text:
    Gustave Vetter v. The People of the State of Illinois.
    1. Suit for tax on forfeited property—What must be shown.— To warrant a recovery in a suit under the statute, for the amount of tax due on forfeited property, the plaintiff must show that there had been a notice, a judgment, a process issued for the sale of the property, an offer and a failure to sell for want of bidders.
    2. Failure to show process.—Without proof that such process as the statute requires was issued, there can be no sale or offer to'sell the property that would bind anybody interested.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Krome & Hadley, for appellant;
    as to what is necessary to prove a forfeiture, cited Scott v. The People, 2 Bradwell, 642.
    There can be no personal liability for taxes of previous years, levied before appellant became the owner: Rev. Stat. Chap. 120 § 59; Cooley on Taxation, 303; Atlantic R. R. Co. v. Clines, 2 Dillon, 175; Commissioners v. Claggett, 31 Md. 210.
    The steps required by statute to create a forfeiture are all essential to give the court jurisdiction, and must be shown: Spellman v. Curtenius, 12 Ill. 409; Pickett v. Hartsock, 15 Ill. 279; Morgan v. Camp, 16 Ill. 175; Chiniquy v. The People, 78 Ill. 570.
    Mr. Cyrus L. Cook and Messrs. Wise & Davis, for appellee.
   Allen, J.

This was a suit brought by appellees against appellant, to the October term of the Madison Circuit Court, A. D. 1878, for the recovery of an amount due on certain lands forfeited to the State, for the non-payment of taxes.

Under Sec. 230, Chap. 120, Revised Statutes, 1874, The county board may at any time institute suit in an action of debt, in the name of the people of the State of Illinois, in any court of competent jurisdiction, for the amount due on forfeited property.”

The declaration was in debt for $1,386.08; to which a demurrer was filed by defendant. The demurrer was overruled by the court, and one of the errors assigned is the overruling of the demurrer by the court. Our examination of the declaration satisfies us that the demurrer was properly overruled. To entitle the appellees to recover under this declaration, it was necessary that they should show the amount due, and that the property had been forfeited, and that the necessary steps to work a forfeiture had been taken. To create a forfeiture there must have been a notice, a judgment, a process, issued for the sale of the property, an offer of the property for sale, and a failure to sell for want of bidders.

In this record there is no process shown upon which the land was offered for sale by the collector. The 194th section of the revenue act requires the clerk “ before the day of sale to make a record of the lands and lots against which judgment is rendered, which shall set forth the owner’s name, if known, a description of the property, total amount of judgment on each tract or lot, the year or years for which the same is due, etc. etc., to which the order of court shall be attached, and his certificate that such record is correct, and that this record shall be the process on which such property shall be sold, etc. etc. An examination of this record fails to show any such process issued by the clerk to the collector, without which there could be no sale or offer to sell that would bind any one in interest.”

The collector would be as powerless to sell and convey as ■would a sheriff to sell to satisfy a judgment without an execution, and however regular every other step in- the proceeding may have been, the failure to show a process on which an offer was made, must be fatal to a recovery. Appellee in his brief insists that there was a precept. Appellee introduced Judgment Book H, page 51, which shows application for judgment on out lot No. 6, and then that part of Book B showing forfeiture. The only thing that appears in this record on the subject of a process is in the testimony of W. H. Hall, a witness called by appellant, who when shown a paper and asked what paper it was, answered: “That is a precept of the tax sale of 1878.” This paper was not introduced in evidence, so far as the record shows, nor does the record disclose its contents. There seems to have been an advertisement attached to it, which Hall says was before the County Court when judgment was rendered. And this is all we find in the entire record on that subject. Whether the paper referred to contained any of the essential requisites of a process we cannot determine, as it does not seem to have been read before the court at all. With our view of the necessity of showing a process on which this forfeited lot was offered for sale, we deem it unnecessary to enter into the discussion of several other errors assigned. This cause was submitted to the judge without the intervention of a jury. A motion was made in arrest of judgment, which was overruled, and judgment rendered for appellees for $1386.08 and cost. We regard the evidence as insufficient to authorize the judgment, hence we reverse and remand the cause.

Reversed and remanded.


source: Caselaw Access Project

author: Tanner, P. J.

license: Public Domain

text:
    Patrick J. Crotty v. James H. Wyatt.
    1. Practice—Returning verdict—Polling jury.—The verdict of a jury must be returned in open court by the entire panel, and either party has the undoubted right to have the jurors called individually, and inquire as to whether the verdict returned is his verdict. A verdict is not final until pronounced in open court and recorded.
    2. Sealed verdict.—A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, or deprive either party of the right of polling the jury.
    3. Rule oe court—Cannot deprive party oe legal right.—The court, by virtue of power conferred to establish rules for the dispatch of business, cannot by such-rules deprive a party of a well established legal right, unless it had in some manner been forfeited under such rules.
    Appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.
    Messrs. Halbert & Greek, for appellant;
    that a court may change the form of a verdict, but not in substance, cited Brown v. Rounsavell, 78 Ill. 589; City of Pekin v. Winkel, 77 Ill. 56.
    Messrs. Flannigan & Canby, for appellee;
    that objections to rulings of the court on questions of evidence must be pre-. served by exceptions, cited Sawyer v. City of Alton, 3 Scam, 127; Smith v. Kahill, 17 Ill. 67; Board of Education v. Greenebaum, 39 Ill. 610; Allen v. Payne, 45 Ill. 339; Reynolds v. Palmer, 70 Ill. 288; Wilkinson v. Deming, 80 Ill. 342.
    A proposition for a compromise of a claim is not binding unless accepted: Paulin v. Howser, 63 Ill. 312; Burroughs v. Clancey, 53 Ill. 30.
    Claims acquired after suit begun cannot be set-off: Pettes v. Westlake, 3 Scam. 536; Kelly v. Garrett, 1 Gilm. 649.
    As to the power of courts to establish rules of practice: Owens v. Ranstead, 22 Ill. 161.
    A court may reject a portion of a verdict as surplusage, and render judgment on the remainder: O’Brien v. Palmer, 49 Ill. 72.
    The division of costs hy the jury may he rejected hy the court as surplusage: Bacon v. Callender, 6 Mass. 303; Lincoln v. Hapgood, 11 Mass. 358.
   Tanner, P. J.

This is an appeal from the city court of east St. Louis. The record shows that the cause was submitted to a jury; that they agreed upon a verdict, sealed it, and handed the same to the sheriff, and were by him discharged. The verdict was delivered to the court, and then announced in open court, without the jurors having been called; the appellant upon the announcement and publication of the verdict, moved the court to have the jury called by names, but the court denied the motion, had the verdict recorded and entered judgment thereon. To this the appellant excepted. He now brings the cause to this court, and assigns for error, the refusal of the court to allow the jurors to be called. Where matters are submitted to a jury their verdict must be returned in open court by the entire panel, and when the same is pronounced, the parties have the undoubted right to have the jurors called individually, and to inquire of each one as to whether the pronounced verdict is his verdict. This course is termed in law, polling the jury. A verdict is not final until pronounced in open court and recorded; and until this is done, either party has the right to poll the jury. It is not less so when the verdict is brought in sealed, than when verbally announced by the foreman. A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, and if any of them dissent their verdict cannot be recorded. Nomaque v. The People, Breese, 145; 2 Gilm. 546; Johnson v. Howe, 2 Gilm. 342; Martin v. Morelock, 32 Ill. 485. The counsel for appellee insists that the court was empowered to disregard the motion for leave to have the jury polled by virtue of a rule of practice established by the court. As to this rule we know nothing, as it is not found in the record. Still the court, by virtue of a power conferred to establish rules of practice to facilitate the dispatch of business, could not by such rules deprive a party of a well established legal right, unless it had been forfeited in some manner under such rules. In the record before us, we find no evidence of laches or dereliction on the part of appellant. For the error of the court in this respect, the judgment will be reversed and the cause remanded.

[Reversed and remanded.


author: Allen, J.

text:
    John Fleming v. Fred Hiob et al.
    Conveyance to defbaud creditors—Evidence.—The case is reversed by reason of the insufficiency of the evidence to establish the bonafides of the conveyance from, father to son. It appearing that father and son lived together, the father, being in debt, conveyed all his property to his son, a young man without means, for an expressed consideration of three thousand dollars, no payment or means of payment being shown.
    F,-r.-r.ot?. to the Circuit Court of [Randolph county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Johnson & Hobneb, for plaintiff in error;
    that a fraudulent intent was clearly shown, cited Bump on Fraudulent Conveyances, 79; Letcher et al. v. Morrison, 27 Ill. 209; Brown et al. v. Welch, 18 Ill. 343; Bispham’s Principles of Equity, § 267.
    The court should have granted a new trial on the ground of newly discovered evidence: Cowan v. Smith, 35 Ill. 416; T. W. & W. R. R. Co. v. Ingram, 85 Ill. 172; Cochran v. Ammon, 16 Ill. 316.
    Mr. Silas L. Bbyan and Messrs. Pollock & Son, for defendants in error;
    that the motion for new trial was not accompanied by affidavits of the witnesses, and hence was. properly denied, cited Cowan v. Smith, 35 Ill. 416; T. W. & W. R. R. Co. v. Ingram, 85 Ill. 173; Emory v. Addis, 71 Ill. 273.

      A new trial will not be granted where the evidence offered is merely cumulative or impeaching: Fuller v. Little, 69 Ill. 229; Hall et al. v. Fullerton, 69 Ill. 448; Knickerbocker Ins. Co. v. Gould et al. 80 Ill. 388; McKenzie v. Remington, 78 Ill. 388.
    An affidavit setting up' newly discovered evidence must state that it is true: Murphy v. McGrath et al. 79 Ill. 494; Ritchey v. West, 23 Ill. 385.
    When a transfer is made for a valuable consideration, there must be a fraudulent intent on the part of both vendor and vendee to render it void: Bump on Fraudulent Conveyances, 227.
    Mere knowledge by the vendee of a fraudulent intent on the part of the vendor will not affect the vendee’s rights: Bump on Fraudulent Conveyances, 233.
    Proof must be clear and convincing that both parties participated in the fraud: Bump on Fraudulent Conveyances, 238; Terrell et al. v. Green et al. 11 Ala. 207; Hatch et al. v. Jordon, 74 Ill. 414; Jewett v. Cook, 81 Ill. 260.
    Where an act can be traced to an honest source equally as well as a corrupt one, no fraud will be presumed: Bowden v. Bowden, 75 Ill. 143.
    A verdict will not be disturbed unless manifestly against the weight of evidence: C. & N. W. R. R. Co. v. Ryan. 70 Ill. 211; Chapman v. Burt, 77 Ill. 337.
    A new trial will not be awarded if the evidence tends to sus tain the verdict, although the court would have found differently: Gilbert v. Bone, 79 Ill. 341; Varner v. Varner, 69 Ill. 445; Kightlinger v. Egan, 75 Ill. 141; Edgmon v. Ashelby, 76 Ill. 161.
   Allen, J.

