author: Bailey, J.

text:
    Israel Beidler v. Peter Beirnaert.

      Malicious Prosecution—Conflict of Evidence—Improper Instruction to Find for the Defendant—Advice of Counsel.

    1. In an action for malicious prosecution, it is held: That the evidence for the plaintiff showed a good cause of action; that the conflict raised by the defendant’s evidence presented questions for the jury; and that the court improperly instructed the jury to find for the defendant.
    2. Advice of counsel, to be sufficient as a defense, must have been obtained in good faith froxn a competent and reliable attorney u¿.on a full and accurate statement of all the facts.
    [Opinion filed February 17, 1887.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.

      Messrs. Fkank J. Smith & Helmer, for plaintiff in error.
    We understand the rule relating to cases that may be taken from the jury to be that it is the province of the court to determine whether or not there is an absence of proof upon any essential allegation or matter, and where the court finds, as a matter of law, that there is no proof to establish any essential fact, then he may take the case from the jury. But where there is evidence tending to prove a complete case, it is a matter for the jury alone to determine the weight of the evidence. Lake Shore & M. S. Ry. Co. v. O’Connor, 115 Ill. 254.
    In the case of Simmons v. C. & T. R. R. Co., 110 Ill. 340, 346, the court said: “The more reasonable rule is that when
    the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be sot aside, the court may direct a verdict for the defendant.” Frazer v. Howe, 106 Ill. 563; Hubner v. Flige, 90 Ill. 208; Crowe v. People, 92 Ill. 231; Pennsylvania Co. v. Stoelke, 104 Ill. 201.
    Messrs. Chas. H. Barnum and Runyan & Runyan, for defendant in error.
    “ Anciently it was doubted if the action would lie unless founded upon a conspiracy. It is now, however, well established, such actions will be maintained, but at the same time the onus is upon the party bringing the action to show that the criminal prosecution was the offspring of malice and without any probable cause to justify it; that the prosecutor had no sufficient reason to believe the accused guilty. If these are wanting—if malice and a want of frobahle cause do not exist, the action must fail” Israel v. Brooks, 23 Ill. 526.
    In the same case the court says: “ Malice is a fact which can be proved by the circumstances attending the getting up of the prosecution, but if there be probable cause for the prosecution, the' malice of the prosecutor weighs nothing, though the accused be innocent. Probable cause may be said to be a mixed question of law and fact. After the facts are given in evidence, it is for the court to say, in its instructions to the jury, whether or not they make up probable cause.”
    “ We think the more reasonable rule, which has now come to be established by the better authority, is that, when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so .insufficient to support a verdict for the 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 the defendant.” Bartolett v. Int. Bank, 119 Ill. 259.
   Bailey, J.

This was an action on the case, brought by Israel Beidler against Peter Biernaert for malicious prosecution. The declaration alleges that the defendant, maliciously and without probable cause, made a complaint before a Justice of the Peace charging the plaintiff with the larceny of a horse, the property of the defendant, and caused the plaintiff to be- arrested and imprisoned on said charge; that the matter of said complaint was continued from time to time by said Justice of the Peace, the plaintiff being required to enter into bonds and furnish security for his appearance; that upon the examination of the plaintiff by said Justice of the Peace, the plaintiff was bound over and required to give bonds for his appearance in the Criminal Court; that the defendant appeared before the grand jury and falsely, maliciously and without probable cause procured the indictment of the plaintiff by the grand jury for said crime of larceny; that the plaintiff was arraigned in said Criminal Court upon said indictment and tried for said supposed offense, and that upon said trial he was, by the jury, found not guilty, and fully acquitted and discharged, and said prosecution was then and there ended.

The defendant pleaded not guilty, and at the trial the plaintiff gave evidence tending to prove the proceedings before the Justice of the Peace and in the Criminal Court substantially as alleged in the declaration. He also testified on his own behalf, in substance, that in February, 1884, be bought of the defendant a horse for §140, there being no special agreement as to the time of payment; that he paid the defendant various sums of money to apply on the purchase of the horse, during the spring and summer of 1884, amounting in all to §99, and that on the 28th day of September of that year he tendered to the defendant the sum of §41, the balance due for the horse; that the defendant refused to receive the money, then claiming that he had rented the horse to the plaintiff merely, and had not sold him to the plaintiff; that the defendant then sued out a writ of replevin for the horse before a Justice of the Peace, which was served on the plaintiff, the horse, however, not being found to be seized on said writ; that said replevin suit, after having been once continued, was dismissed on motion of the defendant, the plaintiff therein, and very shortly thereafter the defendant swore out a warrant for the arrest of the plaintiff on the charge of the larceny of said horse, and that thereupon the proceedings in the matter of said criminal prosecution above detailed took place.

The plaintiff here rested his ease, and the defendant, in his own behalf, testified that he did not sell the plaintiff said. horse, but that the transaction between them was, in fact, a renting of the horse to the plaintiff at §3 per week and that the several sums of money paid him by the plaintiff were paid as rent and not on account of the purchase money of the horse; that after the replevin writ was issued he looked for the horse at the plaintiff’s stable and elsewhere and failed to find him; that he consulted one attorney who advised him to sue the plaintiff for damages; that he then went to another attorney and told him that he had rented a horse to the plaintiff, and that when he wanted to get him back the plaintiff had run him off, explaining at the same time the steps which had been taken to find and get possession of the horse, and also telling him that the plaintiff claimed to have bought the horse; that after the defendant had stated the case as above, said attorney said that he should arrest the plaintiff; that if he had run away with a horse that did not belong to him he was a thief. The defendant also introduced evidence of certain admissions by the plaintiff tending to show that the transaction between him and the defendant in relation to the horse was a lease and not a sale. The foregoing being substantially all the evidence in the case, the court, at the conclusion of the evidence, on his own motion, orally instructed the jury to render a verdict for the defendant, which was done, and the court thereupon, after denying the plaintiff’s motion for anew trial, gave judgment in favor of the defendant for costs.

The instruction to the jury to find a verdict for the defendant was clearly erroneous. The evidence for the plaintiff showed a good cause of action, and the evidence introduced on behalf of the defendant merely raised a conflict with the case made by the plaintiff which the jury should have been permitted to settle. If the defendant had, in fact, sold the horse to the plaintiff, then the prosecution was wholly without probable cause, and from such want of probable cause the jury might, we think, have inferred malice. If the transaction was a sale, that fact was necessarily within the personal knowledge of the defendant, and the prosecution could not have been undertaken in good faith, and was therefore malicious. The real issue was whether the transaction in relation to the horse was a sale or a letting of him for hire, and upon that question it was not for the court to say wdiere the preponderance of the evidence lay.

¡Nor is the case relieved of its difficulty in the least by the fact that the defendant, before causing the plaintiff’s arrest, stated his case to counsel and obtained and followed his advice. In cases of this character, to enable the defendant to base a defense upon the advice given him by counsel, he should, in perfect good faith, obtain the advice of a competent and reliable attorney upon a full and accurate statement of all the facts. Davie v. Wisher, 72 Ill. 262. And in such cases it is a question of fact to be determined by the jury whether the party has fairly communicated to his counsel the facts within his knowledge, and used reasonable diligence to ascertain the truth, and also whether he acted in good faith upon the advice received from counsel. Anderson v. Friend, 71 Ill. 475; Ames v. Snider, 69 Ill. 376.

The determination of the question whether the defendant fairly and truthfully disclosed to his counsel all the facts in relation to his controversy with the plaintiff, necessarily involved the decision of the question as to what the real transaction between them was. If the plaintiff’s testimony is true, the statement made by the defendant to his counsel was altogether false, and afforded no foundation for a defense based upon the advice of counsel. The question of the truthfulness of said statement, and of the good faith of the defendant in seeking and acting upon the advice of counsel, were clearly questions for the jury, and they should have been left to their decision.

For the error of the court in taking the case from the jury and directing a verdict for the defendant, the judgment will he reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles B. Phillips v. Joseph L. Wilson, Administrator, etc., and E. W. Blatchford.

      Parties—Chose in Action—Suit in Name of Assignor—Continuance in Name of his Personal Representative—Statute.
    1. The legal title of a chose in action remains in the assignor, and at his death passes to his legal representative.
    2. A suit brought in the name of the assignor, before his death, may be continued in the name of his personal representative.
    3. Sec. 23, Chap. 1, R. 8., does not deprive the assignee of a chose in action of any right which he had at common law. It simply gives him the additional right to continue a suit, instituted in the name of his assignor for his use, in his own name.
    [Opinion filed February 17, 1888.]
    In error to the Circuit Court of Cook County; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Chas. B. Phillips, in person, and W. T. Burgess, for plaintiff in error.

      Mr. David Fales, for defendant in error.
   Per Curiam.

An action of assumpsit was commenced by Erastus 8. Williams, for the use of E. W. Blatcliford, against the plaintiff in error, and on the 23d day of January, 1884, he was defaulted, and a judgment entered against him. On January 26th he was allowed to plead, the judgment to stand as security, and a plea of the general issue was filed.

On January 3, 1885, the death of Erastus 8. Williams was suggested, and on April 8, 1885, the following order was entered: “ On motion of said plaintiff’s attorney, it is ordered that said clause be and it hereby is revived in the name of Joseph L. Wilson, administrator of the estate of Erastus 8. Williams, deceased, as the party plaintiff herein, for the use of Eliphalet W. Blatehford and against Charles B. Phillips.”

