text:
    Biggers McFarlan v. Miller McClellan, Adm’r.
    1. Replevin—Plea of property in defendant—Evidence.—Under a plea of property in defendant, the defendant has a right to show hv what means he came into possession of the property, and his title thereto.
    2. Burden of proof.—In replevin, where the defendant pleads property in himself, the burden of proof is upon the plaintiff to show his title to the property, or his right to the possession.

      Appeal from the Circuit Court of Hardin county; the Hon. John Dougherty, Judge, presiding.
    Mr. W. 8. Morris, for appellant;
    that a landlord may enforce his lien against a sub-tenant, cited Rev. Stat. 1874, 661, § 32.
    The sub-tenant having knowledge of the mortgage is estopped to deny the lien of his landlord: 2 Indiana Dig. 331; Blackmore v. Sabers, 22 Ind. 466.
    On forfeiture of condition in the mortgage, the legal title vests in the mortgagee and becomes complete on his obtaining possession: Constant v. Matteson, 22 Ill. 546; Funk v. Staats, 24 Ill. 644.
    Under the plea of property in defendant, the burden of proof is upon plaint’if to “show his title or right to possession: 2 Greenleaf's Ev. § 561; Johnson v. Neal, 6 Allen, 227.
   Allen, J.

This was an action of replevin brought before a Justice of the Peace of Hardin County. Was tried and appealed to the Circuit Court, and at the April term for 1878 it was tried by a jury. A verdict for appellee for the property replevied. A motion for new trial overruled, and judgment for appellee for property replevied and cost. Appeal prayed and case brought to this court. The controversy is over the ownership of about 200 bushels of corn claimed by appellee as administrator of Roe Caldwell, deceased, raised by Caldwell on the land of appellant as sub-lessee of Albert Elliott, who held the premises under a lease from appellant. Appellee was administrator.

Appellant was sworn as a witness, and testified that he bought the corn after the death of Caldwell, and paid for it. The court refused to let appellant testify from whom he bought the corn in question, when he bought it, who had possession when he bought, who delivered the corn to him, at what time it was delivered, or what he paid for it.

Appellant then offered to prove that after Roe Caldwell’s death he took possession of • the corn in question by virtue of a chattel mortgage, dated April 7th 1876, and recorded in accordance with the requirements of the statute, executed by one Albert Elliott to appellant and one Kirkliam, and the court refused to permit the evidence to go to the jury. The original mortgage was then offered in evidence, showing that all the crojis grown upon the land of appellant was embraced in the mortgage. But the court refused to let the mortgage be read to the jury. Appellant then offered to prove that he took possession of the corn on the 1st day of March, 1877, but the court refused to let the jury hear the proof.

The appellant then offered to prove that Roe Caldwell was a tenant of Albert Elliott, and that when he took possession of the premises and raised the corn in question, he had notice of appellant’s mortgage on the crops grown on the land leased by Elliott from appellant, but the court refused to let the evidence go to the jury.

The court refused the following instruction asked for by-appellant,:

Ro. 2. “ The jury are instructed that under the plea of property in the defendant, the plaintiff before he can recover must show by a preponderance of testimony that the property in question belongs to him, and under such plea of property, the defendant may show any legal title to the property, no matter how derived.’’ Per curiam. “Refused. Under this plea the onus is on the defendant.”

The jury returned a verdict for plaintiff, and the court overruled a motion for a new trial and rendered judgment on the verdict. An appeal was prayed and allowed to this court.

Among the errors assigned are, that the court refused to permit proper evidence to go to the jury, and that the court refused to give proper instructions for defendant.

Appellant’s plea was property in himself, and it will appear at a glance, that it was error to refuse evidence to show when appellant came into possession of the corn, and how he came into possession, or whether by purchase from some one having a right to sell it. ' For aught that appears in this record, he might have purchased from the administrator himself, or from some one who had purchased it from Roe Caldwell before his death; or he might, for aught that appears, have had some lien upon it for rent or debt that would authorize him to take possession, but by the ruling of the court he was estopped from all explanation as to the foundation of his claim to the property or its possession.

Again, the court refused an instruction that “ when a defendant pleads property in himself,” the plaintiff .must show, by “ a preponderance of the evidence,” that the property in question belongs to plaintiff, etc.

The rule is as stated in the instruction. When a defendant pleads property in himself, the onus is on the plaintiff of proving his title to the property or his right to the possession. Greenleaf on Evidence, 2 Yol. §§ 499, 500 and 561.

Several other errors are assigned, some of which are worthy of consideration, hut .these are so manifest that we content ourselves with these reasons for reversing the judgment of the Circuit Court and remanding the cause. ' '

Reversed and remanded.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    John Gibbon v. Silas L. Bryan, Adm’r.
    1. Garnishment— Form of judgment.—In garnishment the judgment should be in favor of the defendant in execution for the use of the plaintiff against the garnishee.
    2. Foundation for garnishment proceedings—Return of execution—Affidavit.—To give the court jurisdiction in garnishment there must have been a return nulla bona of the execution, and a proper affidavit, under the statute filed. While the Circuit Court is a court of general jurisdiction, and entitled to all presumptions in favor of its common law jurisdiction, this presumption ceases when it undertakes to administer a statute passed in derogation of the common law.
    Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. B. B. Smith, for plaintiff in error;
    that the filing of an affidavit is necessary to give the court jurisdiction, cited Rev. Stat. Chap 62, § 1.

      The answer does not show that the debt was due when judgment was rendered: Pierce v. Carrollton, 12 Ill. 358.
    Judgment should have been rendered for the whole amount due: Gillilan v. Nixon, 26 Ill. 50; Farrell v. Pearson, 26 Ill. 463.
    Messrs. Pollock & Son, for defendant in error;
    that an affidavit is not necessarily a jurisdictional fact, and appearance and answer of the garnishee without objection, gave the court jurisdiction: cited Nat. Bank v. Titsworth, 83 Ill. 591; Baldwin v. Murphy, 82 Ill. 485; Phelps v. Reeder, 39 Ill. 172.
    The objection cannot be first made in this court: Chanute v. Martin, 25 Ill. 63.
    There being no dispute as to amount or proper parties, this court can render a proper judgment: Prince v. Lamb, Breese, 378; Boyle v. Carter, 24 Ill. 51.
   Allen, J.

On the 24th of August, 1876, defendant obtained a judgment, in the Marion Circuit Court, against Esther Aird for the sum of $514.66 and cost. Execution was issued on the judgment and levied on certain lots, describing them in Aird’s addition to Odin, and on July 14th, 1877, were struck off at a sale to defendant in error, for the sum of $5.00. The following indorsements appeared on the execution, after the date that it came to hand, and the date of the levy on the lots, describing them: “The within described property was offered for sale on the 16th of June, the time advertised for sale; there being no bids, the sale was adjourned over to the 18th at 2 o’clock.

“ The within described lots were offered Monday, June 18th, 1877, the time set by adjournment. There was no sale, there, being no bidders.