Ernst Hiob filed his bill to the September term of the Randolph Circuit Court, 1877, against John Fleming and Daniel Gerlóch, alleging that he is the owner of the east half of southwest one-fourth of section three, town six, south range six, west, lying in Randolph county. That he derived title from Frederick Hiob under deed executed and delivered January 27th, 1876, and recorded same day. That said deed contained conveyance to some lots other than the land above described, and that the consideration paid for same was §3,000; and further, that John Fleming, one of the defendants in the bill, obtained a judgment against Frederick Hiob and Fritz Lohrding at the March term of said court for 1877, for the sum of §845.60. That upon said judgment execution issued 8th of August, 1877, and that the sheriff levied said execution on the land above described, and had advertised the same for sale under the execution, and was threatening to sell the same; alleges that he, defendant in error, is the only person having any interest in the same. That John Fleming and Daniel Gerloch were about to disturb him in the enjoyment of his land, and would do so unless enjoined. Upon this bill a temporary injunction was issued.

To this bill an answer was filed by plaintiffs' in error, admitting the conveyance, but denying that it was made in good faith. To this answer replication was filed. John. Fleming, plaintiff in error, then filed his cross-bill in the nature of a creditor’s bill, setting up his judgment and levy, charging that conveyance to Ernst Hiob was made and received for the purpose of hindering plaintiff in the collecting his debt, and praying that the conveyance be set aside for fraud, and the land subjected to sale under his levy; that Frederick Hiob had no other property out of which to make liis debt.

To this cross-bill Ernst Hiob answered, denying the fraud, etc. Default was had upon the cross-bill as against Frederick Hiob. On a hearing, the deed from Frederick Hiob to Ernst Hiob was introduced. Ernst Hiob testified that he purchased the land described in deed from Frederick Hiob, his father. “ I paid for the land in full at the time I purchased.” On cross-examination he said: “ I did not pay anything for the land at the time I purchased it,” but it is all paid now. I paid father $500 in the year 1876, out of wheat crop, and $400 out of crop of 1877. Two mouths ago I borrowed $2,000 from Henry Bollinger, and with $100 I paid residue of purchase money. I gave a mortgage on the lands and lots described in deed to my brother Gustave Hiob, for the three thousand dollars about one year ago. Gustave was to let me have the three thousand dollars when he could get it. I am Frederick Hiob’s son. I lived at home with my father until the fall of 1877. I knew when I purchased the land father owed a security debt, but I did not know to whom he owed it. I bought everything father had.” “ I cleaned him out.” Father wanted to quit farming. The purchase was not made to hinder the collection of debts of my father. I intended to take the three thousand dollars and pay father with it when my brother could raise it. I had no property of any kind when I bought father out. Father still resides on the lot in Randolph, where he lived before the sale. Has a blacksmith shop on the lot.

It was shown that Gustave Hiob, to whom defendant gave the mortgage, was wholly insolvent. He testifies himself he lives with his father; is 22 years old; didn’t know when or how he was to get three thousand dollars to let Ernst have; had about $100 when I took mortgage from brother; did not have all that in my possession. I released the mortgage about two weeks ago. Upon this evidence the Court made the injunction perpetual and dismissed the defendant’s cross-bill; whereupon plaintiff in error moved for a new hearing, upon the ground of newly discovered testimony, and in support of his motion filed an affidavit for a new trial, showing that A. G. Gordon, the notary public before whom the deed of conveyance was acknowledged, would testify that at the making of said conveyance, as between father and son, the complainant (defendant in error) admitted and stated that said conveyance was made for the purpose of escaping the payment. of the demand of the defendant (the plaintiff in error), and to place said land beyond the reach of the creditors of the said Frederick Hiob, the father and grantor of the complainant (defendant in error); “that said Gordon refuses to voluntarily make an affidavit to the facts set forth, but avers his readiness to testify to such facts when called as a witness, and that he understands that one Alexander Hord will testify . to the same facts; that these facts have come to his knowledge since the trial of this cause.” But the court refused to give plaintiff in error a new hearing, and the decree of the court dismissing plaintiff’s cross-bill and making injunction on original bill perpetual, as also the refusal of the court to give plaintiff in error a re-hearing, are assigned for error. Ought the court to have made the defendant’s injunction perpetual and to have dismissed plaintiff’s cross-bill? These two questions blend themselves so together that in deciding one we necessarily determine the other. Here are father and son living in the same family; the father in debt; the son without means. The father transfers to his son all his lands; the house in which he lives; the shop in which he works; for a consideration of three thousand dollars; and when called upon to answer as to whether this transfer to his son was made in good faith, or with intent to defraud and cheat his creditors, stands mute, and without any apparent reason refuses to answer; and by his silence confesses his purpose in making the transfer to be fraudulent. If it were otherwise, his voice would have been heard in indignant denial. It may be said the purpose of the father in-making the sale could not affect the rights of the son if he was an innocent purchaser, and that, although his subsequent conduct might be such as to warrant the conclusion that he was trying to hinder, delayer cheat his father’s creditors, yet if at the time the purchase was made such intent did not exist, his title is not affected. As this cause will again be submitted, we do not desire to discuss tlie evidence of the son upon these questions. We think, under all the circumstances, the court ought to have granted the plaintiff in error a re-hearing. We are of opinion that justice has not been done by making the injunction perpetual, and for this reason the decree of the court is reversed and cause remanded.

Reversed and remanded.


text:
    DuQuoin Star Coal Mining Company v. John Thorwell.
    1. CONTRACT FOR LABOB.—DISCHARGE FOR INCOMPETEHCT.—Where a servant or laborer is discharged from service for incompetency, he is entitled to recover only for wages due him up to the time of such dismissal. The testimony in this case proving conclusively the incompetency of appellee, the company had a right to discharge him, and a verdict in his favor for the amount of wages for the unexpired term cannot be supported.
    2. Instructions—Evidence as to duty op employee.—An instruction that the only evidence as to the duties of an overseer or pit boss to be considered, is the by-laws of the company, relating to such duties, does not give a correct statement of the law, and is erroneous.
    3. Evidence op proceedings op board op directors.—It was erroneous to instruct the jury that if the articles of organization of the company required a written record to be kept of all proceedings of the board of directors, then, unless such a record is kept, oral evidence of the facts required to be kept could not be considered.
    Appeal from the Circuit Court of Perry county; the Hon. Amos Watts, Judge, presiding.
    Hr. S. G. Pabks, for appellant.
    Messrs. T. T. & D. W. Fountain, for appellee;
    that where the evidence is conflicting, the court will not disturb the verdict, cited Evans v. Fisher, 5 Gilm. 569; Race v. Oldridge, 11 Chicago Legal News, 169.
    The appellant is a corpoi ation, and can only exercise its functions in the manner authorized by its charter. Metropolitan Bank v. Godfrey, 23 Ill. 604.
   Allen, J.

This suit was brought by plaintiff against defendant in the Perry Circuit Court to the April term, A. D. 1878. Declaration charges that defendant was “ pit boss ” or foreman in plaintiff’s mine; that he commenced his duties as such on the first day of February, 1877, and that he was discharged from the mine by plaintiff on the 6th of October, 1877, that he had supervision and control of the mines and the stock in the mine, and that by defendant’s negligence, carelessness and want of skill, the plaintiff suffered damages to the amount of $2,500. Defendant filed a plea of set-off. Upon a trial in the Circuit Court the juiy found for the defendant, and assessed his damages at $330. A motion for new trial was entered and overruled by the court. Defendant remitted $130 and the court rendered judgment against the plaintiff for $200 and costs. There were many witnesses examined for plaintiff on the trial, and some contradiction as to the want of skill displayed in the management of the mine by defendant, and some wild guessing at the damages the plaintiff sustained by defendant’s negligence and disregard of duty while in control of the mine. From the drift of the testimony we are satisfied that plaintiff suffered some loss by reason of the want of skill or inattention to duty on the part of defendant; but how the jury arrived at their verdict or upon what testimony they found for the defendant the sum of $330, we are at a loss to determine. The defendant testifies that a written notice to quit was served on him by the president 'of the company on the 9th of October, 1877; that he notified Henry Horn, superintendent, that he was willing to work, and that he should hold the company responsible for his wages; that he had not received any pay for services after September, 1877, but that he was satisfied with what he had received up to that time; so that for any actual services performed he was not entitled to more than one month’s wages, at any rate. Whether he was entitled to the remainder of the year after he was discharged, must depend upon the question as to whether plaintiff had sufficient cause to justify his discharge.

We regard the evidence of his incapacity or negligence so overwhelming as to remove doubt on this question. Sixteen witnesses, miners, testify to his incapacity or negligence, and several of them show much feeling in the matter. We are not at liberty to disregard their evidence on the question of his incompetency or negligence. Against these witnesses we have the defendant, who contradicts the plaintiff’s evidence on this point, and three or four others who speak from their observation of the management in and about the mine. We believe the jury could not disregard the plaintiff’s evidence on the question of care and skill. If he lacked either he was unfit for the duties he had assumed, and plaintiff had a right to discharge him. If the plaintiff had a right to discharge him, then he was not entitled to compensation as pit boss after his discharge. The finding of the jury must have been based upon the theory that he was entitled to compensation till the end of the term. They would not have been warranted in allowing him more pay than he had received up till September, for he says he was satisfied with what he had received up to that date; although under his contract he may have been entitled to more pay than he actually received. If what he did receive he received in full satisfaction of his services, that foreclosed all inquiry as to whether he was entitled to more or not. It matters not in our judgment upon what theory the jury found for defendant the sum of $330; the finding could not be supported by the evidence, and the verdict should have been set aside and a new trial awarded. Ror does the remittitur entered by the defendant of $130, cure the error in the finding of the jury.

