text:
    Nicholas Spannagle v. Chicago and Alton Railroad Company.

      Bailroads—Personal Injuries—Passengers—Contributory Negligence— Evidence—Instructions.

    1. The purchase of a round trip ticket does not create the relation of carrier and passenger as to any particular train.
    2. In the absence of an express contract, a person must place himself in charge of a railroad company in order to make it liable for an injury to him as a passenger.
    3. A carrier is not called upon to hold its trains for any person not in the relation to it of a passenger.

      4. A person attempting to board a moving train is guilty of gross negligence.
    5. Where the evidence is insufficient to warrant a verdict for the plaintiff, the court should so instruct the jury.
    [Opinion filed March 1, 1889.]
    In error to the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.
    Mr. M. Millard, for plaintiff in error.
    Messrs. Luke H. Hite and William Brown, for defendant in error.
    The courts have held universally that the relation of passenger and carrier is contractual in character; that the contract may be either express or implied, and that the contract to carry is implied when one goes to the appropriate place at the proper time and in some effectual way notifies the carrier of his desire to be carried. This may be done in any manner which will indicate to the company the wish of the person to take the train, such as the entry of the waiting room, the avowal of the wish or the purchase of a ticket, or any like action. In such case the company is presumed to consent to carry, and the promise to give a reasonable time for the passengers to enter the train is implied in law. There is no pretense of any express contract. Thus, in the absence of an express contract, the acts and circumstances from which the law will imply the contract to carry, the relation of passenger and carrier did not exist between the parties, and appellee could have no cause for action.
    Appellant’s own testimony shows that he did not give this n itice; that the agent did not know he wished to take the train; that he did not buy a ticket there ; that he did not go into the waiting room and await the coming of the train; that he did not in any way signify to any of the agents or servants of the appellant that he wished to become a passenger, but, on the contrary, he went by the depot and took refuge and consolation in beer drinking in a saloon at a distance, how far makes no difference, away from the depot and grounds of appellant. He says he heard the train and ran to it as hard as he could go ; left a glass partly consumed, and got on to platform and seized railing of car just as it was starting. He saw no one but the engineer in his cab.
    He elected to take a saloon as his waiting place, away from the depot, and did not avail himself of the depot, and consequently acquired no rights which attend the action of those who become passengers by going to the places provided for their accommodation by the railroad, and by such action give implied notice which binds the company to their care and protection. His mere intention to take passage does not create the relation. He should have put himself within the carrier’s protection. Hutchinson on Carriers, Secs. 562, 563.
    He did not so much as “hold up his finger” as notice of his wish, as in Brien v. Bennett, 8 Car. & P. 724.
    These positions we regard as well founded and thoroughly established; and since these facts all affirmatively appear in the testimony of appellant, the court did right in instructing the jury to find for the defendant.
    The rule of this State is: “Although there may be some evidence tending to support the plaintiff’s case, yet, when the evidence given at the trial, with all inferences which the jury could justifiably draw from it, is so far 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.”
    Simmons, Adm’x, v. C. & T. R. Co., 110 Ill. 340: “ When the whole of the evidence for the plaintiff, if believed by the jury, is so insufficient to support a verdict in his favpr that the court would not permit one to stand, it is the duty of the court to instruct the jury, as matter of law, that there is not sufficient evidence to warrant a verdict for the plaintiff. Such an instruction, answering the purpose of demurrer to the evidence, must be tested by the same rules. Phillips v. Dickerson, 85 Ill. 11.”
    The doctrine laid down in Simmons v. C. & T. R. Co., supra, has been referred to and approved in the following cases : C., B. & Q. R. Co. v. Smith, 18 Ill. App. 119; Dechert v. I., B. & W. R. Co., 17 Ill. App. 74; L. S. & M. S. R. Co. v. O’Connor, 115 Ill. 254; Bartelott v. International Bank, 119 Ill. 259.
    In the latter case the court use this pointed expression upon the term “ evidence tending to prove ”: “ Since it was not intended in this case to overrule Simmons v. Chicago & Tomah R.R. Co., supra, it is apparent that 6 evidence tending to prove’ means more than a mere scintilla of evidence, but evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plaintiff, or the party producing it.”
   Phillips, J.

Plaintiff in error brought suit to recover damages for injuries received in an attempt to get aboard the train of defendant in error at Mitchell, "a station on defendant’s road.

The evidence shows at that station a depot was provided with a warm, lighted room, supplied with seats, for the accommodation of passengers awaiting the arrival of trains. An agent was in charge of that depot, and then present. Defendant’s train, passing at the time of the injury,' was not on time.

The plaintiff claims he was injured by reason of the train not remaining at the depot platform long enough to afford sufficient time for passengers to get aboard. To determine that question, the relation between plaintiff and defendant is of importance in determining the duty of the defendant. The relation between passenger and carrier is contractual. It was the duty of the plaintiff, if he desired to become a passenger on defendant’s cars of that train, to become such passenger by express or implied contract. The plaintiff claims that he had left East St. Louis that evening, having purchased a round trip ticket; but that fact did not create the relation of passenger and carrier with reference to this train. Bo express contract being shown, before a duty rested on the defendant the plaintiff must in some manner indicate his purpose of becoming such passenger, and place himself in charge of the carrier. He gave no notice to the agent of the company, nor did he seek the room provided for passengers to await the arrival of the train to indicate his purpose, or in any manner place himself in care of the carrier. The train arrived at the platform and one passenger, who was in the waiting room, took the train, which stopped long enough for him to get aboard. The plaintiff was at a boarding house and saloon, between two and three hundred feet from the depot, and from eighty to one hundred feet from the nearest point of the platform. When he became aware of the approach of the train he endeavored to reach the depot to take the train and arriving at the platform after the train was in motion endeavored to get aboard, and was injured. Hot having placed himself in care of the carrier, there was no relation between him and the carrier by which it became the duty of the carrier to hold its train for any length'of time. For any injury he received while endeavoring to get aboard the train while in motion he must seek redress as a stranger. His act in this regard was gross negligence.

The trial court instructed the jury to find the defendant not guilty, and judgnrent was entered against the plaintiff for costs. Plaintiff sues out this writ of error, and insists the evidence should have been left to the jury. In Simmons v. C. & T. R. R. Co., 110 Ill. 340, it was held: “ When the whole of the evidence, if believed by the jury, is so insufficient to support a verdict in his favor that the court would not permit one to stand, it is the duty of the"court to instruct the jury, as a matter of law, that, there is not sufficient evidence to warrant a verdict for the plaintiff.” The rule here declared has been approved by the Supreme Court in L. S. & M. S. R. R. Co. v. O’Conner, 115 Ill. 234; Bartelott v. International Bank, 119 Ill. 259.

In Quinn v. I. C. R. R. Co., 51 Ill. 495, it was held : “ It is urged, however, that the question should have been left to the jury. The practice adopted by the court can not be safely followed in many cases. Whenever there is evidence tending to prove the issue, the plaintiff has a right to take the verdict of a jury; but if this had gone to the jury, and they had found for the plaintiff, the. court should have set aside their verdict, or, if it had refused to do so, it would have been done by this court. As no injustice has been done the plaintiff we can not reverse the verdict.” To the same effect is Willson v. Williams, 14 Wend. 148. It was said by the Appellate Court of this district, in Taylor v. D. O. & O. R. R., 10 Ill. App. 811: “ Where a verdict is shown by the evidence to be so clearly right that had it been otherwise the court would have set it aside, such verdict will not be disturbed merely for the reason there is error found in the instructions. In such a case it appears affirmatively that the party was not injured by such error, and hence has no right to complain. We regard a portion of defendant’s instructions as being manifestly erroneous; but is the verdict so clearly right that had it been in favor of plaintiff in error we would be required to reverse and refuse to permit it to stand? If so, then this judgment should be affirmed; but if not, then it must be reversed.” To the same effect is Burling, Adm’x, v. I. C. R. R., 85 Ill. 18. In this case it appears from the evidence the plaintiff was not entitled to recover; the verdict was right; and even if there was .error in the instruction the judgment should stand.

The other question presented is upon the admissibility of evidence offered for defense; that evidence did not and could not affect the verdict under the instruction of the court. The judgment is affirmed. Judgment affirmed.


source: Caselaw Access Project

author: Phillips, J.

license: Public Domain

text:
    Willis Gurley v. The People of the State of Illinois.

      Bastardy—Release of Claim—Fraud and Duress—Evidence.

    Upon bastardy proceedings, the defense being the execution of a release of all claims in consideration of the payment of a certain sum of money, this court holds that the same was procured through fraud and misrepresentation, and declines to interfere with a verdict for the plaintiff.

      [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of Massac County; the' Hon. Robert W. McCartney, Judge, presiding.
    Mr. William A. Spann, for appellant.
    Messrs. Courtney & Helm, for appellee.
   Phillips, J.

Appellant was found guilty in a prosecution for bastardy, and brings the record to this court by appeal.

The evidence of the prosecutrix shows his guilt. The paternity of the child is not denied, but the defense relied on is the execution of a release. The execution of that release, and that the same was explained to the prosecutrix, is shown. The effect of that release is sought to be avoided by reason of the fact that the signature thereto was procured by fraud and misrepresentation and by duress. The evidence shows that James Richardson, a brother-in-law of appellant, visited the prosecutrix and represented to her that appellant had left the State and gone to Minnesota; that his family were to follow him, and he would never return, and that she would never get anything by the prosecution; this was untrue. He further said he would pay her '§50 if she would execute a release. To that proposition she desired that her attorneys who had been employed in the bastardy prosecution might be consulted, and requested Richardson to see them.

