author: Lacey, P. J.

text:
    Z. O. Jackson, Administrator, v. Amelia S. K. May.

      Mortgages — Foreclosure—Usury—Application of Payments — Principal and Surety — Priority of Equities in Mortgaged Property — Subrogation.
    1. Where one of two loans is usurious, the other is not affected merely because they were made at about the same time and secured by the same mortgage. If the loans are in fact separate and independent, they will be so treated in regard to usury.
    2. Where a charge for expense and trouble on the part of the lender in securing money with which to make a loan is included in the note, the transaction is usurious.
    3. Where a mortgage, given primarily to secure a note for a new indebtedness, includes personally secured notes for a prior indebtedness to the mortgagee, the proceeds of a sale of the mortgaged premises should be first applied in payment of the note which is otherwise unsecured.

      4. The right of personal securities to subrogation depends on whether they have first discharged the principal debt, and whether there are superior equities attaching to the mortgaged property in favor of other parties.
    [Opinion filed December 8, 1888.]
    Appeal from and in error to the Circuit Court of La Salle County; the Hon. Celarles Blanohakd, Judge, presiding.

      Messrs. Duncan, O’Conor & Gilbert, for appellant and plaintiffs in error.
    If there is any rule of law well settled it is that the surety upon a promissory note is entitled to the benefit of all other securities for the same debt given by the debtor to the creditor. The surety upon a note secured by a deed of trust by the principal maker has the right to demand that the real estate security shall first be exhausted for its payment before recourse is had upon him. So, too, a creditor who has personal security and also property pledged for the payment of his debt, holds such property in trust for the surety, and must use it in discharge of the debt. Booth v. Wiley, 102 Ill. 84; Kirkpatrick v. Howk, 80 Ill. 122; National Exchange Bank v. Silliman, 65 N. Y. 475.
    The mortgage executed by the Jacksons, to foreclose which the bill in' this case was filed, was expressly given and taken to secure the payment, first, of these two $5,000 notes, and second, the note for $10,867.50. The mortgagee obtained that security in addition to the personal liability of the sureties, and by the law the sureties had the right to demand, either that the mortgaged premises should be sold and the money applied in payment of those two notes before resort could be had upon them, or, at least, that they should be subrogated to the rights of the mortgagee upon the payment by them of these notes.
    Another well and thoroughly settled rule is this: that-where a mortgage secures several promissory notes ■ falling due at different times, the one first falling due is entitled to priority of payment out of the proceeds of the sale. Flower v. Ellwood, 66 Ill. 441; Herrington v. McCollum, 73 Ill. 476; 2 Jones on Mortgages, § 1699.
    Messrs. Walter Beeves and Osoar • B. Byon, for appellee and defendant in error.'
   Lacey, P. J.

The appellee filed her bill in equity to foreclose her certain mortgage on certain real estate therein named, executed to her by Hiram Jackson and wife, William 8. Jackson, Z. Orlando Jackson, and James Jackson and wife, dated November 5, 1833, and acknowledged December 5, 18S3; made to secure three certain promissory notes, as follows: Two of said notes for a sum of §5,000 each, payable one year after date, to the appellee, with eight per cent, interest, dated October 1, 1883, and executed by Hiram Jackson, Z. Orlando Jackson, Wm. Dannell, Samuel J. Hayes, Noble 0. Baldwin, and Wm. S. Jackson; and one of the said notes payable to appellee, dated November 25,1883, for the sum of §10,887.50 drawing same rate of interest, and signed by Hiram Jackson and Z. Orlando Jackson, due October 1, 1885.

The defense made by all the signers of the first said men tioned notes as well as all the signers of the last mentioned notes, was only partial. It insists that subsequently to the execution of the notes and mortgage it was arranged between the appellee and respondents in the foreclosure proceeding, Hiram and W. S. Jackson and Wm. Dannell, that 240 acres of the land included in the mortgage should be sold to the son of Wm. Dannell, and that the purchase price thereof, which was §6,681.72, after outstanding incumbrances which were prior to said mortgage had been satisfied, should be applied as payment upon the said two §5,000 notes upon which the said Dannell was security; that, in pursuance of such agreement, Dannell purchased the land March 1, 1884, at said price, and paid therefor by giving his note and mortgage upon said land, but that appellee wrongfully applied the said amount, §6,681.72, upon the §10,867.50, instead of the first two mentioned notes.

The answer also sets up and insists on the defense of usury as against all the said notes, claiming that the loan was one entire transaction, and that the appellee reserved more than eight per cent, per annum interest on the amount, to wit, §1,720, by that amount being retained by H. N. Eyon, the agent and attorney of appellee, to procure the said loan of §20,867.50 as a bonus and charge for making the said loan over and above the rate of interest reserved in the notes, which was a device to evade the usury laws, and charges that appellee received a portion thereof and that Eyon advanced a portion of the money, to wit, §3,500. Hiram and W. S. Jackson were the principals on the said notes, and the other signers were only sureties. The original respondents, Wm. Dannell and Hiram Jackson, having died, Cephas D. Patterson, administrator of said Dannell, deceased, and Z. 0. Jackson, administrator oí Hiram Jackson, deceased, were made parties defendant. On March 4, 1887, final decree was rendered in the case, disallowing the claim of the wrongful entry-of the credit claimed and disallowing a claim for usury on the two first mentioned $5,000 notes, and allowing the claim of usury on the other note to the amount of $517.50. The court found due on the said two $5,000 notes the sum of $12,139.94, and on the other note $3,556.89, after deducting the usury and applying all payments, whether of principal or interest, in the principal, and also allowing $393.42 as attorney’s fee, as provided for by7 the mortgage.

The decree then ordered the sale of the premises to satisfy the decree rendered for the above amounts and costs of suit, and in case of deficiency in payment of the said note dated November 25,1883, W. S. Jackson and Z. O. Jackson, and the latter as administrator, etc., to pay the amount of the defi- . ciency of said note to appellee and for execution; and the court rendered a similar decree against the signers of the other notes for any deficiency remaining thereon, but against all the administrators to be paid in due course of administration.

From this decree Z. O. Jackson, administrator of the estate of Hiram Jackson, deceased, prosecutes this appeal, and the other respondents a writ of error, which two suits in this court have been consolidated.

The above appellant and plaintiffs in error assign several causes for error, and among them, and relied on in their brief, are, that the court erred in not making the credit on the two $5,000 notes, instead of the $10i,867.50 note, and in not ordering the proceeds of the sale of the mortgaged premises to be first applied in the payment of the said two first named notes> and in not allowing the claim of usury as against all the notes, and rejecting all the interest retained in the several notes from their date till the time that, they respectively became due, and only computing interest on the balance due, after deducting all payments, whether for usury or otherwise, out of the principal of the first two notes of §5,000 each, on the several notes from the times they respectively fall due, and this court is asked to reverse the decree with directions to the court below to render a new decree on the principle above announced.

The only two questions, then, for us to pass upon here, are the questions of usury and the application of the payment of the proceeds of the land sold. Inasmuch as both questions depend to some extent upon the facts in the case as detailed in the evidence, we can more conveniently consider them together, and will do so.

How, first, as to the manner and circumstances of the negotiations and payment of the money borrowed, as represented in the mortgage. We will not undertake to go over the evidence in detail, but we have examined it with care, and are satisfied that substantially the following state of facts concerning the matter is correct: Hiram and W. S. Jackson were insolvent and had made an assignment for the benefit of their creditors, and were indebted to the amount of about $60,000, and having an opportunity to settle with their creditors for fifty cents on the dollar, wanted to borrow of the appellee about $24,000, and made this proposition to H. K. Ryon, an attorney residing in La Salle county, Illinois, to borrow such sum of appellee. Ryon had usually acted for the appellee, who resided in Kalamazoo, Michigan, in regard to her legal business, and sometimes concerning her loans, though as a rule she negotiated them herself.

This was some time prior to October 1, 1883, but at that time he could not give them any definite answer.

. In a few days, about the first of October of said year, or two or three days after, appellee came from her home in Michigan to La Salle county, Illinois, and there met one of the Jacksons personally, perhaps the father, as one was the father and the other the son, and refused to make the loan for the amount required, but agreed to loan them $10,000 on personal security named, the appellees who signed as sureties afterward being the ones agreed on. The notes of §5,000 now in question were drawn up by Ryon for appellee, and were given over to Jackson to procure the secuaity, who afterward procured the names to be attached.

The note was then placed in the hands of Ryon to hold till the money was sent by appellee. At this time only the rate of eight per cent, interest mentioned in the nóte was reserved or taken.

