, that he did not know; that he had not figured it up.
   Wall, P. J.

This "was a garnishee proceeding in the County Court. After a hearing the court dismissed the proceeding for want of jurisdiction, upon the theory that .the debt from the garnishee to the judgment debtor exceeded $1,000.

It appeared that the garnishee had purchased a farm from the judgment debtor, and out of the price agreed on, $4,300, he ■was to pay certain creditors of the latter and the taxes for 1835 and 1886, and to pay him the balance. The garnishee was accepted by these creditors in lieu of the original debtor and they consented to look to the former only and to release the latter from all liability. He paid the taxes. This left the garnishee owing the judgment debtor only the difference between the purchase price and the aggregate of the debts assumed. As to these there was unquestionably complete novation.

The balance so due from the garnishee was less than $1,000. By virtue of the statute, Chap. 37, Sec. 120, county courts ■have jurisdiction in all that class of cases wherein justices of the peace have jurisdiction, where the amount claimed does not exceed $1,000. Justices of the peace have jurisdiction in all cases where debt or assumpsit will lie, where the amount claimed does not exceed $200, and it is expressly declared that the section shall apply where the claim originally exceeded $200, but by credits or deductions has been reduced to the limit. Chap. 79, Sec. 13; Ellis v. Snider, Breese, 336; Hugunin v. Nicholson, 1 Scam. 575 ; Raymond v. Strobel, 24 Ill. 113.

The County Court no doubt had jurisdiction of the balance due from the garnishee, the sum which could be claimed being less than 81,000, and it was error to dismiss the proceeding.

In his answer and by his testimony the garnishee showed that he owed the j ,'dginent debtor 88.64, which sum he offered to pay.

By cross-error it is urged that the court should have rendered judgment against the garnishee for this amount. The garnishee undertook to pay the claims (except the Bansdall mortgage) then; that is, at the time the deed was made; and whatever extension he received was a matter of benefit to him. The interest paid for such extension should not be credited.

As to Bansd all’s claim the deed provided that the grantor was to pay interest up to March 1, 1887, and the interest paid to that time would be a proper credit to the garnishee. The balance of 88.64, as made up by the gárnishee, depends upon a credit which he gives himself for interest paid for extension after he should have discharged the claims, and was therefore less than he really owed. The cross-error must therefore be overruled. Appellant urges that there is in the case an element of estoppel based upon the fact that before these proceedings were instituted the garnishee admitted to appellant an indebtedness-of 8400, or more, whereupon the suit was commenced. We think this position not well taken; appellee was not professing, or understood to be making an accurate statement, nor one that he would be bound by. We see nothing in the nature of an estoppel upon the facts appearing in this record. The judgment will be reversed and the cause remanded.

Reversed- and remanded.


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    W. H. Tomlin et al. v. A. A. Blunt et al.

      Injunctions—Conveyance of Property for Religious Purposes—Stipulation—Repugnancy—Exclusion of Sect Entitled to Use of Edifice.