It is not shown that he endeavored to see her attorneys; but it appears he employed an attorney to write a release and get her signature to the same. The evidence shows the attorney who was thus employed wrote the release and presented the same to the prosecutrix; represented to her that he was not employed by the appellant and was her friend, and would advise her right. He further’represented that if she did not sign the release the father would kidnap her child. To these representations she replied she would do whatever that attorney said was best, and he said sign it. The attorney does not deny these statements of the prosecuting witness, and on cross-examination states he made the representations of friendship to produce her confidence, but further insists he advised her correctly. The prosecutrix further testifies that she relied on the advice of that attorney as a friend, on his representations, and her-fears were so excited that she believed her child, soon to be born, would be kidnaped; that she signed the release without understanding it, and that it was signed by the advice of that attorney. There was such fraud and misrepresentation in procuring her signature to the release as to avoid it.

The jury were correctly instructed, and had the evidence before them. They found the release was procured.by fraud, misrepresentation and duress, and found the appellant guilty. The verdict was right, and the judgment is affirmed.

Judgment affirmed.


author: Green, P. J.

text:
    J. R. Mateer v. Thomas Green.

      Sales—Fraud—Estoppel in pais—Evidence.

    1. In order to support the plea of estoppel in pais, it must be shown that but for the acts and declarations of the one party which it would be inequitable to allow him to retract, the other would never have taken the position occupied by him.
    2. In an action involving the title to a half interest in a stock of goods, this court holds that the plaintiff is estopped through his acts from setting up and maintaining his claim thereto.
    [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    Mr. C. H. Patton, for appellant.
    Every fact and element of an estoppel in pais against appellee was not only abundantly proved by appellant, but admitted by appellee, and the court told the jury by its instruction, which is copied'into the abstract, that in such case they should •find for appellant. But they wholly disregarded the evidence and the law as laid down by the court in the instruction mentioned, and their verdict was, at first blush, contrary to both the law and the evidence. Hence the court erred in overruling the motion for a new trial.
    In Anderson v. Armstead, 69 Ill. 454, the court said:
    “The law is familiar, that where the owner of property holds out another, or allows him to appear as the owner thereof, * * * and innocent parties are thus led into dealing with such apparent owner, * . * * they will be protected. Their rights in such cases do not depend upon the actual title, * * * but they are derived from the act of the real owner, which precludes him from disputing as against them the existence of the title * *" * upon the faith of which they dealt.” And the court cites Bigelow on Estoppel, 468; Higgins v. Ferguson, 14 Ill. 269 ; Donaldson v. Holmes, 23 Ill. 85 ; Schwartz v. Saunders, 46 Ill. 18.
    Now, by the principle of the above authorities, when appellee denied he was owner, and held out Nesmith’s wife to be the owner, he estopped himself to deny this and claim the ownership after the officer, in reliance upon his statements, 'had acted upon them by the taking of the goods on execution.
    Appellee saw his goods taken under execution without objection, and as the result of his disclaimer of ownership, and then objected before the goods had been sold. But his action only differs in the matter of the time at which the objection was made from the case of McConnell v. The People, 84 Ill. 583, in which case the court held the owner was estopped. See also, Stewart v. Menford, 91 Ill. 58.
    The general doctrine that where a party fails to make known his rights, when equity and good conscience require that he should do so .to protect the interest of others, he can not be heard, as against them, to assert these rights, is laid down in Higgins v. Ferguson, 14 Ill. 268; Cochran v. Harrow, 22 Ill. 345; Donaldson v. Holmes, 23 Ill. 83 ; Lloyd v. Lee, 45 Ill. 277; Kane Co. v. Herrington, 50 Ill. 239; Eldridge v. Walker, 80 Ill. 270; Leeper v. Hersman, 58 Ill. 218; Walker v. Mulvean, 76 Ill. 18.
    Messrs. Pollock & Pollock and Albert Watson, for appellee.
   Green, P. J.

This was a trial of the right of property, Green, the appellee, claiming to be the owner of an undivided half interest in a stock of goods, which interest had been levied on June 7, 1887, by Felts, a constable, as the property of Moore, by virtue of an execution in favor of appellant against Moore and Nesmith. Appellee claims to have bought the entire stock .by purchasing Moore’s one-half interest in March, 1886, and Nesmith’s interest, the remaining half, April 1, 3887.

Before the justice of the peace, judgment was rendered against Green, who appealed to the Circuit Court, where a trial was had, resulting in a finding and judgment for him, to "reverse which this appeal was taken. Appellant, as grounds for reversal, claims the sale by:Nesmith to appellee was a sham sale, and appellee did not purchase in good faith, and that even if Green did have title to the undivided half interest levied on, his acts, conduct, and declarations to the constable at the time of the levy estop him from setting up and maintaining his claim. Without reference to the first contention, enough is disclosed by the evidence to require the reversal of the judgment on the second ground insisted upon.

We think the evidence clearly shows that on the 7tlx of June, 1887, the constable came to the store of Green with the execution to levy on the undivided half of the stock of goods and so informed Green, who told the constable he owned onelialf the stock, and as to the other half he didn’t know whether Moore or Nesmith owned it; that he did not know who the other half belonged to unless Nesmith’s wife owned it. The constable told Green he would levy on the undivided half interest in the stock, and did so at the store, and left it in the custody of appellee upon his promise that the goods should be there all night, and undisturbed the next morning, the time fixed by the constable when he would return there. On returning the next morning the constable was informed by appellee that the latter was the owner of the entire stock of goods, and the notice of his claim to the property levied on was then served upon the constable and this proceeding was thus commenced. Appellee also testified he did not tell the officer he owned the whole stock, and claimed to own but a half interest at the time of the levy, because he wanted to shield Nesmith and not give hÍ7n away; that on the evening "of the day the levy was made he went to see Nesmith and was with him. Admitting the doctrine of estoppel to be substantially as laid down in the cases cited by counsel for appellee, the facts proven in this case estop appellee from setting up and maintaining his claim to the property levied on; he was called upon to speak as to the ownership of the said property; by the officer, and was bound to speak the truth; he spoke, and the officer relied upon the truth of his statements and acted by making the levy, and thereby occupied a position he would not have occupied had appellee then claimed to own the entire stock. The officer was thus induced to make no further search for other property to levy on; and the avowed purpose of appellee in thus deceiving him being to shield Nesmith, one of the defendants in execution, and not give him away, taken in connection with appellee’s visit to Nesmith at night, and his change of front as to the ownership of the stock the next morning, are acts and declarations indicating a fraudulent purpose of appellee in deceiving the officer and inducing him to make the levy.

In Leepcr v. Hersman, 58 Ill. 218, it is said of the party claiming the horse in controversy as owner, against the sheriff who had levied upon it under execution, “his silence as to his claim, and his subsequent acts in contravention of his present claim, were a virtual acknowledgment, he had no title to the property at the time of the levy. The action of the officer was necessarily influenced by such conduct, and such must have been his intention. There was also injury to the sheriff ; he was delayed in the performance of his official duties and hindered in an immediate search for other property.” In the case cited, the owner executed a delivery bond; in this case, appellee accepted the custody of the property levied on, and, in substance, agreed it should remain and be there at the place of levy the next morning, all right and not disturbed when the officer returned for it. Colwell v. Brower, 75 Ill. 516.

The doctrine of estoppel in pais is to prevent injuries arising from acts or declarations which have been acted on in good faith, and which it would be inequitable to permit the party to retract. In order to create such an estoppel, the party estopped must have induced the other to occupy a position he would not have occupied but for such acts and declarations. Ball et al. v. Hooten, 85 Ill. 159.

It was error to deny appellant’s motion for anew trial and render judgment on the verdict. The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    L. Knowles v. Village of Wayne City.

      Municipal Corporations—Profane and Obscene Language—Ordinance— Penalty—Appeal by Municipality upo i Acquittal of Defendant—Bond— Sec. 62, Chap. 79, Starr. & C. Ill. Stats.

    1. An action instituted for the recovery of a penalty provided for by a municipal ordinance prohibiting the use of profane and obscene language, is of a civil character.
    2. The mode adopted to bring into court a person charged with such breach, whether by summons or warrant, does not change the nature of the action.
    3. In such cases either party has the right of appeal.
    4. An objection to the appeal bond in a case of this sort, first made in this court, comes too late.
    [Opinion filed March 1, 1889.]