On July 8, 1885, a motion was made by plaintiff in error to vacate said last mentioned order, and also a motion to substitute the beneficial plaintiff as the sole plaintiff in the cause, which motions were both overruled by the court. On the trial there was a verdict against the defendant. No bill of exceptions was filed, and the only errors assigned are on the record proper, and relate to the action of the court in allowing the suit to proceed in the name of the administrator of the nominal plaintiff, and in overruling the motions of plaintiff in error above stated.

Sec. 23, of the statute on abatement, provides: “No suit instituted in the name of one for the use of another, shall abate by reason of the death of a person whose name is used; but it may be continued by the real plaintiff in interest, in his own name, on his suggesting such death on the record, and an order of the court being made substituting his name for that of the deceased plaintiff.”

It is contended that this section is mandatory. We do not so regard it. It does not deprive the assignee of a chose in action of any right which he had at common law.

By virtue of the assignment the assignee obtains the right to use the assignor’s name in all necessary legal proceedings, and, indeed, he must proceed at law in the name of the assignor, or if lie be dead, the name of his personal representative. 1 Chitty’s Pl. 16; Orr v. Thompson, 4 Gilm. 452.

The legal title to a chose in action remains in the assignor, and at his death it does not pass to the assignee, but to the legal representatives of the assignor, and the same reason which gave the beneficial owner the right to use the name of the assignor as nominal plaintiff, operates to allow him the use of the name of the assignor’s administrator as nominal plaintiff on the assignor’s death.

Sec. 23, above quoted, gives him the further right of continuing the suit in his own name, if he sees fit to do so, and said section was probably passed to enable the beneficial plaintiff to save the suit and prosecute in his own name in cases where no administrator or executor of the nominal plaintiff is appointed. Under Sec. 10 of the abatement statute, thb action might be continued iu the name of the plaintiff’s administrator, and under section 23, in the name of the beneficial owner. The practice of continuing the suit in the name of the personal representative of the nominal plaintiff, obtains in this State, and has passed without criticism. Mills v. Bland, 76 Ill. 381.

We are wholly unable to see how the adoption of that practice in this case has injuriously affected plaintiff in error. He could not thereby be deprived of any defense.

There is no error, and the judgment of the Circuit Court will, therefore, be affirmed.

Judgment affirmed. '


author: McAllister, J.

text:
    Columbia Building and Loan Association v. William H. Taylor.

      Mechanic's Lien— Trust Property—Parties.
    Both the trustee and the cestui que trust are necessary parties to a proceeding to enforce a mechanic’s lien involving trust property.

      [Opinion filed March 6, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Cyrus Efler, Judge, presiding.
    Mr. Julius Goldzier, for appellant.
    The incumbrance for the benefit of this appellant was by a trust deed, in which Philip Maas was trustee. Maas was not a party to the original bill, nor was he ever made a party by amendment. It has been held repeatedly, both by this court and the Supreme Court of this State, that both the trustee and the cestui gue trust are necessary parties to this proceeding. Lomax v. Dore, 45 Ill. 379; Phoenix Mutual v. Batchen, 6 Ill. App. 621; Scanlan v. Cobb, 85 Ill. 296; Clark v. Manning, 95 Ill. 580; Bayard v. McGraw, 1 Ill. App. 134.
    The trustee having the legal title is a necessary party. Story’s Equity Pleading, Sec. 207.
    While it may be objected that the trustee has but a naked title in the premises, and no real interest, the fact still remains that the fee simple title, in law, rests in him, and it is hardly conceivable how proceedings, that must ultimately culminate in divesting the title to land, and by sale transferring it, can be carried on without making the holder of such legal title a party to the proceedings.
    Besides, the statute makes it obligatory that every one who has a legal or equitable title should be made a party to a lien proceeding. R. S., Ch. 82, Sec. 13; Race v. Sullivan, 1 Ill. App. 94.
    Messrs. Frank Mo Winnie and S. A. French, for appellee.
   McAllister, J.

This was a proceeding by petition, filed March 5, 1S84, by Taylor, the appellee, against Bush, as the owner, and the Columbia Building and Loan Association, the appellant, as incumbrancer of certain real estate described in the petition, for the enforcement under the statute of a mechanic’s lien for work and materials done and furnished by the plaintiff in the erection by him of a building upon such real estate for the defendant, Bush, under a written contract between the parties last mentioned, made June 6, 1883, and oral modifications of the same, by which said building was to be completed by the plaintiff and ready for occupancy by August 25,1883, for which, by the original contract, said Bush was to pay plaintiff the sum of 82,950 in payments as the work progressed, and any balance upon completion of the work; the petition alleging that there was a balance due, at the time of such completion, which was September 8, 1883, of §699.30, which plaintiff claimed with interest, and for which he prayed a lien.

The defendants answered separately, to which plaintiff filed general replications. The cause was heard upon pleadings and proofs and a decree passed finding the balance due to be §382.84; that plaintiff was entitled to interest thereon at the rate of six per cent, per annum from December 15, 1883, making in all the sum of §810.70, for which petitioner was entitled to a lien upon the lot described in the petition. From that decree the said Building and Loan Association appeals to this court.

It appears that the said Building and Loan Association set lip in its answer that Hay 21, 1883, the said Bush, to secure the repayment of a loan from said company of §3,000, executed a trust deed Hay 21, 1883, of the premises described in said petition, in the usual form, to one Philip Haas, as trustee, thereby conveying the legal title in said premises to him, which deed was duly acknowledged and filed for record in Cook County where said land was situate, June 5,1883. The answer averred that at the time of filing said petition, there was lawfully due and still owing to said Building and Loan Association from said Bush upon said loan, the sum of $2,770-.71, for which said trust deed was held as security.

The answer also set up that the said sum claimed by the plaintiff .became due upon the completion of said building, and that the same was completed and said sum due and payable by the original contract more than six months prior to the filing of said petition, relying upon the statute in such case made and provided.

Several points for reversal have been insisted upon by appellant’s counsel, but after a careful consideration of the case, we think none are sustainable except that of a defect of parties. The bill made the cestui que trust, under the trust deed, a party. It should also have made the trustee, in whom the legal title was vested, a party. The rule is inflexible in such a case as this, that both the trustee and cestui que trust should be made parties. Phillips on Mech. Liens, Sec. 394, and cases in notes; McGraw v. Bayard, 96 Ill. 146.

What effect the circumstance that the cestui que trust was made a party in the first instance, may have upon the question of the Statute of Limitations, if the trustee be made a party after the lapse of six months from the time the money was due from Bush, we do not feel called upon, at this stage of the case, to discuss or determine.

For the reason stated, the decree must be reversed and the cause remanded.

Decree reversed.


text:
    Gerhard Becker and Elbert W. Shirk v. John V. Farwell et al., Partners.

      Contribution—Jurisd.iction.in Equity—Payment—Purchase and Assignment of Judgment—Tort-feasors.

    1. A court of equity has jurisdiction of a bill filed to enforce a contribution.
    2. Before one of two or more judgment debtors can maintain a bill for contribution in respect to a judgment against all the parties, he must pay and satisfy such judgment. A payment of money for the purchase and assignment of the judgment to. a third person, in such a way as to preserve its validity, is not a payment, and ia.ys no foundation for a claim for contribution.
    3. Where a writ issued against one party is executed by seizing goods in the possession of another who claims to be the owner, such seizure is presumptively tortious, and the party procuring it will be presumed to have acted with notice that he was committing a wrong. If he fails to justify such seizure, he must be treated as a wilful tort-feasor.