“A. J. Haevey, Sheriff.
The sale of this property was July 14, and was sold to Silas L. Bryan for the sum of five dollars.
“ A. J. Haevey, Sheriff.
“ This execution is entitled to a credit of five dollars by sale of the above described lots, this July 14, 1877. The sheriff never received any money on this execution July 14th, 1877.
“A. J. Harvey, Sheriff.”
Then follows sheriff’s costs indorsed on execution. These indorsements are all that appear on the execution.
On the 23d of July, 1878, an instrument purporting to be an affidavit was filed in said court, the substance of which is as follows:
S. L. Bryan, Administ’r of Estate of William Aird, Garnishment on v. f J udgment. Esther Aird.
“Affidavit of S. L. Bryan states that at the Aug. term, 1876, of this court, he got judgment in his capacity as administrator of Wm. Aird’s estate, for the sum, as he believes, of $514, and costs, or about that sum. That an execution was issued, and nothing made; and afterwards an execution was issued and levied on all the property of defendant, and advertised; and afterwards a pluries execution was issued and levied on real estate, and the plaintiff bid it off for $5.00; that the sheriff, as he informed affiant, returned the execution; that he knew of no other property, real or personal, belonging to defendant to make the money due on the judgment; that, as he is informed and believes, John Gibbon is indebted to defendant—amount not known—and prays a writ of garnishment to issue.
“ S. L. Bryan.
“July 23d, 1878.”

- Whereupon garnishee process issued against plaintiff in error, Gibbon. Interrogatories filed, and at the August term, 1877, Gibbon filed his answer in open court, and upon a hearing the court entered a judgment against Gibbon, in favor of defendant in error, for $557.26 and cost.

The errors assigned are:

The court erred in rendering judgment for defendant in error, there being no return of the sheriff, no property found, and no affidavit sworn to by A. L. Bryan and filed.

2, The answer does not show that John Gibbon owed the note to Esther Aird.

3. The judgment should be in favor of Esther Aird for the use of tí. L.' Bryan, administrator of Wm. Aird, v. John Gibbon, garnishee.

4. The judgment should be for the full amount of the debt.

We regard the 3d error as well assigned. The Supreme Court have held that in garnishment the judgment should be in favor of the'defendant in execution for the use of the plaintiff, against the garnishee. We have no doubt but this court would have a right to direct the Circuit Court to correct the judgment in form.

But a more serious and important question arises under the first error assigned. It does not appear from the record that the execution issued on the judgment, and upon which a levy was made, was returned “no property found,” or that it ever was returned by the sheriff. Nor does it appear that what purports to be an affidavit of defendant in error was ever sworn to. Sec. 1 Chap. 62, Revised Statutes of 1874, provides “ that when an execution shall be returned no property found,’ on the affidavit of the plaintiff being filed with the clerk, etc., that defendant has no property within his knowledge liable to execution, and that he has just reason to believe that,” etc. etc., then a summons may issue, etc., but before the summons issues there must be a return of execution “ nulla bona” and an affidavit must be made by the plaintiff, or some one for him.

These two things must be done in order to give the court jurisdiction of the subject-matter of the suit. The issue and service of the summons gives jurisdiction of the person or party defendant. The plaintiff in error having answered in that suit, there is no question of the jurisdiction of the court over the person; but without a return of nulla bona, and without an affidavit by plaintiff, or some one for him, as directed by the statute, could the court acquire jurisdiction of the subject-matter? .

While the Circuit Court is a court of general jurisdiction, and in the exercise of its common law powers is entitled to all the presumptions in favor of its jurisdiction, this presumption ceases when it undertakes to administer a statute passed in derogation of the common law, and the intendments are no stronger in its favor than courts of inferior jurisdiction. Smith’s Leading Cases, 832; Denning v. Coreion, 11 Wend. 648.

Our Supreme Court, in Kruse v. Wilson, 79 Ill. 233, holds that in a proceeding by attachment the affidavit required by statute is what gives the court jurisdiction of the sabject matter. “That it is the affidavit that starts the jurisdiction in motion, and that is jurisdiction.” Why is it that the judicial power cannot be set in motion in attachment without an affidavit? It is because the statute requires an affidavit, and, being a statute in derogation of the common law, must in all things be substantially, if not strictly, complied w.th.

In garnishment two things are necessary to be done before the judicial power is set in motion. The execution must be returned “noproperty found,” and plaintiff must file an affidavit setting up such facts as are required by the statute. Both are required to “set the judicial power in motion,” which, according to the opinion supra, is jurisdiction. In that case a question was raised as to whether the plaintiff in attachment had been sworn to the affidavit. The Circuit Court admitted evidence upon the record to show that it had been sworn to, and that it was an omission of the clerk that no jurat appeared to the affidavit. The Supreme Court held that the evidence was properly admitted, and held that the fact that it was sworn to, gave the court jurisdiction.

In the case we are considering there is this difference: in the attachment nothing but an affidavit was required by the statute; the record showed one had been made. In this case, the law required, first, return of execution “ no property found,” second, an affidavit of plaintiff in judgment.

This record does not show a return of the execution, much less a return “ no property found,” nor does the record show that any affidavit was made by defendant in error, except in so far as they are shown by the recitals in the summons issued by the clerk; but we presume it will not be insisted by any one that these recitals are to be regarded as sufficient evidence of the return of execution and of the making the affidavit, in a a case where the intendment is against rather than in favor of the jurisdiction of the court. Since the evidence fails to show a return of execution with the indorsement and the making of an affidavit, as required by statute, we believe the Circuit Court failed to acquire jurisdiction of the subject-matter.

The judgment of the Circuit Court is reversed and the cause remanded. ,

Reversed and liemanded.


author: Baker, J.