Some days afterward one of the Jacksons came to Ryon and made an earnest appeal to him to make an effort to obtain the balance of the desired amount, or at least $10,000 more, of appellee, she then having returned to Kalamazoo. Ryon told him that he thought it would be hard to do, as he did not think she had the ready money, but could raise it if she wanted to on collaterals which he knew she held, but he would not undertake it as her agent, and would charge them $1,000 for his services in obtaining the money and in assisting the payment of it over to the creditors of the Jacksons, some of whose claims were in judgment under the compromise. Rone of the money, it was urged, could go into the hands of the Jacksons. This the Jacksons consented to, and Ryon went on his mission to Kalamazoo to see appellee. On his arrival there he, on account of his former relations with her in a business way, expressly told her that he came as the agent of the Jacksons, and that they were to pay him and that she must not regard him as her agent. She then told him that she would be at great expense raising the money, and she would require a bonus of about five per cent, on this last loan to pay her for this expense. On Ryon’s return home he reported this to the Jacksons, and they at once agreed to give it. Appellee then being informed of this, proceeded to raise the money so agreed to be loaned; and Ryon proceeded to get up the mortgage on the real estate and the note last agreed on, which was finally accomplished about the date of the last note. The amount of the note when finally agreed on was for $10,867.50. The amount that was represented in this note was $10,350, to be paid, over, and which was afterward paid over, to the Jack sons. The sum of $517.50 was the five per cent, on that sum to be paid to the appellee. In the meantime, before this was done, the §10,000 had been paid over to Ryon for the Jack-sons on the first loan, but was not yet paid to their creditors. The mortgage was drawn up and Ryon, on his own motion, so wrote it as to cover the first two notes as well as the last note, although that had not been contemplated before that time by any of the parties. The money on the last named note was raised mostly by appellee, bnt partly by Ryon advancing it and taking appellee’s note to himself, which she afterward paid. Afterward, some time in 1884, the Jacksons negotiated and sold the part of the land above named, for which the §6,681.72 was paid, and the mortgage was released as to it, and this amount applied on the said last named note. There was an attempt made to show that the amount last named was agreed on between Ryon, acting for appellee and W. S. Jackson and Dannell; that this amount was to be credited on the two first named notes on which Dannell was security. This was in consideration that Dannell’s son should purchase the land; bnt this is utterly denied by Ryon, and xve think the contention of appellant and plaintiffs in error, all the evidence and circumstances considered, is not sustained in that particular. We have arrived at these conclusions notwithstanding the evidence of W. S. Jackson to the contrary, whose attitude in this case does not highly recommend his case or his testimony to the favorable consideration of this court.

He also seems to he contradicted by his own letter written to appellee, dated October 24, 1883, in which he tells her, £;We are depending on that §10,000 still,” and other like expressions. This letter shows beyond question that the loan represented in the first two notes was made independently of that represented in the last note, though they were both dosed at or about the same time. We regard the loans as separate and independentand therefore the taint of usury can not inhere to the first two notes. The agreement for the loan in ease of the first two notes was not in anywise dependent on the latter. The first loan was without dependence on the second. The security was agreed on and the note drawn up and signed prior to the time the last one was agreed on, and if the last one had failed the first would still have subsisted.

This disposes of the usury charged against" the first two named notes. We are satisfied with the finding of the court as to usury charged against the Jast named note.

Taking the testimony of the appellee herself as being correct we must hold it to have been usurious. The fact that she was to be put to trouble, and perhaps expense, in obtaining the money from her creditors or even in borrowing it, can not be regarded as freeing the transaction of its usurious taint.

, It was a contract, a part of which had for its object the loan of money, and without that nothing was to be paid to appellee for her trouble and expenses. If a case like this is not usurious then indeed, it would be easy to evade the statute against taking usury. But we are satisfied that the amount of usury contained in the note as found by the court is also correct. The amount of 8517.50 was no doubt the sum agreed to be received by appellee, and the note made that much too large in consequence. This the court deducted, and it was correct.

The only remaining question is in regard to the proper application of the credit. The question of agreement is settled against appellant and plaintiffs in error. It now remains to be considered whether there is anything in the facts and circumstances that would make it equitable that the securities on the first two notes should be entitled to this credit to the serious impairment of the appellee’s mortgage security for her note which is unsecured by personal security.

We think there areno such equitable circumstances. In the first place those who signed the first two notes as surety did so without any expectation or agreement that appellee would take any mortgage security for their benefit. They agreed to stand good for the payment of the two notes in question.

The appellee was making a loan on which she almost wholly depended for her security on the mortgage she was about to take, but in taking it, included the two notes at her own volition' with the other note.

In what manner, may it be asked, are these complaining securities injured by the application of the proceeds of the mortgage security on the debt primarily intended to be" secured? They are not injured and may be benefited by the mortgage. If any of the proceeds arising from the sale of the mortgaged premises should remain after satisfying the last note, it would be applied on the note on which they were bound as security and to that extent they would be released. The action of the appellee in including the two first notes in the mortgage could therefore work no disadvantage to them. The rule of law insisted on by counsel for appellant and plaintiffs in error, that the payee is required to hold the mortgage security intact for the payment of tlienote on which there is personal security, under penalty, in case of failure to do so, of losing the benefit of the personal security, only applies in cases where there are no counter equities in favor of the payee of the note or other persons, superior to those of such personal securities.

As to any right of the subrogation claimed in favor of the personal securities, the rule is that it would depend as to whether or not they had first discharged the principal debt, and whether there were any superior equities in favor of other parties attaching to the mortgaged or pledged property. The question can not be determined by any technical consideration as to which of the two or three named notes in the mortgage first falls due.

The substance and right of the matter must be considered, and its proper solution should be controlled by equitable principles. The credit, then, as we view it, was properly applied on the last note given. As other actions of the court in computing interest and otherwise are admitted to be correct we will not examine the record further. The decree of the court below is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Charles H. Briggs et al. v. Nick Roth.

      Landlord and, Tenant — Trespass—Damages—Contract for Services and Board.

      1. A landlord is not justified in driving his tenant out by force, even though the latter has forfeited his tenancy by a breach of the contract under which he holds.
    2. In an action of trespass brought by a tenant against his landlord for endeavoring to drive him out by force and for driving away his stock, this court declines to interfere with the verdict for the plaintiff, although neither party is free from fault and the damages allowed might with much propriety have been less.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.

      Mr. Stephen E. Mooee, for appellants. '

    Messrs. Doyle & Moeeis, for appellee.
   Lacey, P. J.

This was an action of trespass by appellee against appellants for attempting to break into Ms dwelling house, occupied by himself and family, by force, and for driving away two cows and calves from appellee’s pasture and depriving him of the use of the pump. The cause was tried before a jury and resulted in the jury finding appellants guilty and assessing damages at $100, upon which verdict judgment was rendered; from such judgment this appeal is taken.

There is no complaint as to the instructions given by the court; the only ground upon which a reversal is sought is that the verdict is contrary to the weight of the evidence and that the damages are excessive. We have read over the evidence with care, and, while we find that neither party is free from fault, and while the damages might with much propriety have been less, we do not feel justified in interfering with the verdict of the jury. The actual damages done to appellee were slight; yet, the jury had a large discretion in the assessment of exemplary damages, and where there are circumstances of aggravation and malice appearing on the part of appellants, as here, the j ury were the judges as to the amount of such damages. According to the appellee’s testimony, he had hired to appellants for one year to do farm labor for $300 per year, and was to have pasture for two cows, two hogs, a good well and house and three acres for garden; that was all there was of the agreement; he went to work and took possession of the house the first of March; he had no arrangement with appellants to board the men when he hired to them, but made such arrangement the 23d of March: “ 1 agreed,” he says, u the men could stay awhile.” On the other hand Mr. Briggs, one of the appellants, testifies that the plaintiff hired to work for them for one year for §25 per month by the year; they to furnish him a garden patch, house, pasture for two cows, a place for two hogs, and appellee was to hoard appellants5 hired help for §3 per week of twenty-one meals. lie lived, slept and ate in the lower rooms in the house, and appellant, Briggs, and his hired man, occupied the two rooms up-stairs. “ We had the exclusive use of the up-stairs rooms and our bed and bedding were there, and our clothes.55 But he does not state that this was a part of the contract. They commenced taking their meals with appellee about the middle of March and continued up to the time of the difficulty.