      4. In the case presented it, is held: That there is no evidence of an express or implied contract on the part of the defendants to contribute to the payment of the judgments in question; and that the facts shown by the record bring the complainants within the general rule forbidding contribution among wrongdoers.
    [Opinion filed March 6, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F, Tulby, Judge, presiding.
    This was a bill in chancery brought by John Y. Farwell and others, co-partners under the firm name of John Y. Farwell & Company, against Gerhard Becker and Elbert W. Shirk, to compel contribution in respect to certain judgments rendered in the State of Iowa. The cause being heard on pleading s and proofs, a decree was rendered in accordance with the prayer of the bill, and the defendants have appealed to this court. The facts, as disclosed by the pleadings and proofs, so far as they are material, are briefly as follows:
    For some time prior to December 19, 1881, the firm of. Olquist Brothers was carrying on the mercantile business in Monticello, Jones County, Iowa, and also at Center Point, Linn County, Iowa, they having a stock of goods at each of those places. On the day above mentioned they were indebted to various parties for merchandise, viz.: §5,984.23 to the complainants ; §2,076.14 to defendant Becker; §234.30 to Sherer, Shirk & Company; §728 to H. L. Eisen & Company, and §3,384.50 to O. IL Keith & Company. A few days prior to the date above named, Olquist Brothers sold and delivered their stock of goods atMonticello to one FLA. Sunberg, and also their stock of goods at Center Point to said Sunberg and one F. B. Olquist, the latter being a brother of the members of said firm, but not connected with them in business. The evidence tends to show that the former of these sales was by way of payment and satisfaction of a chattel mortgage on said stock of goods previously executed by Olquist Brothers to Sunberg. On said 19th day of December, 1881, said creditors commenced suits by attachment in the District Court of Jones County, Iowa, against Olqnist Brothers for the recovery of their respective debts, and caused writs of attachment to be issued to the Sheriffs of both of said counties. Said writs were levied upon both of said stocks of goods, the stock of goods in Jones County being at the time in the actual and visible possession of Sunberg, and the one in Linn County in that of Sunberg and Olqnist, the purchasers from Olquist Brothers. Said levies were made in the following order of priority: in Jones County, first, the complainants; second, Sherer, Shirk & Company ; third, H. L. Eisen & Company; fourth, O. R. Keith & Company, and fifth, defendant Becker; and in Linn County, first, the complainants; second, defendant Becker; third, Sherer, Shirk & Company; fourth, H. L. Eisen & Company, and fifth, O. B. Keith & Company. By the laws of Iowa attachment creditors take priority in the order in which their writs of attachment are served. The suit in favor of the complainants and the one in favor of defendant Becker were commenced and prosecuted to their final termination by the same attorneys. Shortly after the writs were levied, Becker’s agent, who had gone to Iowa for the purpose of employing attorneys and instituting the attachment suit on his behalf, met an agent of the complainants, who, on behalf of his principals, was on the ground for a like purpose, and proposed to him that, as the complainants had a first lien on the stock of goods in Jones County, which would be nearly sufficient to pay their claim, if they would yield their property to Becker so far as their lien upon the goods in Linn County was concerned, Becker would unite with them in contesting any litigation likely to grow out of the service of the attachments. This the agent of the complainants promptly and decidedly refused to do.
    The several attachment suits were prosecuted to judgment, and the court having appointed a receiver to take charge of and sell the goods attached, the goods in Jones County were sold and the sum of §4,380.14 realized therefrom, which was all paid over to the complainants in part satisfaction of their claim. The goods in Linn County were also sold and the proceeds were applied first to the satisfaction of the residue of the complainants5 claim, after which the claim of Becker was paid in full, then that of Sherer, Shirk & Company, leaving §55.55, which was applied upon the claim of H. L. Eisen & Conjpany. The residue of that claim, as well as the entire claim of O. B. Keith & Company, retrained unsatisfied. Indemnifying bonds were given to the Sheriffs of both counties, at the commencement of them attachment suits, by the complainants, defendant Becker and the firm of Sherer, Shirk & Company.
    On the 27th day of December, 1881, Sunberg, claiming to be the owner of the stock of goods attached in Jones County, commenced Ms action in the District Court of that county against the Sheriff to recover damages for the wrongful seizure of said goods. At about the same time a similar action was commenced by Sunberg and F. B. Olquist against the Sheriff of Linn County in the District Court of that county. Afterward, in pursuance of the provision of a certain statute of Iowa, the complainants were substituted as defendants in place of the Sheriff in the action piending in Jones County, and in the action pending in Linn County, the complainants, defendant Becker, and Sherer, Shirk & Company, were substituted as defendants in place of the Sheriff of that county. Such substitution having been made, both suits were removed to the Circuit Court of the United States. A motion in that court to remand said causes to the State courts was granted, but on petition for a rehearing the order remanding said cause was vacated and the consideration of the motion postponed^ await the decision of an appeal to the Supreme Court of Iowa from the order of the District Court, making a substitution of defendants. An appeal was accordingly prosecuted by Sun-berg in the Jones County case, and upon such appeal the Supreme Court decided that the statute under which the substitution was made was unconstitutional, and reversed the order discharging the Sheriff and substituting the complainants as defendants in his stead. Both of said causes were thereupon remanded to the State courts. Notwithstanding said decision, the parties substituted as defendants voluntarily elected to continue as such, and the Jones County suit was thereafter prosecuted against the < omplainants and the Sheriff jointly, and the Linn County case against the complainants, defendant Becker, and Sherer, Shirk & Company, the Sheriff of that county not being restored as defendant.
    Shortly after said cause was remanded, a stipulation, entitled in both suits, and signed by attorneys representing all the parties plaintiff and defendant therein, was filed in the suit in Jones County, said stipulation being as follows:
    “It is hereby agreed by and between said parties as follows:
    “1st. The orders of the State courts transferring said causes to the United States Circuit Court are hereby waived, and said causes shall be disposed of as hereinafter stipulated.
    “2d. The case of M. A. Sunberg v. P. O. Babcock and John Y. Farwell & Co., pending in Jones County, D. C., shall be tried at the December term, A. D. 1883, of said District Court, provided, both parties are then ready for trial. Both parties shall be presumed ready for trial unless the party failing to be ready shall so notify the other party on or before the 1st day of said December term. In case both parties are not ready for trial at said December term the said case shall be continued to the May term of said District Court, A. D. 1881.
    “ 3d. Both parties reserve the right to appeal from the judgment rendered or to be rendered .in said cause pending in Jones County, and the final determination thereof shall determine the property i-ights of the parties in the case of IST. A. Sunberg and F. Olquist v. John Y. Farwell & Co. et ah, pending in Linn County District Court, so far as the title to said property is concerned.
    “4th. In case final judgment shall be rendered in favor of the plaintiff in the Jones County case, judgment shall be rendered for plaintiffs in the case pending in Linn County. And the judgment in the case pending in Linn District Court shall bear the same proportion to the judgment rendered in th.e cause pending in Jones County as the amount for which the property involved in the Linn County case, sold at receiver’s sale, bears to the amount for which the property involved in the Jones County case sold at said receiver’s sale.
    “ 5th. In case final judgment shall be rendered in the Jones County case for the defendants,' final judgment shall also be rendered for the defendants in the Linn County case.”

      A trial was afterward had in the Jones County case before the court and a jury, resulting in a verdict in favor of the plaintiff for §8,015. For this sum j udgment was rendered for the plaintiff, and on appeal to the Supreme Court of Iowa said judgment was affirmed. Said stipulation was thereupon filed in Linn County, and in pursuance of its provisions a judgment was entered in the cause pending in that county in favor of the plaintiffs therein for §7,541.18.
    The evidence tends to show that defendant Becker and the firm of Sherer, Shirk & Company, or their agents, were fully informed, from time to time, by the attorneys defending said suits, of the pendency of the suits and of the various proceedings therein, and that no objection was made by them to any of said proceedings. It also appears that they contributed, from time to time, various sums of money to defray the expenses of both of said suits in the District Courts, as well as of the appeal from the judgment rendered in Jones County to the Supreme Court of Iowa. After the last mentioned judgment had been affirmed by the Supreme Court, and a few days before the entry of the judgment in Linn County, one of the attorneys for the plaintiffs in said suit called on the complainants in Chicago and demanded of them immediate payment of both the Jones County judgment and the claim upon which they were then entitled by stipulation to judgment in' the Linn County suit, threatening, that if such payment was not instantly made, to proceed without any delay in the matter of both judgments by way of levying on the complainant’s property and garnishing their debtors in Iowa. The complainants, after endeavoring in vain to obtain sufficient delay to enable them to obtain contribution from their codefc n lants, gave to said attorney their checks for the full amount of both judgments. At the same time a computation of the amount of the Linn County judgment as the same was to be entered by stipulation having been made, a further stipulation was drawn up and signed by said attorney and one of the attorneys for the defendants in said suits who was also present, to the effect that judgment should be entered in Linn County for said sum of §7,541.18. The complainants also at the same time gave to said attorney for the defendants their check for the residue of attorney’s fees and other expenses in the matter of said suits, the total sum so paid by the complainants in the matter of said judgments, costs, fees and expenses being §17,736.99. The complainants, however, instead of having said judgments satisfied and discharged of record, procured an assignment thereof to H, S. Parkhurst, one of their attorneys, for the avowed purpose of keeping them alive, in order to enforce contribution from their co-defendants. Said judgments, so far as appears, are still held by said Parkhurst under said assignment.
    The court below found that defendants Becker and Shirk, the latter being a member of the firm of Sherer, Shirk & Company, were each liable to contribute in respect to the full amount of said judgments and expenses, such contribution to be made in proportion to the respective amounts collected by the complainants, said Becker and the firm of Sherer, Shirk & Company, by means of said attachment suits. It was accordingly decreed that said Becker should pay to the complainants the sum of §5,048.75, and said Shirk the sum of §554.75.
    Messrs. Beck & Charlton and John Gibbons, for G. Becker, appellant.
    Mr. Frederic Ullman, for Elbert W. Shirk, appellant.
    Messrs. Tenney, Bashford & Tenney, for appellees.
    A suit in equity is the proper remedy for contribution. Johnson v. Vaughn, 65 Ill. 425; Wincock v. Turpin, 96 Ill. 135; Buchanan v. Meissen, 105 Ill. 638; Pixley v. Gould, 13 Ill. App. 565; Cary v. Holmes, 16 Gray, 127; Whitman v. Porter, 107 Mass. 522; Nickerson v. Wheeler, 118 Mass. 295; Whitcomb v. Converse, 119 Mass. 38; Deering v. Winchelsea, 1 Leading Cas. Eq. 120, and notes.
    Where several parties are jointly concerned in a transaction, and in carrying it out according to' arrangement, and without any intent to injure others, are nevertheless made liable by some invasion of another’s rights, if one should be compelled to make good the" loss, he may compel contribution from his associates. As between himself and them he is not a wrongdoer. Cooley on Torts, p. 147.
    The rule that wrongdoers can not enforce contribution is confined to cases where the person claiming redress must he presumed to have known that the act for which he has been mulcted in damages was unlawful. It is undoubtedly the policy of the law to discountenance all actions in which a party seeks to enforce a demand originating in a wilful breach or violation on his part of the legal rights of others. No one can be permitted to relieve himself from the consequences of having intentionally committed an unlawful act, by seeking an indemnity or contribution from those with whom or by whose authority such unlawful act was committed. But justice and sound policy, upon which this salutary rule is founded, alike require that it should not be extended to cases where parties have acted in good faith, without any unlawful design, or for the purpose of asserting a right in themselves or others, although they may have thereby infringed upon the legal rights of third parties. It is only when a person knows, or must be presumed to know, that his act was unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. Jacobs v. Pollard, 10 Cush. 287; Bailey v. Bossing, 28 Conn. 455; Stanton v. McMullen, 7 Ill. App. 326; Goldsborough v. Darst, 9 Ill. App. 205; Pixley v. Gould, 13 Ill. App. 565; Nelson v. Cook, 17 Ill. 443; S. C. 19 Ill. 440; Severin v. Eddy, 52 Ill 189; Gower v. Emery, 18 Me. 83; Saulspau v. Louisville, etc., 1 Tenn. Ch. 8; Howe v. Buffalo, 37 N. Y. 297; Castle v. Noyes, 14 N. Y. 332; Stone v. Hooker, 9 Cowen, 154; Coventry v. Barton, 17 Johns. 142; Leggett v. DuBois, 5 Paige Ch. 468; Harbach v. Elder, 18 Pa. St. 33; Armstrong v. Clarion Co., 66 Pa. St. 218; Moore v. Appleton, 26 Ala. 633; Acheson v. Miller, 2 Ohio St. 203; Dugdale v. Lovering, 12 Moak’s Eng. R. 316, and note; Bully v. Batty, 12 E. C. L. 649, Betts v. Gibbons, 2 A. & E. 57; 1 Parsons on Con. 37; 1 Hilliard on Torts, 188, note a; 1 Watermen on Trespass, sections 29 and 31.
   Bailey, J.

