text:
    Samuel S. Chisholm v. Alexander J. McDonald et al.

      Negotiable Instruments—Notes of Corporation—Confession of Judgment —Warrant of Attorney—Parties—Costs.

    1. A corporation note properly executed and attested by the corporation seal, there being as much parol testimony in favor of as against it, is prima facie valid.
    2. A warrant of attorney for the entry of judgment at any time after date, authorizes such entry at any time within the discretion of the payee.
    3. Where a judgment note is indorsed to a third person merely that judgment may be entered in his name, he has no standing in a court of equity t,o obtain any affirmative relief based on such judgment.

      [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieso», Judge, presiding.
    Mr. Jesse Cox, for appellant.
    Where a power of attorney to confess judgment on a note authorizes the confession of judgment at any time after the date of the note, a judgment confessed before the maturity of the note is valid. Sherman v. Baddely, 11 Ill. 622; Adam v. Arnold, 86 Ill. 185; Towle v. Gonter, 5 Ill. App. 409.
    The execution of, a warrant of attorney is sufficient and binding upon a corporation if executed in the name of the corporation by its president. Millard v. St. Francis Xavier Female Academy, 8 Ill. App. 341; North-Western Distilling Co. v. Brandt, 69 Ill. 658 ; Reed v. Bradley, 17 Ill. 321, 325.
    In the North-Western Distilling Co. v. Brandt, 69 Ill. 658, it was held that the execution of a lease or sealed instrument by the president of a private corporation for the company will be a good execution of the instrument by the company.
    In Reed v. Bradley, 17 Ill. 325, it was held that the execution of a mortgage under the signature of the president and the seal of the corporation was a sufficient execution and made the mortgage binding on the corporation.
    The fact that the corporate seal of a corporation is attached to an instrument, is prima facie evidence that such instrument received the assent of the company. Reed v. Bradley, 17 Ill. 325; Angell and Ames on Corp. (6 th Ed.) Sec. 224.
    But whatever may be thought of the defenses made on behalf of the Circulating Boiler Company, there is certainly no reason why this judgment is not perfectly valid against the appellee, McDonald, who has not made out the shadow of a defense to it. It was entirely within the power of the court to enjoin the collection of this judgment as against the Circulating Boiler Company, and dissolve the injunction as to McDonald. This would have enabled Chisholm to have held the surety on the injunction bond.

      The statute of Illinois enables the court to enjoin so much of the judgment as may be valid, and release the rest from the injunction. R. S. 1874, Chap. 69, Sec. 7; Duncan v. Morrison, Breese, 113.
    Messrs. Millard & Smith, for appellee.
    The seal of a corporation has no particular virtue. If it is used by an agent or officer without authority, the sealing will not bind the corporation. Morawetz on Corp., 168; Koehler v. Black River, etc., Co., 2 Black. 716; Damon v. Granby, 2 Pick. 353; Jackson v. Campbell, 5 Wend. 572; Angell & Ames on Corp., p. 223.
    The general officers of a corporation have no implied power to confess a judgment against the corporation. They can not lawfully exercise such a power unless it has been given to them in express terms by the board of directors. Adams et al. v. The Cross Wood Printing Co., 21 Chicago Legal News, Vol. 33; Hoyt v. Thompson, 5 N. Y. 321; The Joliet Electric Light Co. v. Ingalls, 23 Ill. App. 45; Stokes v. New Jersey Pottery Co., 46 N. J. L. 237; Thew v. Porcelain Mfg. Co., 5 S. C. N. S. 415; Freeman v. Plaindea’er Co., 9 Leg. Reg. 37; Bouton v. McDonough Co., 84 Ill. 392.
    The judgment entered in favor of Chisholm, appellant, was valid as against the Circulating Boiler Company, and can be attacked by the boiler company or by its creditors, directly or collaterally, the boiler company being insolvent. Adams et al. v. The Cross Wood Printing Co., supra; Hoyt v. Thompson, supra; Stokes v. New Jersey Pottery Co., supra; Taylor on Corp., 202, 236-244; Angell & Ames on Corp., 299-302; Boone on Corp., 144; Morawetz on Corp., 251; Titus v. Cairo & Fulton R. R. Co., 8 Vroom, 98; Martin v. Judd, 60 Ill. 78.
    Appellant, Chisholm, is estopped in equity from asserting any prior lien to, or taking any advantage of, appellee, Bell. Flower v. Elwood, 66 Ill. 447; People v. Brown, 67 Ill. 437; Noble v. Christian, 88 Ill. 186; Ball v. Hooten, 85 Ill. 159; Longfellow v. Moore, 102 Ill. 290; Willard’s Eq. Jur., 147.
    The cross-bill of appellee, Bell, is germane to the matters contained in the original bill, and was properly filed. Pattison v. Hull, 9 Cow. 747; Jones v. Smith, 14 Ill. 229; Quick v. Lemon, 105 Ill. 578; Daniell’s Chancery Pl. & Pr., Vol. 2, 1647; Miller v. Davidson, 3 Gilm. 518; Wightman v. Hatch, 17 Ill. 286; Hutchinson v. Crane, 100 Ill. 269; Wightman v. Hart, 37 Ill. 123; Laflin v. Sherman, 28 Ill. 391.
   Gary, J.

This case is so largely made up of parol and contradictory evidence, the recital of which would he of no benefit, unless tó satisfy the parties that the court knew what it was about, that only results and not the processes by which they are reached will be stated in this opinion.

There are decrees in favor of A. II. Holden and Caroline Green, intervening petitioners, of which nobody complains, and they are affirmed; also that portion of the decree dissolving the injunction against Melville E. Dayton, and directing him what to do with the patent and application for patent assigned to him, is affirmed.

From the record it appears that appellee, McDonald, was the president of and j>robably the whole corporation called the Circulating Boiler Company. The company had a contract to furnish a boiler for the price of §1,000, but had no money. December 16, 1886, appellant entered into arrangements with the company and McDonald to advance §1,200, or so much thereof as might be necessary to put in the boiler, and at the same time there was a further agreement between appellant and McDonald separately, for further business arrangements if the boiler proved a success. Patents were assigned to Dayton as security for appellant’s advances, and by the formal agreement between the appellant of the first part, and the company and McDonald of the second part, appellant was to have the promissory judgment note, joint and several, of the company and McDonald for §1,200 to secure his advance. The note was made with a warrant of attorney on the same paper to confess judgment at any time after the date of the note, but the note itself was payable ninety days after date, January 11, 1887, as the note says, though the date of the transaction in fact is in dispute; another note was given by the company and McDonald to appellant for $800 on sixty days time, with a warrant of attorney on the same paper to confess judgment at any time after date. There is dispute as to the regularity of both of these notes with the warrants, but both of them have the corporate seal, and there is as much parol evidence in their favor as against them, so that prim,a facie they are valid. Joliet Electric Light Co. v. Ingalls, 23 Ill. App. 45, per Baker, P. J., and cases there cited.

January 13, 1887, appellant entered judgment upon his notes, which judgment still stands; no effort has been made to set it aside. Upon this state of facts, upon the bill filed by the company and McDonald, they are entitled only to such relief, if any, as equity and good conscience require. They had no right to require that the proceeds of the property levied upon should be diverted from paying appellant’s execution, to the extent of all the money he had advanced. The warrants of attorney attached to the notes left to his discretion the time at which judgment should be entered, though the note had not matured. Adam v. Arnold, 86 Ill. 185. And it is very probable that his only prospect of securing anything laid in entering judgment when he did.

On the whole record it is clear that the appellee Bell has no beneficial interest in the judgment entered in his name. It belongs to the Park ¡National Bank, as the note did, before it was indorsed to him, merely that judgment might be entered in his name. Bell has,' therefore, no standing as complainant in a court of equity, and no title to any affirmative relief based upon the judgment in his name. Oakey v. Bend, 3 Edw. Ch. 482; Field v. Maghee, 5 Paige, 539; Sedgwick v. Cleveland, 7 Paige, 287.

It is true that in Hutchinson v. Crane, 100 Ill. 269, the Supreme Court declined to reverse where there appeared to be a misjoinder of a party without interest, but that is not authority that he alone could have sued. But even if he had such interest, the evidence as to any agreement by appellant with the bank, by which his rights are postponed to those claimed by Bell, it is too loose, vague and unsatisfactory to have any such effect.