About the 18tli of July. appellee refused to board the appellant, Briggs, and his hired hand any longer, under pretense that his wife was sick, although the evidence tends strongly to show that the true reason was he wanted to raise the board to twenty cents per meal. The oats were to be cut and the machine was coming the next day, aiid appellants did not know where to get hoard; this certainly was very aggravating to appellants, and was a breach of contract on the part of appellee. Thereupon the appellants canceled their contract with appellee for labor and demanded possession of the house, but appellee refused to give up the house. The appellants got board in a shanty with the “ tilers and continued to occupy the bed-rooms up-stairs till, on the 8tli August, appellee locked the outside door and would not allow appellants to enter. This also was done without warning. The appellant, Briggs, then took a rail and went to battering the door down, whereupon appellee shot at hint with a pistol and appellant returned the fire, no one, however, being hurt. The appellant then desisted and went away; previous to this, however, the appellants, after the discharge of the appellee and his refusal to go away, took the ¡Dump out of the well so appellee could not get water, drove their wagon over his garden and turned his cows and calves out of the pasture.

We are satisfied that the jury were justified in finding from the evidence that the appellee was to have the entire control ,of the house as the tenant, and that he was to work for and board the hired men of appellants at §3 per week, but that they were not entitled to any particular rooms any more than any other boarders. The contract is unlike the one recited in the case of Cochrane v. Tuttle, 75 Ill. 361. 'In that case the landlord was the full proprietor and held possession of the house. Let it be granted that the appellee forfeited his tenancy by refusing to hoard the appellants’ hands, a point, however, we need not decide, yet they would have no right to resort to violent measures in order to regain possession. They should appeal to the law, which the evidence shows that they had not done. They were not justified in attempting to drive the appellee out by force, and, if they resorted to such means; they are liable in an action of trespass. Reeder et al. v. Purdy and wife, 41 Ill. 279; Dearlove v. Herrington, 70 Ill. 251.

But if the jury believed the testimony of the appellee that the original contract had no reference to the boarding of the hired men, then the refusal to further board would not work any forfeiture of the lease for one year, and the appellants would be without excusé in doing what they did.-

Under all the circumstances, though we can not acquit the appellee of all blame, we do not feel at liberty to reverse the judgment on the alleged ground that the verdict is against the weight of the evidence. The judgment is therefore affirmed.

Judgment affirmed.


text:
    Samuel Anderson et al. v. The People.

      Criminal Lata — Appeal—Sec. 21, Chap. 5i, JR. S.

    1. No appeal lies in criminal cases, a writ of error being the only mode by which such cases can be brought before this court. This rule applies to prosecutions for misdemeanors.
    2. A prosecution under Sec. 21, Chap. 54, R. S., for rescuing cattle after they had been impounded, is a criminal prosecution.
    [Opinion filed December 8, 1888.]
    Appeal from the County Court of La Salle County; the Eton. Frank P. Snyder, Judge, presiding.
    Mr. Samuel Rioholson, for appellants.
    Messrs. Moloney & Stead, for appellee.
   Lacey, P. J.

This was a prosecution instituted before a justice of the peace under Sec. 21, Chap. 54, It, S., entitled “ Fences,” for rescuing cattle after they were taken up and impounded. Upon appeal to the Circuit Court and transfer to the County Court by agreement, the case was tried, and resulted in a conviction and fine against the appellant for $60.

From such judgment this appeal is taken.

A motion by the appellee was made in term time herein to dismiss the appeal, and for cause, claimed that no appeal was allowed by the statute in criminal cases, of which this was one. The motion was held under advisement by this court to the hearing. After careful examination we have become satisfied that the motion must be sustained. This is not a civil hut criminal action — a misdemeanor. Under the Constitution the appellant has a right to a writ of error from this court, but not an appeal to it. Smith v. The People, 98 Ill. 407. See also Bowers v. Green. 1 Scam. 42. Appeals are not allowed by statute in criminal cases. French v. The People, 77 Ill. 531. In the last cited case the court say: “Ho provision seems to be made for an appeal, and unless there is some statute expressly allowing it, no appeal, it is apprehended, will lie. A writ of error is the only mode by which the case can be' brought before this court. * * * Had there been an appearance and joinder in error on behalf of the people, we might, perhaps, treat the case as pending on error; but there has been neither an appearance nor joinder in error, hence the appeal will have to be dismissed.’’

It is claimed by appellees that in The People v. St. Louis & Cairo R. R., 106 Ill. 412, the Supreme Court has decided that appeals in misdemeanors may be taken to the Appellate Court. We do not regard that decision as so holding. There was no question raised in the case that no appeal would lie, only that the Supreme Court had no jurisdiction; and the court refers to the Appellate Court Act of 1879, Laws 1879, p. 222, for authority as to jurisdiction. The court held that the appeal should be taken to the Appellate Court. In Ingraham v. The People, 94 Ill. 428, the court held that the above statute did not authorize an appeal in a criminal case, but only alloyed appeals and writs of error to the Supreme Court in those several enumerated cases, according as appeals and writs of error lay in said-cases respectively, under the then existing laws, to wit, a writ of error in criminal cases, and in other cases named, both a writ of error and an appeal. ¡Neither the Appellate Court Act of 1879, or as amended in 1887, allows appeals in criminal cases. It must receive the same construction as given by the Supreme Court in the last case cited, allowing appeals and writs of error to that court. The object of the statute was, not to create a new right of appeal or writ of error, but simply to direct to what court appeals and writs of error already allowed might be taken. The appellee insists that this case is not a criminal case, but a qui tam action.

We do not so understand it. It is a criminal case below the grade of felony; a misdemeanor. There appear to be only two grades of criminal cases; that of felony and misdemeanor. Therefore the appeal herein is ordered to be dismissed.

Ajpgeal dismissed.


author: Upton, J.

text:
    Ann Daly and Michael Daly v. E. J. Ogden and Lorenz Reitz.

      Judgments — BUI to Vacate — Fraud—Injunction—Practice—Failure to Assign Errors.

    1. The burden of proof rests upon one who seeks to impeach a judgment and enjoin its collection on the ground of fraud.
    2. This court declines to interfere with a decree dismissing a bill to vacate a judgment and enjoin its collection, the evidence being sharply conflicting and no errors being assigned on the record.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding,
    Messrs. Haley & O’Donnell, for appellants.
    Mr. Fred. Bennitt, for appellees.
   Upton, J.

This was a bill in chancery filed in the Circuit Court of Will county to vacate a judgment and perpetually enjoin the execution thereof, filed in said court at the September term thereof, L86, upon which, on appellant’s application, a temporary injunction was issued.

The bill recites in substance that on the 5th day of May, A. D. 1886, E. J. Ogden, one of the appellees, through his agent, E. C. Ogden, and his attorney, Fred. Bennitt, caused a judgment to be confessed and entered of record in the Circuit Court of Will county against the appellants for the sum of §89.95, of which §25 was for attorney’s fees; that said judgment was entered in vacation after the September term of the said court, 1886; that the said appellee, Ogden, caused an execution to be issued upon the judgment and placed the same in the hands of the sheriff of Will county to execute; that said sheriff, in pursuance of the command of said writ, to enforce collection thereof, the same not having been paid on demand by appellants, levied said execution on lot five (5), in block numbered seventeen (17), in North Joliet, in the city of Joliet, Will county, Illinois, and was about to advertise and sell said lot to satisfy said execution.

Appellants further charge in their said bill that said judgment was entered without their authority, knowledge or consent ; that the note and warrant of attorney was never executed by them, or either of them, and was a forgery; that they were in no manner indebted, either jointly or severally, to the appellee, plaintiff in that judgment. The bill prayed for an injunction against the sheriff to prevent a sale of said property and for a cancellation of the judgment, and that such injunction be made, on hearing, perpetual.

To this bill appellees filed their answer by which, in substance, they deny fully and positively that said note and warrant of attorney was a forgery as alleged in the bill, or that the said judgment was had or taken without proper and lawful authority in law and in fact, expressly denying all the material allegations of the bill of complaint. To which answer appellants filed a replication and the cause was heard by the presiding judge of the Will county Circuit Court, sitting in chancery, and upon such hearing said court, by its decree entered of record therein, found the allegations of appellant’s bill to be untrue, and found the equities of the case to be witli the appellees, dissolved the preliminary injunction, and on suggestion and motion of appellee and proofs heard, assessed the damages for the wrongful issuance of said injunc. tion at the sum of $9.

From which finding and decree the case is before this court on appeal, upon which a reversal is sought, but no errors are assigned upon the record by appellant, or cross-errors by the appellee. The said appeal might therefore be dismissed under rule 15 of this court.

We have, however, carefully looked into the record of this case and find that the evidence on the hearing was-sharply contradictory and wholly irreconcilable, the appellants testifying positively that they never signed the note or warrant of attorney, but admitting that Dr. Ogden, one of the appellees, was employed by them and that they were indebted to him for medical services.