text:
    Isaac S. Jones v. George D. Ramsey et al.
    1. Mortgage—Notes not due—Sale for default in interest.— A mortgage providing that “in case of default in the payment of the said note above mentioned, or any part thereof,” that the trustee might advertise and sell the premises, and apply the proceeds, first to payment of expenses, second to the payment of amount due on said note, etc., does not make the whole sum due on default in payment of interest, and a trustee cannot, under such a power, sell and apply the proceeds on notes not due, nor can a court decree that mortgaged premises be sold subject to the lien of the unpaid balance.
    2. Parties tn interest.—Under such a mortgage, the assignee of the equity of redemption, though he may have assumed payment of the mortgage, has such an interest that he may object to a decree requiring him to pay the whole sum within thirty days. It is his right to pay off the indebtedness as it falls due, and he cannot be -required to pay it except as stated in the deed.
    3. Enjoining proceedings at law.—Courts of chancery will not on a bill filed by the plaintiff in an action at law, enjoin the defendant therein from making his defensa to such action at law, and yet allow the plaintiff to proc ed. The plaintiff having elected his forum, should, if he discovers he has commenced in the wrong forum, abandon his action.
    4. Foreclosure in chancery—Redemption.—The statutes of the State existing at the time the mortgage was executed, entered into and became a part of the contract between the parties, and the statutory right of time to redeem in case of a foreclosure is a right in which the grantee of the mortgagor has an interest. So, where the mortgage is foreclosed by proceedings in court, such foreclosure must be in conformity with the statute, though the deed conferred power upon the trustee to sell; and the court had no authority to substitute another trustee in place of the one named by the parties, and order a sale within thirty days, without equity of redemption.
    5. Fixtures—What passes under the mortgage—Extraneous proof.—The court does not pass upon the question whether the machinery in the mill on the mortgaged premises passes to the mortgagee, farther than to say that', in this respect, the mortgage viewed in the light of the status of the property and the surrounding circumstances, must speak for itself as to what was included, and proof of a contemporaneous arrangement to change the legal effect of the mortgage is not admissible. The question as to whether certain articles are or are not fixtures, depends largely upon the intention of the party attaching them.
    Appeal from the Circuit Court of Clay county; the Hon. John H. Halley, Judge, presiding.
    Mr. Rufus Cope, for appellant;
    that a decree of sale for accrued interest only could be made, but the surplus cannot be retained, nor can the mortgaged premises be sold subject to the lien of the unpaid balance, cited Hards v. Burton, 79 Ill. 504.
    The court erred in decreeing a sale of personal property not described in Ramsay’s mortgage. The machinery in the mill is personal property: Brown v. Lillie, 6 Nev. 244; Kirwin v. Latour, 1 Harr. and J. 289; Fullam v. Stearns, 30 Vt. 443; Gale v. Ward, 14 Mass. 352; Rogers v. Brokaw, 25 N. J. Eq. 496; Vanderpool v. Vanallen, 10 Barb. 157; Murdoch v. Harris, 20 Barb. 409; Pierce v. George, 108 Mass. 78; Hill v. Wentworth, 28 Vt. 429; Blanche v. Rogers, 26 N. J. Eq. 563.
    Being personal property, it could only be held by a chattel mortgage under the statute: Murdock v. Gifford, 18 N. Y. 28.
    A supposition of the parties that the machinery was included in the mortgage, is a mistake of law and not remediable in equity: Goltra v. Sanasack, 53 Ill. 456.
    Mr. W. B. Cooper and Mr. Ben. Hag-le, for appellees;
    contended that no party in appellate court can complain of an error not affecting his interest, and cited Tibbs et al v. Allen, 27 Ill. 119; Clark v. Marfield, 77 Ill. 258; Van Valkenburg v. Trustees of Schools, 66 Ill. 103; Smith v. Hickman, 68 Ill. 314; Richards v. Greene, 78 Ill. 525; Hedges v. Mace, 72 Ill. 472; Fonville v. Sausser, 73 Ill. 451.
    The defendant in the replevin suit, though enjoined from defending, would have the right to contest the assessment of damages, the same as on a default; Anderson et al v. Semple, 2 Gilm, 455; C. & R. I. R. R. Co. v. Ward, 16 Ill. 522; Town of South Ottawa v. Foster, 20 Ill. 296; C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Chicage & Iowa R. R. Co. v. Baker, 73 Ill. 316.
    As to what constitutes fixtures: Winslow v. Merchants Ins. Co. 4 Met. 306; First Parish in Sudbury v. Jones, 8 Cush. 187; Symonds v. Harris, 51 Me. 14; Lafliu v. Griffith, 35 Barb. 58; Burnside v. Twitchell, 43 N. H. 390; Walmsley v. Milm, 7 C. B. (N. S.) 115; McCreary v. Osborne, 9 Cal. 119; Christian v. Dripps, 28 Penn. 271; Walker v. Sherman, 20 Wend. 636; Parson v. Copeland, 38 Me. 547; Baker v. Davis, 19 N. H. 325; Vorhis v. Freeman, 2 Watts & Serg. 116; Pyle v. Pennock, 2 Watts & Serg. 390; Harlan v. Harlan, 15 Penn. 507; McKenna v. Hammond, 3 Hill, 331; Bratton v. Clawson, 2 Strobh. 478; Snedecker v. Warning, 2 Kernan, 170; Despatch Line of Packets v. Bellamy M’f’g Co. 12 N. H. 205; Farrar v. Stackpole, 6 Greenl. 157; Full v. Walter, 28 Me. 545; Corliss v. McLayin, 29 Me. 115; Faris v. Walker, 1 Bailey, 541; Button v. Claw-son, 2 Strobh, 478; Powell v. M. & B. M’f’g Co. 5 Mason, 467; Kirwan v. Latour, 1 Harr & J. 289; Gray v. Holdship, 17 Serg. & Rawle, 413; Morgan v. Athur, 3 Watts, 140; Lemar v. Miles, 4 Watts, 330; Walker v. Sherman, 20 Wend. 636; McDaniel v. Moody, 3 Stewart, 314.
   Baker, J.

Davis, Adams and Pritchett owned a small parcel of land, upon which was standing a woolen mill containing a quantity of machinery of considerable value. The mill and machinery were also owned by them. In March, 1876, they executed and delivered to Eamsey a mortgage, with power of sale, upon the piece of land, describing it by metes and bounds. This mortgage was given to secure the payment of a promissory note for $2,400, executed by them to Eamsey, bearing same date, and due in three years, with interest at the rate of ten per cent, per annum—interest payable semi-annually. Subsequently they executed to appellant, Jones, a second mortgage of a similar character, on the same property, to secure the sum of $1,100. They failed to pay Eamsey the installments of interest due him in March and September of 187,7, respectively. Ramsey had rented the mill from Davis & Co., in the spring, and had been running it, but afterwards the mill was closed, and Ramsey retained the key and advertised the mill and machinery for sale under his mortgage. On the 4th day of October, 1877, Jones surrendered to Davis & Co. the notes that were secured by said second mortgage, and they quit-claimed to him said land, and in their deed expressly conveyed the woolen factory thereon situated, with all the appurtenances, fixtures, machinery and implements of and belonging thereto, and then being therein. It seems that Davis & Co. had, when the mill was rented to Ramsey, retained a duplicate key to the mill, and this they delivered to Jones. Thereupon Jones, before the proposed day of sale under Ramsey’s mortgage, entered the mill and removed therefrom a large portion of the machinery. Ramsey then replevied this machinery, and also filed the bill of complaint in the cause that is now before the court. The bill charged that nearly all of said machinery was affixed to the building, and that it was expressly understood that the said machinery and fixtures were included in and conveyed by the Ramsey mortgage, and that Jones agreed with Davis & Co., at the time that they executed the quit-claim deed, that he would assume the Ramsey debt and pay off his lien. The scope and prayer of the bill was to foreclose the equity of .redemption, and that the premises, including said machinery, should be sold for the payment of the principal and interest in said note and mortgage, and that Jones might be enjoined from defending the replevin suit. Davis & Co. filed a cross-bill, charging that when they executed quit-claim deed Jones agreed to pay off the Ramsey note for $2,400 and interest, but he had not paid it, and that he had fraudulently taken possession of the mill and moved out the machinery with the intention of not paying the Ramsey debt, and that the property left after the removal of the machinery was not sufficient to pay said debt. The cross-bill also charged that it was the understanding that the deed should be placed in the hands of .a third party, and was not to take effect until Ramsey’s debt was paid, and it also asked that Jones be enjoined from defending the replevin suit. Jones answered both bills, and claimed that the machinery was not included in the Ramsey mortgage; that he was entitled to it under his quit-claim deed, and that the only consideration for that deed was the debt due him, and denied that he agreed to pay the Ramsey debt.

On the hearing, the court found that it was agreed and understood that the machinery and fixtures were included in and conveyed by the mortgage to Ramsey; that Jones agreed to pay off the Ramsey mortgage; and had notice that said Davis & Co. intended, when they made the Ramsey mortgage, to convey said machinery by said mortgage to Ramsey; that Ramsey was in the possession of the premises on the 4th day of October, 1877; that Jones obtained the keys under false pretenses, and entered the building Oct. 12th, 1877, and carried away a large part of the machinery; that Ramsey replevied the same, and that replevin suit waspending; that the amount due on the Ramsey mortgage was $2,680.00, and that the facts alleged in the original and cross-bills are true. The court decreed under the cross-bill that the defendant, Jones, be restrained from defending the replevin suit of Ramsay v. Jones, and decreed on the original bill that unless the $2,680.00 be paid in thirty days, the master in chancery should act as trustee, and under the power of sale in the mortgage, sell said property without redemption, and make a deed to the purchaser.