As, upon the showing made, the rights which appellant had acquired by the levy of his execution ought not to have been disturbed, none of the expenses of this litigation should be charged upon him. The decree of the Superior Court as to the disposition of all the money derived from the property levied upon under the execution of the appellant must be reversed and the cause remanded to the Superior Court, with directions to ascertain the amount that the appellant has paid, either before he entered judgment, or since, upon his then liabilities for the company, and apply the money last referred to, to the reimbursement of the appellant for such payments, and to dismiss the bills, original and amended, of McDonald and the company, and the cross-bill of Bell, and tax all the cost of the receivership against Bell and the residue of the costs against McDonald and the company. If, after paying appellant the costs taxed against McDonald and the eompiany, there shall be any money left of this fund, it belongs and should be piaid to the company.

Affirmed in fart and reversed in fart and remanded.


source: Caselaw Access Project

author: Garnett, P. J.

license: Public Domain

text:
    Dorothea Valliquette v. Anna McMahon.

      Slander—Malicious Prosecution—Evidence.

    In an action for slander and malicious prosecution, conversations between a constable and the plaintiff in the absence of the defendant are inadmissible.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. John Lyle King, for appellant.
    Messrs. Brandt & Hoffmann, for appellee.
   Garnett, P. J.

This is an action for slander and malicious prosecution brought by appellee against appellant. Verdict for $1,000 was rendered against appellant, and judgment given thereon. Of the several errors assigned as grounds for reversal, we think none are tenable except that complaining of the improper admission of evidence in behalf of appellee. The trial court permitted, over the objection of appellant, to be given in evidence a conversation between strangers to the action, imputing an attempt on the part of the appellant to procure testimony against appellee by means of bribery. In a case of this character, it is of the utmost importance the defendant should stand fairly before the jury, and such evidence could not fail to be hurtful.

Evidence was also admitted as to conversations between several parties preceding the taking of the property, which was the basis of the arrest of appellee, and another conversation between the constable and appellee, the appellant being absent on both occasions. This evidence was not admissible, and though the objections thereto were not properly saved by appellant, we deem it prudent to say that on another trial evidence of these matters should be excluded.

What was said by the party taking the property at the time it was taken, may be. admitted as a part of the res gestm. What preceded that was simply idle gossip calculated to reflect upon appellant and has no proper place in the case. The judgment is reversed and the cause remanded.

Reversed and remanded.

Gary, J., took no part in the decision of this case.


author: Per Curiam.

text:
    Albert Radge v. Charles L. Berner.

      Practice—Decree—Newly Discovered Evidence—Rehearing—Remedies.

    1. Relief by rehearing is not granted after the recording of a decree.
    2. • The proper remedy in such cases is by bill of review, supplemental bill in. the nature of a bill of review, a bill to impeach the decree, or one of similar character.

      [Opinion filed February 13, 1889.]
    Appeal to the Circuit. Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
    Mr. N. M. Plotke, for appellant.
    Messrs. Wm. Vocke and Harvey Storck, for appellee.
   Per Curiam.

By decree of the Circuit Court entered of record Hovember 29, 1887, Elizabeth Radge, complainant in the court below, was divorced from Albert Radge, the defendant. The day after the entry of the decree, appellant made his motion for a rehearing on the ground of newly-discovered evidence, but the motion was not disposed of until April 26, 1888.

Without commenting on the form in which the rehearing is applied for, it is sufficient to say that relief by rehearing is not granted after the enrollment of the decree. The recording of the decree, in this State, corresponds with enrollment in the English practice. 2 Dan. Ch. Pl. & Pr. (5th Ed.) 1475; Hughes v. Washington, 65 Ill. 249. After the recording of a decree, the remedy is by a bill of review, supplemental bill in the nature of a bill of review, or a bill to impeach the decree, or some such subsequent proceeding. Hughes v. Washington, supra; Baker v. Whiting, 1 Story, 218.

The appeal was taken from the order overruling the motion for a rehearing. Only the propriety of that order is now before us. Nat. Ins. Co. v. Chamber of Commerce, 69 Ill. 22.

We have nothing to do with the merits of the case. Ho error was committed in denying the motion. The order is affirmed.

Order affirmed.


text:
    Douglass S. Low v. Susan H. Greenwood.

      False Imprisonment—Malicious Prosecution—Instructions—Evidence— Probable Cause—Questions for Court and, Jury.

    1. In an action for false imprisonment and malicious prosecution, the question of probable cause is one of law for the court, and should not be left to the jury.
    2. The term malicious prosecution ” denotes both malice and want of probable cause.
    3. In the case presented, the question whether the title to certain property was in a third person without the knowledge of the plaintiff, was for the jury.
    4. A deposition which is not material to the issue, should not be admitted in evidence.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Kichaed S. Tuthill, Judge, presiding.
    This is an action for false imprisonment and malicious prosecution, commenced February 9, 1886, by appellee against appellant. In February, 1885, appellee executed a chattel mortgage to appellant and one Willing, on her household furniture, to secure 8161.18, due September 1, 1885. Part of this sum was at that time advanced to appellee by appellant. On the 5th day of March, 1885, she gave the same parties another chattel mortgage on the same property to secure 8170, due July 5, 1885.
    The last of August, 1885, Low took possession of the furniture (he claiming that appellee directed him to do so), placed the same in charge of a custodian, and, through his attorney, advertised the property for sale.’ Before that time some of the furniture was taken from appellee’s house to satisfy a mortgage prior to those of Low and Willing. When Low took possession it was discovered that some of the furniture was missing, and Low told his attorney, in appellee’s presence, to have her arrested if the property was not returned. A few days thereafter, on complaint of said attorney, a warrant for her arrest was issued by a justice of the peace for obtaining money under false pretenses. That proceeding was dismissed for want of prosecution September 28, 1885.
    On the trial in the Circuit Court evidence was given tending to show probable cause for the arrest of appellee, and that Low discharged said attorney before the arrest was made, and that' the arrest was against his protest.
    Messrs. John C. Simonds and Edward Maher, for appellant.
    Messrs. Payne & Porter and William A. Gardner, for appellee.
   Garnett, P. J.

The Circuit Court instructed the jury on behalf of the plaintiff that if they believed from the evidence that the prosecution of the plaintiff by the defendant was without probable cause, the jury might infer malice from such want of probable cause, and find for the plaintiff. The entire series of instructions fails to inform the jury what is probable cause, and they were left to decide -for themselves this question of law. It is for the jury to find the facts in any given case, but what constitutes probable cause is a question of law for the court. Wade v. Walden, 23 Ill. 425; Angelo v. Faul, 85 Ill. 106. We are not prepared to say that the solution of this question by the jury, was clearly right.

The fifth instruction for plaintiff was as follows:

“The jury are instructed that the prosecution of a person criminally with any other motive than that of bringing the person so prosecuted to justice, is malicious prosecution, and, if the jury find from the evidence that the defendant caused the plaintiff to be arrested because of her failure to return certain personal property, shown in evidence to have been part of the chattels mortgaged to the defendant, the title of which, without her knowledge, was in a third person, and which had been taken possession of by that third person, a.nd without the consent of plaintiff, and that the defendant secured her arrest because of her failure to return such property, the jury may infer malice and want of probable cause for such fact.”

“Malicious prosecution” is a phrase that has a well settled meaning. It denotes both malice and want of probable cause! To say that prosecuting a person criminally with any other motive than that of bringing the person so prosecuted to justice, is “malicious prosecution,” in effect tells the jury there was no probable cause. That such an impression must have been made on the jury, is more obvious from the hypothesis submitted to them in the remaining part of the instruction. The court assumes as a fact that the title to the property, for the removal of which the appellee was arrested, was in a third person without her knowledge. That was a material question of fact in determining whether there was probable cause and should have been passed on by the jury.

The deposition of Sutter, which was admitted in evidence over appellant’s objection, was not material to the issues and should have been excluded. Its tendency was to impress the jury with the belief that appellant had broken a contract he made with appellee in July preceding the arrest. Whether he had or not was of no consequence in this case, but we are inclined to think the evidence was prejudicial to appellant before the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Gary, J.

text:
    Charles Brunswick and Ben Brunswick v. Frank Strilka, Adm’r.

      Personal Injuries—Master and Servant—Death of Employe—Action for Damages—Burden of Proof—Instructions.