    1. The term “ evangelical orders of Christians ” in' an instrument, is to be understood in its ordinary sense, and has no uncertain meaning.
    2. A condition in a grant of property to a particular sect for church purposes, that the building when not in use by said sect “ shall be open to all evangelical orders of Christians,” is not repugnant to the grant.
    3. The right to use such edifice at proper times may be enforced in the interest of any such order, in case of its wilful or malicious exclusion therefrom.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Mason County; the Hon. G. W. Herdman, Judge, presiding.
    Mr. E. A. Wallace, for appellants.
    As we understand the law it is the peculiar province of a court of equity to compel trustees to observe and perform their duty at the suit of any parties, interested; as Perry puts it — “The cestui que trust may cimpel the trustee to the observance and performance of his duty, and if there is reason to suppose, or the court is satisfied, that the trustee is about to proceed in an unauthorized manner, an injunction will be granted to restrain the improper, exercise of the legal power in the trustee * * * and go any person interested in the estate in common with others may, in behalf of himself and the others, procure the proper orders for the security of the property.” Perry on Trusts, Sec. 816, and authorities cited. In this case the bill not only alleges, but the deed for the land on which the church stands, as also the subscription list, both of which are made part of the bill, show that this was not only trust property, but also that the trust was expressed and declared both in the deed and subscription. If it be contended that the legal title is vested in the trustees, still they have no power to pervert the trust or prevent it being used in the manner and for the purposes declared in the instruments through which they acquired that title. Trustees Cong. Ch. v. Stewart, 43 Ill. 81. Three of the trustees are complainants; they are also a majority of the trustees and have the right to prevent the other two as well as other persons associating with the minority of the trustees, from perverting the trust. It has been held by our Supreme Court that each member of a church organized and incorporated according to the statute, becomes entitled to a beneficial interest in the property of the church, and that where the trustees of such an organization are guilty of a violation of the trust, a court of chancery has jurisdiction to correct such abuse, and that it is no objection to an injunction in such a case that the particular act of closing the church has been done, and that there is nothing to restrain like an act of trespass, but that the closing “is a continuing act and is designed to operate upon the complainants, to deprive them of their rights in the future as well as in the past.” Brunnenmeyer et al. v. Buhre et al., 32 Ill. 183,192. We apprehend that it will not be contended but what church property vested in trustees of a religious body is held under a trust, and that a court of equity will enforce the trust and hold the trust property to the uses for which it was given, and will by its restraining order prevent the property from being diverted from the original uses to which it was devoted or acquired. That this is the law where the religious body is incorporated, is well settled; and where it is conveyed to the trustees, and the church is afterward incorporated, and thereby the title becomes vested in the corporate body, a court of chancery will exercise the same powers, and compel the execution of the trust and restrain its perversion, .to the end that the intention of the grantor or donor be carried out. Andrews et al. v. Andrews et al., 110 Ill. 223. The intention of the parties creating the trust must in all cases be carried out where practicable; especially is this true in cases of charities like the present. Heuser et al. v. Harris, 42 Ill. 425. Nor is there any difference in the application of the rule or the jurisdiction of a court of equity, whether the body is incorporated or not; the court will in either case compel the execution of the trust or restrain its perversion. As is shown by the facts set forth' in the bill and the exhibits which are made part of the bill, the trustees took the deed and received the subscriptions, and the church was erected not alone for the use of the Baptist, but all evangelical orders of Christians had an interest therein, and there being no corporation, any member of the Christian orders for the use of which the trust was created, had the right to prevent the trust from being perverted. This rule is even carried to the extent of allowing merely members of a congregation to .file the bilí. Trustees Cong. Ch. v. Stewart, 43 Ill. 85. In this case not only members of the congregation, but three of. the trustees, as well as members of the Christian orders interested in the use of the church, join in bringing the suit, not' alone for themselves, but also “ on the part and in behalf of a large majority of the congregation attending said church, as well as the subscribers to the funds by which it was built.” Two of the respondents were also trustees, and these, with the other respondents, who were outside parties, had already and were continuing to prevent the property from being used in the manner and for the purposes for which it was intended. The demurrer admits that there was on the part of the respondents a conspiracy to divert the churcli building and ground from the use for which it was donated and acquired, and to prevent all evangelical orders of Christians from using the same except the Baptist. If said acts and admissions are not sufficient to warrant a court of equity to interpose and prevent the continuing wrong and compel the execution of the trust, we apprehend there are none where the court would interfere; but the books are full of authorities showing that the court not only has the power, but it ■ is its duty to take jurisdiction in said cases.
    Messrs. T. N. Mehan and T. W. McNeely, for appellees.
   Wall, P. J.