The errors assigned are: that the court erred, (1) in finding the entire amount of the principal and interest of the debt of Davis & Co. to Ramsay, due, and in ordering sale of the property in question to pay the same; (2), in ordering that appellant Jones be enjoined from defending the replevin suit of Ramsey; (3), in decreeing a sale of the personal property not described in Ramsey’s mortgage; and (4), in directing the master to sell under power in this mortgage, and in decreeing a sale without redemption.

Courts do not assume to make contracts for parties, hut content themselves by enforcing such valid contracts as the parties themselves make. In the Ramsey mortgage the principal of the note secured was to be due three years after date, and the interest was payable semi-annually, and the mortgage provided that “ in case of default in the payment of the said note above mentioned, or any parts thereof, according to the tenor and effect thereof,” said Ramsey might advertise and sell said premises, and that he should apply the proceeds of sale, first to the payment of expenses, secondly “ to the payment of the amount due on said note,” rendering the overplus, if any, to the mortgagors or their assigns. .This was the contract of the parties themselves. They might, readily have provided that in case default was made in the payment of any installment of interest as it fell due, then that the principal debt should become due also; but they did not do this. A trustee cannot apply proceeds of sale on notes not due; nor can a court decree that the mortgaged premises be sold subject to the lien of the unpaid balance. Gardner v. Diedrichs, 41 Ill. 159; Hards v. Burton, 79 Ill. 504.

It is urged that appellant cannot take advantage of this error, for the reason that it does not affect his interests. The rule of law involved in this proposition is correct, but the facts of the case are not such as call for its application. Ramsey held the first mortgage, and Jones held a second mortgage, and theréupon the mortgagors quit-claimed to Jones the equity of redemption, and all the remaining interest of the mortgagors in the premises then became vested in Jones, and he either expressly assumed the payment of the Ramsey mortgage, or, at all events, took the premises subject to its lien. If the land should be sold under the decree, and the title vested in the master’s vendee, what would become of the interest of Jones? Under his deed it is his right to pay off the several installments of interest as they fall due, and to pay off the principal debt of $2,400 when it falls due, and thereby perfect his quit claim title. It may be, and probably is, of the utmost importance to him that he should only be required to pay as it is nominated in the bond. If the decree of the court had only been for the two installments of interest due, he might have been able to pay the $240 and costs, and thereby havfe prevented a sale under the decree. And who knows but that a year hence he may be able to discharge the principal debt and remaining interest, and thereby save his estate and the loss of $1,200 ?

It is further suggested that the court by its decree does not foreclose the mortgage but appoints its own officer to carry into effect the trust created by the deed. The bill in its entire scope is a bill to foreclose the mortgage, and no facts are alleged therein calling upon the court to discharge the trustee that the parties themselves have appointed, and to substitute the appointee of the court in lieu of him. “ The trust created by the deed ” is, in the event of sale, “ to pay the amount due on the note,” but, by the decree, the court ascertains the whole amount of the principal and interest of the notes, whether due or not, and orders that, in case this sum of $2,680 and costs of suit shall not be paid in 30 days, the Master shall, as trustee,' sell the property by virtue of the power in the sale mortgage. Suppose that the trustee in the sale mortgage, default having been made in the payment of an installment of interest when due, had assumed to advertise the property for sale. If Jones, in such case, had paid, or tendered to him the interest then due, and all costs and expenses accrued, could he, under the powers in the mortgage, notwithstanding this, have rightfully and legally proceeded to sell the property in order to make or compel the payment of the principal debt which was not due? And yet, under this decree, Jones can only prevent a sale of the property by paying in full that which is not due as well as that which is due. Clearly, this is not carrying into effect the trust created by the deed.

We know of no case in which a court of chancery has ever assumed, on bill filed by the plaintiff in an action at law, to enjoin the defendant in the action from making defense to such action, and yet allowed the plaintiff to proceed with the action. It would seem- that the plaintiff at law, having made choice of the forum in which to proceed against the defendant, should, if he discovers that he has commenced in the wrong forum, abandon his action and file his bill. If the articles of machinery were fixtures, and constituted a part of the realty as between mortgagor and mortgagee, then they passed by the first mortgage to Ramsey. In that case Ramsey, any time after the execution and delivery of the mortgage, might have maintained ejectment and recovered possession of the land and everything that was a part of the realty. A mortgagee has the right of immediate possession, and he is not required to show a breach of the condition or previous notice. Hilliard on Mortgages, 4th Edn. Vol. 1, 168. In this State the mortgagee is considered the owner of the fee as against the mortgagor, and all claiming under him, and is entitled to all the rights and remedies which the law gives to such an owner, and either before or after condition broken he can enter or bring ejectment. Carroll v. Ballance, 26 Ill. 9; Nelson v. Pinegar, 30 Ill. 480; Kilgour v. Gockley, 83 Ill. 109; Moore v. Fitman, 44 Ill. 367; Harper v. Ely, 70 Ill. 581. If a fixture or other part of the real estate be wrongfully detached from the freehold, the thing detached becomes the personal property of the owner of the soil, and he may, unless the land is held adversely, maintain replevin for the same. While the owner could not bring replevin for chattels severed from land in the adverse possession of the defendant, yet a landlord might thus proceed against his tenant, as the possession of the tenant is not adverse. Anderson v. Hapler, 34 Ill. 436. The possession of the grantee of the mortgagor is not hostile to or inconsistent with the right and title of the mortgagee, such grantee only succeeds to the right of the mortgagor and with notice of the incumbrance and his possession is not adverse to the mortgagee. Medley v. Elliott, 62 Ill. 532. If the machinery then constituted a part of the realty and was covered by the mortgage, Eamsey had an adequate remedy at law, and could introduce his evidence as to the character of the machinery and its attachments to the mill and all surrounding circumstances in the replevin suit.

So far as the alleged agreement of Jones to pay off the Eamsey mortgage is concerned, we would say that even assuming as sound law that Davis & Co., in the event that they were able to establish the fact that such agreement was actually made, and for a consideration, and that Jones was fraudulently attempting to defeat the claim of Eamsey in the replevin suit, and to remove and dispose of the fixtures, would be entitled to the injunction; yet no such case is made out by the proofs.

The deed contains no such provision. Davis testified that his understanding was that Jones would pay off the Eamsey debt. Pritchett testified that his understanding was that Jones would pay off the Eamsey mortgage; that he couldn’t remember Ills words, but that he thinks that this was the meaning, and that when the deed was signed nothing was said about it. Adams testified that he had frequent talks with Jones about the Eamsey debt; that he could not state when or where, but that Jones had said "that he would pay off the Eamsey debt. On the other hand, Vymonds, who took the acknowledgment to the deed, testified that nothing was said by any one of the parties about the Eamsey debt, and Jones testified that he had not at any time promised to pay off the Eamsey mortgage. What the witnesses Davis and Pritchett said as to what they thought and understood, is incompetent as evidence, and proves nothing; and the statement of Adams as to conversations that he could not locate either as to time or place, especially when we consider the surrounding circumstances, and that various propositions were mooted between them and rejected, is extremely unsatisfactory. In fact, the decided weight of the evidence is for the defendant on the question of this alleged agreement. The record is barren of any proof that the deed was intended to be an escrow.