      Appeal from the Circuit Court of Wayne County; the Hon. C. C. Boggs, Judge, presiding.
    Mr. H. Tompkins, for appellant.
    Several cases may be found where the town or village may appeal, hut in such cases the ordinance pi-ovides that an appeal may be had in the name of the People of the State of Illinois, such as the following cases:
    Webster v. The People, 14 Ill. 365, action for peddling meat without a license. The right to appeal here was giv.en in general terms to either party.
    Town of Jacksonville v. Block, 36 Ill. 507. The ordinance in this case allowe.d appeal in general terms. The same in case of Town of Partridge v. Snyder, the right of an appeal rvas especially enacted.
    Hesing v. Att’y Gen’l, 104 Ill. 292. The right of appeal was denied the relator on dismissal of suit, no judgment for cost having been rendered.
    The Legislature, by various acts, have extended the right of appeal in penal actions, such as violation of the road and bridge law, and qui tarn actions. The same with the ordinances of cities with penal actions.
    But if there is no provision for an appeal granted to the people or informer by the general law or by the ordinance, and the cause proceeds as would a criminal action by a- warrant, arrest, bond for appearance, or execution for imprisonment, then, in that instance, an appeal will not lie to an informer, the people, nor the village, from a verdict of not guilty.
    The defendant having been found “not guilty,” this court had no jurisdiction on appeal even by the informer, and ceitainly none by a party who was not a party to the complaint, making the action one of “ appeal.”
    The village of Wayne City, the now defendant in .error, was not known in the case before the justice of the peace except by its ordinance. Ho cost was rendered against the village nor against the informer. The bond recites no judgment; it undertakes to say that a judgment was obtained against the president and board of trustees of the village of Wayne City in blank dollars and cents, while the transcript shows that no judgment was rendered.
    Again, the summons issued from the Circuit Court is entitled a new party, Wayne City, appellee, instead of The People of the State of Illinois, requiring the plaintiff in error to appear in the Circuit Court to answer in a plea of an appeal, to the damage of said plaintiff in the sum of fifty dollars. This is the first that-the village of Wayne City is known in the case. Ho action is stated, whether it is a criminal action or one of assumpsit. But it would seem by the summons, in using the word damage, that it might be an action of assumpsit. If so, then no judgment could be entered against plaintiff in error that would imprison him under the ordinance, as is provided for by the ordinance Ho. 6, Sec. 17. We submit that the prosecution of the appellant under the criminal provision of the ordinance and his acquittal by a jury was the end of the case, without any right of appeal by the informer, as no cost was rendered against either the informer nor the village of Wayne City, neither is there any provision for an appeal by virtue of the ordinance. '
    Messrs. J. R. Creighton and Edwin Beecher, for appellee.
    The record plainly shows that suit was instituted to recover the penalty provided for the violation of an ordinance of the village of Wayne City. In such case it can not be enforced in any kind of criminal proceeding. The act might have been a crime (which it was not in this case), but the offense against the village of Wayne City was a violation of its ordinance, and for such violation this suit was brought, and there is no semblance of a crime about it..
    That such is the law seems so clear it is almost an insult to" the court to cite authorities; but that appellant may not say • we are making assertions without proof, we refer to a few of the many cases to be found in our reports. In Hoyor v. Town of Mascoutah, 59 Ill. 137, the court said: “ It has been repeatedly held by this court that a proceeding to collect a penalty for the violation of a town ordinance is a civil suit. Such a penalty can not be recovered in any criminal proceeding.” “ The fact that the offense charged was assault and battery does not change the character of the proceedings. It is still a civil suit. The town only acquires jurisdiction because the offense is prohibited by ordinance.” Citing Town of Jacksonville v. Block, 36 Ill. 507; Graubner v. City of Jaeksonville, 50 Ill. 87. And in Town of Partridge v. Snyder, 78 Ill. 522, this language is almost literally repeated, quoting also from Ewbanks v. Town of Ashley, 36 Ill. 177.
    In Starr & C. Ill. Stats. Chap. 79,Sec. 62,is the following:

      “ Appeals from judgments of justices of the peace to the Circuit Court, or County Court, if such jurisdiction shall be conferred upon the County Court by law, shall be granted in all cases, except on judgment confessed.” See also same section, R. S. of 1874,647. This statute was examined and construed in Partridge v. Snyder, 78 Ill. 519, and after a full review of all the decisions it was held plaintiff has the right of appeal. This case has never been questioned, so far as we can learn.
    The case of Webster v. People, 14 Ill. 365, also fully sustains us, if additional support were needed. In that case Catón, J., said: “Even in cases of assault and battery, where the complainant has no pecuniary interest, and where no judgment for costs is rendered against him, he is still allowed to appeal to the Circuit Court, and compel the defendant again to answer there for the same offense for which he was tried in the justice’s court.”
    As answer to the case of Ward v. People, 13 Ill., 635, and Edward v. Vanderneck, Id. 533, we say they were fully discussed by the court in Partridge v. Snyder, supra. There the court said these cases were decided under a law not now in existence, and virtually overruled them.
   Green, P. J.

As stated by appellant, the question submitted to us for decision is, had the Circuit Court jurisdiction to entertain the appeal and put appellant on trial fora violation of the village ordinance (by using profane and obscene language, etc.), notwithstanding he was acquitted of said charge by a jury in the justice’s court?

It is contended on behalf of appellant that lie was there tried upon a criminal charge, and having been acquitted, no right to appeal on behalf of the village is given by the statute.

The complaint charged appellant with a violation of Sec. 2, Ordinance 8, of the village ordinance; it did not charge him with any crime, or violation of any provision of the criminal code of this State, and although the warrant issued under said complaint ran in the name of the people, it commanded his arrest to answer the charge ina'de in the complaint and none other. The mode adopted to bring into court one charged with such violation of an ordinance, whether it be by summons or warrant, does not change the character of the action. The authority to issue a warrant in such cases is given for the purpose of procuring the presence in court of defendants, who might not appear in obedience to the command of a summons, and also to secure a speedy disposition of the suit.

We have no doubt this action is a civil suit, brought to recover the penalty provided for violating the provisions of the ordinance in question, and such has been the character given to like cases by our Supreme Court. Hoyer et al. v. Mascoutah, 59 Ill. 137; Graubner v. Jacksonville, 50 Ill. 87; Town of Partridge v. Snyder, 78 Ill. 519. Being a civil suit before a justice of the peace, the right to appeal is given either party by Sec. 62, Chap. 79, Starr & C., Ill. Stats. Town of Partridge v. Snyder, supra; Webster v. People, 14 Ill. 365.

It is objected the action was not brought in the name of appellee, and the title of the suit was changed after it came up to the Circuit Court. The transcript of the justice’s docket read in evidence shows the title, “Village of Wayne City v. L. Knowles—Violation of Ordinance,” and it is the same in the Circuit Court. The objection to the appeal bond (if a bond by the village in such cases is required) should have been made in the court below, and an opportunity given to furnish a good bond; it comes too late here. We perceive no reason for reversing the judgment appealed from, and affirm the same.

Judgment affirmed.


author: Reeves, J.

text:
    James B. Lewis v. Felix G. Cockrell.

      Clerics—Payment of Judgment to—Motion for Rule to Pay Over— Attorney and, Client—Fees—Assignment.

    1. A clerk of the Circuit Court is not authorized to receive money in satisfaction of a judgment.
    2. Where there is a dispute as to the ownership of money in the bands of a clerk of the court, the remedy is by a proceeding at law or in equity, and not by rule of court directing payment to particular claimant.
    8. It seems that in order to justify a rule upon the clerk to pay over money, it must first appear that it is in his hands jn his official capacity as clerk.
    [Opinion filed March 1, 1889.]
    In ebbor to the Circuit Court of Marion County; the Hon. Amos Watts, Judge, presiding.
    Mr. Thomas E. Merritt, for plaintiff in error.
    As to the first point, it is onty necessary to say that under an express ruling of the Supreme Court, money received by the clerk of a Circuit Court in the payment of judgment is not held by him as an officer of the court, and it would seem to follow as a necessary consequence that the court, in such a case, had no power to subject him to its summary jurisdiction. Seymour et al. v. Haines, 104 Ill. 557.
    It was said in this case, he is not “a collecting officer at common law or by statute;” and it was held"that a payment of the judgment to him did not operate as a satisfaction or authorize him to enter a satisfaction on the record. Hot being authorized to receive the money officially, he held it simply as a private citizen, and the court had no more power over him in respect to it than it would have over any. other private individual.

      But this proceeding-is based upon the assumption that the defendant was under an official duty to pay the money over, and could be ruled to do so, the same as though he was asked to issue a sub poena, or perform any other official act. A court may compel its officer to discharge his official duty, when necessary, in the progress of a cause or the enforcement of a judgment or decree, but that is as far as it can go; there is no power in any tribunal to order him peremptorily to do an act which is not an official duty. The summary jurisdiction of a court includes only the power to exact from an officer a discharge of the functions of his office, and does not extend to a case where the act is outside of his official duty. In the case pending, the defendant, was not authorized to receive the money officially or hold it officially; and not being connected with the transaction in his official capacity, the court had no power to proceed against him as an officer and render the judgment in question.
    The second objection is that it does not appear the plaintiff performed his contract and was entitled to the $900. The instrument relied upon as an assignment is void upon its face; but waiving that, it is very clear there could be no interest in the judgment unless the agreement was carried out. It is not an absolute transfer of any interest whatever. The record discloses the fact that the plaintiff’s claim was disputed, and it devolved upon him, when that occurred, to establish his right to the compensation stipulated for. He could not recover the money from Hillard without showing a performance of the contract, and he certainly can not get it from the clerk, under the circumstances of the case, unless it is made to appear that.he was legally entitled to it. But we shall see later on that the fact of a dispute existing between the parties as to whether. the contract had been performed was sufficient in itself to put an end to this proceeding, even if the court had jurisdiction. Custer v. Agnew, 83 Ill. 194.
    And perhaps it should be added here that there is no such thing as a lien upon the judgment for. attorney’s fees. Forsythe v. Beveridge, 52 Ill. 268; La Framboise v. Grow, 56 Ill. 197.