As we view the evidence, the defendant, if entitled to anything, could recover only for the month of September and nine days of October; so that $80.00 would be all that he would be entitled to on unpaid wages, if entitled to anything. Appellant excepted to the 1st, 3d, 4th, 7th, 8th and 9th instructions given by the court for defendant. We think the 3d and 4th instructions are wrong; the 3d instructs the jury that the only evidence that the jury can consider as to the duty of pit-boss, is the by-laws of the company relating to such duties. The 4th instructs the jury that “if they believe that the articles of organization of plaintiff’s company require a written record to be kept of all proceedings of the board of directors and stockholders of the company, then, unless the board keep such record, oral evidence of the facts required to be kept could not be considered. These instructions were both calculated to mislead the jury; neither of them laydown the law correctly, and both should have been refused. To the remaining instructions we see no valid objection. For the reasons above given, we reverse the judgment of the Circuit Court, and remand the cause.

Reversed and remanded.


text:
    City of Cairo v. Isaac B. Allen.
    Execution cannot issue against municipal cobpobation,—The statute prescribes the manner in which a judgment against a municipal corporation may be enforced, and it is error to award an execution on such a judgment.
    Appeal from the Circuit Court of Alexander county; the Hon. David J. Bakeb, Judge, presiding.
    Messrs. Gbeen & Gilbebt, for appellant;
    that a municipal corporation may defend against bonds issued without authority, in -whosesoever hands they may be, cited Burr v. Carbondale, 76 Ill. 455; Town of East Oakland v. Skinner, 94 U. S. 256; Ryan v. Lynch, 68 Ill. 160; Marsh v. Fulton Co. 10 Wall. 676; Town of Coloma v. Eaves, 92 U. S. 490.
    As to the manner in which ordinances should be passed: Laws 1869, 833, § 1; Laws 1867, 370, §§ 9,16.
    It being shown by the journal required by law to be kept, that the city council never did pass the supposed ordinance, evidence alitmcle was inadmissible to contradict the journal: City of Lowell v. Wheelock, 11 Cush. 391; Covington v. Ludlow, 1 Met. 295; Boston Turnpike Co. v. Pomfret, 20 Conn. 500; Dufre v. Hoag, 1 Aiken, 286; School Dist. v. Atherton, 12 Met. 105; County Com’rs v. Chitwood, 8 Ind. 504; Jordan v. School Dist. 38 Me. 164; 1 Dillon on Mun. Cor. § 234; Bank, etc. v. Dandridge, 12 Wheat. 64.
    If the city council, possessed of a certain power, has never delegated that power to any 'individual, the exercise of that power by an unauthorized person is ultra vires; it is a question of want of power: 1 Dillon on Mun. Cor. § 245; Miller v. Goodwin, 70 Ill. 659; Spangler v. Jacoby, 14 Ill. 297; Schuyler Co. v. The People, 25 Ill. 158; People v. Starne, 35 Ill. 121.
    It was error to award execut:on against the city: Rev. Stat. 219, §90; Chicago v. Hasley, 25 Ill. 598.

      Messrs. Linegar & Lansden, for appellee;
    that the journal failing to show the proceedings of the city council, they may he proved otherwise, cited Mariner v. Saunders, 5 Gilm. 113; White v. Herrman, 62 Ill. 73; Dillon on Mun. Cor. §§ 237, 238; Bank, etc. v. Dandridge, 12 Wheat. 64; Bigelow v. Perth Amboy, 1 Dutch, 297; San Antonio v. Lewis, 9 Tex. 69; Ross v. Madison, 1 Ind. 281; Langsdale v. Bouton, 12 Ind. 467; Indianapolis v. Imberry, 17 Ind. 175.
   Tanner, P. J.

The appellee sued appellant in the Circuit Court of Alexander county, upon certain interest coupons, and recovered a judgment for $600, with costs of suit. The appellant brings the case to this court and assigns various errors in ■ the rulings of the court.

We have carefully examined and considered the record in reference to these alleged errors, and find but one well made. The court, upon rendering judgment, awarded an execution against the appellant. This was erroneous. Section 90, Chapter 24, B. S. 1874, provides the manner by which judgments obtained against municipal corporations must be paid, and such provision does not by any rule of construction, authorize the issuance of an execution against such corporations. It is manifest, at the first blush, that to hold that a judgment against a municipal corporation could be collected by execution, would strike at the very foundation of the corporation, and in many instances would, to say the least, seriously embarrass the corporations in the exercise of the powers and privileges conferred upon them by the Legislature, for the security and welfare of this citizens, and the aiding in the execution of the general police powers of the State.

In the case of the City of Chicago v. Halsey, 25 Ill. 598, the court held that an execution could not issue against the city, and supported the decision by a line of argument and reason scarcely equalled by any in our own or other courts.

The judgment of the Circuit Court, for this error, will be reversed and the cause remanded, to enable the appellee to move the court for the rendition of a proper judgment in the cause.

Beversed and remanded.


author: Wall, J.

text:
    Andrew Donnan v. William Bang.
    1. Denial op joint liability.—The statute requiring a denial of joint liability to be made under oath, in proceedinns before justices of the peace, is not intended to preclude the defendants from giving evidence on the trial, showing that they are not liable, jointly, but only to relieve the plaintiff from proving a joint liability in the first instance.
    2. Instbtjction as to pabtnekship.—It was error to give an instruction that if the jury believe that the defendants were not in fact partners, still, if they acted as such, or held themselves out as partners, they should find for the plaintiff. The defendants were not sued as partners, neither was there any evidence to show that they acted as such, and the instruction was calculated to mislead the jury.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snydeb, Judge, presiding.
    Mr. C. F. Hoetling and Mr. B. A. IIalbekt, for appellant;
    that the note given by one of the defendants in settlement of the claim, should have been surrendered before bringing suit against the maker and another jointly for the same cause of aciion, cited Stevens v. Bradley, 22 Ill. 244; Rayburn v. Day, 27 Ill. 47.
    Statements in regard to a partnership made by one defendant in the absence of the other, should not have been admitted: Degan v. Singer, 41 Ill. 28; Hahn v. St. Clair S. & Ins. Co. 50 Ill. 456; Bishop v. Georgeson, 60 Ill. 434.
    If a partnership is to be implied against defendants as directors of the railroad company, it should be against all the directors: Hickey v. Stone, 60 Ill. 458.
    Instructions must be based on evidence: Nicholls v. Bradsby, 78 Ill. 44; Ryan v. Donnelly, 71 Ill. 100; Reinback v. Crabtree, 77 Ill. 182; Drohn v. Brewer, 77 Ill. 280; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Strauss v. Minzesheimer, 78 Ill. 492; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177; I. B. & W. R. R. Co. v. Birney, 71 Ill. 391; Alexander v. Mt. Sterling, 71 Ill. 366; I. &. St. L. R. R. Co. v. Miller, 71 Ill. 463; P. F. W. & C. R. R. Co. v. Powers, 74 Ill. 341.
    Where improper instructions may have contributed to the result, a new trial should be given: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; T. W. & W. R. R. Co. v. Corn, 71 Ill. 493; C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. 91.
    Messrs. Hay & Knispel, for appellee;
    that it was unnecessary to prove a joint liability, it not having been put in issue by affidavit, cited Rev. Stat. Chap. 79, § 58; Warren v. Chambers, 12 Ill. 124; McKinney v. Peck, 28 Ill. 174; Stevenson v. Farnsworth, 2 Gilm. 715; Dwight v. Newell, 15 Ill. 333.
    Defendants held themselves out as partners, and became liable to third persons as such: Poole v. Fischer, 62 Ill. 181; Smith v. Knight, 71 Ill. 148; Fischer v. Bowles, 20 Ill. 396; Niehoff v. Dudley, 40 Ill. 406.
    A verdict will not be disturbed unless it is manifestly against the weight of evidence: Palmer v. Wier, 52 Ill. 341; Davis v. Hoeppner, 44 Ill. 306.
    Even if there be a slight preponderance against the verdict it will not be disturbed: Bloomer v. Denman, 12 Ill. 240; Gooddell v. Woodruff, 20 Ill. 191; Chase v. Debolt, 2 Gilm. 371.
    Taking a promissory note is a conditional payment only: Story on Promissory Hotes, §104; Heartt v. Rhodes, 66 Ill. 351.
    A recovery can be had on the original consideration, without surrender of the note, if the note cannot be enforced by a third party: Miller v. Lumsden, 16 Ill. 161; Leake v. Brown, 43 Ill. 372.
    It is not error to admit evidence which does not prejudice the opposite party: Thompson v. McLaughlin, 66 Ill. 407; C. & A. R. R. Co. v. Clampit, 63 Ill. 95.
    The fact that improper evidence is admitted without objection, will not justify its rebuttal by evidence of the same character: Wickenkamp v. Wickenkamp, 77 Ill. 92.
   Wall, J.

This suit was brought by Bang against Donnan and Henderson, before a justice of the peace. Henderson was not served. Judgment having been rendered against Donnan, he appealed to the Circuit Court. The case was tried by a jury in the Circuit Court, and again resulted against Donnan. A motion for new trial having been overruled, the case is brought to this court by appeal.

The plaintiff’s demand was for board furnished to a number of men who were engaged in surveying a projected railroad. These men were brought to the plaintiff by Henderson, who said the board should be charged to Donnan and himself. The bill amounted to $136.70, upon which Henderson paid $34.35, and for the balance, $102.35, gave the plaintiff his individual note, which plaintiff assigned to the People’s Bank. This note not being paid, suit-was brought upon it by the bank against Henderson, and afterwards against Bang as endorser. Bang paid the latter judgment. There is no evidence in the record to show that Donnan authorized Henderson, or any one else, to incur this liability on his account; nor is there any evidence tending to show that Donnan and Henderson were partners in any wise, except that they were joint owners of some real estate.