We do not desire upon this record to express any opinion as to whether the machinery in question was personal property or a part of the realty. There will, in all probability, be a second trial of that issue,, either in this case or in the action of replevin, and the evidence upon such trial may be more specific and satisfactory as to the character and surroundings of the property. We might remark, however, that it would be a violation of the rules of evidence to receive proof of a cotemporaneous verbal arrangement, to change the legal effect of the mortgage itself. Smith v. Price, 39 Ill. 28. The mortgage itself, viewed in the light of the status of the property and the surrounding circumstances, must speak for itself as to what it did or did not include. Were this a bill alleging a mistake of fact, as distinguished from a mistake of law, and seeking to reform the mortgage, then the rule might be otherwise.

We have been referred by counsel on either side to almost numberless and conflicting decisions upon the subject of fixtures. They are almost uniformly the decisions of the courts of other States, and. upon this subject there appears to be an irreconcilable conflict of opinion.

Judge Dillon in the Central Law Journal, of January 5,1877, 22, says of the law of fixtures: “Whoever traces the history of the growth and development of the law on the subject, will see that the constant tendency of the judicial mind has been toward emphasizing the importance of intention, either actual, or as presumed from the character, relations and purposes of the property, as an element of controlling and frequently decisive imoortance.”

In Ewell on Fixtures, on pages 21,22, it is said: “ The weight of modern authority and reason * * * * seems to establish the doctrine that the true criterion of an irremovable fixture consists in the united application of several tests:

“ 1st. Beal or constructive annexation of the articles in question to the realty.

“ 2nd. Annexation or adaptation to the use or purpose of that part of the realty with which it is connected.

“ 3d. The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of annexation, and the purpose or use for which the annexation has been made.

“ Of these three tests, the clear tendency of modern authority seems to be to give pre-eminence to the question of intention to make the article a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention.”

In our own State, this question of intention has frequently been referred to in the decisions of the Supreme Court, in passing upon the question as to what was or was not a part of the realty.

In Dooley v. Crist, 25 Ill. 551, the court said: “ If the intention was to render the improvement permanent when erected, there can be no question that it became a part of the freehold, and no subsequent change of intention changed its character to that of personal property.”

In Smith v. Moore, 26 Ill. 392, the court said: “The true reason why a purchaser, before the completion of the contract, has no authority to remove improvements which he may have placed upon the land, is not because he is a mortgagor, but because the law presumes they were annexed with the design of being permanent. The exception in favor of trade fixtures is made because the annexations are supposed to be accessory to the calling of the tenant, and not to the land; that they are made, not with the design of being permanent, but of being severed at the end of the term; whilst with the purchaser the presumption is that they are made with the design of their permanent engagement in connection with the land, and as an accessory to it. He makes them in view of their becoming his when he shall have acquired the absolute ownership of the land by conveyance.”

In Kelly v. Austin, 46 Ill. 156, the Court said: “ While the intention alone will not always determine whether such structures are, or are not to be regarded as personal estate, it will have a controlling influence in cases of doubt.”

In Arnold v. Crowder, 81 Ill. 56, the Court said: “The matter of annexation is a relative question, which must receive a different answer as the parties differ in each case that arises. Much depends upon the intention with which the structure is made. * * * * Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight, are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing they were so intended lying on those who assert that they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land, even slightly, is to be considered as part of the land, unless the circumstances are such as to show that the article was.intended all along to continue a chattel, the onus similarly lying on those who contend that it is a chattel. Intention is manifested by acts.”

We have been thus elaborate upon this, subject of intention, as we think that it may be of controlling influence as to some, if not all, of the property in question.

The right to redeem within twelve months after the day of sale, is a substantial or statutory right, and a right in which the grantee of the mortgagor has a lively interest. The statutes of Illinois in force when the mortgage deed was made, entered into the legal and equitable obligations of the contract witnessed by the deed, and if the mortgage is foreclosed by proceedings in court the foreclosure must be in conformity with such statute. When, in this case, the mortgagee asked the aid of the court of chancery, and prayed the court to take an account of the amount due upon the mortgage debt, and that the equity of redemption in said premises might be foreclosed, and that a decree might be made for the sale of the mortgaged premises, he was bound to know that ihe court could and would grant him relief only in conformity with the statute, and in accordance with principles that govern the courts of chancery. It matters not that no personal decree against any one for the amount ascertained to be due was entered, and it matters not that the master was directed to sell by virtue of the power in the sale mortgage. Notwithstanding this the decree was in substance and in fact a decree to foreclose the mortgage. The court found the amount due on the mortgage to be $2,680, and ordered and decreed that if said amount should not be paid in 30 days, that the Master in Chancery of Clay county should sell said property, and that he should sell it according to law, arid make a deed to the purchaser, and that there should be no redemption, and that the Master should pay to Jones any balance that the property might produce at said sale over and above said sum of $2,680 and costs. It is true there was no express order that the equity of redemption would be foreclosed, but the orders that in default of payment by a certain day the Master should sell and execute a deed to the purchaser, and that there should be no redemption from the sale, not only effectually foreclosed the equity of redemption, but cut off the statutory right of redemption after sale. It is idle to say that such sale would be under the power in the mortgage, as the master would derive all his power from the decree, of the court. Where there is a mortgage and a court decree a sale under it, to culminate, mediately or immediately, in absolute legal and equitable title, then, regardless of the form of the mortgage, it is a foreclosure of the equity of redemption. The decree, the sale made under it and the deed, would constitute the transfer of title. The purchaser at such sale would derive title through the judicial proceedings in this cause. The decree of the coúrt would be an essential element in the transfer of the title, and, under the statute, the court, when a mortgage is the lever with which it works the transfer, and the case is one not calling for a strict foreclosure, can only decree such transfer to be made as the statute directs it shall be made. The statutory right of redemption after sale is a rule of property. E. S. 1874, Chap. 77, §§ 16, 18; Weiner v. Heintz, 17 Ill. 259, 262; Rhinehart v. Stevenson, 23 Ill. 524; D’Wolf v. Hayden, 24 Ill. 525; Farrell v. Parlier, 50 Ill. 274; Karnes v. Lloyd, 52 Ill. 113; Bronson v. Kinzie, 1 Howard, 311; Brine v. Hartford Fire Ins. Co. S. C. U. S., opinion filed May 13, 1878.

For the reasons indicated in this opinion the decree herein is reversed and the cause remanded.

Eeversed and remanded.


author: Wall, J.

text:
    Adams Express Company v. William J. King.
    1. Pleading—Statute op limitations.—A plea of the Statute of Limitations, in bar to an action on an unwritten contract, is sufficient if it alleges a lapse of .ten years instead of five. The greater includes the lesser.
    2. Pleading—Non-residence op dependant.—It is not necessaxy to aver in the declaration, the non-residence of the defendant, and such averment is not traversable. Non-residence would become important only in case the Statute of Limitations should be pleaded, and then the better practice would be for plaintiff to reply specially the absence from the State, to detendant's plea.
    3. Demurrer—Matters op porm.—Questions relating to the form of a plea can be reached only by special demurrer.