      1. In an action to recover damages for causing the death of plaintiff’s intestate, while in the course of his employment by the defendant, the burden is on the plaintiff to prove negligence on the part of the defendant and the absence thereof on the part of the deceased.
    2. In the case presented, the court below improperly instructed the jury, in effect, to find for the plaintiff, unless they believe from the evidence, affirmatively, that the deceased did not come to his death by the negligence of the defendants.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Arthory, Judge, presiding.
    Messrs. Elbert C. Ferguson and Alexander McCoy, for appellants.
    Mr. James Frake, for appellee.
    The court properly instructed the jury in regard to the law of contributory negligence, hence the cases of C., R. I. & P. Ry. Co. v. Eminger, 114 Ill. 83, and C., B. & Q. R. R. Co. v. Dougherty, 15 Ill. App. 191, have no application.
    In the case of Simons v. Chicago & Tomah R. R. Co., 110 Ill. 340, the foreman cautioned the men about the danger; here the foreman directed an inexperienced boy to assist in running a dangerous and condemned elevator.
    The instructions of the plaintiff taken with the declaration state the law, we believe, correctly.
    The court in the case of Pennsylvania Co. v. Marshall, 119 Ill. 399, sustain the same instructions and comment on the very authorities which appellants cite to show the second instruction had, showing they do not apply to these instructions, to which case we beg to refer your Honors. The second instruction was solely on the measure of damages and states the law, we think, accurately. Ho part of the cause was more thoroughly argued by counsel on both sides than was the law of the measure of damages, and both sides agreed as to what the law was.
    The first instruction of appellee is also fully sustained by O. & M. Ry. Co. v. Porter, 92 Ill. 437-441.

      “ It is the duty of a roaster who sets a servant to work in a place of danger, to give him such notice and instruction as is reasonably required by the youth of the servant.” Atkins v. Merrick Thread Co., 8 N. E. Rep. 241, and cases cited in the note.
    This youth, when sent to run or assist in running the elevator, should have been fully instructed how to run it and in regard to the dangers connected with running it, but nothing of the kind was done. As was said in Weick v. Lander, supra, “It is not to be expected that a hoy twelve years old will use the same degree of caution and care as a person of mature years, nor does the law require it.” The same law is again set forth in the case of C. & A. R. R. Co. v. Becker, 84 Ill. 483; nor could it be expected that this boy would, nor does the law require it of him.
    The appellants were guilty of gross negligence; if, then, the boy, while using ordinary care, was guilty of slight negligence in comparison to appellants, this judgment is right.
    That it was the province of the jury to find whether the boy, under all the evidence, used ordinary care and caution.
   Gary, J.

This case presents the question whether a jury shall be sustained in rendering a verdict for the plaintiff on the ground that he needs it, and the defendants can stand it. If there were no other ground for reversing the judgment, it would be reversed because a new trial was not granted for the reason assigned in the motion therefor that the verdict was contrary to the evidence. But, by the modifications by the court of several of the instructions asked by the appellants, the jury were required, as a condition precedent to a verdict for the appellants, to believe from the evidence affirmatively that the deceased came to his death, not by the negligence of the appellants; which is quite a different thing from instructing the jury to find for the appellants unless the jury believe from the evidence that the deceased came to his death by the negligence of the appellants. The evidence might have been so conflicting or confused that the jury could form no belief, either way, upon it, in which case the appellants were entitled to the vei'dict. Watt v. Kirby, 15 Ill. 200.

Other instructions asked by the appellant to the effect that, if the deceased came to his death by reason of defects in the machinery of which the deceased had knowledge, or by going into danger that he knew of, the verdict should be for the appellants, were modified, by words that made the carelessness of the deceased a further condition to a verdict in their favor.

It is not intended here to pass upon the correctness of the instruction as asked, but only to point out that the modifications imposed upon the appellants the burden of proving the negligence of deceased, and the absence of it in themselves, when, by law,' the burden was on the appellee to prove the negligence of the appellants and the absence of it in the deceased.

Some of the instructions commented upon are here inserted, the words in small capitals being those erased, and in italics, those inserted by the court.

“If the jury believe from the evidence that the falling of the elevator caused the death of the deceased, and was due to an unavoidable accident, which could not have been foreseen, and not in consequence of the negligence of the defendants as alleged hy the plaintiff in his declaration, then the jury will find the defendants not guilty.

“Even if the jury believe from the evidence that the defendants, or some of them, may have been chargeable with negligence, yet if the jury further believe from the evidence that the deceased came to his death in consequence of his not [would hot have come to his death if he had been ih the] exercising of ordinary care and caution, for his safety [then] and not hy and through the carelessness and negligence of the defendants. or either of them,, then the plaintiff can not recover, and the jury should find the defendants not guilty.

“ The court instructs the jury that, though they may believe from the evidence that the defendants were guilty of some negligence upon the occasion in question, yet if the jury further believe from the evidence that the deceased was also guilty of an equal [or hearly equal] degree of negligence, directly contributing to his death, and without which it could not have occurred, then the plaintiff can not recover, and the jury should find the defendants not guilty.

“Even if the jury believe from the evidence that the elevator and the machinery connected therewith was in a defective condition and in need of repairs, before and at the time of the accident, yet if the jury further believe from the evidence that the deceased knew, or by the exercise of .reasonable care and diligence might have known of such condition of the elevator and the machinery, and that he did,, notwithstanding, proceed to use the elevator in question and manage the same, and that he was injured in consequence of his carelessness and negligence, then the plaintiff can not recover, and the jury should find the defendants not guilty.

“The court instructs the jnry that if they believe from the evidence that the bottom of the elevator shaft was a dangerous place to go into; that the deceased was warned by the foreman of Brunswick & Co. to keep off the elevator and to have' nothing to do with it, and that if he, of his own accord, got down into the bottom of the elevator shaft, and that he was hilled in consequence of his own carelessness and negligence, and not that of the carelessness and negligence of the defendants [and that such act of the deceased was the proximate cause of his death], then the plaintiff can not recover, and the jury should find the defendants not guilty.”

Some other questions are raised in the case, but it is not necessary to considerthem, as they will probably not arise on another trial. For the errors shown the judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    Herrmann Kirchoff v. Louis Goezlin.

      Negotiable Instruments—Notes—Action against Indorser—Fraud.— Burden of Proof.

    1. Tn an action against the indorser of a promissory note, the defendant may introduce evidence under the general issue tending to show that his indorsement was obtained through fraud.