It is objected that the enforcement of contribution is properly a matter of legal cognizance, and that a court of equity, therefore, has no jurisdiction. The right to contribution does not arise out of any contract or agreement between the parties, but from the principle of equity, that where two or more persons are subject to a common burden, it shall be borne by them according to their respective interests. Glolsen v. Brand, 75 Ill. 148; Griffeth v. Robinson, 14 Ill. App. 377; Drummond v. Yager, 10 Ill. App. 380. This principle is so universally acknowledged that persons acting under circumstances to which it applies, are said to act under the head of contract implied, from the universality of the principle, and upon this ground stands the jurisdiction of suits for contribution assumed by courts of law. Craythorne v. Swinburne, 14 Ves. Jr. 160.

But while jurisdiction, at law is sustained, courts of equity have always exercised a concurrent jurisdiction, founded upon the fact that the legal remedy is not, under all the circumstances, full, adequate and complete. 1 Pomeroy’s Eq. Juris. See. 139. As said by Mr. Story, in most cases of this sort there is no remedy at law, from the extreme uncertainty of ascertaining the relative proportion which different persons, having interests of a different nature, quantity and duration in the subject-matter, ought to pay. And where there is a remedy, it is inconvenient and imperfect, because it involves a multiplicity of suits, and opens the whole matter for contestation anew in every successive litigation.” 1 Story’s Eq. Juris., Sec, 483.

And the same learned author further says: “ The remedial justice of courts of equity in all cases of apportionment and contribution is so complete and so flexible in its adaptation to all the particular circumstances and equities, that it has, in a great measure, superseded all efforts to obtain redress in any other tribunal.” 1 Story’s Eq. Juris., See. 505.

Assuming, then, that the court of chancery had jurisdiction, the question is whether, upon the facts disclosed upon the pleadings and proofs, the complainants are entitled to conir'bution. An obstacle, apparently insurmountable, arises in limine from the fact that the complainants have not ¡oaid and satisfied the judgments in respect to which they are seeking to obtain contribution from the defendants. The transaction, in form at least, is a purchase of the judgments and their assignment to Parkhurst, for the avowed purpose of keeping them alive and in force. Before the complainants can properly demand contribution from their co-defendants, they must pay and satisfy the judgments, and the expenditure of money in purchasing them and obtaining an assignment of them to a third person, in such a way as to preserve their vitality as judgments, is not a payment, and lays no foundation for a claim for contribution.

But even if we were able to treat the purchase of the judgments 'and their assignment to Parkhurst, the complainant’s attorney, as equivalent to a payment, we are still of the opinion that no case for a contribution is shown. There is no evidence of an express or implied contract on the part of the defendants to contribute. The stipulation by which it was agreed that the case in Jones County should be tried, and that the case in Linn County should abide the event of such trial, contained no provision which can, by any possibility, be construed into such a contract. Nor is one to be implied from the fact that the defendants united with the complainants in defending the suits, and employed the same attorneys and, in fact, contributed to the payment of attorneys’ fees and other expenses and disbursements attending the litigation. None of these acts involved, either expressly or by implication, an undertaking to join the complainants in paying off the judgments, if any, which might be recovered against them. We have also carefully considered the correspondence between the defendants and their attorneys during the progress of the litigation, which was produced at the hearing and offered in evidence, but failed to find in it any proof of an agreement to contribute in any manner to the payment of said judgments. It then remains to be determined whether the case is one involving the application of the general principle above referred to, which compels persons subject to a common burden to bear it according to their respective interests.

It is a general rule, subject, it is true, to some exceptions, that the law will not compel contribution among tort-feasors. A leading case in which this principle was laid down is Merriweather v. Nixon, 8 Durn. & East, 186, where it was held that if a plaintiff recovers in tort against two defendants, and levies the whole damage on one, that one can not recover a moiety against the other for his contribution. This case was cited and approved in Nelson v. Cook, 17 Ill. 443, the court saying that the rule there laid down has been and still is recognized as unquestionable law. See also, Nichols v. Nowling, 82 Ind. 488; Minnis v. Johnson, 1 Duval, 171; Peck v. Ellis, 2 Johns. Ch. 131; Acheson v. Miller, 18 Ohio, 203; Rhea v. White, 3 Head, 120; Anderson v. Saylors, 3 Head, 551; Baird v. Midvale SteelWorks, 12 Phila. 255; Herr v. Barber,2 Mackey, 545.

The foregoing rule does not seem to be questioned, but an attempt is made to bring the present case within the exception which restricts the operation of the rule to cases where the tort-feasor seeking contribution knew, or must be presumed to have known, that his act was unlawful. The principle here involved is fairly illustrated by the case of Jacobs v. Pollard, 10 Cush. 278, though that case was not strictly a case of contribution. There A, in good faith, took up B’s cattle damage feasa/nt, and C, a field-driver, at A’s request, sold them at auction and received the money. The proceedings were irregular, and A and C were, in fact, joint trespassers. A judgment in trespass having been obtained against them by the owner of the cattle, A was compelled to pay it. A thereupon brought suit against C for the money received by him for the cattle and was permitted to recover.- The court, after recognizing the policy of the law which discountenances all actions in which a party seeks to enforce a demand originating in a wilful breach or violation on his part of the legal rights of others, lays down the rule as follows: “ It is only when a person knows, or must be presumed to know, that his act was unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. It is the unlawful intention to violate another’s rights, or a wilful ignorance and disregard of those rights, which deprives a party of his legal remedy in such cases. It has, therefore, been held, that the rule of law, that wrongdoers can not have redress or contribution against each other, is confined to those cases where the person claiming redress or contribution, knew, or must be presumed to have known, that the act for which he has been mulcted in damages, was unlawful.”

In Acheson v. Miller, 2 Ohio St. 203, a judgment having been recovered against one Lewis on a draft for §>5,000, and judgment also having been recovered against six indorsers on said draft, four of the indorsers indemnified the Sheriff and directed him to levy on a stock of merchandise then recently the property and then in the possession of Lewis, but which at about that time had been assigned to one Gilbert. Gilbert brought suit against the Sheriff and the four indorsers and recovered judgment for the value of the goods. In a suit brought by one of the four indorsers against another indorser who had nothing to do with the levy for contribution, the court say: “The rule that no contribution lies between trespassers, we apprehend, is not one of universal application. "We suppose it only applies to cases where the persons have engaged together in doing wantonly or knowingly a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party, who may have a right to an action of tort against them. In such case, if one of the parties who have done the act has been compelled to pay the amount of the damage, is it not reasonable that those who were engaged with him in doing the injury should pay their portion?”