On the part of the appellees, Dr. Ogden testified that appellants did sign the note and power of attorney in his presence for an actual indebtedness due from appellants to his father, and he was corroborated by the testimony of one R. F. Williams, who was sworn and testified on the hearing, as also by the surrounding circumstances in the case.

It is an established rule of law, where a party seeks to impeach a judgment and enjoin its collection on the ground of fraud, the burden of proof rests upon him to establish it. Stout v. Oliver, 40 Ill. 245.

The presiding judge who heard the case in the court below and saw the witnesses, could far better judge of their credibility than we can possibly do, and his decision should not be set aside unless it clearly appears that he was in error in the determination of the cause, and no error being specified as having been committed and none being discovered on examination of the record, the decree of the court below is affirmed.

Decree affirmed>


text:
    Mollie Bowes v. City of Galesburg.

      Disorderly Conduct — Ordinance—Conflict of Evidence — Practice—Improper Remarks by Attorneys.
    1. In a prosecution under a city ordinance for disorderly conduct, this court declines to interfere with the verdict against the defendant, the evidence being conflicting.

      2. An appellate court will not reverse a judgment when the evidence of the successful party considered by itself, without contravening evidence, is clearly sufficient to sustain the verdict.
    3. A verdict will not be set aside for improper conduct on the part of the attorney for the successful party in making statements 'outside of the evidence, where it is plain that no harm has resulted therefrom to the appellant.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.
    Mr. O. D. Hendryx, for appellant.
    Mr. Fletcher Carney, for appellee.
   Upton, J.

This was a proceeding commenced before a justice of the peace on complaint of Alice Sharp, charging appellant with a violation of Sec. 21, Chap. 37, of the Revised Ordinances of the city of Galesburg, which provides : “ That whoever shall assault, strike or heat another, or by mutual agreement fight another, or disturb the public peace by any violent, tumultuous, offensive or disorderly conduct, or shall he guilty of any acts, language, or conduct calculated to provoke a breach of the peace * * * shall be subject to a penalty of not less than three dollars,” etc.

The appellant was convicted before the justice, and a fine of §3 and costs imposed, from which appellant appealed to the Circuit Court of Knox county, where a trial by jury was had, resulting in a verdict and judgment against the appellant of §50 and costs of suit, from which judgment appellant prosecutes this appeal, alleging that the verdict is clearly against the weight of the evidence; that the city attorney in his argument to the jury on the trial of said causean the Circuit Court made improper statements not founded upon the evidence in the case, which influenced the jury against the appellant in their verdict, and that the court of its own motion excluded proper evidence ftom the jury on the trial of said cause.

It appears undisputed that on the 14th day of May A. D. 1887, the time complained of, the appellant and complaining witness were severally engaged in keeping hoarding houses and restaurants adjacent to each other, on South Seminary street, in the city of Galesburg, in Knox count}’-, Illinois.

The testimony on the part of the prosecution tends strongly to show that appellant, on that day and place, was guilty of gross misconduct, which was calculated to, and did, greatly disturb the public peace, by violent, tumultuous, offensive and disorderly conduct and language, and did commit an assault upon the person of one Mrs. Birdson, and the complaining witness.

The testimony on the part of the defense tends to rebut that of the prosecution. We have carefully examined the whole evidence in the case and find that it was sharply conflicting and can not be reconciled.

We do not think it would serve any useful purpose to discuss the evidence in detail. It is not of a character to invite discussion. It was peculiarly a ease for a jury, in which to judge of the credibility of the witnesses and to give credit where it should appear to be due.

Upon this branch of the case wo content ourselves with saying that in our judgment the jury were warranted by the evidence in returning the verdict, and that appellant was guilty of a breach of the peace; the rule being well settled that appellate courts will not reverse the judgment of the trial court when the evidence of the successful party considered by itself, without contravening evidence, is clearly sufficient to sustain the verdict. Shevalier et al. v. Seager et al., 121 Ill. 564, 569.

It is further urged that improper remarks were made to the jury by the city attorney on the trial in the court below, which influenced the jury in their verdict. • The language complained of was “that the appellant and complaining witness had quarreled so much and created so much disturbance, that the city authorities were obliged to interfere to stop it.”

We do not desire to be understood as giving countenance in any degree to remarks or arguments of attorneys addressed to the jury on the trial of a cause, outside the evidence in the case. We regard it as quite reprehensible. Yet; sometimes, despite the utmost care on the part of the trial judge, and perhaps, without thought or wrong intent on the part of attorneys, remarks will be made which are entirely outside the evidence, and directly calculated to be, and are? productive of vicious results and improper verdicts. In all such cases, appellate, and trial courts as well, should be prompt in setting aside verdicts so unduly obtained. But it does not follow that in every case of improper conduct or speech of attorneys to a jury, the verdict should be set aside. It is manifestly only in cases where harm results therefrom to the party complaining that the courts will interfere, and this must be determined by the facts and circumstances of each particular case. A less elastic rule would be productive of greater injury than benefit to parties litigant.

We have already said the jury were warranted from the facts in the record in finding the verdict rendered, and we fail to see from the facts and circumstances in the case, how the statement of appellee’s attorney in the court below could have been productive of the verdict, in whole or in part. The reflection upon the previous conduct of the appellant, in the remark complained of, bore as heavily on the complaining wilness as upon appellant, and in no way pointed out the aggressor, or which was most at fault. On the contrary, the tendency, if any, would be to lessen, rather than increase the verdict palliating appellant’s wrongful conduct by the fault of the complaining witness — decreasing deserved punishment for the wrongful act by the provocation asserted.

BTo objection is made to the instructions of the court, and while the point is made that the court below of its own motion excluded proper evidence from the jury, no evidence is pointed out or shown as having been excluded, and we fail to find any such exclusion of evidence in the record.

We fail to find any error in the verdict of the jury, or the rulings or judgment of the court below, to authorize us to disturb either, and the judgment of the court below must be a (firmed.

Judgment affirmed.


text:
    The First National Bank of Monmouth v. Martha Strang, Administratrix.