      4. Contract op carrier—Conditions.—Suit was brought against an express company for a failure to carry safely a package of money. Defendant ■ pleaded among other things a contract with a condition, setting it out. Held, that the proof would not sustain this averment if it appeared that the condition was not known or assented to by the plaintiff; that it was unnecessary to aver more than that it was the contract; if the condition was unknown and not accepted, it did not become a part of the contract.
    Error to the County Court of Jackson county; the Hon. George W. Andrews, Judge, presiding.
    Mr. E. 0. Devore, for plaintiff in error;
    that the court could not strike out words from a plea because they were interlined, cited Garrity v. Wilcox, 83 Ill. 159.
    A court can only amend its judgment as to matters of form at a subsequent term; Smith v. Wilson, 26 Ill. 186; Cook v. Wood, 24 Ill. 295; Coughran v. Gutchens, 18 Ill. 390.
    There must be some memoranda by which to make the amendment: 11 Ill. 587; 20 Ill. 46; 18 Ill. 391; Wallahan v. The People, 40 Ill. 102; Makepeace v. Lukens, 23 Ind. 435.
    A party is entitled to notice of proceedings tó reinstate a case; 26 Ill. 187.
    A receipt given by a common carrier must be taken all together in giving it construction: Butler v. Steamer Arrow, 6 McLean, 470.
    Possession of a receipt containing conditions is prima facie evidence that the possessor assented to its conditions, and the burden is upon him to show that he did not assent: Boorman v. Am. Ex. Co. 21 Wis. 152; King v. Woodbridge, 34 Vt. 591; Strohn et al. v. Detroit R. R. Co. 21 Wis. 554.
    As to the right of a carrier to restrict his liability: Caldwell v. Southern Ex. Co. 21 Wall. 264.
    A receipt with conditions is the contract between the parties: York County v. Central R. R. Co. 3 Wall. 107; Grace v. Adams, 100 Mass. 505; Kirkland v. Dinsmore, 62 N. Y. 161.
    Defendant’s third plea, setting out the conditions of the contract, and failure of plaintiff' to give notice of loss, was good, and the demurrer should have been overruled: Adams’ Ex. Co. v. Haynes, 42 Ill. 89; U. S. Ex. Co. v. Haines, 48 Ill. 248; U. S. Ex. Co. v. Haines, 67 Ill. 137; Anchor Line v. Dater, 68 Ill. 369.
    The declaration should have averred that claim was made for the loss within thirty days: Southern Ex. Co. v. Caldwell, 21 Wall. 264; U. S. Ex. Co. v. Harris; 51 Ind. 127.
    Messrs. Babb & Lemma, Mr. C. H. Laymah and Mr. Geo. W. Hill, for defendant in error;
    that the limitation laws in force at the time the cause of action accrues, govern, cited Beesley v. Spencer, 25 Ill. 216; Rev. Stat. 1874, 1,046.
    The statute in force when the receipt in this Case was- given, allowed sixteen years in which to sue: Scate’s Comp., Laws of 1849, 752.
    A foreign corporation cannot plead the Statute of Limitations: Rev. Stat. Chap. 83, §18; Tioga R. R. Co. v. Blossburg & Corning, 20 Wall. 137; 50 N. Y. 656; 5 Nev. 44; Ill. Cent. R. R. Co. v. Johnson, 34 Ill. 389.
    The third plea of defendant amounted to the general issue and was demurrable: Ill. Cent. R. R. Co. v. Johnson, 34 Ill. 389; Zirkel v. Joliet Opera House Co. 79 Ill. 334.
    The plea should have alleged the conditions of the receipt: Western Trans. Co. v. Newhall, 24 Ill. 466; Adams Ex. Co. v. Haynes, 42 Ill. 89; Ill. Cent. R. R. Co. v. Frankenberger, 54 Ill. 88; Anchor Line Co. v. Dater, 68 Ill. 370; 2 Parsons on Contracts, §238.
    Demurrer cannot be carried back to the declaration after general issue pleaded: Wear v. J. & S. R. R. Co. 24 Ill. 593; Chestnut v. Chestnut, 77 Ill. 346.
    As to power of the court to amend its records: Bergen v. Riggs, 40 Ill. 61; Dunham v. South Park Commissioners, 10 Chicago Legal News. 74.
   Wall, J.

This was an action of assumpsit, by the defendant in error against the plaintiff in error. The amended declaration, filed at the January term, 1878, contained three counts: the first alleging that the plaintiff in error, on the 19 th August, 1864, undertook to carry a valuable package from D. E. Bluff’, Arkansas, and deliver it for plaintiff to James Brown, at Liberty, Illinois; and that the package was not so delivered, etc. The second count is in substance the same as the first, and the third is a common count for goods, wares and merchandise, etc. Eone of these undertakings were alleged to be in writing, but attached to the declaration was a copy of an express receipt for a package said to contain §170.00, dated D. E. Bluff, Aug. 19, 1864, with certain conditions not set out in either count.

The pleas filed were: 1st, non assumpsit; 2nd, Statute of Limitations, 10 years; 3d, that the supposed causes of action in the 1st, 2nd and 3d counts were for the same thing, to wit: a supposed failure to deliver the package in question; that by the terms of the contract the defendant was not to be liable for loss unless the claim was made in writing at the office of defendant in D. E. Bluff within thirty days from the date of the receipt, with the receipt or contract attached; that no such'claim was presented within thirty days, nor within a reasonable time, nor at any time within thirteen years, etc. The court, on motion of the plaintiff, struck the 2nd plea from the flies, and sustained a general demurrer to the 3d plea. The 2nd plea was properly entitled of the cause, and as to the 3d count, was good. It was good as to the 1st and 2nd counts, unless it can be said that they are upon a written instrument—but these counts do not in terms declare upon a written instrument. To all the counts the plea would have been good if it had averred the lapse of five years only. The greater includes the lesser, and it would seem to be no serious objection that it alleged ten years instead of five. It is urged that defendant is a foreign corporation, and could not avail of the Statute of Limitations. The declaration avers that defendant is, and was since the cause of action accrued, resident in Hew York, but it does not aver that defendant is a corporation. Wallace v. The People, 63 Ill. 451. The averment of non-residence in the declaration is not necessary and not traversable. The plaintiff, to recover, is not bound to prove the fact in the first instance. It could become important only in case the statute should be plead as a defense. The regular course of pleading was for defendant to set up the bar by plea, and for plaintiff to reply specially the absence from the jurisdiction. It was error to strike this plea from the files. The 3d plea was inartificially drawn, and was obnoxious to a special demurrer, for several reasons, assigned in the brief, but these objections could not be reached by general demurrer. We think it is good in substance. It is urged that this plea was interlined after filing, and that as originally drawn it was wholly insufficient, Since the record was filed in this court the court below on motion of plaintiff, struck out the words so interlined. Affidavit is made in this court by counsel who wrote the plea that the interlineations were made before it was filed, and the original has been sent here for inspection. We have examined it, and are unable to say from its appearance that the interlineations were made subsequent to the filing of the plea. They seein to be in the same handwriting and ink as the body of the plea, and this is consistent with the affidavit. However, we think the matters interlined are not essential. Without them the plea alleges that the contract contained the condition in question, and that this was a part of the agreement. The proof would not sustain this averment if it appeared that this condition was not known or assented to by the plaintiff; but it is unnecessary to aver in the plea more than that it was the contract. If the conditions were unknown and not accepted, they did not become a part of the contract. For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Tanner, P. J.

text:
    John B. Kimball v. Citizens’ Savings Bank.
    Replevin—Judgment eor betubn oe property.—To the declaration in replevin defendant pleaded non- cepit, non detinet, property in another; that the property was held under certain writs of attachment and execution; and former adjudication. The plaintiff filed a demurrer to the third, fourth and last pleas, which was overruled, and electing to stand by his demurrer, the court rendered judgment against plaintiff for costs. Held,, that under the state of the pleadings, it was the duty of the court to render final judgment against the plaintiff, and for a return of the property.
    Ebeob to the Circuit Court of Jackson county; the Hon. Monroe 0. Cbawfobd, Judge, presiding.
    Messrs. Smith & Stephens and Mr. Rucien Eaton, for plaintiff in error;
    that judgment should have been for return of the property, cited Rev. Stat. 1874, 853, §22; King v. Ramsey, 13 Ill. 619; Underwood v. White, 45 Ill. 437.
    Electing to stand by a demurrer is an admission of record of the allegations, equivalent to a finding by a jury: Nispel v. Laparle, 74 Ill. 306.