In Adamson v. Jarvis, 4 Bing. 66, substantially the same question arose, and Best, C. J., discussing the case of Merryweather v. Mixon, supra, says: “ From the concluding part of Lord Kenyon’s judgment in that case, and from reason, justice and sound policy, the rule that wrongdoers can not have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing wrong.” See, also, Betts v. Gibbons, 2 Adol. & Ellis, 57; Pearson v. Skelton, 1 Mees. & Wels. 504; Wooley v. Batte, 2 Car. & Payne, 417; Coventry v. Barton, 17 Johns. 142; Bailey v. Bussing, 28 Conn. 455.

The question, then, is whether the present case is one in which the complainants, at the time they caused their attachment writs to be levied upon the stocks of merchandise in question, knew, or must be presumed to have known, that in so doing they were committing' a tortious act. The attachment writs were sued out against Olquist Brothers, but the complainants caused them to be executed by seizing goods not in the possession of the defendants to the writs, but in the possession of third parties who were strangers to the writs, and who were the ostensible and apparent owners, and, as the subsequent litigátion conclusively showed, the actual owners of said goods. Where a writ, issued against one party, is executed by seizing goods in possession of another party who claims to be the owner, such seizure is presumptively tortious, and the party procuring such seizure must be presumed to have acted with notice that he was committing a wrong. It is not the case of the commission of an act apparently right and lawful, but which happens to turn out to be an injury to some third person, but an act which, upon its face, is an unlawful invasion of the rights of such third person. Undoubtedly, if the complainants had succeeded in establishing the invalidity of the sale of goods by the defendants in their attachment to the parties from whose possession the goods were taken, such fact would have justified their seizure. But when they ventured to levy their writ upon property in the possession of third persons, they undertook to establish a justification of such levy at their peril, and having failed to do so they must be treated as wilful tort-feasors.

We are of the opinion, then, that the facts shown by the record bring the complainants within the general rule which forbids contribution among wrongdoers, and that the decree awarding such contribution is unwarranted by the evidence. The decree will therefore be reversed and the cause remanded, with instructions-to the court below to dismiss the bill, at the complainant’s costs, for want of equity

Decree reversed.


text:
    Seth F. Hanchett v. John W. Goetz et al.

      Sales—Fraud as to Creditors—Notice to Purchaser—Antecedent Debt —Notice—Defective Instruction.
    1. " It seems that a creditor of a failing debtor may accept a stock of goods for his debt without reference to the motives by which his debtor may be actuated, provided he himself acts in good faith.
    2. Where an antecedent creditor of a failing debtor purchases a stock of goods at a price largely in excess of the debt, the goods so purchased being divisible, he must be treated as a mere purchaser, at least as to such excess, and subject to the rules of law governing that relation.
    8. Where a debtor sells prop >rty with intent to hinder, delay or defraud his creditors, notice to the purchaser of the debtor’s fraudulent intent is per se evidence of mala fides, and renders the sale void without reference to the xjurchaser’s actual intent, the fraudulent motive of the debtor being imputed to the purchaser.
    4. In the case presented it is held: That an instruction was erroneous in stating, under the facts supposed, that it was immaterial whether the purchaser had any reason to suspect the motive or intent of the debtor.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Loris C. Collins, Judge, presiding.
    Messrs. Flower, Remy & Holstein and S. S. Gregory, for appellant.
    The evidence is conclusive that Btrouse & Meyer disposed of their property hurriedly and at a grossly inadequate price to prevent its seizure hy their creditors, to enable them to divert its proceeds to the payment of alleged indebtedness existing against each individually.
    The mere fact that the notes given in payment for this property ran from four months to a year, in connection with the insolvency of Btrouse & Meyer, and the fact they never did pay their partnership creditors, was enough to entitle appellant to go to the jury on the question of the fraudulent intent of Strouse & Meyer. Roberts v. Radcliff, 11 Pac. R. 406; Spaulding v. Adams, 63 Ia. 437.
    A sale by insolvents on such long credit may, perhaps, not be necessarily fraudulent. But it is of such a character that, unless satisfactorily explained, the presumption of fraud becomes irresistible. Here every attendant circumstance tends to verify and confirm the natural presumption. Strouse & Meyer never have paid their creditors. By this sale and the distribution of its proceeds they deprived themselves of all power to do so; and there is nothing to indicate that when they made it they had any idea of turning out its proceeds to their creditors.
    It also is clear that there was evidence ample to warrant a jury in finding that appellees knew or ought to have known that Strouse & Meyer contemplated a fraud. The making of the notes on long -time, dividing them up, two maturing the same day, each for the same amount, the haste attending the sale, the gross inadequacy of the price, the fact that after the price was agreed on Strouse & Meyer so readily assented to reducing it from $47,500 to §31,500 on the frivolous pretext that their liability on the lease would continue after they surrendered possession of the demised premises to appellees, their lessors and the purchasers of their stock, all these things taken in connection with the letter of attorney from Strouse & Thanhauser, which was submitted to appellees and their counsel, were unerring indications of a dishonest purpose—sure and usual badges of a fraudulent intent.
    Under such circumstances, knowing their embarrassed condition, and acquainted with all these facts, ajrpellees can not be permitted to claim immunity as bona fide purchasers.
    The law will not allow them to shut their eyes when their ignorance is to benefit themselves at the expense of another, when they would have them open and inquiring had the consequences of their ignorance- been detrimental to them and advantageous to others. Doyle v. Teas, 4 Scam. 202.
    They made no inquiry; did not seek to know what arrangements Strouse & Meyer contemplated for the future, nor how, after having closed their store and sold their stock at about forty cents on the dollar, on long time, they could pay their creditors. Nor did they inquire why this mysterious division of notes was required. This is almost a case where the court -below should have directed a verdict finding the fraudulent purpose and knowledge, or notice of it, in the minds of appellee. Much more is it a case where appellants are entitled to accurate instructions to the jury.
    The eighth instruction given for appellee, when fairly construed, simply comes to this: that if Goetz & Co. purchased the stock of Strouse & Meyer solely for the purpose of protecting themselves against'loss, then they are to be justified, no matter what may have been the intent of Strouse & Meyer, nor what notice they may have had of such intent.
    The concluding portion of the instruction would not be bad law alone as applied to a proper case, but taken in connection with what goes before it, clearly imports that a purchaser may in good faith buy of an insolvent vendee, even when the latter intends a fraudulent disposition of the proceeds of the sale, and the purchaser is chargeable with notice of such intent. The substance of the instruction is, that even if Strouse & Meyer had told Goetz & Co. that they were intending to take the money and notes received in part payment for their stock and runaway to Canada with them, and that their object was to cheat and defraud their creditors, still Goetz & Go. could hold the goods, provided their motives were simply to further their own interests, and not to aid the fraudulent design entertained by their vendors.
    Such a proposition certainly ought tobe fortified by authority in order to command serious consideration. It is essential to plaintiff’s case.
    If a debtor part with his property for the purpose of placing any part of it, or the proceeds thereof, beyond the reach of all creditors, this is a fraud; and knowledge or notice of that purpose will affect title to the property so conveyed in the hands of the vendee. Crawford v. Kirksey, 55 Ala. 282; S. C., 28 Am. R. 704.
    A creditor may lawfully take from his debtor a conveyance, with the honest purpose of securing his own debt, although he knows that it is intended to hinder and delay other creditors. Shelly v. Booth, 73 Mo. 74; S. C., 39 Am. R. 481.
    In McVeagh v. Baxter, 82 Mo. 518, the court supplemented this decision and laid down the law exactly as here contended for. That was a case where the creditor purchased goods of his debtor.at a price in excess of his debt, and claimed to be entitled to hold them, even though he knew that the excess so paid to the debtor was intended by the latter to be placed beyond the reach of his other creditors. If it is conceded that the plaintiffs are to be treated as creditors of Strouse & Heyer, by virtue of the lease, then this case is a complete authority against the validity of this instruction. See also, McDonald v. Gaunt, 30 Kas. 693; Openheimer v. Halff, 4 S. W. Rep. (Tex.) 562.
    The principle as to notice, decided in the Kansas cases, is enunciated in the leading case of Doyle v. Teas, 4 Scam. 202. The principles there announced have been repeatedly acted upon in subsequent cases, and particularly in the case of Hanchett v. Kimbark, 118 Ill. 121-131.
    Mr. John N. Jewett, for appellees.
    “ The fact that a firm was in debt when the partners made a conveyance of their property is pot sufficient to raise a presumption that the conveyance was fraudulent. In order to avoid such conveyance proof must be given that it was with the intention to defraud the creditors of the firm or subsequent purchasers, and that the grantee had knowledge of such intention.” Green v. Tanner et al, 8 Met. 411.
    “ To render a conveyance void as to creditors, on the ground that it was made with intent to defraud them, the grantee must have knowledge of and participate in the fraud of the grantor.” Partelo v. Harris, 26 Conn. 480.