      2. Whore the indorser of a note has proved that it was fraudulently put into circulation by the maker without his knowledge, the burden is upon the holder to show that he is such in good faith and for value.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon-Elliott Anthony, Judge, presiding.
    By agreement of the parties, two cases, entitled as above, have been consolidated and argued together. Two notes were made by C. O. E. Matthern, each for §250, dated October 1, 1886, payable to the order of appellee, one due in sixty and the other in ninety days. Appellant wrote his name on the back of each note before the delivery thereof. A separate action was brought against appellant by appellee to recover the amount of each note, the ground of each action being the alleged guaranty by appellant. On the trial of the cases evidence was offered by defendant tending to prove that at the time of the execution of the notes C. O. E. Matthern, maker of the notes, was confidential clerk of appellant; that appellant was indebted to the firm of Greenly Bros, in the sum of §500 ; that he had made arrangements with Greenly Bros, to execute to said firm his two notes for the sum of §250 each, payable in sixty and ninety days from their dates respectively; that appellant directed Matthern to prepare said notes to the order of Greenly Bros., said notes to be executed by Matthern as maker, Matthern being then indebted to said Kirchoff; that Matthern, instead of preparing the notes to the order of Greenly Bros., fraudulently and without the knowledge of appellant inserted the name of appellee therein as payee, and presented the notes for indorsement by appellant at the office of appellant in the evening, just, as appellant was leaving his office; that it was then twilight and appellant could not see to read the notes and Matthern then and there informed Kirchoff that the notes were the notes to be given to Greenly Bros., and that appellant, relying upon the said representations of Matthern, put his signature upon the back of the notes, supposing the notes to be drawn to the order of Greenly Broo.; that appellant was not acquainted with appellee and had no dealings with him, owed him no money and never agreed to guarantee the payment of the notes, or either of them; that appellant did not read the notes when he put his signature on the back of them, because it was too dark to conveniently read them and because he relied on the statement of Matthern that they were the notes that Kirchoff had directed Matthern to draw to the order of Greenly Bros.
    The court excluded said evidence in one of the cases and in the other directed the jury to find for the plaintiff, to which •rulings the defendant excepted. Verdict was found for plaintiff in each case; motion for a new trial by defendant overruled and exception. Judgment for plaintiff and defend-' ant appeals.
    Messrs. Jesse Cox and Wm. M. Stanley, for appellant.
    Under the law in this State, where the name of a party, not the payee, is found written on the back of a note, it will be presumed, in the absence of explanatory evidence, that he placed it there at the time of making the note, and that he indorsed it as guarantor. But this presumption may be rebutted by parol evidence; the character of the liability assumed may be explained, and the legal presumption rebutted. Boynton v. Pierce, 79 Ill. 145; Eberhardt v. Page, 89 Ill. 550.
    And this may be done under the general issue. Eberhardt v. Page, 89 Ill. 550; Boynton v. Pierce, 79 Ill. 145.
    This rule is well founded on the principle that the mere writing of the name of the payee upon the back of a note makes not a written, but a verbal contract. Seymour v. Mickey, 15 Ohio St. 515; Burrows v. Lane, 5 Vt. 161; Riley v. Gerrish, 9 Cush. 107.
    In the latter case the court said: “ Such signature presents a latent ambiguity. ' A blank name means nothing of itself. There must be evidence aliunde to show what was the object and purpose of the indorser in thus writing his name in blank, and delivering it to another to give it effect.” Riley v. Gerrish, 9 Cush. 107.
    It is well settled in this State that fraud in the execution of an instrument renders it void, even in the hands of an assignee for value and without notice. Glazier v. Streamer, 57 Ill. 91; Taylor v. Atchison, 54 Ill. 196; Anten v. Gruner, 90 Ill. 300; Munson v. Nichols, 62 Ill. 115.
    The evidence offered on the trial of these cases at bar clearly showed such a fraud in obtaining the execution of the instruments as renders them void. Appellant was induced to sign his name upon the back of the notes upon the representation by Matthern that they were notes payable to Greenly Bros. It was so dark at the time Kirchoff signed his name that he could not see to read the notes, and relied entirely on Matthern’s statement that they were notes payable to Greenly Bros., to whom appellant was indebted, and to whom he had agreed to give these notes. This was clearly such a case as comes within the authorities of this State, as being a fraud in the execution of such notes. Munson v. Nichols, 62 Ill. 111; Richardson v. Schirtz, 59 Ill. 313.
    But whether or not the appellant was entitled to show, as against the payee of the notes, that his signature on these notes was obtained by fraud and circumvention, if in fact the payee was an innocent holder of the notes for value, yet it is certainly true that the appellant, having shown that these notes with his signature on the back were, as to him, fraudulently issued, the burden of proof was up>on the appellee to show that he took the notes in the usual course of business and for value. Wright v. Brosseau, 73 Ill. 381; Byles on Bills, star p. 91; Id., star p. 94, note 1; 1 Daniel on Negotiable Instruments, 3d Ed., p. 169, Sec. 166.
    Messrs. Sidney C. Eastman and Geo. E. Swartz, for appellee.
    The authorities cited by appellant in support of his position are none of them cases in which an innocent payee brings suit against a guarantor, but are eases in which an assignee of a payee who practiced fraud on the maker in the execution of the note, brings an action against the maker. And in all of them the crucial test is whether the maker exercised due diligence, and whether he was guilty of negligence in signing the notes. See also in this connection, Anderson v. Warne, 71 Ill. 20; Leach v. Nichols, 55 Ill. 273; Harvey v. Smith, 55 Ill. 224; Mead v. Munson, 60 Ill. 49; Swannell v. Watson, 71 Ill. 456; Holmes v. Hale, 71 Ill. 552; Putnam v. Sullivan, 4 Mass. 45; Kellog v. Curtis, 65 Me. 59.
    These are suits between the payee of a note and a guarantor on the note, the guarantor alleging fraud on the part of the maker. It is not a suit by an indorsee against the maker of the note and the maker defending by alleging fraud, or knowledge of fraud, on the part of the payee. This we think is a vital difference, and of such a nature as not to bring these cases under the exception to the general rule, that the burden of proof of want of consideration is on the one pleading it. In the cases cited by appellant, and in the cases supporting the rales laid down in the text-boobs, referred to by him, it will be observed that it is the indorsee of the one against whom the fraud is charged, who is made an exception to the general rule, and is required to prove consideration.
   Garnett, P. J.

In excluding the evidence offered by defendant in one of the cases and in directing the jury to find for the plaintiff in the other, the court seems to have proceeded on the theory that the defendant was not only required to show fraudulent representation at the time he placed his name on the notes or want of consideration, but that he should also have proven that the plaintiff had notice thereof. The innocent maker of a note certainly might show the facts offered in evidence, in defense against an action by an indorsee, and in such a case the burden of proof would shift, and the indorsee would be obliged to prove that he was a Iona fide purchaser for value before maturity. Sperry v. Spaulding, 45 Cal. 544; Hall v. Featherstone, 3 Hurl. & N. 284; Bailey v. Bidwell, 13 M. & W. 73; Wright v. Brosseau, 73 Ill. 381; Harvey v. Towers, 6 Exch. 656; 1 Dan. on Neg. Inst., Sec. 369; Smith v. Braine, 71 E. C. L. 244.

The indorser of a note having proved that the note was put into circulation by the maker fraudulently and without his knowledge, the holder must prove he is a holder in good faith and for value. Holme v. Karsper, 5 Binney, 469.

“ If the defendant show that there was fraud or illegality in the origin of the bill or note, a new coloring is imparted to the transaction. The plaintiff, if he has become innocently the holder of the paper, is not permitted to suffer; but as the knowledge of the manner in which it came into his hands must rest in his bosom, and the means of showing it must be much easier to him than to the defendant, he is required to give proof that he became possessed of it for a sufficient consideration. If he is innocent, the burden must generally be a light one; and if guilty, it is but a proper shield to one who would be, but for its protection, his victim.” 1 Dan. on Deg. Inst., Sec. 166.

Do satisfactory reason can be given why the alleged guarantor in these cases should have such a burden imposed upon him, when the innocent maker of a note would not be likewise embarrassed, if sued by an indorsee.

The difference between the maker as defendant, and the guarantor as defendant, is that the former would have to plead want of consideration specially, while the latter might prove that defense under the general issue. Klein v. Currier, 14 Ill. 237.

The action of the court in excluding the evidence in the one case, and in directing the jury to find for the plaintiff in the other, was erroneous.

The judgment in each case is reversed and the cause remanded.

Reversed and remcunded.


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    Klement Witner v. Josef Zeman et al.

      Trust Deed—Foreclosure—Payment.

    1. The possession of notes by the payee raises a strong presumption that they a,re unpaid.
    2. The burden of proof is upon the party making claim of payment.
    3- In proceedings to foreclose a trust deed, this court holds that the claim of payment is unsupported by the evidence.

      [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Hekby H. Shepabd, Judge, presiding.
    Mr. James Frake, for appellant.
    Messrs. Kraus, Mayer & Stein, for appellees.
   Garnett, P. J.

This is a suit in chancery to foreclose a trust deed given by Jakub Jelinek and his wife to J. B. Belohradsky to secure a principal note for §800, due three years after date, and coupon notes representing the interest on such principal note, payable to the order of the makers, dated August 14, 1881. The notes were indorsed by the makers and delivered to the appellant, Witner. Payments were made before and at the time of maturity of the principal note, sufficient to reduce the debt to §400. The premises by which the notes were secured were conveyed by Jelinek and wife to Josef Zeman, who agreed to pay the incumbrance, and made the several payments referred to. The defense now relied on is full payment, which the court below found to be true, and dismissed the bill. Some time before the maturity of the principal note Witner, in company with a man named Zak, called at Zeman’s house and informed Zeman that he was the holder of the notes and trust deed. Previous to that time Zeman had made several payments to Belohradsky, from whom Witner received them. Witner testifies that at this interview he told Zeman that he must make no more payments to Belohradsky.

Zak testifies that Witner then told Zeman he should pay all money to him (Witner) on account of those papers. Zorn an denies this, but says Witner told him to settle with Belohradsky. Zeman’s wife and daughter, Jelinek and one Hubschman were also present at this interview. The evidence given by his wife and daughter tends to corroborate Zeman; but Hubschman, who is disinterested, makes no mention of any direction to pay or settle with Belohradsky. Jelinek was not called as a witness, although he was a boarder at Zeman’s house, and appears to have been his friend. In any event Witner retained the notes, never leaving them with Belohradsky, and on or about August 14, 1884, he met Zeman at the office of Belohradsky. Zeman then paid Belohradsky $200 and it was passed over to Witner. At the same time Zeman executed another trust deed to Belohradsky to secure a $400 note, payable to the order of the maker, which was afterward fraudulently sold by Belohradsky, and Zeman has been compelled to pay the same. It is claimed by Zeman that the substance of what then passed between the parties was an agreement that the new trust deed should be considered a cancellation of the first. But Witner then refused to surrender his papers and said Zeman would have to wait. It is true Belohradsky did then promise Zeman, in Witner’s presence, that when he straightened this matter up he would return to him the first trust deed; that it would take about eighteen days to put the second mortgage of record, and then he would give Zeman the first. That is Zeman’s own account of it. There was nothing in this conversation which made Belohradsky the agent of Witner; there was no promise by Witner to guarantee the performance of Belohradsky’s agreement. He had a right to presume that Belohradsky meant to pay him what was due after the second trust deed was recorded, and qualify himself for performing his agreement with Zeman. He.remained silent, except when Zeman wanted the first trust deed and notes delivered up to him at once, but when he heard that demand he said Zeman would have to wait. lie had no reason to intrude himself into any arrangement that Zeman and Belohradsky saw fit to make between themselves. It was his right to hold his own papers and act for himself, which we think the evidence shows he did. What occurred after the execution of the note for $400 supports the view thus presented. Zeman’s daughter testifies that after the settlement (that is the arrangement made at the- time of the execution of the note for $400) Witner called at their house and her father asked him to wait for his money. She says she thinks Mr. Heichman (meaning, no doubt, Hubschman) was then present. In reference to the same interview Hubschmau swears that Zeman said: “ Witner, it would have been best if we had settled this money ourselves. Belohradsky is going and coming, and we can’t tell when he will come back.” Zeman swears that after the settlement he often went to Witner’s place to inquire whether he had got the money for the papers, and Witner often came to his place to inquire whether Belohradsky was at home. In ¡November, 1884, Witner placed the $800 note in the hands of Antony Kozel, and in a conversation between Kozel and Zeman, a few days later, Zeman said: “Ton can’t get $800 out of me, because I have paid $400 on this.”