      The contract undertook to assign a- part of the claim or judgment, and was void because the debtor did not assent. A demand can not be split up, and a partial assignment of a judgment is void. Freeman on Judgments, Sec. 424; Love v. Fairchild, 13 Mo. 300.
    There were three parties claiming the money, and the defendant was not obliged to take the risk of paying it to the wrong one. He could require them to interplead or wait until an action was brought to settle the controversy, or until it was adjusted by themselves.
    There was a prior assignment to Dausch, and that carried the whole interest, giving him, or his assignee, the better right. And the rule as between two assignees of a claim of this character is, “the first in time is prior in right.” Freeman on Judgments, Sec. 429, and cases cited.
    The Workingmen’s Banking Co. was claiming the money under the Dausch assignment; Millard was asserting the plaintiff had no right to it, and the latter was contending that his contract operated as an absolute transfer of $900 of the judgment. This was the position of affairs, and it is not a matter of surprise that a circuit clerk should hesitate in such a case.
    If the money had been in the sheriff’s hands, with three different claimants, and proceedings had been taken under the statute against him, it is certain nothing could be done but enter an order of dismissal.
    Messrs. W. & D. L. Stoker, for defendant in error.
    The assignee will be protected against any acts of the parties to the judgment after notice of the assignment. In this case, notice of the assignment was filed and given to all parties on August 16, 1887, by assignee, Cockrell, and therefore Millard had no right to interfere, even in equity, except by bill and injunction on the ground of fraud or failure of consideration. Hughes v. Trahern, Adams et al., 64 Ill. 48. And it became the duty of the court of law to protect assignee Cockrell’s interest against Millard, plaintiff, in judgment against Richland county, and judgment debtor, and the plaintiff in this convt against any wrongful act, as clerk of the court, when by his own admissions he says he did the act as circuit clerk. Donk et al. v. Alexander et al., 117 Ill. 338; Chapman v. Shattuck, 3 Gilm. 49; Carr v. Waugh, 28 Ill. 418; Morris v. Cheney, 51 Ill. 451; Hodson v. McConnell, 12 Ill. 170. While the law here does not give an attorney a lien upon the judgment of his client for his fees, yet it nowhere prohibits the parties, by contract, from creating a specific lien on the judgment to be recovered, and this assignment, by M. Millard to F. G. Cockrell, then and there created such specific lien from August 16, 1887—such lien as courts of law weie legally bound to respect and protect, and as regards the holding out and signing receipt as clerk as an estoppel of plaintiff in error in his defense of not being legally authorized as clerk to receive and hold the money. Young v. Fonte, 43 Ill. 39; Bay v. Bell, 24 Ill. 444. Plaintiff in error can not take advantage of his own wrong and set up his wrongful or illegal act as a defense to screen himself. This must be done by third parties. Lockhart v. Wolf, 82 Ill. 37; Himrod v. Baugh, 85 Ill. 435; Hughes v. Sprague, 4 Ill. App. 301; Burritt v. Tidmarsh, 1 Ill. App. 571, and Sheldon v. Hinton, 6 Ill. App. 216 ; Hodson v. McConnell, 12 Ill. 170. Assignment of part of judgment sustained. Hussock v. Underwood, 55 Ill. 123.
   Reeves, J.

On the 16th day of August, 1887, M. Millard recovered a judgment in the Marion Circuit Court against the county of Biehland for §5,000. The amount of this judgment was paid by Biehland County to James B. Lewis, clerk of the Circuit Court of Marion County, on the 15th day of September, 1887. The judgment was recovered for legal services claimed to have been rendered by Millard for Bichland county.

On the 18th day of December, 1880, Millard assigned to George W. Dausch all his claim and demand against the county of Richland for legal services, giving Dausch the right to sue for, demand, settle or compromise such claim in any way he might think proper. This assignment was filed in the clerk’s office of the Marion Circuit - Court on the 23d day of August, 1887.

On the 22d.day of August,' 1887, said Dausch assigned and transferred to The Workingmen’s Banking Company of East St. Louis any and all claims which he had against Millard, including the assignment by Millard to him of his claim or judgment against Bichland county.

This assignment was also filed in the office of the clerk of the Circuit Court of Marion County on the 23d day of August, 1887.

On the 30th day of October, 1886, Millard and defendant in error, F. G. Cockrell, entered into an agreement which recited the pendency of the suit of Millard against Bichland county for attorney’s fees in the Bichland County Circuit Court, and the desire of Millard to have the venue of the cause changed to a convenient county in. another circuit, and to effectuate such change of venue, Millard engaged Cockrell and agreed to pay him, in case he succeeded, for this service and for such further service as he (Cockrell) might render in and about the prosecution and trial or compromise of said suit, the sum of $1,000. It was further provided by said agreement that to the extent of the agreement it should be an assignment of the subject-matter of the suit, for the purpose of securing said sum of $1,000 out of the amount derived from any judgment in, or compromise of said suit. The sum of $100 was paid by Millard to Cockrell on the day the agreement was made. This agreement was tiled in the office of •the clerk of the Marion Circuit Court on the 16th day of August, 1887.

On the 5th day of September, 1887, Millard notified Lewis, clerk, by letter, that all claim by Cockrell to the judgment rendered on the 16th day' of August, 1887, in his (Millard’s) favor and against Bichland county was groundless, and if the judgment should be paid to the said clerk, he should not pay Cockrell anything' out of the money so paid to him, but should hold the money until he (Millard) and The Workingmen’s Banking Company should demand the same.

September 24, 1887, Lewis paid The Workingmen’s Banking Company $4,100 of the $5,000 paid to him on said judgment. October 4, 1887, The Workingmen’s Banking Company assigned, transferred and set over to said George W. Dauseh, ail its right, title and interest in and to the $900 still held by' Lewis, clerk, of the money paid him on said judgment.

October 10, 1887, Millard and Dausch joined in an order directed to Lewis, clerk, to pay the $900 to Thos. E. Merritt, which Lewis did on the 24th day of October, 1887; January 31, 1888, Cockrell caused to be served on Lewis, clerk, a notice to the effect that on the first day of the February term, 1888, of the Marion Circuit Court, he would apply to said court for a rule against Lewis, as clerk of the said court, to pay over to him (Cockrell) the sum of $900 paid to Lewis as clerk as aforesaid, on the judgment of Millard against Rich-land county, claiming the money by virtue of the agreement above referred to, which was tiled with said clerk August 6, 1887.

At the said February term of the Marion Circuit Court a motion in pursuance of said notice was made by Cockrell, and upon the hearing of the motion the court entered an order that Lewis, as clerk, pay over to Cockrell the said sum of $900, together with the costs of the rule. From this Order, Lewis, plaintiff in error, prosecutes this writ of error.

It would seem quite clear that under the law as applied to the foregoing facts, plaintiff in error did not hold the money paid to him by the county of Richland, on the Millard judgment, in his official capacity as clerk. In Seymour v. Haines, 104 Ill. 557, the court say: “ We find no authority at com-

mon law to support the position that payment to the clerk operated as satisfaction of the judgment.”

Nor is anything found in our statute authorizing the clerk of the Circuit Court to receive money in satisfaction of a judgment. The clerk not being a collecting officer, the payment of the money to him did not operate to satisfy the judgment, and his entry of satisfaction on the judgment docket was unauthorized and void, and his want of power to make the entry may be shown in a collateral proceeding. It would seem equally clear, that in order to authorize the court to enter a rule against the clerk upon a motion to pay over money -in his hands, it should appear that the money so ordered to be paid over was in his hands in his official capacity as clerk. But waiving this question, it sufficiently appears that there was a dispute between Millard, Dausch and Cockrell, as to Cockrell’s right to the money. This being true, we do not see how a summary proceeding by motion of this character can be sustained. It must be conceded that Millard and Dausch should have an opportunity in an appropriate proceeding to contest Cockrell’s right to the money. It is difficult to conceive how they could exercise such right in the summary proceeding adopted in this case. Even if we concede that the clerk held this money in his official capacity as clerk, there being a contest between Millard, Dausch and Cockrell as to which one was entitled to it, the payment to one would be no protection to the clerk, unless it should be decided in a' proper proceeding that he had paid the money to the one entitled to it. It would not be just to subject the clerk by an order of the kind entered in this case to the burden of a lawsuit at his own expense, in relation to a matter, in which, as clerk, or personally, he had no personal interest. This view seems to be clearly sustained by the case of Custer v. Agnew, 83 Ill. 194. It is not necessary to reverse the order of the Circuit Court to decide in this case that plaintiff in error is not liable to pay the money in controversy to defendant in error. It is sufficient that the question is a lair subject of dispute. In such case the remedy, if any, so far as defendant in error is concerned, is not by motion for a rule against the clerk to pay over the money to defendant in error, but by an action at law where the facts may be found by a jury or by a proceeding in equity, to which all persons claiming an interest in the money should be made parties.

The order of the Circuit Court is reversed and as,under the facts disclosed by this record, the motion should have been denied by the Circuit Court, and the proceeding dismissed, the cause is not remanded.

Order reversed.


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    James J. Borders et al. v. The People, for use, etc.

      Administration—Bond—Action on—Partition—Failure to Intervene in Proceedings Touching Intestate’s Estate—-Evidence.

    Although not a party, it is the duty of an administrator who is aware, or who might have known by the exercise of reasonable diligence, of the pend-ency of proceedings touching the sale of property in which his intestate possessed an interest, to intervene therein, to the end that the proceeds of such interest should be turned over to him in order to secure payment of the debts of the estate.
    [Opinion filed March 1, 1889.]
    In error to the Circuit Court of ¡Randolph County; the Hon. George W. Wall, Judge, presiding.
    Messrs. John Michan and R. J. Goddard, for plaintiffs in error.
    Mr. H. Clay Horner, for defendant in error.
   Reeves, J.

This is a suit on an administrator’s bond brought by a creditor of the estate.

Plaintiff in error, James J. Borders, was, in ¡November, 1882, by the County Court of Randolph County, appointed administrator de bonis- non of the estate of Louisa Dial. Isaac Dial, the husband of Louisa, was first appointed administrator of her estate, and James J. Borders was the security upon his bond. • Isaac died in November, 1882, and thereupon Borders was appointed as above stated.