      National Banks — Reorganization—Special Depo■ its — Loss—Trover— Liahilitg of New Bank — Measure of Damages — Evidence—Demand.
    1. A national bank may receive special deposits and give receipts therefor.
    2. In an action to recover from a national bank the value of certain government bonds which had been specially deposited with a national hank which, having gone into liquidation, was succeeded by the defendant bank which had the same name, place of business, books, business, and substantially the same officers, the interest on said bonds having been regularly paid after the reorganization by the defendant until its own suspension, when (he bonds were found to be missing, it is held: That, from the time of the organization of the new bank, the acts and declarations of the cashier within the scope of his authority were the acts and declarations of said bank; that his knowledge in regard to the bonds in question was the knowledge of both banks; that the payment of the installments of interest by the new bank was an admission that the bonds were in its possession; that the court below was warranted in finding that said bonds came into possession of the defendant bank upon its organization; and that the demand made, if any was necessaiy, was.sufficient.
    3. The measure of damages in an action of trover is the current market value of the property at the time of its conversion with interest until the time of trial; no distinction or exception to this rule is recognized wlrnn the property converted happens to be bonds, and when the demand and refusal either constitute the conversion or afford presumptive evidence of it.
    [Opinion filed December 8, 1888.]
    In error to the Comity Court of Warren County; the Hon. T. 31. Shaw, Judge, presiding.
    3Iessrs. Kirkpatrick & Alexander and Grier & Stewart 9 for plaintiff in error.
    Neither the declarations of Hubbard,nor the receipt given by him in 1879, nor any of his acts during the existence of the old bank, or while he was an officer of the old hank, and before he was an officer of the defendant bank, could in any way be evidence against the new bank to bind it, or even to show the existence of the bonds. The whole weight of the receipt, or of the declarations of Hubbard, are as admissions, and can not tend in any way to bind the defendant bank, because at the time they were made he was not an officer of the defendant, nor was it even in existence.
    There being no legal connection between these -two corporate beings, the iniquities of the former can not be visited upon the latter; and although there might be evidence enough in the record to show the former a bailee of the bonds sufficient to make it responsible for them, that coulu not affect the latter. If these people had such a claim against the former, they had the right and should have sought to make it out of its estate, and not out of the defendant, simply because it was a namesake, or because it bought a part of the assets of the former.
    In order to show liability on the defendant as a bailee, of the bonds, they must show the bonds, at some time, in the possession or custody of the defendant. In order to show a liability in trover, they must show the bonds came into the possession of the defendant, and a conversion of them, or what would be equivalent to a conversion. This they wholly fail to do by any evidence legal to bind the defendant. The possession of the bonds by the old bank, if it ever had such possession, would not be possession by the new bank, for the reason that they were entirely distinct corporations.
    The new and the old corporations are not the same. See Bellows v. Hallowell, etc., Bank, 2 Mason, 44; Blair v. The St. L., H. & K. Ry. Co., 22 Fed. Rep. 36; Wyman v. Hallowell, etc., Bank, 14 Mass. 57; Bruffet et al. v. Great Western Ry. Co., 25 Ill. 310; Cook v. The Detroit, Grand Haven & Milwaukee Ry. Co., 43 Mich. 349; L. E. & W. Ry. Co. v. Griffin, 92 Ind. 487; Neff v. Wolf Biver Boom Co., 50 Wis. 585; Menosha v. Milwaukee Railroad Company, 52 Wis. 414.
    These two associations being entirely separate and distinct, the defendant association is not liable for the debts or default of the other, except asincludéd in the special contract between them.
    In order to recover in trover, it was necessary that plaintiff should show the possession of the bonds in question in the defendant; showing possession in the old bank was not sufficient. It will be kept in mind that no one knows that the bonds sued for were ever in existence; no one knows that Hubbard ever made the exchange; no one ever saw the bonds, nor even coupons from the bonds. All the evidence there is to prove that the exchange of bonds was made, is Hubbard’s declarations while cashier of the old bank. All the evidence that the bonds sued for were ever in the old bank, is the receipt given by Hubbard, while acting as its cashier, and the presumption which might arise from the payment of what purported to be interest on such bonds, quarterly.
    It is a proposition so axiomatic as not to require the citation of authorities that, in order to bind a person by the acts or declarations of an agent, the person doing the acts, or making the declarations, must be either in fact the agent, or held out as an agent by the person sought to be held. But in this case the defendant association sought to be held by this receipt and these declarations, was not even in existence at the time the receipt was given, or the declaration made. There being no direct proof that the bonds were in fact exchanged, and that the bonds sued for were actually in the possession of the old bank, the only way in which the existence of the bonds or their custody by the old bank is proven, is by the admissions of Hubbard, and by the admission of that fact contained in the receipt of the old bank. These being simply admissions of the old bank, or its agents, and that is all any of them are, they are not evidence against the defendant.
    It will be observed that, at no time after the organization of the defendant association, was any receipt given for the bonds, nor were they ever seen by any one, nor are there any declarations by Hubbard, or any one else connected with the defendant, showing that any such bonds were in its custody, or even in existence. The only evidence in this record which could possibly be construed to that effect, is the fact that Hubbard from time to time paid to the agent of the plaintiff, what she took or understood to be, quarterly interest on her bonds. Had the bonds been traced to the possession of the defendant, or it connected with them in such a manner as to impose on it an obligation to become accountable for them, or look after them, then there might be some weight given to such payments, as an admission tending to bind it; but the bonds never having been traced to its possession or custody? and there being no evidence of any obligation ever having been assumed by the defendant in reference to them, that fact is not evidence to bind it. The most that can be said for the evidence is, that in a suit against Hubbard, it might be taken as an admission by him, but not so as against the bank. The bonds never having been shown to have been in the custody of the defendant, and there being no proof of any obligation ever having been undertaken by this bank in reference to them, Hubbard could make no declarations in that manner, which would bind the defendant. It was under no obligation to pay or collect the interest on the bonds, and when Mr. Hubbard undertook to do anything of that kind, or pay interest on the bonds, he was wholly outside of his duties and outside of the scope of his authority. Henry v. Northern Bank, 63 Ala. 527; Bank of United States v. Dunn, 6 Pet. 51; Bank of the Metropolis v. Jones, 8 Pet. 12; Salem Bank v. Gloucester Bank, 17 Mass. 1; Wyman v. Hallowell and Augusta Bank, 14 Mass. 58; Grimshaw v. Paul, 76 Ill. 164; First National Bank of Lyons v. Ocean National Bank, 60 N. Y. 278; West St. Louis Savings Bank v. Parmalee et al., 95 U. S. 557; Morse on Banks and Banking, pp. 188, 543.
    In trover the plaintiff must prove a conversion of the property by the defendant. 1 Chitty’s Plead., title Trover, 156; 2 Greenl. Ev., Sec. 642.
    A demand and refusal does not of necessity prove a conversion unless it is shown the party has it in his power to deliver up the goods, and with good cause refuses to do so. 1 Chitty’s Plead., title Trover, 160; 2 Greenl. Ev,, Sec. 644; Race v. Chandler, 15 Ill. App. 532; Keime v. Dale, 14 Ill. App. 308; Sturges et al. v. Keith, 57 Ill. 451; Wiley v. The First National Bank of Brattleboro, 47 Vt. 546.
    If these bonds ever came to the custody of the defendant it can not be said they were lost through its negligence. It took the same care of deposits left for safe keeping which it did of its own valuable property, and such as it was proper to take with such property. Its servants, until the time of the failure, were supposed to be honest by every one, and its cashier hore a good reputation for honesty and ability, and the bank would not be liable for his thefts. Morse on Banks and Banking, p. 97; Foster v. The Essex Bank, 17 Mass. 479; Scott v. National Bank of Chester Valley, 72 Pa. St. 461.
    Messrs. Matthews & Peacock and James A. McKenzie, for defendant in error.
    The receipt itself is grima facie evidence that the bonds were deposited, and there is not in the record a syllable of evidence to contradict it. The admission of Miss Martha Strang that she never saw the bonds, is in no sense evidence to contradict the receipt.
    The question of power of a national bank to receive special deposits and give receipts for them, is settled. Be vised Stat. U. S., Sec. 5228; Chattahooche Nat. Bank v. Schley, 58 Georgia, 369; First Nat. Bank v. Graham, 100 U. S. 699; First Nat. Bk. of Monmouth v. Dunbar, 118 Ill. 625, which last eato has much in common with this case.
    The acts and declarations of its cashier were the acts and declarations of the bank Bo. 85, and the acts and declarations of its cashier were the acts and declarations of bank Bo. 2751, the party to the record here.
    Bot only the admissions and declarations of parties to the records are admissible, hut also the acts and declarations of those who are in privity with them. Greenleaf on Ev., Vol. 1, Secs. 189, 190.
    We are entitled to it upon the ground of privity. SmiMi’s Leading Oases, Vol. 2, p. 390; 2 Wharton on Evidence, Sec-1163; Vennum v. Thompson, 38 Ill. 144; Mueller v. Rebhan, 94 Ill. 149; Hanchett v. Kimbark, 118 Ill. 129.
    We urge that the court below had reason to he satisfied that the preponderance of evidence was with the plaintiff below; that the bonds came to the defendant hank as a special deposit from bank Bo. 85.
    The demand and refusal are nof claimed by us to he conclusive evidence of a conversion, but they are grima facie
      evidence. 1 Chitty, p. 157; 2 Greenleaf, Sec. 644; Johnson v. Howe, 2 Gilm. 342; Bruner v. Dyball, 42 Ill. 34.
    Demand and refusal are both proved and admitted. ■ Then, they must account for the bonds. They have utterly failed to do so. Ho reasonable mind, from this evidence, can decide what finally became of the bonds. If we take the view that Hubbard sold them for the benefit of the bank, no demand and refusal are necéssary. See Bank v. Dunbar, 118 Ill. 625.
   Upton, J.

This was a suit begun by Janet Strang in her lifetime to recover the value of thirty-one (31) <¡¡>100 four per cent. United States Government bonds, claimed to have been deposited for safe keeping with the plaintiff in error by the intestate of the defendant in error.

Some time in December, 1873, the defendant’s intestate deposited for safe keeping in the First Hational Bank of Monmouth, Blinois, §3,100, in 6-40s and 7-20s United States Government bonds, taking its receipt therefor.

The interest, as the same from time to time became due upon these bonds, was paid at said bank. In 1879, this class of bonds, 6-40s and 7-20s, having been “ called ” in by the Government under the act of Congress authorizing the issue thereof, the defendant administratrix, as agent for her mother, Janet Strang, applied at the bank and made inquiry as to the method and means of making an exchange of these “called” bonds for other government bonds of a like amount. B. T. O. Hubbard, the cashier of the bank, informed her that the bank was doing business in Washington and could make the exchange for her without further trouble to her, and thereupon direction was given for the bank to make the exchange.