Witner’s continuous possession of the notes in question raises a strong presumption that they were never paid. That presumption is supported by the weight of the evidence in the record, and should have prevailed in the finding of the court below. The burden of proving payment or settlement was on the appellees. It is not sufficient that the evidence may be said to leave the question in serious doubt. The court below heard the case on written depositions and documentary evidence and the finding is not invested with the presumptions in its favor that would obtain if the witnesses had personally appeared and testified orally. Baker v. Rockalrand, 118 Ill. 366.

The decree is reversed and remanded, with directions to the Superior Court to compute the amount now due, as shown by the evidence, on the notes held by the appellant, and to enter a decree of foreclosure.

Reversed cmd remanded.


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    William H. Waddington, Administrator, v. The Village of Jefferson.

      Municipal Corporation—Unprotected Bridge—Death by Drowning— Action for Damages.

      In an action against a municipal corporation to recover damages for causing the death of the plaintiff’s infant son through alleged negligence in failing to provide railings to a bridge, this court affirms the judgment for the defendant, the questions of negligence on the part of the defendant and ordinary care on the part of the deceased having been fairly submitted to the jury.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. James Leddy and Edward W. Cullen, for appellant.
    Mr. J. P. W. Brown, for appellee.
   Per Curiam.

This was an action to recover damages for the appellant’s decedent, a boy about the age of eight years. The evidence shows that on his way home from school the boy knelt down on the edge of the bridge, and leaned out over the edge thereof in an attempt to catch or guide by means of a stick, which he held in his hands, pieces of wood which were floating in the stream which ran under the bridge. While so engaged he lost his balance, fell headlong into the water, and was drowned.

The bridge from which he fell had been used for many years as the means for crossing the stream, both by teams and foot passengers, and there was not, at the time of the accident, and had never been any railing upon said bridge. The case was heard by a jury upon all the evidence, and the question of negligence on the part of the defendant, and ordinary care-on the part of the boy, were fairly left to them on instructions which, upon careful examination, we find to have been free from errors; and the verdict of the jury, and the judgment rendered thereon by the trial court, is therefore conclusive. Ho error appearing, the judgment must be affirmed,

Judgment affirmed.


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    The Chicago West Division Railway Company v. William A. Becker.

      Evidence—Action for Damages for Causing a Death—Declarations of the Deceased.—Res Gestse.
    In an action to recover damages f r causing the death of the plaintiff's infant son, this court sustains the action of the court below in the admission of the declarations of the deceased, made within a few minutes after the injury, to the effect that he was thrown from one of the defendant’s cars by the conductor.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. JohnP. Altgeld, Judge, presiding.
    Messrs. W. B. Keep, Edmund Furthmann and H. H. Martin, for appellant.
    The transaction was completely over when the declaration was made—it was as much over as it would have been an hour, or two hours, or a day, or a month later. The participants in the transaction had separated, and so far as this record goes, so had all the spectators, if there were any.
    The material affair here occurred on the car between the servants of the appellant and the boy; everything that took place between appellant’s servants and the boy took place there, and ended fully and completely when the boy left the car, whether he was thrown off or jumped off. When the boy went from the car to the ground, and the car passed on, the transaction between him and appellant’s servants was as fully and effectually determined as it was a week later.
    The following authorities are decisive, both in their facts and reasoning, against the admission of the declarations here: Waldele v. R. R., 95 N. Y. 275; Sullivan v. R. R., 12 Oregon, 393; Williamson v. R. R., 144 Mass. 148; Mayes v. State, 1 South. Rep. 733; Martin v. R. R., 103 N. Y. 626; State v. Pomeroy, 25 Kan. 349; R. R. v. Mara, 26 Ohio St. 185; Comm. v. James, 99 Mass. 438; Binns v. State, 57 Ind. 46; Bedingfield’s Case, 14 Cox C. C. 341; Adams v. R. R., 74 Mo. 553; State v. Brown, 64 Mo. 367; Forrest v. State, 21 Ohio St. 641; R. R. Co. v. Womack, 4 South Rep. 618; People v. Ah Lee, 60 Cal. 85; R. R. Co. v. Moore, 6 S. West. Rep. 631; Regina v. Osborn, 1 C. & M. 622; Luby v. R. R. Co., 17 N. Y. 131; State v. Rider, 8 S. W. Rep. 723; Ry. Co. v. Weakly, 8 S. West. Rep. 134; R. R. Co. v. Hawk, 72 Ala. 112; Worden v. Powers, 30 Vt. 619; Lane v. Bryant, 9 Gray, 245.
    Messrs. Campbell & Custer for appellee.
   Per Curiam.

This is an appeal from a judgment for damages for causing the death of Henry J. Becker, infant son of appellee. The material question presented in the case arises on the admission by the court of the declaration of the deceased, which was made within a few minutes after the injury, to the effect that he was thrown from one of appellant’s cars by the conductor thereof. The evidence was admitted on the ground that it was a part of the res gesta.

It may be conceded that the authorities on this question are not uniform, but the Supreme Court of the United States has held similar evidence proper. Insurance Co. v. Mosely, 8 Wall. 397. The Supreme Court of this State has stated the rule to be, that the act, declaration or exclamation must be so intimately interwoven or connected with the premises, principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony. Lawler v. The People, 104 Ill. 248. While there may remain some doubt as to the correct rule, we are inclined to abide by the decision of the highest court in the land, until the Supreme Court of the State shall announce its dissent therefrom. We think the other assignments of error are not well founded. The judgment is affirmed.

Judgment affirmed.


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    H. J. Ewing v. E. J. Fiedler.

      Mechanic's Lien—Certificate of Architect—Contract.

    . 1. Upon petition for a mechanic’s lien, this court holds that the contract required the petitioner to perform certain work described in the plans and specifications.
    2. In the case presented, the petitioner is bound by the certificate of the architect, there being no evidence of fraud or mistake.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Loben C. Collins, Judge, presiding.
    Mr. Robert P. Parker, for appellant.
    Mr. F. Lackner, for appellee.
   Per Curiam.

The burden of showing the decree in this case to be erroneous was on appellant. His briefs and abstracts of the record are so unsatisfactory, that the decree might justly have been affirmed without further inquiry. But examination of the record itself satisfies us that no error has intervened in the proceedings of the court below.

The suit being brought by appellant to establish a mechanic’s lien, and the architect, in pursuance of the contract between appellant and appellee, having issued his final certificate, appellant must abide by it, in the absence of fraud and mistake. There is no evidence to impeach the good faith of the architect, nor can we find anything in the record which makes it appear he committed any mistake.

Appellant thinks his contract did not require him to perform certain work described in the plans and specifications, but we find nothing in the case except his opinion to sustain him in that respect. On the contrary, the contract which he signed required him “ to perform all labor and furnish all material for the painter’s work, * * * according to the plans and specifications.” The written contract is final in this case. The decree is affirmed.

Decree affirmed.


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    Jacob Kuhn v. City of Chicago.

      Pawnbrokers—Regulation of—Ordinance.

    An ordinance prohibiting the purchase of goods by pawnbrokers is not unreasonable.
    [Opinion filed February 13, 1889.]
    Appeal from the Criminal Court of Cook County; the Hon. Julius S. Gkinnell, Judge, presiding.
    Mr. B. M. Shaffner, for appellant.
    Mr. Benj. F. Richolson, for appellee.
   Per Curiam.

This is an appeal from a fine imposed on appellant by the Criminal Court for violating Sec. 1711 of the city ordinances of the city of Chicago. The section is as follows:

“ No pawnbroker, loan broker, or keeper of a loan office, shall, under any pretense whatever, purchase or buy any second-hand furniture, metals or clothes or any other article or thing whatever' to him or her offered as a pawn or pledge.”