This was a bill in chancery by appellants against appellees. It averred that appellants had contributed to the erection of a church edifice upon the land described, which land had, by two of the appellants, been conveyed to three of the appellants and two of the appellees, who were designated as trustees of the Walker’s Grove Baptist church, and their successors in office, for church purposes ; that the conveyance was upon the express condition therein written, “ that the church to be situated on said land is to be open at all times, when not used by the Baptist denomination, to all evangelical orders of Christians;” that the subscription list upon which was raised the money to erect the building, provided that “ said house when completed shall be free for the use of all evangelical orders of Christians when not used by the Baptists;” that for some years after the erection of the building it was used by the Baptists and other said orders, until the time mentioned in the bill, when the.regular pastor and minister of the Methodist order of evangelical Christians and a large number of the congregation of said church (including the said complainants in the bill), many of the congregation being of the Methodist denomination, were unable to gain admittance because the defendants in the bill had placed a new lock upon the door, and that on other subsequent occasions said Methodist order had been excluded, and that at the times when such exclusion occurred, the building was not in actual use by the Baptist order; that the defendants were intending and so avowing, to exclude all except the Baptist order from the use of said building, contrary to the terms of the said conveyance. An injunction was prayed restraining the defendants from continuing such interference and by the order of the circuit judge it was granted. The bill prayed for general relief. At the succeeding term of the Circuit Court the defendants interposed a demurrer to the bill. The demurrer was sustained, the bill was dismissed and damages were assessed at $50. From this order and decree an appeal is prosecuted to this court, and the question is whether the bill upon its face presented such facts as called for the relief desired. The appellees argue that the stipulation in the conveyance is repugnant to the grant and is void for that reason. The grant is to certain persons, trustees of the Baptist church, and to their successors in office, “ for church purposes,” and then as if to define and determine what church purposes were intended, it declares that the church building “ is to be open at all times when not used by the Baptist denomination, to all evangelical orders of Christians.” The condition is not only not repugnant but it is clearly consistent with the grant and with the avowed object of the grant.

Bor is it void because there is uncertainty as to those who may enjoy the use of the building. The term “Evangelical orders of Christians ” is to be understood in its ordinary sense and is by no means indefinite. It is well understood.

The plain object of the grantors, and of the subscribers to the building fund, was that the house should be used for public worship by all evangelical orders of Christians, the Baptist to have the preference, and when that order was not so using it, any other such order might have the privilege. The grantees, while described as trustees of the Baptist church, were in effect made trustees for all the orders named, and when the Baptist denomination, by or through its trustees, assumed to exclude all others in the way alleged in the bill, the condition was violated. It is not argued that if the other denominations have the right claimed they can get adequate relief in courts of law, but it seems to be supposed that the relief sought is not practicable.

There may be difficulties in the matter of carrying out the details, but it seems probable that an injunction against the interference named would be sufficient.

If, however, the court should find there is a disposition to evade the decree, and by factious opposition to prevent the complainants from the enjoyment of their legal, rights, it may appoint a custodian as prayed, or it may resort to such other' expedients as the circumstances indicate. It will not permit its decree to be disobeyed or disregarded. Until the Baptist denomination have the facilities for constant use and do so use the building, it must be free to the other denominations according to the condition in the deed.

The decree will be reversed and the cause • remanded for further proceedings consistent with this opinion.

Reversed, and remanded.


text:
    Charles S. Hankins et al. v. James C. Beatty.

      Negotiable Instruments—Note—Payment—Failure of Consideration— Fraud,—Note Payable to Wife at Husband’s Request—Evidence.

    In an action upon a note given in a transaction involving an exchange of real estate and made payable to the wife of one of the parties thereto at his request, this court holds insufficient as a defense a claim that the note was satisfied by the payment of costs and expenses incurred by the maker in enjoining the cutting of timber by third persons on the lands so taken by him in trade, and that it was the bona fide property of the payee.
    [Opinion filed February 21, 1889.]
    Appeal from the County Court of Macon County; the Hon. W. E. Nelson, Judge, presiding.
    Mr. Edmund S. McDonald, for appellants.
    Mr. W. C. Outten, for appellee.
   Wall, P. J.

This was assumpsit by the appellee against the appellants upon a promissory note signed by appellants, payable to Emma L. Miles, by whom it was indorsed after maturity to appellee. The defenses were failure of consideration, and payment. The case was tried by the court, a jury being waived, and there was judgment for the plaintiff, from which defendants appealed.