Shortly thereafter, in July, 1879, the defendant in error, calling at the bank to hear if the exchange had been made, was informed by the cashier, Hubbard, that the exchange had been made, and he then wrote and delivered to her the following receipt, viz.:

“S3,100. Monmouth, Ill., July 24, 1879.

“Beceived of Mrs. Janet Strang for safe keeping in our bank safe, thirty-one hundred dollars United States four per cent, bonds, interest payable July 1st, October 1st, January 1st and April 1st.

“B. F. O. Hubbard,

“ Cashier.”

Upon the delivery of this receipt she paid to said Hubbard for the bank, for difference in making the exchange, or fees for purchase, the sum of §8, and she delivered to said cashier the receipt of the bank for the deposit of the other bonds made in 1873. The bonds for which the last receipt was given were not shown to the defendant in error at any time after the exchange, but the interest thereon was paid at the bank quarterly when called for at its counter during its business hours, and from the general funds or money of the bank, as it had been before, from the time of the taking of said receipt, in 1879, until the hank closed its doors, in 1881, being §31 every three months, the last of which payments was made on April 1, 1881, one week before the bank closed and ceased doing business as hereafter stated.

B. T. 0. Hubbard was the cashier of the bank from some time in 1868 until the hank ceased to do business, in 1881. It was the custom of the bank to receive special deposits for safe keeping, and a part of its vault had pigeon holes or boxes for that purpose.

The First National Bank of Monmouth, Illinois, was chartered September 17, 1863, and the treasury number of its charter was 85, and it went into liquidation in the spring or early summer of 1882, its charter expiring in the summer or fall of that year.

The stockholders of this association, or a part of them, desiring to continue the banking business under the national banking law, organized an association having the same name as the old one, viz., “ The First National Bank of Monmouth, Ill.,” which new association was duly chartered under the act of July 7, 1882, with the United States Treasury number, 2757. This new association began business on or near the date of its charter in the banking room formerly occupied by the old banking association. The officers and directors of the old association, with one exception, became the officers and directors of the new association.

By a written agreement of July 7, 1882, between the First National Bank of Monmouth (in liquidation) and the new association, the new association took the assets of the old (except its surplus of §50,000, which was divided among its stockholders), and assumed to pay all its liabilities “to the extent and as shown by its boobs.” B. T. O. Hubbard was appointed cashier of the new bank and continued to act in that capacity until April 8, 1884, when it was put in liquidation and a receiver was appointed for it by the comptroller of the Treasury of the United States under the National Banking Act.

W. 0. Oakley, a national bank examiner, took possession of the said last named bank on the 8th day of April, 1884, and then made an examination of its affairs and scheduled its assets; he found §400 in United States bonds in the bank safe, §50 in 4 per cent, bonds, and §350 in 4J per cent, bonds.

On the 29th day of April, 1884, Guy Stapp was commissioned receiver of the bank, and took possession thereof on the 2d of May, 1884. No package or special deposit was found in the bank or its vault or safe, marked or indicated as belonging to Mrs. Janet Strang, or any government bonds other than those before indicated in the safe with the assets of the bank.

Other special deposits were found in the vault of the bank . belonging to various persons, the ownership of which was marked or indicated thereon, and which were, from time to time, delivered by the officers of the bank as called for, receipts being taken therefor by such bank officers.

The special deposits were not scheduled or taken possession of, or in any manner interfered with by the receiver. No entry or memorandum of any special deposits was shown upon the books or papers of the bank.

The books of the bank showed that at the close of its business, April 8, 1884, it should have had §131,000 cash in bank; there was turned over to the receiver between §7,000 and §8,000 only.

The books of the bank did not show any United States bonds. Demand was made of Joseph Martin, president of the bank, in writing (to which was attached a copy of the receipt). for the bonds in question, on the 18tli day of April, 1881. The bonds were not delivered on such demand. This suit was commenced April 22,1881. On the 26th January, 1886, Janet Strang departed this life and her death was suggested on the record. Martha Strang was appointed administratrix of her estate, and, on motion, was substituted as plaintiff in this suit.

The first and second counts in the declaration were in case for the loss of the bonds through negligence, and the third was in trover for the wrongful conversion of the bonds. Plea, the general issue.

The ease was tried by the court without a jury, by consent, and the issues were found for the defendant on the first and second counts, but found for the plaintiff on the third count, and judgment was entered against the defendant for the sum of §1,527.93 damages, and for costs; to reverse which judgment the case is brought to this court, and it is assigned for error, 1st, that the court below admitted improper evidence offered by the plaintiff; 2d, that the court erred in refusing proper evidence offered on the part of defendant; 3d, the court erred in finding for the plaintiff; 4th, the court erred in the amount of its findings; 5th, the court erred in refusing motion for new trial.

First. It is claimed the receipt read in evidence, of date of July 21,1879, issued by the First National Bank of Monmouth, “Number 85,” was improper evidence against this defendant, the First National Bank of Monmouth, “ Number 2751.”

The same objection is made to the evidence of Martha Strang as to the deposit in the old bank, “No. 83,” of the 83,100 par value of 6-40 and 7-20 government bonds, and the exchange thereof for the like amount of four per cent, government bonds of the par value of §3,100 by Hubbard, cashier of the old bank, and of the payment of the installments of interest thereon.

It is true that the basis of the claim of plaintiff’s intestate is the receipt and deposit of the bonds in question with the First National Bank of Monmouth number 2751, and its subsequent conversion of them to its own use. It must be borne in mind that while in fact the old bank went into liquidation and ceased business on a particular day, the new one was formed under the same name, at the same time, doing business at the same banking house, having the same president, the same cashier, the same employes, the same vault and safe, and was the same to all outward appearances, with the same special deposits that the old bank, number 85, had the day before. This record fails to show that plaintiff’s interstate, or indeed, the business public, was aware of any change in the legal status of bank “number 85.” So far as outward indications went, it was the same after bank “ number 2751 ” was announced as before. One evening the curtains went- down on bank “ number 85 ” and the next morning went up on bank “ number 2751.” It became a different bank in law and in fact by the private action of its stockholders taking a new number at the Treasury Department of the Government, and after dividing §50,000 of its surplus assets among the stockholders of the bank “number 85,” it transferred its assets remaining, banking house and fixtures, and contracted for the discharge of its liabilities “as shown by its books;” its special deposits passed to the new bank, and the old bank ceased to exist. But any one doing business with the new bank or its officers as a special or ordinary depositor with the bank, who was not informed of the change, would not have discovered it.

We think the question of the power of a national bank to receive special deposits and give receipts for such, is settled. Revised Statutes D. S., Sec. 5228; Chattahooche Nat. Bank v. Schley, 58 Ga. 369; First National Bank v. Graham, 100 U. S. 699; First National Bank of Monmouth v. Dunbar, 118 Ill. 625.

Win. P. Scliall testified: “My connection with this bank began in March, 1881; I was individual book-keeper. It was the custom of the bank to receive special deposits for safe keeping. Papers of different kinds were kept there; they were usually in envelopes. There were several tin boxes that set on the floor in the vault; some of the directors had special deposits there. I suppose the directors knew outsiders had special deposits there; quite a number of special deposits were there all the time I was there. I was in the employ of the bank at the time of its re-organization. David Rankin was president of the hank on July 6, 1882. B. T. O. Hubbard was cashier. Willis S. Hubbard and myself were book-keepers. There was no notice given depositors to call and got deposits, general or special, that I know of, when the bank changed. The old "bank shut down the windows at night and the new one opened them in the morning. The new bank had the same books, the same accounts, the same employes, and the same things in the vault. I am acquainted with Martha Strang; have seen her in the bank frequently. Papers left for safe keeping were kept in the vault; it was a room eight by ten feet, supposed to be burglar and fire proof. It had three doors; a wicket door with spring lock, and double doors with combination lock. The cashier and teller had the combination and no one else, I think, to the vault door. The depositors did not get into the vault; deposits were handed to some officer of the bank, and when called for, were handed out by some of its officers.”

Robert J. Gun testified: “Am one of the attorneys for defendants in this case;, was employed in the bank about noon on the day of its failure; quite a large number of special deposits were there; when bank closed I had to do with delivery of special deposits; by direction of Oakley, the matter was left largely to me. There were two packages of special deposits in the safe in the vault. Safe was inside vault; had to send to Chicago for expert to come and open it. In safe were some United States Government bonds, 4 per cent, and 4|- per cent, bonds. Did not count those bonds myself.”