On November 4, 1887, one Mahon pledged a coat with appellant and received as a loan thereon the sum of 84.40. The next day appellant gave Mahon fifty cents additional, and the pawn ticket was surrendered with the indorsement thereon :

“ Bought ticket of owner. J. Mahon.”

Appellant soon after sold the coat.

It is contended that the ordinance is unreasonable, because it imposes a penalty on pawnbrokers for doing that which is lawful for other persons to do. The statute authorizes cities not only to regulate pawnbrokers, but to suppress and prohibit them. Sec. 1, Art. 5, Chap. 24, R. S. The imposition of a fine for breach of a regulation applying equally to all pawnbrokers can not be said to be unreasonable. We are unable to agree with counsel that the several sections of the ordinances relating to pawnbrokers are inconsistent, or that they authorize the transaction presented in the record. The judgment of the Criminal Court is affirmed.

Judgment affirmed.


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    Joseph L. Silsbee v. The Quincy Hotel Company.

      Jurisdiction—Corporation—Service of Process.

    Service of process on a non-resident corporation can not be had by leaving a copy thereof with a director found in the county wherein suit is brought, if such director is there upon his own private business and not upon business for the company.
    [Opinion filed February, 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Mdeeay F. Tuley, Judge, presiding.
    Messrs. Joseph Kirkland and Bangs & Bangs, for appellant.
    This is a transitory action and the court below had jurisdiction over all persons coming within its territorial limits, whether natural or artificial persons. Brewster v. Scarborough, 2 Scam. 280; Semple v. Anderson, 4 Gilm. 546; Peoria Ins. Co. v. Warner, 28 Ill. 433.

      Our State corporations “ may be found ” wherever one of their agents or officers may happen to be, within the State. Peoria Ins. Co. v. Warner, 28 Ill. 488; Railroad Co. v. Keep, 22 Ill. 9; Insurance Co. v. Dunn, 45 Ill. 211; M. P. Railroad Co. v. Crane, 102 Ill. 249.
    The act under which this service was made is a remedial act, and should receive the most liberal construction. This act has no limitation in it restricting a corporation to its principal or to its only place of business, but is sufficiently comprehensive to embrace any agent where he may be found, in any county of the State, provided the president of the corporation does not reside in the county where the process is issued. Peoria Ins. Co. v. Warner, 28 Ill. 433.
    Mo hardship can follow this application of the act, but, on the contrary, great facilities will be offered by it to the creditors of delinquent corporations. Peoria Ins. Co. v. Warner, 28 Ill. 433.
    A corporation has no personality that can “ be found ” beyond the limit of the State that made it. Therefore the Pacific Railway Co. v. McDonald, 91 Ill. 171 is not in point.
    Messrs. Beery & Epler, for appellee.
    The plea is not to the jurisdiction of the court over the subject-matter of the suit, but that it acquired none over defendant. Midland Pac. Ry. Co. v. McDermid, 91 Ill. 170. The course of legislation and judicial decision in Illinois evinces a policy to narrow and limit more and more the power of a plaintiff to sue a defendant out of the county where he resides. Under the practice act of 1827 it was allowable to compel the appearance of a debtor in any county of the State where the creditor might elect. The law was modified by degrees, until now, by statute, a plaintiff can not sue a defendant out of the county “ where he resides or may be found,” except in local actions or in case of several defendants, and except in case • of railroad, bridge or insurance companies. Clark v. Harkness, 1 Scam. 56; Brewster v. Scarborough, 2 Scam. 280; Kenney v. Greer, 13 Ill. 432; Mahoney v. Davis, 44 Ill. 288; Scott v. Waller, 65 Ill. 181; Wallace v. Cox, 71 Ill. 548; T., W. & W. Ry. Co. v. Williams, 77 Ill. 354; Sec. 2 Practice Act of 1872; 2 Starr & C. Ill. Stat. 1773; Sec. 1, Act of April 3, 1873; Id. 1775.
    A corporation created by the Legislature can be served only in such manner as the Legislature prescribes. Railroad Co. v. Hecht, 95 U. S. 168.
    The controlling statutory provisions are Secs. 2 and 4 of the Practice Act of 1872. 2 Starr & C. Ill. Stat. 1773 and 1777.
    The two sections, being in pari materia as to corporations, should be construed together, and effect given to all the parts of each. Young v. Stearns, 91 Ill. 221; Com’rs of Highways v. Com’rs of Highways, 100 Ill. 631; St. Peters R. C. Cong. v. Germania, 104 Ill. 440.
    Sec. 2 regulates the venue of actions, and Sec. 4 prescribes the mode of service on corporations. The words “in which the suit is brought” in Sec. 4, manifestly refer back to Sec. 2, which determines where suit shall be brought.
    Sec. 2 applies to corporations. Clause 5, Sec. 1, of Act on Statutes; 2 Starr & Curtis’ Stat. 2330; Bristol v. The Chicago & Aurora R. R. Co., 15 Ill. 436.
    Hence, by Sec. 2 a corporation must first reside or be found in the county in which the suit is brought before it can be there served under Sec. 4.
    The test of jurisdiction is residence, not citizenship. The terms are not co-extensive, but of different import, whether' applied to corporations or natural persons. A corporation is a citizen of the State by whose laws it was created. “The residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions. It dwells in the place where its business is done. It is located where its franchises are exercised.” It resides where its principal office is located. Bank of North America v. D. & V. R. R. Co., 82 Ill. 493; Bristol v. The Chicago & Aurora R. R. Co., 15 Ill. 436; Sangamon & Morgan R. R. Co. v. County of Morgan, 14 Ill. 163.
    Nor is a corporation resident throughout the State of its creation. It resides in the county where it exercises its franchises or where its principal office is located. This was directly decided under Sec. 2 of the then practice act, as to the venue of a suit against a domestic corporation, upon a question of local jurisdiction by counties. Bristol v. Chicago & Aurora R. R. Co., 15 Ill. 436, where the company was said to reside in any county through which its road passed and its business was transacted.
    So in Peoria Ins. Co. v. Warner, 28 Ill. 429, where the main office was located at Peoria, but it had a local office and a resident local agent doing business for the company in Chicago, the corporation was properly held to reside in Cook county for purposes of jurisdiction and service on the agent was sustained.
    The converse must be true. A corporation does not reside in a county where it does no business, exercises none- of its franchises and has no office or local agent. A corporation is not ubiquitous in the State of its creation: its residence is where its principal office is situated. Central Bank of Georgia v. Gilson, 11 Ga. 453.
    Under the practice acts of other States, as to venue of actions between counties, a corporation has been held to reside where its principal office was located, and to have a local existence like natural persons. Edwards v. Union Bank, 1 Fla. 136; Jenkins v. Cal. Stage Co., 22 Cal. 537, 538 ; Central Bank of Ga. v. Gilson, 11 Ga. 453.
    The Quincy Hotel Company, as its name imports, and by the terms of its organization under the statute, having its principal and only office at Quincy, exercising its franchises and doing business nowhere else—and having no power to go elsewhere, as we contend—has its local residence fixed and established by law in Adams county, and is not ubiquitous throughout the State.
    As a corporation can act only by agents, criteria similar to those that determine its residence must be applied to decide where it “ may be found ” within the meaning of Sec. 2 of the practice act. It can not be said to be “found” in a county unless it has a local office there, or unless it is “ doing business ” or “ exercising the corporate franchise ” there through its agents or officers, as was the case in Peoria Ins. Co. v. Warner, 28 Ill. 429.

      The negative side of the proposition has not been directly decided in this State as to a domestic corporation, but our Supreme Court has decided the question here at issue as to a corporation of another State.
    Where the superintendent of a Nebraska Railway Company, which had no office or local agent, and exercised no franchise, in Illinois, was in Chicago, on no business for the company, but temporarily passing through the county, and he was served with process while there, it was held the service gave the Superior Court of Cook county no jurisdiction over the company. Midland Pacific Ry. Co. v. McDermid, 91 Ill. 170.
    And see Union Pacific R. R. Co. v. Miller, 87 Ill. 45.
   Gary, J.

The hotel is in Quincy in this State. It has no office or business in Cook county. The service of summons was upon a director of the company, who was in Cook county, not upon any business of the company, but temporarily for his own. The validity of this service to give the Circuit Court jurisdiction is attacked by an appropriate plea, and raises the only question in the case.

So far as is applicable to this case, Sec. 2 of the practice act is: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found;” and Sec. 4: “ An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any * * * director * * * of said company found in the county.” Sec. 2 fixes the county in which the suit may be brought, and Sec. 4 the manner of service in that county. The corporation is found wherever it is doing business, but not everywhere that those engaged in its service may for their private business or pleasure stray.