In the early part of 1882, the heirs of one Perry Roberts instituted proceedings in the Circuit Court of Randolph County to partition certain lands in which Louisa Dial, at the time of her death, held an undivided one-fifth interest. To this proceeding Isaac Dial was made a party defendant as the husband of Louisa. He filed an answer in which he set up the fact that he was administrator of the estate of Louisa Diai, and that the personal estate would he insufficient to pay the debts of her estate, and asked, upon final hearing, that the rights of creditors might be protected in said lands. The lands being found not susceptible of division were sold under decree of the court, and the money realized from the sale distributed; the share of Louisa Dial was paid to her heirs. Jn the matter of the estate, it was admitted on the trial in the court below, that after payment of all claims except the seventh class, there was a balance of the personal estate of $47.73. The seventh class of claims amounted to $727.30, of which $307.31 was allowed to Delia Gibson. It appears that after the death of Isaac Dial and appointment of James J. Borders as administrator, the partition suit was lost sight of by the administrator, and the money realized from the partition sale, which should have been paid to the administrator of Louisa Dial, was paid to her heirs. After this distribution in 1884, Borders, as administrator of Louisa Dial, and B. H. Mann, administrator of Peter and Barnett Boberts (whose estates also had an interest in the Boberts land that was sold under the partition sale), joined in a proceeding in the Circuit Court of Bandolph County to subject the interest of Louisa Dial in said land to the payment of the debts of her estate, and also to subject the interest of Peter and Barnett Boberts in same land to the payment of the debts of their estates.

The defendant to this proceeding was George Bollinger, who had purchased the lands at the partition sale, and upon his demurrer the bill was dismissed.

Subsequently plaintiff in error, Borders, as administrator, filed a petition in the County Court of Bandolph County against said Bollinger to subject the interest formerly owned by Louisa Dial in said lands to the payment of the debts of her estate, and upon demurrer the petition was dismissed, and upon appeal by Borders to the Circuit Court the action of the County Court was affirmed.

It should be observed, in the decree of sale in the partition proceeding, the master was ordered to bring the money into court to be distributed to the parties entitled thereto under the direction of the court. It need hardly be said, if the proper application had been made by the administrator of Louisa Dial, the proceeds of the partition sale that belonged to her would have been ordered paid to him; at least so far as necessary to pay the debts of her estate. It is, however, contended that Borders was not in any way made a party to the partition proceeding, and was therefore not bound to take any steps in the case. This contention can not be sustained. Even though the administrator was not made a party it was his duty, if he knew, or by the exercise of reasonable diligence could have known, the fact that the suit was pending, to have intervened in the case and had the proceeds of the sale that belonged to his intestate turned over to him so far as necessary to pay the debts of the estate. Starr & C. Ill. Stats., Chap. 3, See. 58. It satisfactorily appears that plaintiff in error knew of the partition proceeding, and that the lands had been sold in that proceeding by the master; for the evidence establishes the fact that he was quite intimate'y acquainted with the affairs of the family of his intestate and drew from the master a portion of the proceeds of the sale on an order from one of the heirs.

Complaint is also made that the Circuit Court admitted improper testimony over the objection of defendants. The case was tried without a jury, and without stopping to inquire whether the complaint above stated is well founded or not, there was enough testimony of the admissibility of which no question is made, to warrant the finding of the Circuit Court.

It is conceded there was money enough in the hands of the master, which would upon application have been ordered paid to the administrator, to pay in full all the debts of the estate of Louisa Dial.

The administrator should have made such application. He failed and neglected to do so. For this negligence we think he is clearly liable. ■ The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Rockford Insurance Company v. Elizabeth Storig.

      Fire Insurance—Vacancy—Special Findings—Evidence—Instructions.

    1. Provisions in insurance policies in the nature of forfeitures must be construed strictly.
    2. The question of occupancy or non-occupancy of a building insured is one offset, to be decided by the jury under the instructions of the court.
    3. The use of a building insured as a dwelling for some, but not all the purposes common to such structures, does not amount to vacancy.
    [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of Madison County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Marshall & Taggart, for appellant.
    The law is well settled that where a house is described in the policy as a dwelling house, to be occupied, it must have some one living in it and habitually sleeping in it, as their usual place of abode. Fitzgerald v. Conn. Fire Ins. Co., 64 Wis. 463; Ashworth v. Builders’ Ins. Co., 112 Mass. 422; American Ins. Co. v. Padfield, 78. Ill. 167; Herman v. Adriatic Fire Ins. Co., 85 N. Y. 169; Sonneborn v. Manufacturers’ Ins. Co., 44 27. J. L. 220; Ins. Co. v. Wells, 42 Ohio St. 519; Sexton v. Hawkeye Ins. Co., 69 Iowa, 99.
    “ For a dwelling house to be in a state of occupation there must be in it the presence of human beings, as at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be their place of usual return and habitual stoppage.” Herman v. Adriatic F. I. Co., 85 N. Y. 169. “A dwelling house and barn are unoccupied within the meaning of an insurance policy which provides that buildings unoccupied shall not be covered by the policy where the house is only used by the insured and his servants for the purpose of taking their meals there when engaged'in carrying on a contiguous farm, and the barn is only used for the purpose of storing hay and farming tools.” Ashworth v.Builders’ M. F. Ins. Co., 112 Mass. 422. To the same effect are M. Keith v. Quincy M. F. Ins. Co., 10 Allen, 228; American Ins. Co. v. Padfield, 78 Ill. 167.
    In Padfield v. Am. Ins. Co., 78th Ill. 169, the court says: “ A fair and reasonable construction of the language £ vacant and unoccupied,’ is that it should be without an occupant— without any person living in it.” See also Niagara Ins. Co. v. Drda, 19 Ill. App. 70.
    Messrs. Happy & Travous, for appellee.
    The conditions and provisions in the policy of insurance, by which it is sought to escape liability, are construed strictly. Conditions intended to work a forfeiture are not favored. A substantial compliance with any such condition or provision is all that is required on the part of the assured. Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106; Commercial Ins. Co. v. Robinson, 64 Ill. 265 ; Harrington v. Fitchburg Ins. Co., 124 Mass. 124; Hartford Fire Ins. Co. v. Smith, 3 Col. 422; Billings v. Tolland Co. Mut. F. Ins. Co., 50 Am. Dec. 277; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213.
    The occupancy or non-occupancy of appellee’s building, within the meaning of the policy, was a question of fact to be determined by the jury from all the evidence and circumstances bearing upon it, and the question having been fairly submitted to them their finding will not be disturbed. Western Ins. Co. v. Mason, 5 Ill. App. 141; Poor v. Hudson Ins. Co.,. 2 Fed. Rep. 432; Phoenix Ins. Co. v. Tucker, 92 Ill. 64.

      “ The word house, in the common and ordinary acceptance of the term, embraces everything appurtenant and accessory to the main building; this is also its legal signification, and the one that must be given to it when used in a policy of insurance. The word ‘ dwelling house’ embraces in law the entire congregation of buildings, main and auxiliary, used for abode; the entire cluster of buildings, not separated by a public way, which are used for purposes connected with habitation.” Workman v. Insurance Co., 22 Am. Dec. 141 and note.
   Reeves, J.

This is an action upon a fire insurance policy. The policy contained a clause that “ If the premises insured become vacant or unoccupied without the consent’of the secretary of the company in writing, the policy shall be void.” The contention of the appellant is, that at the time of the loss by fire, the premises insured were vacant and unoccupied. .Mrs. Storig and her husband owned-a building and outbuildings which they used as a saloon, eating house and residence, the saloon being located in the front part of the main building. In the rear of these buildings stood the building that was burned. It stood on a different lot from the one occupied by the saloon and eating house buildings. The two lots joined end to end, fronting on different streets. Both lots were in -the same inclosure. Mrs. Storig owned the lot on which stood the building that was burned, in her own right. At the time the policy was issued, the building was occupied by a Mrs. Harvey as the tenant of Mrs. Storig.

The policy describes the property insured as “Dwelling-house Ho. 2, Oountv of Madison, State of Illinois, lot 26, Main street, town of Edwardsville.” In the application the property is described as “House Ho. 1, size 18x24 ft., age 3 years, occupied by a tenant,” without giving other description of the premises. Mrs. Harvey continued to occupy the premises as the tenant of Mrs. Storig until December 15, 1887. Mrs. Storig then, it seems, determined to use the building in connection with their other buildings. She took out the partition in the main part of the building,, put in stoves, tables, benches, chandeliers and chairs, with a view of using the building for the purpose of giving suppers to balls or parties held in Turner’s Hall, located just across the street. She also did the washing aud ironing of the household in this building and stored goods therein that Avere used in the saloon and eating house. The building Avas used on the day and evening of January 5, 1888, for serving a supper for a party held at Turner’s Hall; aud between the 5th and 12th day of January., thr day the building was burned, two washings and iron h:;; were done in the building. Mrs. Storig t'ésííítes ,j “ From the time we changed it the house was in use every day. I had'¡¡Alike a kitchen or general room. I fixed it up and put the stove's, in and used it every day. Every day went in two or three timéis and closed it up when we went away.”

The company claims ihnc ao the building was described in the policy as a dwelling house, the vacancy clause must be construed to mean that when the building was not occupied as a dwelling house it was vacant or unoccupied within the meaning of this clause. In other words, that no other occupancy or use of the building would make it an occupied building in the sense required by the conditions of the policy. Provisions of this kind in policies of insurance, being in the nature of forfeitures, are to be strictly construed. Liberal intendments and enlarged constructions will not be indulged in favor of such forfeiture. Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213.