Martha Strang testifies: “The receipt for these bonds was given to me by B. T. O. Hubbard; he was cashier of the First Rational Bank at Monmouth. I received payments of interest on the bonds mentioned in this receipt to ray mother as it became due; on the day the interest came due from the bank, Hubbard, the cashier of the bank, paid it to me from October 1, 1879; the last payment April 1, 1884, just one week before the bank closed. It was paid four times a year right along from 1879 to 1884. The money paid me was taken from the safe generally, but sometimes from money lying on the table.”

By the seventh division of Section 5136, Revised Statutes of the United States, the First National Bank of Monmouth, Blinois, was authorized, by its officers and agents or board of directors, to exercise all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, bills of exchange and other evidences of debt; by receiving deposits; and by the fifth division of the same section, it was authorized to elect or appoint a board of directors, president, vice-president and cashier, and to require bonds of them.

The plaintiff’s intestate, in the month of December, 1873, did make a special deposit in the First National Bank of Monmouth, Illinois, of United States Government bonds of the par value of §3,100; these bonds were designated as Government six-fortys and seven-twentys, and a receipt by the bank was executed therefor and delivered to her. These bonds, being called in by the United States Treasurer under the act of Congress authorizing the issue thereof, at the request of ■plaintiff’s intestate were, by the bank, through its cashier, sold or, exchanged for the like amount in par value of what was called United States Government four per cent, bonds, and the difference in the sale and re-purchase or exchange, or the fees for such exchange or purchase, was paid to said bank, being §8, by plaintiff’s intestate.

These bonds last named were left in said bank as a special deposit soon after the purchase or exchange thereof, and a receipt therefor given, dated July 24, 1879, as is rendered by its cashier, in the receipt gixmn therefor. By the terms of this receipt these bonds were to be kept in the safe of the said bank, to which its cashier and agent alone had access.

In 1882, when the old bank went out of existence, sold out its effects to the new bank, number 2751, it left the special deposits intrusted to it with the new bank; at least there is some evidence to that effect, as we have shown in the record, and no exudence to rebut it. From the time of the organization of the new bank, number 2751, in July, 1882, when Hubbard was appointed its cashier, the acts of the cashier, within the scope of his authority, were the acts of the bank. It will not be denied that it was within the scope of his authority to purchase, or deal in bonds and coupons as well as other commercial securities. It is undisputed that, from the date of the re-organization down to within some days of the close of the defendant bank, the old receipt was allowed to stand as originally issued, therein admitting the possession of these bonds for safe keeping, without notice that the new bank had undertaken to pay debts and liabilities of the old hank only “to the extent and as showed by its books,” and had by its cashier actually paid on the bonds called for by this receipt the coupons or quarterly installments of interest until within one week of the failure of the bank, being seven quarterly installments of interest.

There is no evidence tending to show that, at the time the old bank went out of existence, in 1882. these bonds were not in its safe, and if they were there when the new hank commenced business, and the cashier of the old bank as well as of the new bank knew it, his knowledge was the knowledge of the old as well as of the new bank. Bank v. Dunbar, 118 Ill. 625.

The acts of the cashier of the new bank, after its re-organization, in the payment of the installments of interest with the funds of the bank, was' an admission that these bonds were in its possession, and the purchase or payment of the coupons are circumstances to prove, if not actual proof, that the bonds were in the safe or vault of the new bank, and subject to its control, after its re-organization.

In this view, evidence connecting the old bank, number 85, with the new hank, number 2751, was proper. The acts and declarations of its cashier, within the scope of his authority, were the acts and declarations of bank number 85, by the giving of the receipt in question for these bonds, and the like acts and declarations of its cashier recognizing the bonds in possession of the new bank by the payment of interest thereon, were the acts and declarations of hank number 2751, the party to the record here.

We think the court below did not eir in admitting or excluding evidence offered on the part of the plaintiff upon the matter complained of.

Second. As to the second assigned error, it is sufficient for us to say that no evidence is pointed out as offered by the defendant which was refused admission or consideration by the court below.

Third. We think, from all the evidence in this record and the surrounding circumstances in evidence, the court below was warranted in finding that the new bank, the plaintiff iti error, had in its possession at the time of its organization the bonds in controversy in this suit, which facts and circumstances we have sufficiently commented upon in the examination of the other errors assigned and considered. At least, we think, the plaintiff made, by the evidence, a prima facie case, and the court did not err in so finding.

Fourth. It is claimed that the court below erred in finding for the plaintiff the amount of the judgment below. This error assigned, questions the rule of damages adopted bv the court below. It is insisted that the measure of damage was the value of these bonds when taken, and not when a demand was made.

We understand the proper measure of damages in an action of trover is the current market value of the property at the time of its conversion, with interest from that time until the trial; and in this State no distinction or exception is recognized when the property converted happens to be stocks; and where the demand and refusal either constitute the conversion or afford presumptive evidence of it, it is no infringement of this rule to regard that — the demand and refusal — as the time for estimating the value. Sturges v. Keith, 57 Ill. 451.

The rule as claimed by plaintiff in error is wholly impracticable in this case, since it can not be determined when these bonds were actually taken. The court found, and we think it was authorized to find under the evidence, prima facie, that the bonds in question came into possession of the plaintiff in error upon its re-organization, with the other special deposits .of the old bank, and that it has paid the seven coupons or 'installments of interest as the same became due thereon up to the time of its failure, or within six days of that time; and its failure to show any legal excuse for the absence of the bonds, either by direct or circumstantial evidence in the case, upon demand made on the officers of the bank therefor, and its refusal or neglect to deliver the same, afford presumptive evidence of the conversion of these bonds; and, for the purpose of estimating the damages in this case, the court below was authorized to assess the damages at the current market value of the bonds at the time of such demand and refusal, which, as shown by the evidence, was §1.23 on the dollar on the 18th day of April, 1884; and the damages assessed in the court below were much below that rate which, under the evidence and the rule as stated, the court would have been authorized to find.

It is insisted also that the demand in the case at bar is wholly inoperative and of no avail, because made after the bank examiner had taken possession of the assets of the bank and it was beyond the power of the bank to comply with such demand. The evidence is that the special deposits were not taken possession of by the bank examiner or receiver, but were left in charge of the officers of the bank, who delivered the same as called for to the owners thereof. Besides, if these bonds shoxild be regarded as a special deposit, notwithstanding the appropriation by the bank, and it had failed, and its property was in the hands of the United States authorities, the officers of the bank 'still had the right, under the Rational Banking Act, to deliver special deposits. Revised Statutes of United States, Sec. 5228; Bank v. Dunbar, 19 Ill. App. 558. If there was a conversion in fact before failure, then no demand would be necessary. After a careful examination of this record we find no error that ought, in our opinion, to reverse the judgment of the court below in this case, and we think it should be affirmed, and it is so ordered.

Judgment affirmed.


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    Herman H. Carter v. Joel Carter.

      Contracts — Costs of Test Case — Contribution—Limitations—Continuing Agreement — Question for Jury — Partnership.
    1. The joinder of two or more persons in a single adventure for their mutual advantage does not constitute them copartners in such sense as to oust a court of law of jurisdiction in respec,t thereto.
    2. Where two persons, as between themselves by parol agreement, are each liable for one half the costs of an extended litigation, the one who is primarily liable as a party may await the enforced payment of the entire costs at the end of such litigation, and then compel the other to contribute his proportion, although more than five years have elapsed since certain of the items became due and payable, the contract being a continuing one.
    3. In the case presented, the question whether there was a verbal contract for the payment of the expenses of the suit in question, was for the jury, the evidence being conflicting.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Charles Fowler and J. H. Fowler, for appellant.
    The only conclusion that can be derived from appellee’s testimony is that he was to prosecute his suit, pay the costs when incurred, and to be reimbursed for one-half of them by appellant. Some of the costs and expenses were due when incurred and the balance when the case was determined, which resulted in a judgment against plaintiff, appellee, for costs. He so considered it, for in October, 1878, he presented a bill for onelialf of' the expenses, paid in first trial, to appellant, which appellant refused to pay. Appellant himself testifies that that was his understanding of the contract. If that is true, we contend that one-half of the costs in the second trial were due the appellee when the cause was remanded back, June 17, 1880. The President, etc., v. Joel Carter, 6 Ill. App. 421.