The evidence for the defense shows that they were not partners, and that Henderson had no authority to pledge the credit of Donnan. These two men and a number of others were corporators of the railroad company, of which Donnan was vice president. The bill was clearly incurred on account of the corporation. Henderson and Donnan were each actively engaged in pushing the survey, obtaining right of way, etc., and' so far as they chose, could of course make themselves liable for supplies .or services furnished to the company, but neither had power to involve the other without his consent. It is urged, however, that it was not necessary to prove the joint liability of Donnan and Henderson, they having been sued as joint defendants, and the joint liability not having been put in issue by affidavit. This proposition involves the proper construction of Sec. 58, Chap. 79, Rev. Stat. entitled “justices and constables,” which reads as follows: “In actions upon contracts, expressed or implied, against two or more defendants as joint defendants or partners, or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants, or their Christian or surnames, shall not in the first instance be required, to entitle the plaintiff or plaintiffs to judgment, unless the defendant or defendants, or any of them, shall deny the partnership or joint liability, or the execution of the instrument sued upon, by affivavit.” On the one side it is contended that the want of such an affidavit precludes the defendants from questioning joint liability by proof. On the other, it is contended that the failure to file such affidavit only dispenses with the necessity of proof on the part of plaintiff in the first place, and that -thereby a prima facie case only is made out, leaving defendants at liberty to offer evidence to overcome this presumptive or prima facie case. At common law, the plaintiff was held bound to prove every material averment essential to recovery, including, of course, the proof of the execution of a written .instrument sued on, and the joint liability of all defendants in the action.

If the plaintiff failed in proving a joint contract he might be nonsuited on the trial, 1 Chitty PL, 44; and the consequences of a mistake in this respect were serious and important. By the 12th section of the “ act concerning practice in courts of law,” approved Jan. 29, 1827, it was provided that no person should be permitted to deny on trial the execution of any instrument in writing sued on, etc., unless he should verify his plea by affidavit. This statute did not change the mode of pleading, but the rule of evidence only. The pleas of non est factum and non assumpsit were still proper, but unless verified by affidavit, the plaintiff was not bound to prove, and defendant was not permitted to deny, the execution of the instrument as before the passage of the act. The act, however, did not apply to the question of partnership or joint liability, and the plaintiff was still bound to make good this allegation in actions against partners or other - joint defendants. To obviate this difficulty in part, it was provided in the second section of the “ act regulating evidence in certain cases,” approved February 17, 1841, “ In actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants as partners, or joint obligors, or payors,-proof of the joint liability or partnership of the defendants, or their Christian or surnames shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, as is required by the “ act concerning practice in courts of law.” In the case of Stevenson v. Farnsworth, 2 Gilm. 715,It was held that this statute was intended to change the rule of evidence respecting the proof of partnership and put it upon the same footing with proof of the execution of written instruments, and that this act must receive. the same construction as the act to which it referred, and if the partnership was not denied under oath, it was conclusively admitted. In the revision of 1845 the 12th section of the act of 1827, with reference to the proof of the execution of written instruments, appears as a part of sec-, tion 14 of the Practice Act, chapter 83, E. S. 1845, page 415, while the 2nd section of the act of 1841 appears as section 8 of chapter 40, in regard to evidence and depositions, E. S. 1845, page 233, with this change, that the words “ as required by law,” aire substituted for the words “ as required by the act concerning practice in courts of- law.” In the case of Warren v. Chambers, 12 Ill. 124, the Supreme Court said: “The change of these words can not in the least alter the construction to be put upon the act.” It is clear, therefore, that the phrase the “filing of pleas denying the execution of such writing,” has reference to the plea required to be filed by section 14, chapter 83, E. S. to put in issue the genuineness of the instrument upon which suit is brought; and it was held that when persons were sued as partners not upon a written instrument, the joint liability should be put in issue by plea in abatement sworn to, and this not having been done, the partnership was conclusively admitted. In these cases the words “ in the first instance,” which-were then in the section, were not deemed to limit the force of the section, but it was read as "though these words were not in it, and the reference to the act of 1827, in the one case, and the construed reference to Sec. 14, Oh. 83, E. S. 1845, in the other case, was held to give the section the same effect as the section referred to.

In the case of Stevenson v. Farnsworth, the action was upon a promissory note alleged to have been executed by defendants as partners, by the style of C. Stevenson & Co. In the case of Warren v. Chambers, the declaration counted against the defendants as partners for money paid and advanced, and the real question before the court was, whether the partnership or joint liability must be raised by plea in abatement or by the general issue. A majority of the court held, that where defendants were jointly sued as the makers of a written instrument, a plea sworn to, denying the execution of the writing, would also put in issue the joint liability of the defendants; but where, as in the case then under consideration, the defendants were charged upon a contract or liability not in writing, a plea in abatement was necessary to raise the question of partnership or joint liability; and it was assumed though not discussed, and the point was not made, that without such a plea the joint liability was not to be controverted, and that all the evidence on the subject was improperly admitted, as no such question was made by the pleadings. It is remarkable that the force to be given to the words “ in the first instance ” was not considered, and the question does not appear to have attracted, the attention of the court. In the case of Lockridge v. Nuckolls, 25 Ill. 178, the Supreme Court construed the 59th section of the Practice Act, which provided that “ in actions upon bonds, notes, and all other writings made assignable by law, in the name of the assignee, the plaintiff shall not be held bound to prove the assignment or signature of any assignor unless the fact of assignment be put in issue by plea verified by affidavit of the defendant or some credible person, stating that he verily believes the facts stated to be true.”

This section was compared with the 14th section of the Practice Act above referred to, which provided that no person shall be permitted to deny on trial, the execution of any instrument, whether sealed or not, upon which any action may have been brought, etc., unless the person so denying the same should, if defendant verify his plea by affidavit, etc.,” being the same provision originally enacted in the statute of 1827. The question was whether the same construction should be placed upon the 59th section, that had been uniformly placed upon section 14, and it was said, “ a fair and reasonable construction of the two provisions justifies the distinction that under the one the maker cannot deny the execution of this instrument, either before or after it is introduced, while under the other he cannot deny it before, but may after its introduction in evidence.”

It will be noticed that the section under consideration in 2 Gilm. and 12 Ill. was by its terms limited to cases where defendants were charged as partners, joint obligors or joint payors, and in Petrie v. Newell, 13 Ill. 647, it was held that when persons are sued as partners they should be so described in the declaration, and that to count against defendants as joint obligors, the declaration should be upon an instrument under seal, and if they are declared against as joint payors the count should be upon a simple instrument in which there is an express promise to pay—the word “ implied ” being held to refer to suits against partners declared as such. In the Revision of 1874 appears the section first above quoted, viz. Sec. 58, Ch. 79, having reference to proceedings before justices of the peace, and a similar section was placed in the Practice Act, Sec. 36, regulating proceedings in courts of record. It is noticeable that this Sec. 58 is unlike Sec. 8. Ch. 40, R. S. 1875; in two particulars. First, the words “joint defendants or ” are interpolated before the word partners—thus enlarging the scope of cases to which the section might apply, so as to include a joint liability not arising out of a partnership or the execution of a ■written instrument, sealed or unsealed—and by the insertion of the words “ whether so alleged or not,” which is in the same direction. Secondly, the words “as required by law” are omitted. We think these changes are important, and that it is important that the section as thus modified is applied to proceedings before justices of the peace. Were we now called on to construe this section 58 without reference to the construction that has been given the 2nd section of the act of 1841, and the 8th section of the act of 1845, we would say without hesitation that in view of the rights of parties at common law, and the ordinary meaning of the language employed, the effect is only to relieve the plaintiff from the necessity of proving joint liability when it is not denied by affidavit, in order to make out a prkna facie case upon which he might recover, but that the defendant is still permitted to rebut the prkna facie case thus made.

It is a fundamental rule, that in construing statutes, effect-must be given to every word employed, if it can be done consistently; and no word should be held meaningless if such a result can be avoided. Where there are repugnant provisions, that construction must be adopted which is most in accordance with the general scope and intent of the whole act. But where there is no repugnancy, no part of the act should be ignored, but effect should be given to it all.

In the view we are inclined to take, full force is given to the words in the first instance.” In the other view which is urged on, these words are superfluous, and the section would have precisely the same meaning and effect without them. If this section 58 were in the same form -as the sections considered in the cases of Warren v. Chambers, and Stevenson v. Farnsworth, we should perhaps feel bound to give it the construction claimed by the appellee; but considering the change in the language employed, and the enlargement of the provision to include a very important class of cases not embraced by the old statute, and the construction adopted in the case of Lockridge v. Nucholls, supra, we feel at liberty to put upon it the construction above indicated.

The section considered in the cases above cited had reference to practice in courts of record, and did not apply to suits before justices of the peace, where there are no written pleadings, and where it has always been the policy of legislation to simplify the proceedings as far as possible. No construction should be adopted that would tend to complicate or confuse or mislead in the trial of causes before these tribunals. Where persons are sued in a court of record as partners, or as joint makers of sealed or simple instruments of writing, it might involve no special hardship to compel the defendants to deny the partnership, or joint execution of the instrument sued on, under oath, as these are facts peculiarly within their own knowledge; but it would be a very harsh rule to compel defendants sued in a court where written pleadings are not required, to deny under oath a joint liability, which the plaintiff is not bound to allege, in contracts express or implied, and in default of such denial be held to a conclusive admission of such joint liability. In many cases that may be the essential matter in dispute, and might be a purely legal question. The legislature might enact such a rule and the courts would enforce it; but we think we ought not to ignore the ordinary import of any of the language employed for the purpose of placing such a construction upon this section.

In the trial of this case, the parties on both sides seemed to take the view that the joint liability was in issue. Evidence was offered upon the point by plaintiff, as well as by defendant, and an effort made to establish the proposition, and to controvert it, the result being as before stated; and it would seem too late now to insist, for the first time, that such evidence was inadmissible, when, if the objection had been made below, it could have been so easily obviated. ISTo objection was there made by the plaintiff as to the relevancy of this proof on this ground. The plaintiff might waive it, and it may well be presumed, from the course taken by him, that he did waive it. The court gave the following instruction at the instance of the plaintiff:

“ The court instructs the jury that even if they believe, from the evidence, that Henderson and Donnan were not in fact partners, still if they acted as partners, or held themselves out to the world or to the plaintiff as partners, they would be liable as partners, and they would then find for the plaintiff such amount as may be so proved.”

The defendants were not sued as partners, nor was there any evidence to show that they acted as partners. They were shown to have been jointly interested in some land, but this did not constitute them partners in a legal sense. The jury are advised by this instruction, that if the defendants acted as partners they would be liable as partners, and the jury should find for the plaintiff, assuming that the only point necessary to a recovery for the jury to investigate, was whether they had acted as partners, or so held themselves out to the world; and if the jury should so find, then the plaintiff’s demand should he allowed.

In view of the testimony in the case, we think this instruction was calculated to, and probably did, mislead the jury. The judgment is reversed and cause remanded.