The construction contended for by appellant must be conceded to be a very liberal interpretation. A strict construction would be, that if the property was left vacant and not occupied at all, in the sense in which the term occupancy is used, then the policy should be void.

The policy does not in its terms require the occupation to have all the elements that usually attend the use of a building as a dwelling house. To inject this meaning into the language used, would be to enlarge the scope of a provision, in its operation working a forfeiture. In this case, under the evidence, it can not be fairly said that the building was vacant or unoccupied at the time of the fire. There was a daily use of the building and the use was in its nature the same in kind as the use of an ordinary dwelling—cooking, washing and ironing. The argument of appellant seems to be, that to constitute occupancy some one must have usually slept in the house, and it seems to be conceded if some one had usually slept in the building, this would have constituted occupancy. This provision was evidently inserted in the policy for the protection of appellant.

It would seem that the occupation and use of the building "shown~by the testimony, would furnish much more complete'’ protection to appellant than would the occupancy offihe building by" some cue merely sleeping in it; going to"the house in the evening, sleeping'there, and leaving in..-the morning.

The question of occupancy or non-opcnpancy of the building insured was a question of fact to- be decided by the jury under the instructions of the court as to the law applicable to the question. Western Ins. Co. v. Mason, 5 Ill. App. 141; Phoenix Ins. Co. v. Tucker, 92 Ill. 64.

The jury were instructed on behalf of appellant as strongly on this point as could possibly be claimed the law warrants. The third and fourth instructions given for appellant state the law in language rather too broad. These two instructions contained all that was stated in the refused instructions which could, in our view of the law, be held unexceptionable. The special findings were not inconsistent with the general verdict.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Mobile and Ohio Railroad Company v. William Davis.

      Railroads—Personal Injuries—Collision at Highiray Crossing—Statutory Signals—Contributory Negligence—-Tampering with Juror by Attorney of Record,—Evidence.

    1. In an action to recover damages from arailroad company for an injury received at a highway crossing through the alleged failure to give the statutory signal, the evidence being conflicting and the proof insufficient to establish contributory negligence on plaintiff’s part, or intentional wrong on the part of his attorney in approaching, before the termination of the suit, a juror therein, this court declines to interfere with verdict for plaintiff.
    2. The statute touching signals applies to streets in incorporated towns.
    [Opinion filed March 1, 1889.]

      Appeal from the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding.
    Messrs. John M. Lansden & Angus Lekk, for appellant.
    Mr. William Winkelmann, for appellee.
   Reeves, J.

Four propositions are submitted for our consideration as the grounds of the several errors, for which a reversal of the judgment of the Circuit Court is asked.

The first proposition is, that the section of the statute requiring every railroad corporation operating a railroad in this State to cause a bell to be rung or whistle sounded at a distance of, at least, eighty rods from the place where the railroad crosses or intersects any public highway, does not, apply to a street within the limits of an incorporated town or village.

Cases cited from Maine and Mississippi would seem fairly to support this view. On the other hand, numerous cases are found, in which it is held that a public street in a town is a public highway. State v. Mathis, 21 Ind. 278, and cases there cited.

“A common street and public highway are the same, and any way which is common to all the people, may be called a highway.” State v. Wilkinson, 2 Vt. 487.

The case of C. & A. R. R. Co. v. Dillon, 123 Ill. 570, does not touch this question, as the avenue at which the injury was sustained, was claimed to have been shown by the evi. dence to have been a private way of the Stock Yards Company, and not a public street. Furthermore, it should be observed that the abstract does not disclose any evidence that the town of Columbia is an incorporated town or village.

The second proposition is that the clear weight of the evidence establishes the fact that the bell was rung and whistle sounded as the statute required. It is urged that the testimony of appellant’s witnesses to the fact that the bell was rung and whistle sounded, was positive, and that of appellee’s witnesses was negative, and therefore appellant’s testimony-was stronger. It is true that some of appellee’s witnesses simply say that they did not hear the ringing of the bell or the sounding of the whistle, but others of appellee’s witnesses do swear positively that they were looking at the train, were particularly noticing it, and at the time noted the fact that the bell was not rung and the whistle was not sounded. This was positive testimony, though to a fact negative in its character. There was a sharp conflict in the testimony on this point. It was the province of the jury to decide as between the conflicting testimony. It would not be expected that this court would disturb the finding of the jury simply for 'the reason that if we were sitting as the triers of the question of fact, we would have found the weight of the evidence differently from the jury.

• Was there positive testimony of witnesses not impeached, except by the contradicting testimony of other witnesses in the case, supporting the finding of the jury, so that it can fairly be said that the jury were not moved to the finding they made by passion or prejudice? If so, the finding should not be disturbed, because to do so, would invade the province of the jury.

The third proposition is, that the plaintiff below was guilty of such contributory negligence as would preclude him from a recovery. We have carefully examined the testimony on this point, and, without going over it in detail, we are satisfied that appellee was not guilty of such contributory negligence as would defeat his right of recovery.

The fourth proposition is that the attorney of appellee was guilty of such improper familiarity with one of the jurors during the trial, that the verdict for that reason should have been set aside and a new trial granted by the Circuit Court Briefly stated, the facts shown in support of this proposition" are, that, at the conclusion of the evidence in the case, the court adjourned for the day, and that after the adjournment appellee’s attorney and Thomas Allen, one of the jurors in the cause, were seen standing at the counter of a saloon, near the court house, knocking their glasses together and drinking beer. In one of the affidavits filed in relation to this matter, it was further stated that the attorney and juror were talking confidentially together. In no one of the affidavits is it claimed that the person making the affidavit heard anything that was said between the attorney and juror.

The attorney and juror filed their affidavits in which they admit drinking beer together in the saloon upon the invitation of the sheriff, who was present, and after the beer was drunk they had some conversation about another matter, but nothing was said about the case on trial.

We most heartily concur in what was said by the court in the case of Lyons v. Lawrence, 12 Ill. App. 531, and in the case of Martin v. Morclock, 32 Ill. 485. The least intermeddling with jurors during the trial of a cause ought to be punished by setting aside a verdict obtained by such inter-meddler. Under the facts disclosed by the affidavits produced by appellant, we should be compelled to hold the conduct of the attorney with the juror gravely reprehensible, but the explanation afforded by the affidavits of the attorney, juror and sheriff fairly removes any intentional wrong or impropriety in the matter and relieves us from the necessity of holding what we would have felt it our duty to hold but for these explanatory affidavits, namely, that the verdict should have been set aside.

We do not, therefore, find any of the grounds upon which a reversal of the judgment of the Circuit Court is sought, well taken, and the j udgment is affirmed.

Judgment affirmed.


author: Green, J.

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    City of Flora v. Laura E. Naney.

      Municipal Corporations—Personal Injuries—Contributory Negligence-Defective Sidewalk—Evidence—Instructions.

      1. Permission granted by a municipality to a private citizen to build a sidewalk, does not absolve it from the duty of seeing that the same is kept in proper repair.
    2. A person may, in the exercise of reasonable care, rightfully walk upon a sidewalk, although the same is obviously out of repair.
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of Clay County; the Hon. C. C. Boggs, Judge, presiding.
    Messrs. Cope & Burton, for appellant.
    Messrs. F. G. Cockrell and J. R. Creighton, for appellee.
   Green, J.

This was an action on the case brought by appellee to recover damages for injuries received by her in passing over a sidewalk belonging to defendant. The negligence charged in the declaration is, that the city of Flora wrongfully and negligently suffered the sidewalk on one of its •public streets to be and remain in bad and unsafe repair and condition, and some of the planks, boards, etc., therein, of which said sidewalk was constructed, to be and remain broken and unfastened, by means whereof the plaintiff, passing along and upon said sidewalk, a plank therein, unfastened, in bad repair and unsafe, tipped up and struck her foot and caused her to stumble and fall, and she was thrown and fell upon the sidew’alk and ground and received the injuries complained of. The general issue was pleaded, the cause was tried by jury, and a verdict rendered for plaintiff assessing her damages at $1,500. Defendant’s motion for a new trial ivas overruled, and the court rendered judgment on the verdict, to reverse which judgment defendant took this appeal. The grounds relied on by appellant requiring us to reverse this judgment are substantially as follows: that there is no evidence to show appellant had ever exercised any authority or control over the street in question, and the sidewalk not having been built by it, but by one Adams, it should not be held responsible; that plaintiff knew the condition of the sidewalk and must have known she was taking the risk of being tripped and falling if she passed over it, and without any necessity, voluntarily incurred the risk, continued on the walk, walking by the side of her sister, and can not be heard to complain of the injuries thus brought upon herself by her own negligence. And lastly, the court erred in refusing to give the 1st, 2d, 3d and 6th of defendant’s refused instructions. We find on examining the record, evidence clearly showing the sidewalk in question was built on the north side of one of the streets in the city of Flora by one Adams, out of old material furnished him by the city authorities for that purpose, and with the knowledge on their part that he would build said walk where he did build it, in front of his premises; that it was so built in the fall of 1882, and from.that time was suffered to remain without any repairs until after the time plaintiff was injured, and afterward the city authorities put in a new sidewalk at that place.