      A failure to except to the judgment in the court below is not a waiver of the error: Richeson v. Ryan, 14 Ill. 74; Thayer et al. v. Finley et al. 36 Ill. 264; Kern v. Zink, 55 Ill. 449; Stuart v. The People, 3 Scam. 395; Sloo v. State Bank, 1 Scam. 428.
    Messrs. Donovan & Coneoy, for defendant in error;
    that the court had a right to try all the issues in the case, cited Campbell v. Head, 13 Ill. 122; Butler v. Mehrling, 15 Ill. 488; Hopkins v. Ladd, 35 Ill. 178.
    Ho motion for a new trial was made and no exception taken, and this court cannot inquire into the finding of the court below: Lawson v. Langhaus, 85 Ill. 138; Nimmo v. Kuykendall, 85 Ill. 476; Reichwald v. Gaylord et al. 73 Ill. 503; Choate v. Hathaway, 73 Ill. 518; Bills v. Stanton, 69 Ill. 51; Law v. Fletcher, 84 Ill. 45; Boyle v. Levings, 28 Ill. 314; Pottle v. McWorter, 13 Ill. 454; St. L. A. & T. H. R. R. Co. v. Dorsey, 68 Ill. 326; Culver v. Hide and Leather Bank, 78 Ill. 625; Gardner et al. v. Russell, 78 Ill. 292; Parsons v. Evans, 17 Ill. 238; Force M’f’g Co. v. Horton et al. 74 Ill. 310; People v. Green, 54 Ill. 280; Prout et al. v. Grout et al. 72 Ill. 456; McPherson v. Nelson, 44 Ill. 124; Kern v. Strasberger, 71 Ill. 303.
   Tanner, P. J.

In this case the defendants in error sued out a writ of replevin in the Circuit Court of Jackson county, Illinois, for one hundred and thirty tons of pig iron, then in the hands of plaintiff in error. The writ was duly executed and the property delivered to the defendant in error. The declaration contains two counts: one for the unlawful taking, the other for the unlawful detaining of the above described property. To this declaration, plaintiff in error filed four pleas, viz: 1. Non cepit. 2. Non detinet. 3. That the Big Muddy Iron Company was owner of the property described in the declaration. 4. That said property was held under certain writs of attachment and special executions, fully set forth in the record. Demurrers were filed to the third and fourth pleas, and were overruled, and leave granted defendant in error to reply. The plaintiff in error, by leave, then filed a plea of former adjudication. To this last plea a demurrer was filed by defendant in error and overruled by the court. The defendant in error declined to plead further in the cause, and thereupon judgment was rendered in the following words: “It is considered and adjudged by the court that said plaintiff take nothing by his suit, and that the defendant go thereof without day, and that the defendant do recover against the plaintiff his costs and charges by him about his defense, in this behalf expended, to be taxed herein, and that he have execution therefor.” The plaintiff in error brings the case to this court, and alleges that the court erred in not rendering judgment for the return of the property. ,

On the state of pleadings presented by the record, the court should have awarded a return of the property. The defendant in error in the first place filed a general demurrer to the 3d and 4th pleas; the demurrer was overruled, and leave was given to reply, but no replication was filed. The record, however, stood open in this respect down to the time the defendant in error filed his 5th plea. The court overruled a demurrer to this plea, as well as to the 3d and 4tli pleas. The defendant in error then announced that he would “stand by his demurrer to the pleas, and that he did not wish to plead further.” At this point he had not taken issue upon any of the pleas. By the demurrer the facts set out in the 3d, 4tli and 5 th pleas were admitted to be true, and the court in overruling the demurrer, declared the law to be with the plaintiff in error. When the defendant announced that he stood by the demurrer, and did not wish to plead further, he declined to take issue on any of the pleas interposed to the action. It was then the duty of the court, if any of the pleas presented a complete bar to the action, to enter final judgment for the plaintiff in error. Bissell v. City of Kankakee, 64 Ill. 249; Smith v. Dysart 12 Ill. 458; Dana v. Bryant, Geo. 104.

We have carefully looked into the several pleas to which demurrers were sustained, and have no hesitation in holding that the court was required to enter final judgment for the plaintiff in error. The statute provides that: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance; or if the right of property is adjudged against him, judgment shall he given for the return of the property, and damages for the use thereof from the time it was taken until the return thereof shall be made, unless the plaintiff .shall, in the meantime, have become entitled to the possession of the property, when judgment shall be given against him for costs and such damages as the defendant shall have sustained; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which the same was rightfully held with proper damages, within a given time, or make return of the property.” Rev. Stat. 1874, 853, § 22.

Under this statute and the state of the pleadings, the Circuit Court should have awarded a writ- of retorno habendo. For this omission the judgment' will be reversed and the cause remanded with leave to the plaintiff" in error to move the court for a judgment upon the record in accordance with the foregoing views.

Reversed.


text:
    D. S. Morgan & Co. v. James Thetford.
    Contract op sale—Rescission.—A party seeking to rescind, a contract for the sale of a machine, on the ground that it did not work as warranted, must return or offer to return it within a reasonable time after he discovers its defects. He cannot use the machine through the whole season, lay it aside, and then defeat a recovery of the contract price on the ground that it did not work well.
    Error to the Circuit Court of Jackson county; the Hon. Monroe C. Crawford, Judge, presiding.
    Messrs. Barr & Lemma, for plaintiff's in error;
    that a party seeking to rescind a contract must place the opposite party in statu quo, cited Buchanan v. Harney, 12 Ill. 336; Smith v. Doty, 24 Ill. 165.

      He cannot keep the goods an unreasonable length of time: Story on Sales, § 426.
    The machine not being returned, the vendor was entitled to recover its reasonable value, notwithstanding the warranty: Owens v. Sturges et al. 67 Ill. 366.
    If the defect was unimportant, or could easily have been remedied, the defendant is still liable: Morgan v. Collins, 19 Ill. 126.
    ■ Mr. William J. Allen, for defendant in error;
    that the contract might be rescinded, cited 2 Chi tty on Contracts, 1089; Addison on Contracts, 504.
   Allen, J.