      “ The sale of the entire effects of an insolvent copartnership upon credit, at a fair valuation, to a responsible vendee having knowledge of the insolvency, is not jper se fraudulent. Although made by the vendor with intent to hinder, delay and defraud creditors, that does not affect the title of the purchaser unless he had previous notice of the fraudulent intent.” Ruhl v. Phillips et alo., 48 N. Y. 125. See, also, Bancroft v. Blizzard, 13 Ohio, 30; Chouteau v. Sherman, 11 Mo. 385; Magniae v. Thompson, 7 Pet. 348; Splaure v. Martin, 17 Ark. 146; Pope v. Wilson, 7 Ala. 690.
    The fact that a man, in making a purchase of property, is acting for Iris own interest or to save himself from pecuniary loss, can not be considered a factor in the transaction detrimental to its honesty or good faith. In all such cases self-interest may be assumed to be the impelling force. It is for profit to himself that the merchant buys and sells. Self-interest is the prompter to all the industries of life. It oftentimes mingles xvith its charities and sociabilities. It may be counted upon as always present asan inducement to all business activities.
    The eighth instruction, in its relations to the case at bar, is fully sustained by the decisions of onr Supreme Court in analogous cases. Ewing v. Bunkle, 20 Ill. 448.
    “ The laxv is that both parties must contrive the conveyance xvith malice, fraud, covin, collusion or guile. They must both be guilty of the contrivance and intent.” See, alsoá Waterman v. Donaldson, 43 Ill. 29.
    Properly read and construed in the light of the facts of the case, it seems to me to be demonstrated that the eighth instruction is fairly within the limits of the law as laid down by our Supreme Court, and also in the cases cited against it by counsel on the other side, and that no injustice has been done to the appellant by the judgment of the court below, from which the pending appeal has been presented.
   Bailey, J.

This was an action of replevin, brought by John W. Goetz and Louis W. Beiss, copartners under the name of Goetz & Company, against Seth F. Hanchett, Sheriff of Cook County, to recover possession of certain goods levied upon by said Sheriff, by virtue of sundry attachment writs against the firm of Stronse & Meyer, composed of Henry L. Stronse and Samuel Meyer. The Sheriff appeared and pleaded non cepit¡ non detinet, property in Stronse & Meyer, and justification under said writs of attachment, and, on trial before the court and a jury, the verdict and judgment were in favor of the plaintiffs.

For several years prior to 1883, Goetz & Company had been whosesale and retail dealers in gloves in the City of Chicago. Early in 1883, with the view of obtaining a better location for their retail business, they entered into a negotiation with one Hale for the lease of certain premises on the corner of State and Washington Streets, but said premises being larger and the rent, §18,600 per year, being higher than their business required or warranted, they arranged to let the larger portion of the premises to the firm of Philip Schulof & Company, composed of Philip Schulof and Samuel Meyer of Hew York, and Henry L. Strouse, of Philadelphia, at an annual rental of §12,000, payable monthly, and a commission of two and one half per cent, of the gross sales made by that firm. Goetz & Company thereupon took a lease from Hale of the entire premises for a term of five years from May 1, 1883, and underlet the larger portion of the premises to Philip Schnlof & Company, for.the same period and upon the terms above stated. After the execution of the lease but before the 1st day of May, 1883, Philip Schulof died, and Strouse & Meyer, composed of the surviving members of said firm, took possession of the portion of the premises so leased to them, and commenced business with a stock of silks and fancy goods, Meyer coming to Chicago and becoming the resident partner and Strouse remaining in Philadelphia and being engaged in business there as a member of the firm of Freidburger & Strouse. Strouse & Meyer continued to carry on an apparently prosperous business down to December 31, 1883, at which time, as subsequent events showed, they became embarrassed for want of sufficient capital.

At about the date last mentioned, Meyer was anticipating a visit from Strouse, and expecting to obtain from him money to relieve the embarrassments of the firm; but, instead of coming himself, Strouse sent one Thanhauser, his brother-in-law, and an employe of the firm of Freidburger & Strouse, with instructions to close up the business of Strouse & Meyer. Thanhauser arrived in Chicago December 31, 1883, bringing with him a power of attorney from Strouse, authorizing him to" make or join in a general or partial assignment of the property of Strouse & Meyer for tlie benefit of its creditors, or to confess judgments to such, persons and for such amounts, or to deliver a bill or bills of sale in the name of said firm for such property and to such persons and upon such consideration, as to him might seem just and proper, and, generally, to take all steps and do all acts which he might deem proper or necessary to settle up the business and affairs of said firm.

On reaching Chicago, Thanhauser sho-wed his power of attorney to Goetz & Company, and had various negotiations with them in relation to closing out the business of Strouse & Meyer, and said negotiations finally resulted in a sale to Goetz & Company of the entire stock of goods of Strouse & Moyer for the sum of §17,500. As a part of said negotiations, Goetz & Company and Strouse & Meyer compromised the liability of the latter firm upon its lease, which then had four years and four months to run, at §16,000, which sum, taken from the purchase price of the stock of goods, left §31,500. This sum was paid by Goetz & Company by a credit of §1,000 for a month’s rent then due, by the payment of §5,500 in cash, and by executing to Strouse & Meyer their promissory notes for §25,000, said notes being in various sums and payable in four, eight, ten and twelve months after date. After the execution of these papers, the parties went to the store to consummate the sale by the delivery of the goods, and found the Sheriff in possession under an attachment for a small amount, which attachment was immediately discharged by the payment of the indebtedness for which it was issued, and the stock of goods was then delivered to Goetz & Company. After such delivery, and while said goods were in Goetz & Company’s possession, the attachments against Strouse & Meyer, set up by the Sheriff in his plea of justification, were levied thereon, and the present writ of replevin was thereupon issued at the suit of Goetz & Company.

The evidence shows, beyond controversy, that at the date of said sale to Goetz & Company, the firm of Strouse & Meyer was actually insolvent, and also that a day or two afterward Strouse’s firm in Philadelphia failed in business. The theory upon which said attachments are sought to be sustained is, that said sale was made with the intent on the part of Strouse & Meyer to hinder, delay and defraud their creditors, and that Goetz & Company either had knowledge of such intent, or that the circumstances within their knowledge were such as were naturally calculated to excite their suspicion and put them on inquiry as to such intent.

The evidence tends to show that Goetz & Company, before underletting a portion of said premises to Philip Schulof & Company, made inquiries through the commercial agency of It. G. Dun & Company, and also of various parties in New York, as to the financial standing and responsibility of said firm, and received favorable reports from all sources. It also appears that Goetz & Company inquired of Thanhauser, on his arrival from Philadelphia, as to the pecuniary circumstances of Strouse, and were assured that he was perfectly solvent; and we fail to find in the record any direct evidence that, at the time of the purchase of said goods, Goetz & Company had any knowledge of the actual insolvency or pecuniary embarrassment of Strouse & Meyer, or of Strouse’s Philadelphia firm, or any actual knowledge of any intent on the part of Strouse & Meyer to defraud their creditors. It is claimed, however, that the circumstances of the sale were sufficient to arouse their suspicions and to put them on inquiry, and that they must, therefore, be charged with notice of the fraudulent intent of Strouse & Meyer.

The evidence of a fraudulent intent on the part of Strouse & Meyer was sufficient, we think, to have warranted the jury in finding in favor of the attaching creditors on that issue. But that fact alone was clearly insufficient to entitle said creditors to a verdict. It was necessary that they should also succeed upon the issue of notice of such intent to Goetz & Company. We can not doubt that the circumstances disclosed by the evidence tending to charge Goetz & Company with such notice were sufficient to fairly present a question for the consideration of the jury, but as the verdict is against the creditors, such finding would be conclusive that no notice was proved, if the rules of the law laid down in the instructions to the jury in regard to notice had been subject to no legal exception. We therefore dismiss the question as to the evi- • deuce of notice by merely saying that, if no error of law liad intervened, we should see no ground for disturbing the verdict, or for dissenting from the conclusion to which the jury have arrived.

Complaint is made of two instructions, the fourth and eighth, given at the instance of the defendant. We are of the opinion that the fourth instruction is obnoxious to no material criticism, but that the eighth instruction is substantially erroneous.

The fourth instruction holds, in substance, that if Goetz & Company purchased and received possession of the goods in question from Strouse & Meyer, the burden of proving that such sale was fraudulent was upon the creditors attacking it, and that if said sale was made and consummated in good faith and for a valuable consideration and without any fraudulent purpose or intent, Goetz & Company acquired a good title thereto as against said creditors. Said instruction is prefaced by the following statement as to what constitutes legal proof of frauds “Fraud in a business transaction of purchase and sale must be proved, either directly and affirmatively by the party alleging it, or by such facts and circumstances as are sufficient to establish it to the satisfaction of the jury. It is never to be presumed.” The criticism upon this instruction is, that it requires proof of fraud to be made to the “satisfaction” of the jury, and that this word imports a higher degree of conviction on their part than is required by law in civil cases. We are aware that the Supreme Court has on one or two occasions condemned the use of this word in this connection for the reason here stated, and we recognize the authority of those decisions so far as they apply to this case. It can not be said, however, that because a particular word is objectionable when used on one occasion, and in reference to a particular set of circumstances, it is liable to the same criticism always and on every occasion. The words belief, conviction and satisfaction, are used in ordinary legal language as substantially synonymous, and all are words which admit of application to various degrees of conviction or certainty of belief. It would be palpably absurd for a jury to say by their verdict that certain facts existed, so long as they do not believe or are not convinced by the evidence of their existence. It would seem to be equally absurd for them to report as their finding that, as to the truth of which they are dissatisfied. How can there be belief without some degree of conviction or satisfaction as to the existence of the fact believed ?