Reversed and remanded.


text:
    Andrew Donnan v. John Gross.
    Joint liability—Partnership.—The fact, if true, that the defendants were jointly engaged in an enterprise from which some kind of benefits or profits were expected, and it was intended that each should receive some part of the benefits or profits of such enterprise, does not constitute them partners; and an instruction that if the jury found such to be the fact, the plaintiff could recover, is erroneous, especially without proof that plaintiff’s claim was rendered for the firm.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Wilderman & Hammill, for appellant;
    that statements of one defendant as to a partnership cannot bind the other, where the question of partnership is in issue, cited 1 G-reenleaf’s Ev. § 177; 2 Greenleaf’s Ev. § 484; Degan et al. v. Singer, 41 Ill. 28; Hahn v. St. Clair S. & Ins. Co. 50 Ill. 456.
    If a person suffers his name to be used in business or holds himself out as partner, he will be so considered: 3 Kent’s Com. 52; Fisher v. Bowles, 20 Ill. 396.
    If the company was not properly organized then all the incorporators are liable as partners, and the action should be against all or none: Pettis et al. v. Atkins, 60 Ill. 455.
    If an instruction assumes to be a complete statement of a case entitling a party to recover, it must state fully all that need be proved: St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 261.
    The instruction given for plaintiff warranted the jury in disregarding all other instructions: Bennett v. Pulliam, App. Ct. Fourth Dist. Feb. Term, 1878. [ante 185.]
    Objections to evidence must be made in the court below: Lowe v. Bliss, 24 Ill. 169; Johnson v. Adleman, 35 Ill. 265; Phy v. Clark, 35 Ill. 377; Jackson v. Warren, 32 Ill. 331; Gordon v. Goodell, 34 Ill. 429; Wickenkamp v. Wickenkamp, 77 Ill. 92; Craig v. McKinny, 72 Ill. 305.
    Pleadings before a j ustice are ore terms: Comstock v. Ward, 22 Ill. 248; Williams v. Corbett, 28 Ill. 262.
    Trying a case without a formal issue being made up, is a waiver of that question: Durham v. Mulkey, 59 Ill. 91; Strohm v. Hayes, 70 Ill. 41; Bunker v. Green, 48 Ill. 243; Beesley v. Hamilton, 50 Ill. 88; Craig v. McKinney, 72 Ill. 305; King v. Haines, 23 Ill. 340.
    A plea denying partnership may be made with the general issue: Stillson v. Hill, 18 Ill. 262.
    And without affidavit: Lockridge v. Nuckolls, 25 Ill. 178; Rev. Stat. 1874, Chap. 73, § 36.
    The evidence fails to show a partnership: Fawcett v. Osborne, 32 Ill. 411; Parsons on Partnership, 66; Holmes v. Old Colony R. R. 15 Gray, 58; Barckle v. Erkhard, 1 Denio, 337; Vanderburgh v. Hull, 20 Wend. 70; Loomis v. Marshall, 12 Conn. 69; Waugh v. Carver, 1 Smith’s Lead. Cas. 968.
    Mr. F. A. MoCoitaughv, for appellee;
    that a denial of joint liability could not be made for the first time in the Circuit Court on appeal from a justice, cited Bates et al. v. Bulkley, 2 Gilm. 389.
    Failure to deny joint liability by affidavit, operates as an admission: Stevenson v. Farnsworth, 2 Gilm. 715; Warren v. Chambers, 12 Ill. 124; Davis v. Scarritt, 17 Ill. 202.
    A denial by one defendant makes proof necessary as to him only; Davis v. Scarritt, 17 Ill. 202; Degan v. Singer, 41 Ill. 28.
   Wall, J.

In this case Henderson and Donnan were sued jointly before a justice of the peace. Henderson was not served; judgment was had against Donnan, who appealed to the Circuit Court, where he was again unsuccessful, and he brings the case to this court. The demand was for a livery bill, amounting to $130.50, incurred by Henderson, as is claimed, on the joint account of himself and Donnan. The evidence in the record here presented fails to show any express authority from Donnan to incur liability on his account, nor can we say that there is anything in the whole case as it appears here, from which to imply a liability, based upon his relations with Henderson or with the corporation of which they were both members. It is shown that these two men were joint owners of some real estate, and it is in evidence that one item in the account was for buggy hire by Henderson, for the purpose of looking after the property.

It is also shown that Donnan occasionally hired horses and' buggies of the plaintiff, but always paid for them. It is urged here, as in'the case of Donnan v. Bang, decided at this term, that joint liability not having been denied under oath, the question could not be raised on the trial. This inyolves a construction of Sec. 58, Chap. 79, of the Revised Statutes. What was said in Donnan v. Bang upon this point applies here, and need not be repeated. The court, at the instance of the plaintiff, gave the following instruction: “The court instructs the jury that if they believe, from the evidence, that the said defendants, Henderson and Donnan, were jointly engaged in an enterprise from which some kind of benefits or profits were expected, and it was intended that each should receive some part of the benefits or profits of the said enterprise, then they are partners, and the jury will find for the plaintiff the amount proved to be due.” It will probably not be urged that a partnership in its legal sense can be predicated upon the facts here stated, nor that the instruction is a critical or exact statement of a legal proposition; but unless it probably misled the jury, the case should not be reversed because it was given. It advises the jury that if they believe that Henderson and Don-nan were jointly engaged in an enterprise from which each expected profit, they were partners, and the plaintiff should recover the amount proved to be due. The facts stated would not constitute a partnership; but if a partnership existed, the plaintiff could not have recovered unless his claim was for items rendered to the firm. This latter proposition was a question for the jury, supposing a partnership existed; but the instruction assumed it to be true, leaving for the jury only to find whether the two men were jointly engaged in an enterprise from which some kind of benefits, or profits were expected by each. In view of the evidence, we think the jury were probably misled by the instruction. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles H. Sagar v. F. H. Eckert.
    1. Fixtures—Building eob trade—When may be removed.—A temporary building, erected for the purposes of trade, and with the intention of removing the same, does not become a fixture. If the building was erected with an understanding had with the owner o'f the land, that it might be removed, it can be taken away after his death, if done within a reasonable time.
    2. Damages for removing.—The appellee having only a life estate in the premises, can, in case of a removal of the building, only recover damages to the possession—such damages as were sustained to her life estate—and not for the full value of the building. .
    3. Evidence—Death of party—Husband and wife.—The widow of the testator was not a competent witness to testify in reference to statements made by her deceased husband during his life, in relation to his partnership business.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Wilderman & Hamill, for appellant;
    that the fact of the building being set on top of the ground, sufficiently shows it was intended as a temporary structure-—a mere chattel—cited Kelly v. Austin, 46 Ill. 156; Ham v. Kendall, Ill. Mass. 297; Taft v. Stetson, 117 Mass. 471; O’Donnell v. Hitchcock, 118 Mass. 401; Adams v. Lee, 31 Mich. 440.
    Declarations made by the testator against his interest in reference to the property, were admissible: 1 Greenleaf’s Ev. § 189; Vennum v. Thompson, 38 Ill. 143; Randegger v. Ehrhardt, 51 Ill. 101; Miner v. Phillips, 42 Ill. 123; Whitaker v. Wheeler, 44 Ill. 440.
    Such declarations may be proved by his widow: Deniston v. Hoagland, 67 Ill. 265; Galbraith v. McLain, 84 Ill. 379.
    The character of personal property, and right of removal, may be preserved by an agreement with the owner of the land, previous to annexation: Ewell on Fixtures, 66; Taft v. Stetson, 117 Mass. 471; Dooley v. Crist, 25 Ill. 551; Dame v. Dame, 38 N. H. 429.
    It is not necessary that the widow of the land owner should have had notice of such an agreement: Harris v. Heuser, 42 Ill. 425; Rhoads v. Rhoads, 43 Ill. 239; Russell v. Richards, 10 Me. 429; Dubois v. Kelly, 10 Barb. 508; Mott v. Palmer, 1 Comst. 564.
    Possession and occupancy of the building before and after the testator’s death, was sufficient notióe of appellant’s rights: Lumbard v. Abbey, 73 Ill. 177; Amic v. Young, 69 Ill. 542.
    If the building was erected by the firm for their business, although on the soil of one of the partners, it is personal property: Kelly v. Austin, 46 Ill. 156; Adams v. Lee, 31 Mich. 440; McDavid v. Wood, 5 Heisk, 95; Saunders v. Stallings, 5 Heisk. 65; Kerr v. Kingsbury, 17 Am. Law Reg. 638; Holbrook v. Chamberlain, 116 Mass. 155.
    Mr. James M. Dill, for appellee;
    that if the building was a trade fixture it should be removed at once, on the death of the owner of the soil, cited 1 Washburn on Real Property, 12.
    j_aving rented the property from his sister, appellant is estopped from claiming it as his own: 1 Washburn on Real Property, 28; Loughran v. Ross, 45 N. Y. 792.
    Appellee has a right of action to the extent of her life interest, for the removal of the building: Willard on Real Estate, 79; Fay v. Brewer, 3 Pick. 203.

      Justices of the peace have jurisdiction in actions for damages for injury to real property: Rev. Stat. Chap. 79, § 13.
   Tanner, P. J.