This evidence disposes of the first ground above mentioned and warranted the jury in finding the city did exercise authority and control over said street, and authorized and permitted the building of the sidewalk in question, and although Adams, a private citizen, was permitted by the city to build it, this did not absolve appellant from the duty to exercise reasonable care to keep it in reasonably safe condition for the use of those passing over it, and a failure to perform this duty was negligence, for the consequences of which the city became liable to one injured thereby while using reasonable care. Champaign v. McInnis, 26 Ill. App. 338. As to the second ground mentioned, which is in effect a charge of such contributory negligence on the part of plaintiif as to preclude her right to recover, it might be sufficient for. us to say, that was a question fairly submitted to the jury upon the evidence under proper instructions by the court, and we will not disturb the verdict, but we desire to add that it appears by the record, plaintiff had never been upon the walk in question until the day she was injured, and knew nothing of its condition except as she saw it on that occasion. That she was rightfully walking thereon with a relative and in the exercise of reasonable care, when a board in the sidewalk, which ap]¡eared to bo fastened, but was not, and upon which her relative stepped, tipped up, and plaintiff struck her foot against the end of it and fell, and was thereby seriously injured. True, the sidewalk was generally defective and out of repair, but although this was then known to plaintiff, she was not bound to go out in the street; she might rightfully walk upon the sidewalk although it appeared to be out of repair, and if in the exercise of reasonable care herself at the time she was injured, would still be entitled to recover if the jury found the negligence of defendant as charged, caused the injury. Lovinguth v. Bloomington, 71 Ill. 238; Bloomington v. Chamberlain, 104 Ill. 268. ' The instructions" on behalf of defendant, which the court refused to give, were properly refused; they did not embody accurate statements of the law, and aside from this, the court, on its own motion, fully instructed the jury and stated the law fairly, and as favorable to defendant as it had a right to ask. On a full consideration of the whole record we are satisfied the verdict of the jury is sustained by the evidence, and the judgment thereon was right; the order of the Circuit Court awarding execution against appellant is wrong. That order is reversed, and in all other respects the judgment is affirmed.

Judgment affirmed.


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    The Metropolitan Life Insurance Company v. George Broach.

      Master and Servant—Recovery of Wages—Set-off—Conflicting Jurisdictions—Practice—Appeal—Dilatory Motions—Evidence.

    1. An appeal by plaintiff, subsequent to one by defendant, must be to the same court.
    2. A motion to strike a cause from the docket made after full appearance, is a dilatory motion and comes too late.
    3. A defendant to a suit may, after appeal by him to the Circuit Court, appear in a city court to which plaintiff has perfected an appeal, after dismissal of the appeal by the judge of such court on his own motion, and for the purpose of having the cause tried, move for the reinstatement thereof, and yet retain the right to a trial in the Circuit Court on tin? dismissal by the plaintiff of his appeal in said city court after such reinstatement.
    4. Upon a motion to strike a cause from the docket on the ground that the Circuit Court has no jurisdiction, it being claimed that another court first acquired jurisdiction it is held : That the cause in question was properly pending in the Circuit Court on defendant’s appeal from the justice court; that the motion was not made in apt time, and that the trial court erred in sustaining the same,
    [Opinion filed November 1, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Broach brought suit before justice against appellee for his salary as agent, and on June 27, 1888, recovered judgment for §200; the transcript shows an appeal was thereupon taken to the Circuit Court at Belleville. At the September term, 1888, of that court, and on the 19th day of November, the defendant, who was the appellant by leave of the court, filed a set-off. The cause was tried by a jury who rendered a verdict in favor of the defendant for §106.16, and on the same day the plaintiff moved to set aside the verdict and for a new trial, because the transcript had not been filed ten days before the commencement of the term. Without objection the cause and motion were continued to the next term of the Circuit Court, and at that term, on February 25, 1889, the motion was allowed, the verdict set aside and a new trial awarded, counsel for both parties being present. On March 14, 1889, plaintiff moved to strike the cause from the docket, for the reasons that the Circuit Court had no jurisdiction to hear or try the cause, and the City Court of East • St. Louis first acquired jurisdiction, and the cause had been disposed of by that court and was pending in the Appellate Court on defendant’s appeal. In support of this motion, plaintiff introduced the affidavit of his attorney, Flannigen, stating that this is the same cause by plaintiff appealed to the City Court of East St. Louis, and there disposed of, and now pending in the Appellate Court, Fourth District of Illinois; that said appeal to the city court was taken and perfected June 28, 1888, and that defendant perfected its. appeal of said cause to the Circuit Court afterward on July 14, 1888. Plaintiff also introduced transcript of proceedings in said city court whereby it appears a copy of original summons issued by the justice, and return of service thereon, was filed in said court August 16, 1888; also includes appeal bond of plaintiff taken and approved by justice June 28, 1888, but having no file mark on it; also includes justice’s transcript filed August 16, 1888, which omits any mention of plaintiff’s appeal. It also there appears that on August 27, 1888, the city court, on its own motion, dismissed plaintiff’s appeal at his cost, and awarded a procedendo; that at the same term on September 29th, defendant appeared and moved to set this order aside, which motion was allowed, the appeal reinstated and cause continued, and at the January term, 1889, on February 4th, defendant asked leave to file set-off, whereupon plaintiff moved to dismiss his appeal; the court denied defendant’s motion, allowed the motion of plaintiff, dismissed his appeal, but no procedendo was awarded or judgment for costs entered to this ruling; defendant excepted and craved an appeal, which was allowed but never perfected.
    The affidavit of Launtz, defendant’s attorney, filed in the Circuit Court against plaintiff’s motion there to strike cause from the docket, states that defendant appealed said cause and executed its appeal bond with approved security, and approved by said justice, within twenty days after the rendition of said judgment by said justice, who then and there allowed defendant an appeal to the Circuit Court, and sent the papers, transcript and appeal bond by one Beach to be taken to said Circuit Court, and Beach lost the papers, and said justice then sent up tire copy of said transcript now on file; that plaintiff dismissed his pretended appeal in the city court without any trial, and neither defendant nor affiant knew of plaintiff’s pretended appeal until more than twenty days after the rendition of judgment injustice’s court, nor until long after defendant had perfected its appeal to the Circuit Court. The justice also states, in the certificate to his transcript in the Circuit Court, the papers were lost. The motion of plaintiff in the Circuit Court was sustained, the cause was stricken from the docket by the court, and judgment was rendered against defendant for costs. Defendant duly excepted, and took this appeal.
    Mr. William P. Launtz, for appellant.
    The authority relied upon by appellee in support of the motion is Aldrich v. Polo, 8 Ill. App. 45.
    The court will observe that said case is not in point, as will be seen on reading first lines of said opinion. It is there said • “ It is admitted by appellant that the appeal was properly taken by the city (appellee) and allowed by the magistrate.”
    In the case at bar it is denied that the appeal was properly taken and allowed by the' magistrate as to appellee, and it is further contended that the transcript of the justice of the peace shows appellant took an appeal to the Circuit Court which was allowed, and that the transcript to the city court shows neither an appeal prayed or allowed to said city court, entered of record by the justice of the peace on his docket, and also that said appeal to the city court was procured and' conducted in such way as that appellant should not know it until after the twenty days from rendition of judgment had expired.
    The transcript shows the appeal was taken to the Circuit Court, and the affidavit also shows that the appeal was prayed and allowed to said court, and that within twenty days thereafter the appeal bond was accepted and approved by said justice. Carrol v. Jacksonville, 2 Ill. App. 481.
    And the fact that the justice selected an unsafe means or way of transmitting the papers will not be allowed to militate against appellant’s rights without its fault. The parties litigant should not be prejudiced by the justice’s recklessness or stupidity. Little v. Smith, 4 Scam. 400.
    It can not be successfully contended here that appellant did not take an appeal which was allowed, as evidenced by the record, and if appellee did also take an appeal, which the record does not show, and which appellant did not, and could not, know of until after the time to appeal to the city court had expired, under such circumstances this court will not go beyond or behind the record and say the city court first acquired jurisdiction. Appellee might just as well say he had appealed to the County Court. The law is clear that the court first acquiring legal jurisdiction must proceed and finally dispose of it. Mason v. Piggott, 11 Ill. 85.
    Comity between courts of equal power and jurisdiction demands that this rule be recognized to avoid conflict of jurisdiction, and I might also add that the rights of litigants be secured against such conditions as environ this case. Appellee’s appeal was allowed by the trial court, and an appeal allowed by the trial court is'eo instanti in the appellate tribunal, on the filing of the bond. Reynolds v. Perry, 11 Ill. 534.
    Mr. Alexander Flannigen, for appellee.
    The Circuit Court acquired no jurisdiction to try the cause upon the appeal of appellant and in striking the cause from the docket committed no error, but pursued the proper practice. The court to which the first appeal is perfected obtains conclusive jurisdiction. Aldrich v. The City of Polo, 8 Ill. App. 45.
    That the appellee perfected his appeal to the city court before appellant to the Circuit Court, and the cause was passed upon in the city court prior to any action in the Circuit Court, seems to be enough to sustain the action of said court. The law in cases of appeal governs, and either party may appeal and the other is bound to follow. Bacon v. Lawrence, 26 Ill. 53; Wells v. Hicks, 27 Ill. 345; Boyd v. Kocher, 31 Ill. 295.
    This recital appears at the bottom of the transcript of the justice which was filed in the Circuit Court, to wit: “Appeal taken to the Circuit Court of Belleville, Ill;” while no such recital appears on transcript filed in the city court. This is claimed by counsel on the other side to show that the appeal was taken to the Circuit Court and not to the city court. The contention would have some force if it were shown that an appeal bond was filed either with the justice or the clerk of the Circuit Court for the appeal of said cause to the said Circuit Court, as provided by statute; but such is not the case. There is nothing in the record to show that any appeal bond was ever filed for the appeal of this case to the Circuit Court. It is the filing of the bond which perfects the'appeal, not the recitals of the justice in his transcript. The recitals of the transcript are entirely inoperative to affect an appeal; it is the appeal bond that lias that effect and such bond is not shown to have been given in the case.
    When knowledge first came to appellee that judgment was rendered against him in the Circuit Court he had no other recourse than to appear and ask that the judgment be set aside. This was done for reasons given in the abstract. Appellee being now for the first time in a position to have this cause dismissed from the Circuit Court, did show that the case was formerly adjudicated in the city court. This fact appearing to the court, it was thereupon dismissed from the Circuit Court.
    ■ The only question -to be decided is: Did the Circuit Court have jurisdiction? When there are two courts in the county, each having concurrent jurisdiction, the first obtaining jurisdiction must hold the case. Bacon v. Lawrence, 26 Ill. 53; Kasting v. Kasting, 47 Ill. 438.
   Green, J.