In Carter v. Gunnels, 67 Ill. 270, an issue of fraud was presented to be tried by a jury, and the court, in condemning an instruction which required the fraud alleged to be proved, directly, or “by such.facts and circumstances as would make the conclusion reasonable and irresistible,” lays down the doctrine as to proof in such cases as follows: “What circumstances will amount to proof can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury.” The foregoing language is quoted verbatim from 1 Starkie on Evidence, 514, and the same learned author defines circumstantial or presumptive proof to be, “that measure and degree of circumstantial evidence which is sufficient to produce conviction in the minds of the jury of the troth of the fact in question.” 1 Starkie on Ev., 495.

In Hough v. Dickinson, 58 Mich. 89, it is said: “Fraud, like any other fact, may be proved by facts or circumstances which satisfy the mind by a preponderance of the evidence in any given case of its existence.” The same language is also used in O’Donnell v. Segar, 25 Mich. 367. In Coit v. Churchill, 61 Iowa, 296, it is held that a rule in a civil case requiring the evidence to be clear and satisfactory, is only equivalent to the rule inquiring proof by a preponderance of the evidence. “ As the law requires no great quantity, when that measure is reached, it must be regarded by the jury as clear and satisfactory, for it is the precise quantity prescribed by the law. ”

But even if we are constrained to hold that said instruction was technically erroneous, it would be difficult to see how such error could have materially injured the defendant. In the instructions given at the instance of the defendant, the rule as to the measure of proof necessary to establish fraud vas clearly and correctly laid down, and, taking all the instructions together, it seems very clear that the jury could not have been misled into supposing that anything beyond a mere preponderance of the evidence was necessary to establish the fraud alleged.

In may furthermore be observed in this connection, that it is very apparent from all the evidence, that the issue upon which the defendant failed before the jury was not as to whether Strouse & Meyer were guilty of fraud, but as to whether Goetz & Company had notice of such fraud. The real controversy before the jury was upon that question, and the error in the instruction, if it was an error, had no influence in the determination of that issue.

In the plaintiffs’ eighth instruction, however, there is an error which seems to us to be of a more serious character. In the instructions given for the defendant, the rules of law applicable to the case, viewing Goetz & Company as more purchasers of the stock of goods in question, are very fully, clearly, and, as we think, correctly, laid down. Those instructions held, among other things, in substance, that if Strouse & Meyer, in making the sale of said goods, intended to hinder, delay or defraud their creditors, or to prevent them from collecting their debts in due course of law, and that Goetz & Company purchased said goods with knowledge of said fraudulent purpose, or with knowledge of circumstances of such character as to excite their suspicions, and which, if investigated and followed up by them, would have led to actual knowledge of said fraudulent purpose, the sale was void as to said attaching creditors, and the verdict should be for the defendant. The plaintiffs’eighth instruction was as follows:

“The jury are further instructed, that though they may believe, from the evidence, that Strouse & Meyer, at the time of the sale in question, intended to hinder and delay or defraud their creditors, yet by the terms of the lease in evidence between Samuel Meyer, Philip Schulof and H. L. Strouse, on the one part, and the plaintiffs on the other, the said Strouse & Meyer were obligated to pay the plaintiffs §1,000 per month up to May 1", 1888, absolutely, besides two and one-lialf per centum of their sales in certain contingencies; and if the jury believe, from the evidence, that in making the purchase in question of said Strouse & Meyer, the plaintiffs acted in good faith, and solely with a view to the protection of their own interest under said lease; and if the jury further believe, from the evidence, that it was necessary for them to take action to protect themselves from financial loss, and purchased the goods in question for ■ a fair consideration, without any fraudulent intent on their part, then the intent of Strouse & Meyer in the transaction is immaterial. And under such circumstances it is also immaterial whether or not the plaintiffs had any reason to suspect the motive or intent of said Strouse & Meyer, the law being, that parties acting in good faith and solely for the protection of their own interests, have a right to purchase property from persons under obligation or financial liability to them, even though the seller may be indebted to others who are unable to collect their debts,'provided only that the transaction is a fair one and free from any actual fraud.”

At the time of the purchase of the stock of goods by Goetz & Company, Strouse & Meyer were their lessees under a lease having fifty-two months to run at a rental of §1,000 per month. Strouse & Meyer’s liability under this lease was liquidated and compromised at §16,000, Goetz & Company to accept in consideration of that sum a surrender of the lease; and in considering the foregoing instruction, this sum may be treated as a bona fide indebtedness from Strouse & Meyer to Goetz & Company, existing at the time the negotiations for the purchase and sale of said stock of goods were entered upon. It seems to be the rule that a creditor of a failing debtor has a right to collect or obtain security for his debt without reference to the motives by which his debtor may be actuated, pro. viding he himself acts in good faith. Thus, in Marble v. Bonhotel, 35 Ill. 240, it was held that knowledge by the creditor of the fraudulent intention of his debtor did not prevent him from receiving payment of an honest debt, the court saying, “a creditor violates no rule of law when he takes payment of his demand, though other creditors be thereby deprived of all means of obtaining satisfaction of their own equally meritorious claims.”

The present case, however, involves elements which take it out of the rule here stated. Goetz & Company do not hold the position of mere creditors obtaining from their insolvent debtors payment of a Iona fide antecedent debt. Their debt, including one month’s rent then in arrears, amounted to only $17,000, but the purchase price of the stock of goods was §47,000, and after applying their debt, there remained §30,500 of the purchase money, which was paid by them to their creditors in cash and promissory notes. Indeed, it would seem from the account of the transaction given by the witnesses, that the purchase of the stock of goods was the first and principal thing, and the obtaining payment of said indebtedness, a subsequent and incidental matter. To say the least, Goetz & Company occupy the two-fold relation of creditors seeking satisfaction of an antecedent debt, and purchasers obtaining title to the goods by purchase and the payment of the consideration money at the time. As to much the larger part of the price paid, they must be treated, not as antecedent creditors, but as mere purchasers, and subject to the rules of law governing that relation. Especially is this so in the absence of any proof tending to show that the subject of the purchase was indivisible. There is no reason to suppose that the stock of goods might not have been divided so as to apportion to Goetz & Company a sufficient sum to pay them their claim and leave the residue within the reach of other creditors.

The case of McDonald v. Gaunt, 30 Kansas, 693, is here quite in point. There a creditor purchased his debtor’s stock of goods and merchandise of different classes, and easily separable, of the value of §2,350, and paid $1,600 by the surrender of his debtor’s note for that sum, and the residue in money, the transaction on the part of the debtor being with intent to hinder and delay his other creditors, and it was held that if the creditor had knowledge of such fraudulent intent, or if. the circumstances surrounding the purchase were such as would put a prudent man upon inquiry, which, if prosecuted diligently, would disclose the fraud, the purchase could not be upheld. The court say: “The creditor could not make the purchase of the stock of goods in controversy, even to secure himself, with the further object and effect of defrauding, hindering and delaying other creditors in respect to the excess of pro]ierty over his debt. If, hpwover, the purchase was ancillary to the main object of saving his own debt, and was not fraudulent in actual intent, and was made with caution and diligence which an honest man would ordinarily exercise, the purchase ought to be sustained.”

Substantially the same distinction is taken in Crawford v. Kirksev, 55 Ala. 282, the court saying: “The creditor must not go beyond the permissible purpose of securing his demand. If he go beyond this and secure a benefit to his debtor, he will thereby violate both the letter and spirit of the statute, and the conveyance will be set aside for fraud.” Mr. Bump, in his Treatise on Fraudulent Conveyances, 205, says: “Where the necessary effect of a transfer is to secure the application of the full value of the property to the discharge of certain debts of the grantor in a manner satisfactory to the holders of those debts, the case is not distinguishable from that of a conveyance to the creditors themselves in discharge of real debts at a fair price.” When, however, the sale is made with the intent on the part of the debtor to defraud his other creditors, and the creditor purchasing has knowledge ^ or notice of such intent, and the necessary-effect of the transaction is to convert the larger part of the value of the property into money or securities, which the debtor may more easily place beyond the reach of his creditors, the case clearly falls within the rule ordinarily applicable to fraudulent sales and conveyances, and the sale must be held to be void as against the creditors thus sought to he defrauded.

The rule in relation to sales of property by a debtor, with intent to hinder, delay or defraud his creditors is, that notice to the purchaser of the debtor’s fraudulent intent is j'per se evidence of mala fides, and renders the sale void, without reference to the purchaser’s actual intent, for the motive of the fraudulent debtor is in that case imputed to the purchaser as a fraud in law, and makes the purchase mala fide. It is not necessary that he should have actual knowledge of the debt- or’s fraudulent intent, but a knowledge of facts and circumstances sufficient to excite the suspicions of a prudent man and put him on inquiry, or lead a person of ordinary perception to infer fraud, amounts to notice, and is equivalent, in contemplation of law, to actual knowledge. See Bump on Fraudulent Convej'ances, 200.

The rule laid down by the eighth instruction is, that if it was necessary for Goetz & Company to take action to protect themselves from • financial loss in respect to their lease to Strouse & Meyer, and that in making the purchase in question they acted in good faith and solely with a view of protecting their interest under said lease, and without any fraudulent intent on their part, then the intent of Strouse & Meyer was immaterial, and it was also immaterial whether or not Goetz & Company had any reason to suspect the motive or intent of Strouse & Meyer.