This is consistent with all the cases that the Supreme Court have decided upon the subject, from Bristol v. Chi. & Au. R. R. 15 Ill. 436, to Midland Pacific R. R. v. McDermid, 91 Ill. 170.

The demurrer' to the plea was properly overruled, and. the judgment abating the suit is affirmed.

Judgment affirmed.


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    Charles Myers, by his Next Friend, v. T. A. Rehkopf.

      Infancy—Repudiation of Contract—Master and Servant—Costs.

    1. Where the infant rescinds or repudiates his contract because of infancy, the rights of the parties are governed wholly by the law, and not by their contract.
    2. In the case presented, the contract was entire for the whole period the plaintiff was to serve. The contract having been repudiated, all that had been paid is upon account of the whole services, including the rest in the account provided for by the contract.
    3. The statute makes no exception in favor of minors as unsuccessful plain tiffs,in the matter of costs.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Eollir 8. WiLLiAMSorr, Judge, presiding.
    Mr. W. A. Phelps, for appellant.
    T. L. Humphreville, for appellee.
   Gary, J.

Both parties were witnesses on the trial of this case without a jury in the Circuit Court, and agreed in their testimony that the appellee hired the appellant in March, 1887, at $9 per week, to May 1st following, and §12 per week thereafter; that appellee was to, and did, keep back §25 of the wages before May 1st, as security that appellant would fulfill his engagement; but the appellant testified that the engagement was until August 1, 1887, while the appellee testified it was until May 1, 1888. On this difference it is conceded by appellant that the appellee is so^ corroborated that the court must take his version.

The appellant admits that, if he were suing for wages, not having fulfilled his engagement, the contract price would not govern, but he could recover only what his services were worth. Ray v. Haines, 52 Ill. 485. But he insists that the accrued wages left in appellee’s hands are to be treated as a deposit of money to that amount, as security for the future, and that as he could then have quit and recovered the $25, it can not be withheld from him on the plea that after May 1st his services were worth only $9 per week, though he ivas paid $12, and thus apply the principle of quantum meruit to the whole period of service.

If the appellee rescinds or repudiates the contract because of infancy, the fights and obligations of the parties are governed wholly by the la,w, and not at all by their contract, and then the result is that for nearly five months the appellant has received some $14 more than his labor was worth. The contract was entire for the whole period he was to serve, and being repudiated, all that has been paid is upon account of the whole service. The repudiation carries with it the rest in the account which the contract provided for.

The argument of the appellant is not in form but to the effect that if a minor is paid partly, or wholly, in advance for work done, ho may, after he has done it, recover the whole value. There is no such law. 1 Parsons on Contracts, 321. The court rightly decided for the appellee. The statute makes no exception in favor of minors as unsuccessful plaintiffs in the matter of costs. There is no decision in this State upon the subject. Elsewhere they are numerous, either way. If an exception is to be made, it should be by the Legislature.

Judgment affirmed.


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    Henry P. Ide, Assignee, v. Elizabeth N. Sayer and James E. Sayer.

      Jurisdiction—Assignment—Prior Fraudulent Conveyances—Petition by Assignee—Remedy.

    1. The County Court is not a court of general jurisdiction.
    2. The act in regard to voluntary assignments does not enable the assignee to sue in the County Court in any case of which it has not jurisdiction by general law.
    8. Where it is claimed that conveyances made just prior to an assignment by the grantor are fraudulent, the remedy belongs to the defrauded creditors, who must resort to the courts of general chancery jurisdiction.
    4. Upon petition filed in the County Court by the assignee to set aside certain conveyances alleged to have been made in fraud of creditors just prior to the assignment of the grantor, it is held: That the County Court had no jurisdiction; and that the Circuit Court, on appeal, the trial being de noro, should have dismissed the petition for want of jurisdiction in the County Court and entered its own judgment in favor of the appellee, the grantee in the conveyances in question, instead of remanding to the County Court.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Loben C. Collins, Judge, presiding.
    Messrs. Tenney, Bashfobd & Tenney, for appellant.
    The County Court has jurisdiction over the assigned estate and full power to administer upon it, including power to " compel the delivery to the assignee or assignees of any property or estate embraced in the assignment.” In construing this statute the Supreme Court has held that the County Court has jurisdiction to try and determine claims of third persons to the property assigned (Hanchett v. Waterbury, 115 Ill. 202); claims by the assignee or creditors, that apparent liens upon property in the hands of the assignee are in reality void as being preferences within the meaning of Sec. 13 of the assignment act (Freydendall v. Baldwin, 103 Ill. 325) ; that in the exercise of this jurisdiction it possesses both legal and equitable powers (Field v. Ridgley, 116 Ill. 424); and that its jurisdiction depends purely upon the question whether an assignment has in fact been made, and not upon its validity as to creditors (Farwell v. Crandall, 120 Ill. 70). All of these cases speak, as does the statute itself, of the jurisdiction of the County Court over the “ assigned estate,” or the " property embraced in the assignment,” and they establish the law that, as to claims relating to such property, the County Court has jurisdiction. What property, then, is included in these phrases?

      Appellant’s petition alleges that the transfers to Mrs. Sayer were made by separate instruments for the purpose of evading the provisions of the statute prohibiting preferences in assignments; that, at the time of making them, James had decided to make a general assignment for the benefit of his creditors, and that these transfers and that to Ide were in fact, parts of one entire transaction, and constituted an assignment with preferences-within the meaning of the statute. These facts were abundantly proved by the evidence offered in the Circuit Court, to which we shall refer hereafter.
    The word “assignment,” as used in our statute, does not mean the formal deed which merely evidences the act of the debtor. It is used in its broadest sense as the noun of the verb “ to assign,” and refers to the transfer which the debtor makes of his property; to the act, and not to the evidence of the act. Using the word in this sense, it follows, necessarily, from the application of well settled rules, that separate preferential transfers, made by a debtor in pursuance of a common plan, contemplating and followed by an assignment of his property for the benefit of his creditors, will be held to be but parts of one entire transaction, and that the whole will form an assignment with preferences, within the meaning of the statute. And as these transfers, taken together, constitute the assignment, it follows equally that the property covered by each of them is “embraced within the assignment.”
    This proposition is well established by numerous decisions, but as it has received the sanction of our Supreme Court, it will not be necessary to cite them. In the case of Preston v. Spaulding, 120 Ill. 208, insolvent debtors on the eve of and in contemplation of making an assignment for the benefit of their creditors, gave judgment notes to some of their creditors, for the purpose of enabling them to secure their claims by levying on the property, before the delivery of the deed of assignment to the assignee.' Spaulding, a creditor, and therefore a beneficiary under the assignment, filed a bill asking to have certain contracts between himself and the debtors set aside for fraud; and asking, also, to have the judgments and execution levies declared void, as being preferences in an assignment. The Supreme Court held that the relief prayed for was promptly granted, and in speaking of the effect of an assignment under the statute, and of the powers of a failing debtor in disposing of his property, used this language: “ But when he (the debtor) reaches the point where he is ready and determines to yield the dominion of his property, and makes an assignment for the benefit of his creditors, under the statute, this act declares that the effect of such assignment shall be the surrender and conveyance of all his estate, not exempt by law, to his assignee—rendering void all preferences, and bringing about the distribution of his whole estate equally among all his bona fide creditors; and we hold that it is within the spirit and intent of the statute, that when the debtor has formed a determination to voluntarily dispose of his whole estate, and has entered upon that determination, it is immaterial into how many parts the performance or execution of his determination may be broken; the law will regard all his acts, having for their object and effect the disposition of his estate, as parts of a single traasaction; and, on the execution of the formal assignment, it will, under the statute, draw to it, and the law will regard as embraced within its provisions, all prior acts of the debtor having for their object and purpose the voluntary transfer or disposition of his estate to or for creditors; and if any preferences are shown to have been made or given by the debtor to one creditor over another in such disposition of his estate, full effect will be given to the assignment, and such preferences will, in a court of equity, be declared void and set aside as in fraud of the statute.”
    Prior to this decision the Supreme Court had held, in Freydendall v. Baldwin, supra, that when an assignment is made, “ all the property the insolvent debtors had at the time of the assignment passed to and vested in the assignee, under the statute, and must be administered by him under the supervision of the County Court;” and in Hanchett v. Waterbury, supra, that in such case the County Court, “by operation of law, becomes possessed of all the property and estate embraced within the assignment.”
    These cases demonstrate that the transfers to Mrs. Sayer W'ere void; that the property covered by them was “ embraced within the assignment,” and that the County Court, having, by her voluntary appearance, jurisdiction of her person, has power to determine her claim to the property.
    Mr. F. H. Trude, for appellee.
    The principal question to be determined in this case is, did the County Court have jurisdiction of this cause? The jurisdiction of the County Court in the matter of assignments for the benefit of insolvent debtors, was given to it by statute. The appellant claims that those proceedings were brought under section eight of that act. By a reference to that section the court will readily see that the County Court went beyond its jurisdiction. That section gives the right, upon petition of the assignee of creditors, to compel the appearance, in person, of a respondent, to answer under oath, and that they might be fully examined under oath, and may compel delivery to the assignee of any property or estate embraced in the assignment. In this case, Mrs. Sayer was brought into -court; she was compelled to file her answer under oath, but she was not examined about these transactions by the assignee, nor did she have in her possession property that passed to the assignee. Before the assignment the draft had been cashed and the notes sold, and the actual property had passed out of her possession and control. The real estate is not situated in this State. Before the notice of the petition, she had used and spent a part of the money realized from the drafts and notes. Take the position that the transfers to Mrs. Sayer were fraudulent and preferential—which we deny—the County Court has not the jurisdiction to compel Mrs. Sayer to do acts in order to bring into the custody of the assignee, assets. The statute gives the court power to compel a discovery and to turn over to the assignee the identical personal property that is subject to personal delivery. But in this case the personal property had been sold and disposed of before the assignment. The assignee only had what claims the assignor had at the time of the assignment, namely, the claim against Elizabeth Sayer for the value of the notes and draft so disposed of by her. James P. Sayer could not collect these notes and draft, even though she had procured them from him by fraud, except by going into a court of chancery and asking for equitable relief.
    In Preston v. Spaulding, 120 Ill. 203, the court held that the County Court is not, by the voluntary assignment, invested with general chancery powers and jurisdiction, such as a bill (petition) to set aside a sale or contract for fraud, or to set aside unauthorized preferences given by the debtor. As to matters purely of an equitable character, resort must still be had to the courts of general chancery jurisdiction.
    The same position is taken in the case of Aldrich v. Hawkins, 6 Blackf. 126. “ The Legislature may create a new cause of action and designate a particular tribunal to take cognizance of it; in such case, the provisions of the statute must be strictly followed.” “ The rule for jurisdiction is, nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged.”
    But when a superior court exercises a special statutory and extraordinary power, it stands upon the same ground and is governed by the same rule as courts of limited and inferior jurisdiction. The rule then is, that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. Hatwood v. Collins, 60 Ill. 328.
   Gary, J.