This was an action brought by the appellee, before a justice of the peace, to recover for damages done to real estate. The cause was taken to the Circuit Court of St. Clair county, and there submitted to a jury, and a verdict returned for the appellee. An application for a new trial was made and denied, and the cause is brought to this court by appeal. The facts disclosed by the record are that Charles Sagar, the father to the parties to the suit, died testate. By his last will and testament he devised to the appellee a life interest in and to certain real estate, with a remainder to her children. At the time of the testator’s death there was upon the real estate so devised a temporary wooden building, erected by the appellant at his own expense, amounting to one hundred and fifty dollars, for the purpose of storing agricultural implements, in the sale of which he and his father had been engaged as partners. The father received one-half of the profits, but the business was conducted by the appellant and in his own name. The appellant was in possession of the building at the testator’s death, and so continued for the period of seven months or more, at the expiration of which he demolished it, and removed the materia] of which it had been constructed. The main contest between the parties was whether the building was a fixture or personal property. We think there is no great difficulty in solving this inquiry? to the advantage of appellant. The only testimony given, and tending to constitute the building a fixture, is that of the husband of the appellee. He states: It was boarded up the sides, with boards on ends. It was built on sills, the siding nailed to the sills at the bottom; covered with a tin roof, joined to the building east of it. There was no foundation under the building; there'was a sill set in the ground, I would think about six inches. I saw where they were taken out. They dug down into the ground, and they were put into the ground.” The appellant says: “I put it up with an intention of taking it down; that was the understanding when I put it up—that I might remove it at any time. The building, was set on the top of the ground; it was built first by leveling the ground, and throwing down grub plank the thirty-foot way, every two feet, for a foundation. I then crossed it with grub plank, and made the floor; grub plank is lumber that is used in rafting, and is. all bored through with holes; then we took four-by-four for the corner posts, and just sawed them off square, and set them down on the floor, and put a few nails to hold them in their places. We then sided it up with rough siding, up and down, and threw joists across the top, and they served as rafters also. I put it up with the understanding that I might remove it.” This is all the testimony in reference to the character of the building, and the purposes for which it Avas erected

The case of Kelly v. Austin, 46 Ill. 158, is singularly in point, the facts being substantially the same as in the case now under consideration. The Court, in disposing of the question, say: “ It was placed on the lot several months after the mortgage was given by the mortgagor, and his partner in the house-joiner business. It was placed on the lot by the firm for the use of their business. It seems to have been made of rough materials, slightly built, placed on blocks resting on boards, laid on the surface of the ground. It was not placed on a stone or brick foundation, and in no manner let into the ground. From the evidence it would seem to be manifest that it was not intended to be permanent in its character, or to have been placed there as an improvement of the lot, but seemingly to answer the convenience of the partnership. It Avas not con-' stracted with the funds of the mortgagor, but with labor, material and means of the firm. If it did not become a part of the real estate, it was a chattel owned by the partnership. Ilad the building been of a permanent character, or had it been placed there with the intention of permanently remaining, then it could not be severed without the consent of the mortgagee. Or had it been placed on the lot by the mortgagor with his OAvn means, it might have presented a different question. But from the character of its structure and the purpose for Avhich it Avas employed, it would seem that it was not designed for any other than a temporary use, and to be removed from the lot when the object of its erection had been accomplished.”

In the foregoing case there seems to have been no proof of any agreement having been made by the firm, either with the mortgagor or mortgagee, for the removal of the building at the time of its erection. But the mortgagor formed a co-partnership with another to engage in the business or trade of carpentering, and the firm erected the shop. The mortgage was foreclosed under a power of sale, and the purchaser oí the property filed a bill to enjoin the mortgagor from removing the shop. The doctrine enunciated by the decision in the Kelly case, S'iipra, is that where there is no proof of a special agreement for the removal of the building between the owner of the ground and the person by whom it was erected, the question as to this right, based upon the intention of the parties, will be determined by the character of the building and the purposes for which it was erected. And this we believe to be the settled rule. 2 Washburn on Beal Property, and authorities cited in note thereto.

But ■ it will be observed that the case at bar is not entirely confined to the proof in reference to the character of the structure, to reach the intention of appellant and his father in respect to the removal of the shed.

The appellant states in his testimony, without objection, that he “ put the building up with the understanding that he might remove it.” We do not hesitate to hold that the evidence, when considered in reference to the doctrine of fixtures, as found in the elementary works upon this branch of the law, and in the cases adjudicated in the courts of our own States, shows clearly that the building was of a temporary character, and erected alone for the purposes of trade, and was therefore personal arid not real property. But the counsel for the appellee urges that if the building was personal property, the appellant was only a tenant at will, and by his not having removed the property at once upon the death of his father, his right to do so had been lost long before the removal. This view cannot be applied to this case. If the appellant erected the structure with an understanding had with his father that he might remove it, we think he could do so after the father’s death, provided he did so within a reasonable time thereafter. “ If an article of the character of a fixture be annexed to the freehold of another by his consent, the owner may remove it any time.” Washburn on Beal Property, 3d Ed. top p. 20. But if the record contained no evidence of an understanding for its removal at the time of erection, and the right to do so was determined solely by the purposes and character of its structure, we still think the doctrine cited in Washburn on Beal Property would not affect the right claimed here by appellee. An examination of all the authorities cited in support of the text shows that they were founded upon leases for a definite term of years, where the tenant suffered his term to expire without the removal of fixtures.

In this case the appellant was doing business in the building as a partner of the father at the time of his death. The building was never surrendered to nor demanded by the devisee; but it appears that at various times communications passed between the parties in reference to the renting of the building or the “renting of the ground” upon which it stood; as to which we cannot fully determine, from the contradictory character of the evidence. The appellee, however, admits that she told appellant to occupy it, and whatever was reasonable would be satisfactory. We are disposed to hold that the appellant had a reasonable time in which to remove the building after the father’s death, and that the delay was occasioned by the various efforts for a lease of the ground or building, and therefore did not constitute a waiver or forfeiture of the right to remove it. It is also clear that the judgment of the court cannot stand upon the theory that the building was a fixture. The appellee had a life estate, and she could only recover damage to the possession. The evidence shows the monthly rental value of the building to have been from three to four dollars, and it was held by appellant seven and two-third months before its removal. We, upon the evidence, can reconcile the judgment with no other theory but that it was for the full value of the building.

The extent of the recovery of the appellee was the damages sustained to her life estate, and not the value of the fixtures. This could not be approximated by any other just rule than by talcing into consideration the monthly or annual rental value, less taxes and costs of repairs, and multiplying it by the probable duration of the life of the tenant. Greer v. Mayor, &c. of N. Y. 1 Abb. Pr. 206. This was not done. We think the court did not err in refusing to allow the widow of the testatoi to testify in reference to the statements made by him in reference to the right of the appellee to remove the building. The common law rule which excludes the survivor of the relation of husband and wife from testifying in a case like the one before us, has, singularly enough, escaped amidst all the legislative warfare made upon this branch of the law. The rule, in all its bearings, was thoroughly discussed in Reeves v. Herr et al. 59 Ill 81, and was there held to have undergone no statutory change to that time. Hor do we think that any alteration has been since made, either by statute or judicial construction. Sec. 5, Chap. 51, R. S. 1874, to which we are referred, does not, as supposed by counsel, affect the question. It only applies to actions existing between husband and wife. In the case at bar the widow was called to testify in reference to matter or knowledge she acquired from her deceased husband,- concerning his business transactions with the appellant; and this is all that is required to render her inadmissible as a witness, under the rulings in Reeves’ case, supra. But the cases of Denniston v. Hoagland, 67 Ill. 265; Galbraith v. McLain, 84 Ill. 379, are cited as construing our statutes to have changed this rule. A careful examination of these cases will show it to be otherwise. In the first, the court only disposed of the objection that was raised, and nothing further, which was that the widow was incompetent to testily, by reason of the 5 th section of the chapter on evidence, above cited. Upon no other ground was her incompetency urged. The court very properly held that section five had reference only to actions between husband and wife. And in Galbraith v. McLain the same objection was raised, and nothing more. So much of the opinion of the court as is applicable, we give: “It is complained by appellant that the testimony of Rebecca Galbraith, the widow, was improperly admitted. Under the authority of Denniston v. Hoagland, supra, she was a proper witness, as neither her husband nor herself was a party to the suit. The fact that the transaction or conversation she spoke of occurred during marriage did not, under the act referred to, render her incompetent, as she was not a witness for or against her husband.” Doubtless, if the question had been raised in either case, as to whether she could testify as to the conversations had with the husband in reference to the transactions under investigation, the rule laid down in Reeves’ case would have been strictly followed. We think the court erred in not giving the appellant á new trial. The cause will be reversed and remanded.

Reversed and remanded.


author: Pillsbury, P. J.

text:
    The Village of Warren v. John W. Wright.
    Appeal by village—Bond must be given.—A city or village incorporated under the general law, must give a bond on appeal the same as other parties in a suit.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding. Opinion filed December 21, 1878.
    Hr. J. W. Luke, for appellant;
    that a city or village is not required to file a bond on appeal, cited Rev. Stat. 1874, 242, § H7.
    Messrs. D. & T. J. Sheean, for appellee;
    for the motion to dismiss for want of bond filed, cited Laws of. 1877, pp. 75, 137.
    These two acts are mpari materia: Young v. Stearns, 11 Chicago Legal News, 11.
   Pillsbury, P. J.

This case was tried at the May term, A. D. 1878, of the Circuit Court of Jo Daviess county, when a judgment was rendered against appellant for $3,000, from which the village prayed an appeal to this court, which was allowed by the court below upon appellant filing bond in the sum of four thousand dollars, within thirty days from the adjournment of court with security to be approved by the clerk.

That part of the order relative to the filing of bond, was never complied with by appellant, but the record was filed in this court on appeal without such bond. The appellee now enters his motion herein to dismiss the appeal for want of such, bond.

This motion is resisted by appellant on the ground that the village of Warren is organized under the general law, and hence is exempted by that law from giving bond upon appeal.

It does not appear from the record that appellant made any objection to the order of the court allowing the appeal upon condition of filing bond, therefore the question might be raised whether the appellant has not waived any right it might have to appeal without bond.

We prefer, however, to determine the question of the right of a city or village to an appeal under the statute, without bond, upon its merits.

This must depend upon the construction of the statute alone. By the statute, villages by their corporate name may sue and be sued, contract and be contracted with, acquire and hold real and personal property, etc.

This capacity to sue and be sued necessarily includes the right to become a party to the record in any litigation affecting their interests, and it does not appear that they were invested with greater privileges than other suitors by the statute, with the exception that they were exempted from furnishing an appeal bond when they prayed an appeal to a higher court in this State. Rev. Stat., 1874, page 262, § 177.

If this provision of the statute be still in force, there can be no doubt that the appellant would be entitled to an appeal without bond if it insisted upon such right.

The statute of 1845, Rev. Stat., p. 420, § 47, allowed appeals to the Supreme Court provided the party praying such appeal should file bond with sufficient security within the time limited by the court, and under this statute it never was supposed by the profession that municipal corporations were exempted from such provision, on the contrary, they were ever considered as a “party” within its meaning. This statute of 1845 was incorporated into the act of the General Assembly, approved Feb. 22, 1872, entitled “ an act in regard to practice in courts of record,” and became section 67 of that act. That the words “ the party praying for such appeal ” were broad enough, in the opinion of the General Assembly, to include corporations, is evident from the seventy-second section of said act, wherein it is provided that the charitable, educational penal and reformatory institutions under the control of the State, may prosecute appeals without bond, and the act having thus exempted one class of corporations from its operation, it follows that all others were included within its provisions under the well known rule of construction that the expression of the one is the exclusion of the other. That this is the correct view, more clearly appears from the construction placed upon it by the legislature.