In the light of what we have already said, the errors in this instruction are too apparent to need much further elucidation. If, under the facts supposed, the intent of Strouse & Meyer was immaterial, then it would be unimportant whether Goetz & Company had actual knowledge or notice of such intent or not. The instruction, therefore, may be regarded as holding that, upon the hypothesis laid down, the sale must be held to he valid, even though the jury should find that Strouse & Meyer, in making it, intended to defraud their other creditors, and that Goetz & Company knew or had notice of such intent. This is clearly wrong. The sale, as made, being only in part for the satisfaction of Goetz & Company’s claim, must he held to he fraudulent, if made with intent on the part of the sellers to defraud their other creditors, provided the purchasers had knowledge or notice of such intent.

For substantially the same reason it is apparent that the instruction was erroneous in holding that, under the facts supposed, it was immaterial whether Goetz & Company had any reason to suspect the motive or intent of Strouse & Meyer. Holding that it was immaterial whether they had any reason for suspicion, was equivalent to holding that no ground of suspicion, however strong or convincing, could have been material, which is only another form of saying that, upon the hypothesis assumed, notice or knowledge on the part of Goetz & Company of the fraudulent intent of Strouse & Meyer was immaterial.

Upon the facts in the case we should have been very well pleased to affirm the judgment, but the error in the foregoing instruction' seems to us to be so apparent and material as to present an insuperable obstacle to our doing so. For that error the judgment must be reversed, and the cause will be remanded for a new trial.

Judgment reversed.


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    Emma De Beukelaer, Imp’d with, etc., v. The People of the State of Illinois.

      Contempt—Excessive Punishment—■Custody of Child—Habeas Corpus— Practice—Appeal—Joinder in Error—Waiver.

    1. In punishing for a contempt the court should have regard solely to the maintenance of its power and dignity, and the prevention of unlawful interference with the due administration of justice.
    2. Where a defendant, in a habeas corpus proceeding to determine the right to the custody of a child, and her physician, have removed a birthmark from the child, in order to destroy evidence of identity, a sentence for contempt of court, imposing a fine of $500 upon each, with imprisonment in the county jail for a term of thirty days, is excessive.
    8. It seems that a joinder in error is a waiver of the objection that the case is brought before this court by appeal instead of by writ of error.
    [Opinion filed March 28, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Messrs. John Lyle King and Wolford N. Low, for appellant.

      Hr. Allan C. Story, for appellees.
   Bailey, J.

In this case William H. Burt and Emma De Beukelaer were convicted in the court below for contempt of court, and were each sentenced to imprisonment in the county jail for the term of thirty days, .and to pay a fine of §500. Both the defendants entered their exceptions and prayed an appeal to this court, but it does not appear from the record proper that their prayer in that behalf was granted. The bill of exceptions recites the granting of an appeal, but whether any or what bond was required is not stated. Defendant, Emma De Beukelaer, filed her appeal bond in the penal sum of §2,000, and upon the appeal thus perfected, as we may presume, the record was brought to this court. Both of the defendants have appeared and assigned errors upon the record, and the counsel for the prosecution having argued the errors thus assigned upon their merits, his doing so must, under our practice, be held to be tantamount to a formal joinder in error. It thus becomes uniiecessary for us to decide whether the appeal ivas properly perfected, or whether the case, being strictly a criminal proceeding, could have been brought to this court by appeal. See Ingraham v. People, 94 Ill. 428, where it is held that, under the statute, appeals do not lie in criminal cases. But the defendants haying filed the record in this court and assigned errors thereon and the people having joined in error, the case maybe treated ‘ as being here on writ of error, and the attempt of one of the defendants, which is apparently irregular, to bring the record here by appeal, may be wholly disregarded.

The defendants’ counsel have argued the case on behalf of Emma De Beukelaer alone, and no brief appears to have been filed for the other defendant, and it seems, therefore, to be assumed on both sides that defendant Burt is not before this court. This,we think, is a misapprehension. As both defendants have assigned errors, both are here, and we can not escape the duty of adjudicating upon the errors as to both.

The alleged contempt of court' for which the defendants have been convicted, was committed in the course of a habeas corpus proceeding brought to determine the right to the custody of an infant male child four and one-half years old, known a? Edward De Beukelaer. The relator in the pietition for a habeas corpus was one Carrie Andrews, who represented in her petition that said child was her son, born out of wedlock; that when said child was a year and a half old she placed him in the custody of one Lillie McWilliams; who resided a short distance from Chicago, and who desired to take an infant with the view of adopting him; that the relator agreed with said Lillie McWilliams to give her the custody of said child on trial for two weeks, and if she should be satisfied with him and she and the relator should then so agree, the child should have a home with her, but if not, that the child should be returned to the relator at the end of the two weeks; that the petitioner thereupon placed said child in the custody of said Lillie McWilliams, and on the second day thereafter received a note from her saying that she was about to move away but giving no indication as to what disposition she intended to make of the child; that the relator, though making diligent search and expending large sums of money, was unable to obtain any tidings of said child until a- few weeks before the commencement of the habeas corpus proceedings, when she first learned that he was in the custody of defendant, Emma De Beukelaer.

The defendant, by her return to said writ of habeas corpus, denied that the relator was the mother of said child, and alleged that, if she was his mother, she had renounced and surrendered her maternal right to him; that, a few days after the relator claims to have placed said child in the custody of said Lillie McWilliams, the defendant found him, abandoned and forsaken, and that he was then a foundling, and that, as such foundling, he was adjudicated by the County Court to be the adopted child and to bear the name of the defendant; that the relator, by reason of her character and immoral associations, was unfit, and, for want of means, unable to care for said child so as to secure his welfare and best interests, and that the continuance of the custody of said child by the defendant, and the continuance of said adoptive relation, would promote and secure the best interests, well-being and comfort of said child, both then and thereafter; that since said adoption there existed between the defendant and said child the mutual and reciprocal affections usual to the natural relation of parent and child, and that the defendant had abundant means to provide for and educate said child, and prepare him for a respectable position and business in life.

After the child had been produced by the defendant on said writ of habeas corpus, and the matters arising upon said writ had been partly heai d, the further hearing was postponed to a subsequent day, the child in the meantime remaining in the defendant’s custody. During that interval the defendant, Emma De Beukelaer, obtained the services of defendant Burt, who is a physician and surgeon, and who, at her request, by a surgical operation, removed from one of the child’s hips a mole, or birth-mark, about half an inch in diameter. It is admitted that the purpose of said Emma De Beukelaer, in having said operation performed, was to obliterate a mark by which alone, as she supposed, the identity of the child could he established. She states, in her testimony, that she was induced to have it performed by her great love for the child and by her fear that he was about to he taken from her. Defendant Burt admits that she expressed to him that she wished to have the mark removed for the purpose of obliterating proof of identity of the child, and of preventing certain parties, who wore seeking to got him away from her, from establishing his identity, hut he denies that he was aware of the pendency of the habeas corpus proceeding, though he seems to have been aware of the pendency of some legal proceedings in which the identity of the child was to be attempted to be established by evidence.

It is argued that the act of the defendants, though censurable and perhaps criminal, was not a contempt of court, and was not punishable as such. It is true it was not committed in the presence of the court, but it was an interference with the administration of justice by obliterating and destroying important and material evidence in a matter pending before the court. Whether this constituted a contempt or not we do not deem it necessary to decide, as we prefer to place the decision of the case upon another ground. Perhaps the strongest consideration in favor of regarding it as a contempt is that it was an unwarrantable interference with the person of a prisoner held by the court under its writ of habeas corjpus, and who, while so held, was, in contemplation of law, in the personal custody of the court.

But admitting that the defendants’ act was a contempt, we are of the opinion that the punishment inflicted by the court was, in view of all circumstances, unusual and immoderate. The act, though censurable, was not without some palliation. Defendant, EmmaDe Beukelaer, claims to have entertained a very great affection for the child and to have been impelled to do the act complained of by her great fear of being separated from the object of her affection. But, even if there were no such palliation, the punishment imposed on each of the defendants, viz.: imprisonment for thirty days and a fine of $500, strikes the mind at first blush as disproportionate to the offense committed. It should be remembered that courts in punishing for contempt should have regard solely to the maintenance of the power and dignity of the court, and the prevention of unlawful interference with the due administration of justice. It is plain that considerations based upon the barbarity or inhumanity of, the act committed do not come within those limits. If the defendants’ act was an unnecessary and cruel surgical operation upon the person of said child, it was punishable as a criminal assault, and in a proceeding for the offense the defendants would have been entitled to a trial by jury. The punishment of offenses against the criminal law should be left to the criminal courts, and in punishing for contempts, a court should look at the demerits of the acts complained of only so far as they affect the power and dignity of the court and the due adm'nistration of justice therein.

We can not but conclude that the court below, in fixing the measure of punishment, was influenced toa considerable degree by a very natural feeling of indignation at the unnecessary cruelty of the defendants toward the defenseless child. Their cruelty, as such, was punishable, if at all, in another forum. So far, and so far only, as their act was an offense against the administration of justice, was it punishable in this proceeding.

For the reason that the punishment imposed was excessive the conviction as to both defendants will he reversed and the cause remanded.

Judgment reversed.