The error assigned, is the ruling of the Circuit Court, sustaining plaintiff’s motion, striking said cause from the docket, and rendering judgment against the defendant; the error is well assigned. The cause was properly pending in the Circuit Court on defendant’s appeal, and for that reason should not have been stricken off; also the motion .of plaintiff was not made in apt time, and for that reason should have been denied. The only appeal taken from the justice’s court, so far as either of his transcripts disclose, was taken June 27, 1888, to the Circuit Court. This appeal was perfected by defendant, but the appeal bond being lost, the date of its approval is not shown, but from the use of said words “ appeal taken,” it is fairly to be inferred this appeal to the Circuit Court was perfected June 27th. As against this inference Flannigan states in his affidavit, defendant perfected its appeal July 14, 1888, but he does not show any means he had of knowing that fact, and his statement is contradicted by the transcript. If the further statement in his affidavit be true, “ that plaintiff perfected his appeal June 28th,” he was then advised, or might have been by examining the justice’s docket, that an appeal had already been taken to the Circuit Court, and the law required him to appeal to the same court and not to the city court, if he then desired to take an appeal. But it is said the appearance of defendant in the city court gave that court jurisdiction of its ■ person, and precluded it from the right to a trial or insisting upon the retaining of the cause in the Circuit Court on his appeal. This is not our view of the matter; the defendant learning of plaintiff’s appeal to the city court, appeared, and in order to try the cause there, had the dismissed appeal reinstated and asked leave to file a set-off, but plaintiff at once had his appeal dismissed, for what reason other than that he feared a tr'al does not appear; the court thus, at the instance of plaintiff, surrendered all the jurisdiction it ever acquired over the defendant or the cause, and without awarding a procedendo, or entering a judgment from which an appeal would lie. This was on February 4, 1889, and afterward, on February 25tli, both parties appeared in the Circuit Court, where defendant’s appeal was properly taken, and the cause pending, a motion by plaintiff made at a former term was then argued and submitted by both parties, the motion sustained, and a new trial awarded, and afterward, on March 14th, the court then having jurisdiction of the parties and cause, on motion of plaintiff, struck the cause from the docket and refused to give defendant a trial, although a verdict in his favor had once been' returned. Ffo legal reason is perceived by us sustaining this action of the court. The motion of plaintiff was not made in apt time, and for that reason also should have been denied. Before this motion was entered, and at the September term, 1888, after a verdict for defendant for $106.16 had been returned, plaintiff moved to set the verdict aside and for a new trial, and consented to the continuance of the cause and motion to the next term. At that term the motion was argued and submitted on behalf of both parties, and was sustained. These acts on behalf of plaintiff constituted a full appearance in the case, and his motion to strike the cause from the docket was a dilatory motion and came too late, when made after full appearance. Hohmann v. Eiterman, 83 Ill. 92; Schnell v. North Side Planing Mill Co., 89 Ill. 581.

The judo-ment is reversed and cause remanded with directions to try the cause on the merits in the Circuit Court.

Reversed and remanded with directions.


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    William L. Cohen v. Peter A. Menard, Executor, et al.

      Administration—Claims—Allowance of—Judgment Sale—Injunction-Redemption—Statute.

    1. Whim a claim is filed and allowed against an estate, it becomes a judgment.
    2. A judgment creditor may, for purpose of redemption and sale, have execution.
    ■ 3. Two distinct claims allowed severally in behalf of the same person. can not be included in one execution as one judgment for the amount of both.
    4. A sale of three tracts of land en masse after an ineffectual attempt, to sell them in severalty without first trying to sell two of them together, is improper.
    [Opinion filed August 28, 1889.]
    Appeal from the Circuit Court of ¡Randolph County; the Hon. William H. Snyder, Judge, presiding.
    Edmond Menard died testate in August, 1SS4, seized in fee of the lands in controversy, and Menard and Hanner were appointed executors of his estate, and acted as such. A judgment for the sum of $544 had been recovered against Edmond Menard in his lifetime by F. W. Brickey, who assigned the same to appellant, who had execution issued, and levied on three several tracts of land, one containing ninety acres, another one hundred and twenty acres, and the third ninety-one and eleven one-hundredths acres. These lands were sold February 24, 1887, to appellant by the sheriff of Randolph county, under the execution issued and levied as stated, for the sum of $742.67. These lands were first offered separately, and there being no bid, were offered and sold en masse, without the sheriff offering two tracts. Among other claims presented and allowed against the estate of Edmond Menard, on the day of adjustment, were two claims presented by this appellant, and allowed severally as two separate and distinct claims—one for $685.77, the other for $528.89. On the 25th of February, 1888, Cohen caused an execution to be issued out of the County Court of Randolph County, and that execution recited that W. L. Cohen was a judgment creditor of the estate of E. Menard by virtue of a judgment obtained in the County Court of said county, sitting for the transaction of probate business, for the sum of $1,214.66, entered upon a claim filed against said estate, and under such execution sought to redeem from the sale made to himself under the Brickey judgment, and to sell under such execution on such redemption. The executors and a creditor with claim allowed sue out an injunction to enjoin the sale under such execution, and over that a decree to sell these lands to pay debts has been entered: that the original safe was made en masse, without offering two of the tracts together—the tracts being widely separated; that no bidders were present at the sale on execution except the plaintiff in execution, who purchased at a grossly inadequate juice; that the uniting of two claims in one execution and reciting it as a single judgment was without authority of law, and would create a cloud on the title of the land, and jxrevent the executors and creditors from realizing on sale made under decree to sell land to jDay debts; and denying the right of aj)pellant to redeem from his own sale, and asking for relief.

      The Circuit Court entered a decree ordering the payment by the executors to appellant of the sum of $742.67, with interest at eight per cent., and setting aside the execution sale, and enjoining a sale under the redemption on the execution from the County Court.
    Messrs. Gordon & Sprigg, for appellant.
    Mr. H. Clay Horner, for appellees.
    The officer should offer the tracts separately, then in tracts of two or more; then, if no bidders, ordinarily he .should adjourn the sale. Phelps v. Conover, 25 Ill. 314; Morris v. Robey, 73 Ill. 465; Douthitt v. Kettle, 104 Ill. 360; Cowen v. Underwood, 16 Ill. 24.
    Sales en masse tend to odious speculation, and put impediments in the way of redemption, and “ are not to be tolerated or countenanced. They are oppressive and unnecessary and deserve animadversion.” Newton v. Jackson, 18 Johns. 362, cited in 73 Ill. 465; see also Wood v. Morrell, 1 Johns. Ch. 505; Rohrer on Jed. Sales, Sec. 1106; Herman on Executions, Sec. 223; Morris v. Robey, 73 Ill. 466.
    The following cases are very much like the cases at bar, and fully warrant the decree below. Ballanee v. Loomis, 22 Ill. 85 ; Cowen v. Underwood, 16 Ill. 22.
    There is no authority in the statute for uniting two probate judgments in one execution or for redeeming from one’s own sale. R. S., Chap. 77, Sec. 27; McCullough v. Rose, 4 Ill. App. 149.

      Laches must be set up in answer to be relied on. Williams v. Rhodes, 81 Ill. 571; O’Ha1loran v. Fitzgerald, 71 Ill. 53.
    Creditors may attack this sale. Merwin v. Smith, 1 H. Green, N. J. Eq. 193.
   Phillips, J.

Where a claim is filed and allowed against an estate, it becomes a judgment. The judgment creditor may, under Sec. 27, Chap. 77, Starr & C. Ill. Stat., for purpose of redemption and sale, have execution. The execution must follow the judgment, and to include two separate and distinct claims as two several judgments in one execution as one judgmont for amount of both claims, renders the execution fatally defective for variance from the judgment. The sale of three parcels of land, aggregating more than three hundred acres, where one of these parcels was widely separated from the other two, en masse, after first offering them as separate tracts and no bid, but without offering two of the tracts, must be held sufficient to authorize this decree to set aside this sale. It was the duty of the sheriff, after offering the tracts separately, if there was no bid, to offer two of the tracts, for which he might obtain a bid, without resorting to the extremity of a sale in gross. Phelps v. Conover, 25 Ill. 309; Morris et al. v. Robey, 73 Ill. 462; Douthitt v. Kettle, 104 Ill. 356; Cowen v. Underwood, 16 Ill. 22; Ballanee v. Loomis et al., 22 Ill. 82.

The evidence shows the land was sold for much less than it was worth, and the manner of the attempted redemption and sale would have created a cloud on complainant’s title. The decree gave the appellant all he was entitled to, and is sustained by the evidence, and is affirmed.

Decree affirmed.