The act above referred to was approved Feb. 22, 1872, and the act to provide for the incorporation of cities and villages was not approved until April 10th of the same year,, and it was deemed necessary to expressly exempt such incorporations from the provision of the practice act requiring bond, which was done by the 177th section of the subsequent act.

If cities and villages were not included in the prior act, it was a work of supererogation to exclude them by the later act.

We are of the opinion, therefore, that municipal corporations were required by the practice act to file bond upon appeal, the same as any other party, and that Sec. 177 of the act for the incorporation of cities and villages is inconsistent in allowing such appeal without bond, with the practice act.

In 1877, the practice act was amended and section 67 was re-enacted, and the charitable institutions exempted as in the act of 1872. This act is entitled “An Act to amend an act in regard to practice in courts of record. ' Session Laws of 1877, p. 148, and is the last expressed will of the legislature upon the subject of appeals.

This act does not exclude cities and villages from its oneration, and section 67 being the same as that of 1815 and 1872 is, as we have seen, sufficiently comprehensive to include them, and for the reasons above given, we are of opinion, is inconsistent with section 177 of the act concerning cities and villages.

By the last section of the act of 1877, it is provided that “ all laws and pai-ts of laws in conflict with this act are hereby repealed.” If then, by the act of 1877, cities and villages are required to file appeal bonds, and by the act of 1872, relating to their incorporation, they are not required so to do, it follows that the two acts upon that subject are in conflict, and being so, the former act is expressly repealed by the subsequent one so far as they are thus in conflict.

This does not rest upon the doctrine of repeal by implication, but having determined that the former act is in conflict with the latest expressed will of the legislature, it is repealed by the express words of the act.

We are therefore of the opinion that the appellant should have complied with the order of the Circuit Court to file a bond, and not having done so, the appeal must be dismissed.

Appeal dismissed.


author: Leland, J.

text:
    George D. Gould v. The County of Rock Island.
    Action against counties — Declaration—Cotimon counts—In an action against a municipal corporation, as a couniy, there are many different causes of action which may be proved under a declaration containing only the common counts, and such a declaration is not obnoxious to a general demurrer.
    Error to the Circuit Court of Rock Island county; the Hon. George W. Pleasants, Judge, presiding. Opinion filed January 3, 1879.
    Messrs. Kenworthy & Beardsley, for plaintiff in error;
    that a recovery may be had against a county under the common counts, cited Rev. Stat. 1874, 306 §§ 22, 24; Bradford v. Chicago, 25 Ill. 411; Rew v. Barker, 3 Cow. 280; Dillon on Municipal Corporations, 704; Board of Supervisors etc. v. Reynolds, 49 Ill. 186; McClaughry v. Hancock Co. 46 Ill. 357; Armsby v. Warren County, 20 Ill. 126; County of LaSalle v. Simmons, 5 Gilm. 513.
    Where a special contract has been performed and nothing remains but payment, a recovery may be had under the common counts: Thomas v. Caldwell, 50 Ill. 138; Elder v. Hood, 38 Ill. 533; Pickard v. Bates, 38 Ill. 40; Adlard v. Muldoon, 45 Ill. 193; Lane v. Adams, 19 Ill. 169; Childs v. Fischer, 52 Ill. 205; County of Jackson v. Hall, 53 Ill. 440.
    Messrs. Sweeney, Jackson & Walker, for defendant in error;
    that taking leave to plead after demurrer is equivalent to confession of demurrer, cited Haven v. Green, 26 Ill. 253.
    A declaration against a county, containing only counts for work and labor done, materials furnished, money paid, and for interest on money, will not support an action: Seagraves v. Alton, 13 Ill. 373; Argenti v. San Francisco, 16 Cal. 255.
    As to the power of a municipal corporation to act and contract: Betts v. Menard, Breese, 395; Perry v. Kinnear, 42 Ill. 160; Thompson v. Lee County, 3 Wall. 330; Mayor v. Ray, 19 Wall. 475; Kennard v. Cass County, 3 Dillon, 146; Thayer v. Montgomery County, 3 Dillon, 389.
   Leland, J.

This was an action of assumpsit in which a general demurrer was sustained to a declaration properly entitled, and which, after the usual commencement, is as follows:

“For that, whereas, the defendant, on the 8th day of April in the year, A. D. 1877, in the county aforesaid, was indebted to the plaintiff in the sum of $3,000 for labor and services of the plaintiff, by him before that time done and bestowed in and about the business of the defendant at its request; and in the sum of $3,000, for work before that time done and material for the same furnished by the plaintiff for the defendant, at its request; and in the sum of $3,000 for money before that time paid and expended by the plaintiff for the use of the defendant, at its request; and in the sum. of §3,000 for interest on divers sums of money before that forborne by the plaintiff, to the defendant, at its request, for divers spaces of time before then elapsed, and being so indebted, the defendant, in consideration thereof, then and there promised the plaintiff to pay him the said sum of money on request. Yet, the defendant, though, requested so to do, has not paid the same or any part thereof, to the plaintiff, but re'uses so to do, to the damage of the plaintiff of $3,000, and therefore he brings this suit, etc.”

Ho exception is taken to the form or substance of the declaration, except that it is not good where a municipal corporation, like a county, is a defendant, though it would be in a case against an individual and other corporations not municipal.

The only question is whether .the plaintiff below could under this declaration, introduce evidence of any cause of action: We think it is settled by the adjudications of our Supreme Court, that there might be many different causes of action against the defendant proved under the allegations aforesaid. We cite a few cases: McClaughry v. Hancock County, 46 Ill. 357; Maher v. Chicago, 38 Ill. 266; Bradford v. Chicago, 25 Ill. 411; Armsby v. Warren County, 20 Ill. 126; The County of LaSalle v. Simmons, 5 Gilm. 513; County of Jackson v. Hall, 53 Ill. 440.

- We could, if important, enumerate many instances of labor and materials furnished and money paid for which there might be a recovery, not only on implied, but on express contracts fully performed, except payment of the money; also for interest on an adjusted balance, or on money withheld by an unreasonable and vexatious delay of payment.

Counsel for defendant in error concede that this declaration would be good if the count for money had and received were in it, and it is so decided in LaSalle v. Simmons, supra. Why not also concede, that where a contract for labor or materials has been performed, except payment, there could be a recovery under this declaration, as stated by Judge Walker on page 444 of the 53 Ill. supra ? Or for money paid, laid out and expended, as decided in Armsby v. Warren Co. above cited? Or on an implied contract, Maher v. Chicago, 38 Ill. 266.

The' question seems to ns not to be an open one in this State. If it were, we should not consider it one about which there was any serious question. Dillon on Municipal Corporations, 2nd ed. § 383, note 1.

If the defendant desires to be more particularly informed in relation to the nature of plaintiff’s demand it must have him ruled to furnish a bill of particulars.

Kev'evsed and remanded.


author: Sibley, J.

text:
    William Babcock et al. v. Nicholas Hamende.
    Contract foe sale of land—Rescission.—A contract for the sale of lands, deed to be given on payment being made as described therein, is not broken by the vendor bringing a suit of forcible detainer and g- .tting possession of the lands, the agreement not providing for possession by the vendee; nor does this fact present a defense to a suit upon a note given for the purchase money under the agreement.
    Appeal from the County Court of Iroquois county; the Hon. Mastiff B. Weight, Judge, presiding. Opinion filed January 3, 1879.
    Messrs. Kay & Euans, for appellants;
    that forcible detainer ■ may be brought against a vendee in possession to regain possession on his failure to comply with the agreement, cited Kev. Stat. 1874, chap. 57, § 2; Wilburn v. Haines, 53 Ill. 207; Monsen v. Stevens, 56 Ill. 335.
    Mr. Teacy B. Habéis, for appellee,
    as to the right of possession by vendee under the contract, cited Williams v. Forbes, 47 Ill. 148.
    Being let into possession he is a tenant at will; Dean v. Comstock, 32 Ill. 173.

      A contract cannot be rescinded in part and enforced in part; Bowen v. Schuler, 41 Ill. 193; Ryan v. Brant, 42 Ill. 78.
   Sibley, J.

On the 4th of March, 1878, the appellants brought suit against appellee upon a promissory note in these words:

“ $850. On or before July 1st, A. D. 1875, I promise to pay Wm. Babcock, Sr., H. F. Ingersoll or order, eight hundred and fifty dollars, with interest at ten per cent, per annum, payable annually, both principal and interest payable at Babcock’s office, in Canton, Illinois.
“ Nicholas Hamende.
“ Ashkum, October 19, 1874.”

The defendant in the action pleaded: 1st, the general issue, and 2nd, a special plea as follows:

“And for a further plea in this behalf, the defendant says actio non, because he says that the said several supposed causes of action in each of the counts in said declaration are for one and the same thing, to-wit: The said promissory note in said declaration mentioned. And as to said note, the defendant says the plaintiffs ought not to maintain their said action, because he says that heretofore, to-wit: on the 19th day of October, 1874, at the said county, the plaintiffs and the defendant entered into a contract in writing, which said contract is as follows, to-wit:

“ Know all men by these presents, that we, Henry F. IngerboII and Wm. Babcock, Sr., of the county of Fulton, State of Illinois, are held and firmly bound unto Nicholas Hamende, of the county of Iroquois, State of Illinois, in the penal sum of eight thousand eight hundred dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, and every of them, firmly by these presents. Signed with our hands and sealed with our seal, this 19th day of October, A. D. 1874.

“ The condition of the above bond or obligation is such, that whereas, the above bounden Henry F. Ingersoll and Wm. Babcock, Sen., have this day sold unto the said Nicholas Hamende, the following described real estate, situated in the county of Iroquois, State of Illinois, to wit: The south half (S£) of the northwest quarter (NW^-), and north half (NJ) of the southwest quarter (SW|-), of section number seven (7), in township twenty-seven (27), north of range thirteen (13), west of second principal meridian, containing one hundred and fifty-seven and 26 one-hundredths acres (157.26), be the same more or less. Possession to be given by March first, A. D. 1875, for the sum of forty-four hundred (4,400) dollars. And whereas, the said Nicholas Hamende, to secure the payment of the said sum of money, has this day executed and delivered the said Henry F. Ingersoll and Wm. Babcock, Sen., his notes payable as follows, to wit: One note for two hundred dollars, due and payable on or before November 19th, 1874. One note for eight hundred and fifty dollars, due and payable on or before July 1st, 1875. One note for eight hundred and fifty dollars, due and payable on or before July 1st, 1876. One note for eight hundred and fifty dollars, due and payable on or before July 1st, 1877. One note for eight hundred and fifty dollars, due and payable on or before July 1st, 1878; and one note for eight hundred dollars, due and payable on or before July 1st, 1879; all of said notes drawing interest from date at the. rate of ten per cent, per annum, interest payable annually; both principal and interest payable at Babcock’s office, in Canton, Illinois.