The note was given for the balance on an exchange of real estate between appellant Hankins, and J. J. Miles, husband of Emma L. Miles. It was made payable to Emma L. at the request of the husband, for the purpose, as he says, of securing her for money he owed her on account of funds previously received from her and used by him in his business.

The evidence of appellants is, that Miles Said at the time of the trade that he wanted the deed received from Hankins and this note made in the name of his wife in order to place the same beyond the reach of his creditors. After the transaction was complete and deed recorded, Hankins found that persons were cutting and removing the timber from the land conveyed to him by Miles, claiming the right to do so under an arrangement made by them with Miles before the sale to Hankins, by which Miles sold them all the soft timber on the land.

Hankins obtained an injunction to stop the trespassing, and then had an interview with Miles, in which the latter agreed to pay §65 of the expense of the litigation.

The injunction was dissolved, but on appeal to the Appellate Court the decree was reversed and it was finally made perpetual. The expenses borne ■ by Hankins in the litigation exceeded the amount of the note, and this, he insisted below and now urges, was a valid defense to this suit.

Miles testified that before making the trade with Hankins, he had sold the elm timber on the land (but no other timber) for §100, and that Hankins was informed of it, and while the latter does not admit this exactly, he admits that he knew Miles had sold §100 worth of the elm timber. The evidence of Thayer corroborated Miles on this point.

It is probably true that Miles had sold the elm and Han-kins bought with that understanding, but the trouble was that the purchasers, who were irresponsible, were taking all the soft timber.

If such was the case, the burden of the litigation would devolve wholly upon Hankins, and the agreement of Miles to bear any part of it would be without consideration; and even if he were the owner of the note, the amount of such expense could not be credited in this suit unless by reason of such arrangement Hankins was led to occupy a position he would otherwise not have taken. This does not appear, however, for he had already obtained the injunction when he interviewed Miles about it, and he was in a position where he must necessarily go forward in the course then begun. He had no alternative if he wished to stop the trespassing.

Aside from this view, however, we think there was evidence to justify this judgment, on the ground that the note was bona fide the property of the wife, to whom it was made payable. If so, she, being the creditor of her husband, might well take and hold it clear of the defense interposed.

■ The question whether it was really his or her note, would depend upon the good faith of the transaction, and the trial court had superior facilities for passing upon this point. No propositions of law were presented, and we must presume the proper rules of law were applied to the evidence, and if there is an aspect of the case in which the proof may support the finding we should not interfere.

■ As the note was indorsed after maturity, the indorsee would hold it subject to all defenses available against the payee, but the proposed defense would not. upon the facts stated, be available against the payee. ■ Appellants placed the note in the name of the wife, as they say, to enable the husband to perpetrate a fraud, but as he says, for the honest purpose of paying or securing her j ust claim against him.

The judgment will be afiirmed.

Judgment affirmed.


author: Conger, J.

text:
    George B. Ramson et al. v. Nathaniel Kitner.

      Dogs—Damages for Killing.

      ' In an action brought to recover the value of a dog mistaken for a wolf and killed, this cgurt holds that the defendants are liable for the damages resulting from tlieir mistake.
    [Opinion filed February 21, 1889.]
    Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.

      Messrs. Morrison & Whitlock and O. A. De Leuw, for appellants.
    Messrs. M. T. Layman and F. D. MoAvoy, for appellee.
   Conger, J.

This was an action brought by appellee against appellants to recover the value of a.dog killed by appellants, and a judgment rendered for $50.

The defense was that appellants were hunting for wolves, that appellee’s dog had a striking resemblance to a wolf, that they in good faith believed it to be one, and killed it as such.

Many points are made, and a lengthy argument filed to show that error in the trial below was committed, but we are inclined to think that no material error occurred to the prejudice of appellants.

The jury held them liable for the value of the dog, and we do not see how they could have done otherwise under the evidence. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith.

We see no reason for interfering with the conclusion reached by the jury, and the judgment will be affirmed.

Judgment affirmed.