April 30, 1886, James P. Sayer made an assignment for the benefit of his creditors to the appellant, which was acknowledged and recorded on the same day, pursuant to the act concerning voluntary assignments of May 22, 1877. This record does not show that the appellant entered upon the discharge of the duties of his position in the manner directed by the statute, but as no question is made in the case upon that subject, it is to be assumed that he did.

May 28, 1886, appellant filed in the County Court a petition, which, with a subsequent amendment, charged that the assignor, two days before the assignment, and in contemplation of it, and as an unlawful preference to the appellee Elizabeth, conveyed to her real property in Minnesota and Dakota, and dioses in action, in consideration of pretended indebtedness from him to her.

The petition prayed that the transfers might be declared fraudulent and preferential, and might be vacated and set aside, and that she might be decreed to deliver the dioses in action to the appellant, and convey to him the real estate.

Some further proceedings, which it is unnecessary to state in detail, were had in the County Court, and January 31, 1887, that court entered the decree prayed for by the petition, to be enforced by attachment for contempt of court, in case of her failure to obey the decree. This decree the Circuit Court reversed.

To the relief prayed for by that petition, the appellant was not entitled in any court, and of the subject-matter of the petition the County Court has no jurisdiction.

The act in question deals only with assignments made by debtors to their assignees. The word “assignment” occurs many times in the act, and always, either by connection with inventory annexed, acknowledgment and record, by assignee named in it, or by natural construction, refers to the paper by which the debtor has conveyed to his assignee the assets assigned. By the fourteenth section full jurisdiction is conferred ujion the County Court to carry out the provisions of the act. The County Court is not, in the usual'sense, a court of general jurisdiction. It is a court of multifarious but defined jurisdiction, general and unlimited over the class of cases confided to it, and in such eases intendments in favor of its action are as liberal as are extended to the proceedings of the Circuit Court, and it is not necessary that all the facts and circumstances which justify its action shall affirmatively appear upon the face of its proceedings. People v. Gray, 72 Ill. 343, and cases there cited.

But no such intendment enlarges the class of cases over which it has jurisdiction. The jurisdiction of the County Court does not resemble that of the Circuit Court, which is original “ of all cases in law and equity” (Sec. 12, Art. 6, Const.), undefined, general, like space, ending nowhere, and embracing all that is. The act in question, by the eleventh section, gives the assignee the same power as to all property of the debtor that the debtor had at the time of the assignment, and the right to sue in his own name and to recover such property, and the eighth section enables the County Court to compel the debtor to deliver to the assignee all property embraced in the assignment. But there is nothing in the act which enables the assignee to sue in the County Court in any case of which it has not jurisdiction by general law, nor any authority conferred upon the County Court to call before it anybody but the debtor and the assignee. The maxim, “ expi'essio unius est exolusio alterius applies to the construction of statutes as well as contracts. Madison Co. v. Bruner, 13 Ill. App. 599; Broom’s Leg. Max. 664.

The argument, in effect, of the appellant, is that the property embraced in unlawful preferences is to be read into the “assignment,” which word as used in the statute is to be understood as covering the whole transaction of the disposition the debtor makes of his property, and that, therefore, the assignee has the title to the property, and may pursue it wherever found, in any mode appropriate to an owner deprived of his right; and that the property embraced in an unlawful preference being read into the “ assignment” is in some way covered by the provisions of the act, to carry out which provisions the County Court has jurisdiction. In Bouton v. Dement, 123 Ill. 142, the Supreme Court deny (as by proper construction the eleventh section of the act denies) the authority of an assignee to undo anything his assignor had done, apply the same rule which exists in regard to an administrator, and hold that the statute respecting assignments makes no change in the rule. It is true they were not then dealing with a question of unlawful preference, but of prior fraudulent conveyance.

In every case, however, in which they have had occasion to assert the jurisdiction of the County Court, the property was in the hands of the assignee. Freydendall v. Baldwin, 103 Ill. 325; Hanchett v. Waterbury, 115 Ill. 220; Field v. Ridgely, 116 Ill. 424; Farwell v. Crandall, 120 Ill. 70; Handford O. Co. v. First N. Bk., 126 Ill. 584; Hide & L. N. Bk. v. Rehm, 126 Ill. 461.

And usually in such assertions, they have referred to that fact as to one of those upon which the jurisdiction attached; while in Preston v. Spaulding, 20 Ill. 208, where the property had not come to the possession of the assignee, they hold that in "that particular it did not at all resemble the first two in the list of cases above cited; that the County Court had not acquired jurisdiction of the res; that that court is not by the act invested with general chancery powers and jurisdiction, but that in respect of matters of a purely equitable character, specially cognizable in the courts of equity, resort must still be had to the courts of general chancery jurisdiction.

In that case, which was before Bouton v. Dement, 123 Ill. 142, it was assumed by counsel, and not denied by the court, that the assignee might maintain a bill to bring into his possession assets held under an unlawful preference, though in terms the court only re-asserts his right to sue for everything “belonging or appertaining” to the estate of his assignor, quoting from the eleventh section of the act. That case is, therefore, no authority for the appellant, except upon the doctrine there first established in this State, “ that, after a debtor has made up his mind to make an assignment of his property for the benefit of his creditors, all conveyances, transfers and other dispositions of his property or assets, made in view of his intended general assignment, whereby a preference is given, will be held to be within the prohibition of the statute and void, the same as though incorporated in the deed of assignment itself.” Bailey, J., in Hide & L. N. Bk. v. Rehm, 126 Ill. 461.

The remedy belongs to the defrauded creditors, and the forum is the Circuit Court or other court having general chancery powers. The decree of the Circuit Court is affirmed in principle, but the form of it is wrong. The trial in the Circuit was de novo (Sec. 122, Act March 26, 1874), and the Circuit Court should have entered its own final judgment in favor of the appellee, dismissing the petition for want of jurisdiction in the County Court.

The eases Otten v. Lehr, 68 Ill. 64, and Higgins v. The People, 69 Ill. 11, were under the act of 1872, which was repealed by that of 1874.

The decree of the Circuit Court is reversed and the cause remanded to the Circuit Court, with directions to dismiss the petition for want of jurisdiction in the County Court. The appellees will recover their costs in this court, as this reversal is in a matter of form only, in which the appellant has no interest.

jReversed and remanded.