“ Now, therefore, if the said Nicholas Hamende, his heirs or assigns, shall well and truly, without defalcation or discount, pay unto the said Henry F. Ingersoll and Wm. Babcock, Sr., their heirs or assigns, the principal and interest, according to the tenor of the above described notes at maturity, and also pay all taxes or assessments upon said premises, made or laid after the date hereof, including the present year’s taxes and assessments, without suffering the same or any part thereof to .be sold therefor, all of which is to be taken and considered as a condition precedent on the part of the said Nicholas Hamende, his heirs or assigns, then the said Henry F. Ingersoll and Wm. Babcock, Sr., upon demand therefor, is to execute and deliver a good and sufficient deed of' warranty for the said premises, to the said Nicholas Hamende, his heirs or assigns, or to whomsoever he may direct; which, when done, this bond., these presents, and all herein contained, to become null and void. But should default be made or suffered on the part of the said ¡Nicholas Hamende, his heirs or assigns, in any of the conditions above specified on his part, then it shall be at the option of the said Henry F. Ingersoll and Wm. Babcock, Sr., their heirs or assigns, to enforce a performance of the same in law or equity previous to the making or tender of a deed for the said premises, or to declare this contract void arid at an end. And in case of this contract being declared void and ended, upon default as aforesaid, the said Nicholas Hamende, his heirs or assigns, or any person or persons claiming, by, through or under him or either of them, are to be taken and considered as tenants at sufferance (being in possession of the said premises), and shall surrender the full and peaceable possession of the said premises, together with all and singular the hereditaments and appurtenances thereunto belonging, or in anywise appertaining, upon thirty days’ notice in writing, left or posted upon the said premises; and the said Nicholas Hamende, his he'rs or assigns, shall forfeit all payments made thereon, and be liable for all damages done or suffered upon the said premises; and the title to the said premises to be and remain in the said Henry F. Ingersoll and Wm. Babcock, Sr. their heirs or assigns, the same to all intents and purposes as if no sale had been made.

“ Witness our hand seals, this 19th day of October, A. D. 1874, aforesaid.

Henby F. Ingebsoll, [l. s.]

William Babcock, Sb., [l. s.]

“ Signed, sealed and delivered ) in presence of ... . )

That said note in said declaration mentioned, in the second contract mentioned, given for the purchase money of the land therein described. That the defendant, in pursuance to said contract, on the first day of March, A. D. 1875, entered into the possession of the said land in said contract described. And that afterwards, to wit: on the fifth day of October, A. D. 1878, the defendant having failed to pay the said note in said declaration mentioned, and the notes maturing thereafter in said contract mentioned, the plaintiffs having on the fourth day of October, A..D. 1878, demanded possession of said premises,in writing, and without giving the thirty days’ notice in said contract mentioned, commenced an action of forcible detainer before Asa B. Boff, Esq., one of the justices of the peace of said county, for the recovery of the possession of said land, in which said action the said plaintiffs were plaintiffs and the defendant was defendant; and in which said action such proceedings were had that a judgment was afterwards, to wit: on the 11th day of October, A. D. 1878, rendered therein in favor of said plaintiffs, and against the defendant, awarding to said plaintiffs the possession of said land, which said judgment is now in full force and effect; and afterwards, to wit: on the 16th day of October, A. D. 1878, possession of said land was, by virtue of said judgment, delivered by the defendant to the plaintiffs. And the defendant alleges that the plaintiffs thereby elected to declare, and hath thereby declared the said contract forfeited, and at an end, and hath thereby released and discharged the defendant from the payment of the said note in said declaration mentioned, and this the defendant is ready to verify, wherefore he prays judgment.

“ By Tbacy B. Habéis,

“ Defendant’s Att’y.”

To this plea the plaintiffs interposed a demurrer, which was overruled by the County Court, and the only question here presented is whether the court erred in passing upon the sufficiency of that plea, which we think is very manifest. It appears from the record that the forcible detainer proceeding before the justice of the peace was not commenced until after the suit was brought upon the note in question. Hence the defense, if available at all, should have been pleaded ptús darrein continuance. But the plea presented no substantial defense to the action. Counsel argue the case as if it was a breach of the contract on the part of the appellants to bring suit to recover possession of the premises described in it, and therefore appellee had the right to declare a rescission. The fault in the reasoning consists in assuming a fact 'that does not exist. There is not a word in the contract about the right of the vendee to retain possession of the premises until the expiration of the time fixed for the payment of the whole of the consideration money, and it is only by inference that the contract permitted him to take possession of the lands bargained for. In Wilburn v. Haines, 53 Ill. 207, it was held that the bringing of a suit by the vendor against the vendee to recover possession of the premises, did not amount to a rescission of the contract. It is true that it does not appear in the case whether the vendee entered into possession under the contract by a verbal or written permission from the vendor, yet we are unable to discover any distinguishable difference between the two cases.

, There is no pretense in this case that the vendors had ever expressed any intention to declare a forfeiture of the contract; but on the contrary, were seeking to enforce it by bringing suit on the note for a portion of the consideration money, and as there is nothing in the contract to prevent them from taking possession, the vendor’s had the right, as was said in Wilburn v. Haines, to enjoy the premises while the contract was maturing.” The statute of 1861 incorporated in the revised laws of 1874, § 2, p. 535, was passed to provide for just such cases as this, where the vendee had been let into possession under a contract of purchase and neglected to pay the consideration, as agreed upon, he should not be allowed to take advantage of his own neglect, and retain the possession against the will of the vendor, without any election on his part to declare a forfeiture if the right existed. The case of Williams v. Forbes, 47 Ill. 148, referred to by counsel for appellee, where the facts were similar to those appearing in this case, except that the plea did not aver that the vendee entered into possession by virtue of the contract, notwithstanding it was there held that the plea was no sufficient answer to the declaration on the note, still counsel assert if the plea had alleged that the vendee entered into possession under the contract by the terms of it, then the plea would have been held good.

The court declined to express any opinion in such a case, and ' the assumption is wholly unauthorized.

The judgment of the court beloAv is therefore reversed and the cause remanded. Reversed and remanded.


author: Per Curiam.

text:
    Edward Simpson v. George L. Simpson et al.
    Practice—Further time to file record.—The motion for further time not being made within the time limited for filing the record, it is refused.
    Appeal from the Circuit Court of Putnam county; the Hon. John Burns, Judge, presiding. Opinion filed January 4,1879.
    Mr. Fred. S. Potter, for appellant;
    that the motion was made in time, cited Adams v. Robertson, 40 Ill. 40.
   Per Curiam.

The motion in this cause for further time in which to file record not having been made within the time limited by the statute for filing such record, we cannot allow the record now to be filed. Adams v. Robertson, 40 Ill. 40.


text:
    The Elgin City Banking Company v. Waldo R. Eaton.
    Tax upon capital stock —The decree of the court below dissolving the injunction restraining collection of the tax, is affirmed on the authority of Pacific Hotel Co. v. Lieb et al. 83 111, 602.
    Error to the Circuit Court of Kane county; the Hon. T. D. Murphy, Judge, presiding. Opinion filed January 7, 1879.
    Messrs. Botsford & Barry, for plaintiff in error;
    that the State Board of Equalization could not impose any rule to destroy uniformity in taxation, cited C. B. & Q. R. R. Co. v. Cole, 75 Ill. 591.
    The bill should not have been dismissed on motion, but should have been retained for answer: Wescott v. Wicks, 72 Ill. 524.
    If the assessment was made on the deposit account, which was not subject to taxation, it is illegal: McConkey v. Smith, 73 Ill. 313.
    A court of equity will restrain an unauthorized tax: Vieley v. Thompson, 44 Ill. 9; Ill Cent. R. R. Co. v. McLean, 17 Ill. 291; Drake v. Phillips, 40 Ill. 388; Nat. Bank Shawneetown v. Cook, 77 Ill. 622.
    Taxes must be uniform Village of Nunda v. Crystal Lake, 79 Ill. 311; Bureau Co. v. C B. & Q. R. R. Co. 44 Ill. 229; C. & N. W. R. R. Co. v. Boone Co. 44 Ill. 240; Darling v. Gunn, 50 Ill. 424; C. & A. R. R. Co. v. Livingston Co. 68 Ill. 458.
    Mr. Henby B. Wij.lts and Mr. Eugene Cliffobd, for defendant in error;
    that the action of the State Board, including United States bonds in arriving at the capital stock, was legal, cited The People v. Bradley, 39 Ill. 130; McVeagh v. City of Chicago, 49 Ill. 318; City of Chicago v. Lunt, Preston & Kean, 52 Ill. 414.
    As to assessment of capital stock: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561.
    There is no allegation of fraud in the bill, and a court of equity cannot take jurisdiction: Cook County v. C. B. & Q. R. R. Co. 35 Ill. 466; Chicago v. Beatrice, 24 Ill. 489; Elliott v. Chicago, 48 Ill. 294; Ottawa v. Walker, 21 Ill. 608; Metz v. Anderson, 23 Ill. 467; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561.
    The motion to dissolve injunction was treated as a demurrer, and there was no error in dismissing the bill, leave to amend not being asked for: McDowell v. Cochran, 11 Ill. 31; Puterbaugh v. Elliott, 22 Ill. 159; Swinney v. Beard, 71 Ill. 27.
   Per Curiam.

This was purely an injunction bill to restrain the collection of a tax assessed by the State Board of Equalization upon the capital stock of plaintiff in error. Upon motion the court below dissolved the injunction and dismissed the bill. All the questions made by the plaintiff in error are fully argued and determined in the case of the Pacific Hotel Co. v. Lieb et al. in 83 Ill. 602, and we do not deem it necessary to .re-state the principles there announced.

The injunction was properly dissolved, and no other relief being sought by the bill, it was not error to dismiss it upon such motion. Titus v. Mabee, 26 Ill. 257.

Decree affirmed.