      A right of action accrued at that time under the contract alleged by the appellee, and therefore the statute of limitations began to run from that time instead of the time when appellee paid them on a judgment against him and his sureties on his bond for costs.
    The court modified our third instruction by instructing the jury that the statute began to run when plaintiff, appellee, paid them. This, we contend, is not the law and never was. We understand the rule announced in all the text books and decisions of the courts is, “that the statute begins to run from the time that a right of action accrues to the plaintiff when he could bring suit.” Starr & C. Ill. Stat., Statute Limitations, Sec. 15, Chap. 83; Shelburne v. Robinson, 3 Gilm. 600; Cagwin v. Ball & Co., 2 Ill. App. 70; 3 Parsons on Contracts, 6th Ed., 1; Wood on Limitations of Actions, Secs. 117, 119, 120, 141, 147; Brant v. Gallup et al., 111 Ill. 187; McKerras v. Gardner, 3 Johns. 137; Williams v. Hurst, 25 Texas, 667; Hitt v. Sharer, 34 Ill. 9; Thompson v. Reed, 48 Ill. 119.
    As to construction of words, “ when a cause of action accrues,” see Humphry v. Cole, 14 Ill. App. 176; Cochrane v. Oliver, 7 Ill. App. 176; Collins v. Thayer, 74 Ill. 138.
    Where parties agree to share in the profits of a business the law will infer a partnership between them in the business to which the agreement relates. This presumption will control until rebutted by proof to the contrary. Lockwood v. Doane et al., 107 Ill. 236.
    By the contract there was clearly that joint interest in the particular adventure which would constitute the parties partners. Robbins v. Laswell, 27 Ill. 365; Burgess v. Badger, 12 West. Rep. 806; S. C., 14 N. E. Rep. 857.
    Mr. George H. Haight, for appellee.
   Upton, J.

This is an action of assumpsit commenced in the La Salle Circuit Court by the appellee against the appellant, on the 19th day of February, 1887, for the breach of an alleged verbal contract to pay one-half of the expense of a suit brought by the appellee, Joel Carter, against the village of Earlville, in said county, for damages sustained by the falling of a bridge in that village, while Joel and his brother, Herman H. Carter, were passing over it upon the street of that village.

The record in this case shows that some time in the spring of the year 1876 the appellant and appellee, while passing over a bridge in the streets of said village, were injured by the fall of a bridge; that during that year, some time in Octobez1, suits were commenced by appellant and appellee individually in the Circuit Court of La Salle county against the village, to recover damages for injuries claimed to have been by them severally sustained by the fall of the bridge.

The appellee settled his suit with the village before any trial was had. In February, 1878, appellant tried liis suit in the Circuit Court and obtained judgment, which was appealed by the defendant village to the Appellate Court. The Appellate Court reversed the judgment and remanded the cause.

In Februai'y, 1879, a second trial was had in the Circuit Court, and again resulted in a verdict against the village, from which an appeal was again taken to the Appellate Court, which court again reversed the judgment and remanded the cause. The case was not again tried. In the prosecution this snit Joel Carter, appellee, was, previous to the second trial, directed by the Circuit Court to give bond for costs, which he did, signed by himself as principal, and one William Wilson and the appellant, Herman H. Carter, as sureties.

After the cause was remanded the second time, suit was brought on the bond for costs; filed by the appellee in the Circuit Court, and judgment was obtained thereon against appellee and his sui’eties, amounting to about the sum of $256.98 ; other sums were paid by the appellee in the progress of said suit between February, 1878, and August, 1886, amounting to about $268.45, as costs and expenses therein, exclusive of attorney’s fees. This, in substance, is not disputed.

It is claimed by appellee that appellant became liable to pay the one-half of the costs and expenses of the prosecution of the suit of appellee against the village of Earlville as a test case, to determine the right to recover, not only in that suit, but in the one pending in favor of appellant against the village, defendant, on the same state of facts, by virtue of a verbal contract and agreement to that effect made, as is alleged, near the time of the commencement of the two suits against the village of Earlville, and before the settlement of appellant’s suit with said village. This is denied by appellant And the contention in the court below was whether any such verbal contract of a legal character was made between the parties, and, if so, whether the statute of limitations applied to the whole or any part thereof. The ease was heard by a jury in the court below, who found a verdict for the appellee and assessed his damages at §128.49, from which an appeal was taken to this court.

It is manifest that whether or not a verbal contract for the payment of the expenses of the suit of appellee against the village of Earlville was made as claimed, was a question of fact for the jury. The evidence was conflicting in regard thereto, and we can not say that it is insufficient to support the verdict.

It is further insisted that this suit can not be maintained, for the reason that the verbal agreement, if established, created a partnership between appellant and appellee, and as no accounting or settlement had ever been made, and no balance struck between the partners, a court of law had no j urisdiction. Whether a partnership in the prosecution of suits of this character can legally be made or enforced we are not called upon now to determine. The question presented to us is whether, from the evidence in this record, they were partners in the particular transaction out of which the present claim arose. The record in this case at most discloses that appellant and appellee joined in the single adventure of the prosecution of a suit to determine the liability of a municipality to respond in damages for an alleged personal injury they had received in the fall of a bridge, over which they were together passing in the limits of the municipality, and which it was claimed it was bound to beep in safe condition and repair.

In Hurley v. Walton, 63 Ill. 260, it was held that the joining of two or more persons in a single adventure, in which the profits are to be equally divided, does not constitute such persons co-partners in such sense as to oust a court of law of its jurisdiction in respect thereto. We regard this as decisive of the question.

By stipulation filed in the court below the statute of limitations is interposed, and it is insisted by appellant the statute is a full defense to all of appellee’s demands, because the record shows, as is claimed, that items of claim, except the receipts for money paid by appellee in August, 1886, to the clerk of the Circuit Court of La Salle county, being the sum of $256.98, was paid in the years 1878 or 1879, and that as to the sum of $256.98, which was a judgment on a bond for costs, as before stated, the several items comprising that judgment were due and payable more than five years prior to the commencement of this suit, and that an action then accrued and the statute commenced to run from that time. Under the facts in this record we can not yield or assent to that proposition. It will be 'observed that, under the verbal contract as found by the jury in this case, it was as much the duty of the appellee as that of the appellant, to pay the costs accruing in the suit of Joel Carter v. The Village of Earl-ville, as between themselves, and it appears from the evidence that at least appellee so regarded it in making the demand on appellant for the payment of one-half the costs of the first trial in 1878, which he refused to pay.

These costs were due to the officers of the courts in which the suit was, or had been pending, and after refusal of appellant to pay under the verbal contract, as he had agreed to do, appellee might well, as between themselves, await the enforced payment thereof, and then compel appellant to contribute in accordance with the contract.

In the proceedings in this suit appellee was the party of record, and he alone was primarily liable for the costs ; no fee bill or other process could issue to enforce payment thereof from appellant. Having instituted the suit appellee’s duty was to proceed therewith until determined, and the test established, to effect which the suit was commenced, and then compel the performance of the verbal contract for contribution, if not performed voluntarily. Or the appellee might have abandoned the further prosecution of the suit after refusal of appellant to contribute his proportion under the verbal contract, and have enforced the contract against him.

This contract was in the nature of a continuing, one ; it contemplated, as'the counsel for appellant have well said, that the appellee was to go on and pay all costs of the test case, and afterward be reimbursed by appellant for the one-half of the amount so expended.

In the case of Walker v. Goodrich, 16 Ill. 341, which was. an action by an attorney for services in defending a suit in chancery, the service commencing in 1840 and not having terminated at the time of the hearing, in 1855, the court held that the statute of limitations for the performance of a duty or employment, could not commence running until the service, duty or employment had been performed by the termination of the suit, or the contract of retainer had in some other mode been determined; in other words, was a continuing contract. There was a suit pending in court for more than twelve years, requiring almost daily attention for a large part of that time.

The court asks: “ Did the statute of limitations commence running at the termination of each day as to the services rendered on that day? Were the attorneys obliged to pause in their defense within each period of five years to commence suit against their client for the services already performed, or forfeit them ? The very statement of the proposition shows how embarrassing, inappropriate and, indeed, impracticable such a rule would be.”

The case of Darwin v. Smith, 35 Vt. 69, is in point; its similarity will be apparent from the opinion of the court, which in part we quote : This case shows that the plaintiff was to make disbursements for the expenses of the suit, and that when those expenses were ascertained they were to be adjusted between the defendant and himself according to the defendant’s agreement.

“ The plaintiff could have no cause of action until he ha d made the necessary payments resulting from the suit. * * * As the plaintiff’s cause of action did not accrue until the expenses of the suit were, in fact, paid by him, the plaintiff was entitled to a verdict for one-lialf of the expenses paid.”

We therefore conclude that this objection is not well taken.

The instructions of the court given to the jury, although not in full accord with the rule stated, were far more favorable to the appellant than as here expressed, of which appellant can not complain, and no cross-errors having been tiled by the appellee,.and finding no error in the proceedings of the court below requiring our interference, the judgment is affirmed.

Judgment affirmed.