This suit was brought by plaintiff on a promissory note executed by defendant to plaintiff, for a reaper and mower combined. Defendant .sets up by way of bar to a recovery on the note, a warranty and failure of the conditions of the warranty. A trial was had in the Jackson Circuit Court, before a jury; verdict for defendant. A motion for a new trial was made by plaintiff, which the court overruled, and rendered a judgment against plaintiff for costs. Among other errors assigned on the record, is' the refusal of the court to grant a new trial. The evidence discloses the fact that the reaper cut well, but that the rake worked badly. That after the plaintiff’s agent had been notified, he re-adjusted the rake, and after cutting about half an acre the defendant seemed to be satisfied, and executed the note sued on, and paid $5 in money to pay freight on the machine. That defendant continued to use the reaper until he completed his harvest, and that afterwards he notified plaintiff’s agent that the machine did not work well. The only complaint seemed to be that the rake did not properly rake’ off the grain. If the defendant desired to rescind the contract, it was his duty to return or offer to return the machine, within a reasonable time after he discovered its defects; in this way he might have exonerated himself from the payment of his note, having done all he could do or was required to do to place the plaintiff vn, statu quo. Buchanan v. Harney, 12 Ill. 336; Smith v. Doty, 24 Ill. 163; Story on Sales, § 426. Defendant having failed to return or offer to return the reaper, the contract price, or if there was a partial failure of consideration to pay, he became liable to pay plaintiff whatever the reaper was worth. The expense of repairing and adjusting the rake, or even procuring a new one, or new attachments to work the rake, would be"small compared with the value of the reaper itself, if it cut well (and the evidence shows that it did). As a mower the evidence shows its value at from §75 to §125, and although the defendant says he never received the mowing attachment, yet he fails to show that he ever called for it, or that it would not have been furnished if demanded. "So that in any light in which we can view this testimony, the plaintiff was entitled to recover something. Defendant could not use the reaper through his harvest, lay it aside and say it did not work well, and I will neither return it or pay anything for it.

Neither the terms of the warranty or the law of the land •would permit him to do this. We repeat, lie must in a reasonable time return or offer to return the reaper, or hold himself responsible for the contract price or its value, whatever that may be. The evidence shows its value as a mower alone to be greatly beyond what defendant advanced for payment of the freight upon it. Under the evidence the verdict should have been for plaintiff for the contract price or the value of the property, and the court erred in refusing to set aside the verdict of the jury and to grant a new trial.

Judgment of the Circuit Court reversed and cause remanded.

Eeversed and remanded.


text:
    Frederick Rabberman v. Bernhard W. Muehlhausen.
    1. Pbomissoby note—Transfer.—A promissory note payable to A. or bearer cannot be transferred, by mere delivery, so as to vest the legal title in the holder or bearer.
    2. Defenses.—Where suit is brought upon such a note, by a person not the payee, and who becomes the owner thereof without its having- been assigned, the maker can present his defense to the same extent that he could if suit was brought by the payee.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos "Watts, Judge, presiding.
    Mr. E. A. Halbert and Mr. C. E Noetling, for appellant;
    upon the question of fraud in procuring the note signed, cited Champion v. Ulmer, 70 Ill. 322; Edleman v. Byers, 75 Ill. 367; Byers v. Daugherty, 40 Ind. 198; Gibbs v. Linabury, 22 Mich. 479; Briggs v. Ewart, 51 Mo. 245; Hubbard v. Rankin, 71 Ill. 129; Detmiller v. Bish, 44 Ind. 70.
    If a part of the instrument signed is afterwards torn off or erased, the maker is not bound by the instrument so altered: Wait v. Pomeroy, 20 Mich. 425; Kellogg v. Steiner, 29 Wis. 626; Cochran v. Nebecker, 48 Ind. 459; Bendict v. Cowden, 49 N. Y. 396.
    An instrument signed by an illiterate person under misrepresentation, as to its contents; or where the instrument is misread to him, is void: Schuylkill Co. v. Copley, 67 Pa. St. 387; Walker v. Ebert, 29 Wis. 194; Richardson v. Schirtz, 59 Ill. 313; Leach v. Nichols, 57 Ill. 273; Munson v. Nichols, 62 Ill. 111; Latham v. Smith, 45 Ill. 25; Taylor v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 88; Champion v. Ulmer, 70 Ill. 322; Edleman v. Byers, 75 Ill. 367.
    Appellant was only required to use reasonable caution in signing the note; Tayler v. Atchison, 54 Ill. 196; Sims v. Bice, 67 Ill. 88; Gould v. Stevens, 43 Vt. 125; Ayers v. Hutchins, 4 Mass. 370; Russell v. Hadduck, 3 Gilm, 233.

      An instruction assuming to be a statement of the case, must state all facts necessary to be proved: St. L. &. S. E. R’y Co. v. Britz, 72 Ill. 256.
    Where it is manifest the verdict is wrong, and that improper instructions may have contributed to the result, a new trial should be granted: T. W. & W. R. R. Co. v. Corn, 71 Ill. 493; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. 91.
    Bo assignment of the note to appllee was proven: Elliott v. Levings, 54 Ill. 213.
    A person taking a note without assignment, takes it subject to all the defenses available against the payee: Sturges v. Miller, 80 Ill. 241.
    Evidence of other fraudulent transactions of the same character, by the payee of the note, should be admitted: Hall v. Taylor, 18 N. Y. 589; 76 Ill. 230.
    Messrs. Wildebmaxt & Hamill, for appellee;
    that the exercise of due diligence on the part of the signer of negotiable paper, is necessary, cited Homes v. Hale, 71 Ill. 552; Swannell v. Watson, 71 Ill. 456; Sims v. Bice, 67 Ill. 88; Mead v. Munson, 60 Ill. 49; Leach v. Nichols, 57 Ill. 273; Taylor v. Atchison, 54 Ill. 196; Yocum v. Smith, 63 Ill. 321; Harvey v. Smith, 55 Ill. 224; Comstock v. Hannah, 76 Ill. 530.
    Appellant is liable if he knowingly signed a note with a ■condition annexed, even if the condition was detached after its execution, the note being in the hands of an innocent holder: Elliott v. Levings, 54 Ill. 213; Clarke v. Johnson, 54 Ill. 296; Shipley v. Carroll, 45 Ill. 285; Harvey v. Smith, 55 Ill. 224.
    Instructions calculated to mislead the jury should be refused: St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256.
    The instrument being payable to bearer, did not require indorsement: Rev. Stat. 1874, Chap. 98, §8; 2 Parsons on Notes and Bills, 33; 1 Parsons on Contracts, 24; Mercer County v. Hackett, 1 Wall. 95; E. & II. R. R. Co. v. Hunt, 20 Ind. 467; Jones v. Nellis, 41 Ill. 482; Miller v. Race, 1 Smith’s Lead. Gas. 250; Binz v. Weber, 81 Ill. 288; Johnson v. County of Stark, 24 Ill. 85; Town of Eagle v. Kohn, 84 Ill. 295.
   Tanner, P. J.

This was an action of assumpsit, instituted by the appellee upon a promissory note, executed by the appellant, and payable to oue O. P. Baker, or bearer. The general issue was filed and several special pleas. The second plea avers that the maker of the note was unable to read writing in the language in which the note was written; and that in signing the said note, he was told and induced to believe that he was executing a contract entered into between him and the payee of the note, for the purchase of lightning rods, and the paying therefor by feeding and taking care of a certain number of horses, then owned by the payee of the note.” The third special plea avers that “ the payee in the note represented that he was the conductor of a lightning rod company, which owned a large number of horses; and he then proposed to appellant to give him the sum of seven dollars per head for the feeding and taking care of thirty horses per month, and to continue to do so for five months; that he accepted this proposition, whereupon the payee in the said note proposed to put up lightning rods to appellant’s dwelling house and barn, and to apply the cost thereof to the payment in part for the keeping and' feeding of said thirty head of horses. To this proposition he also assented; and that the said Baker, the payee in the said note, then put up the lightning rods at the price of one hundred and seventy dollars. And thereupon the said Baker drew up and presented to him a paper, partly printed and partly written, in the English language; and that he could neither read nor write the said language. That said Baker read and represented said instrument to be a promissory note, conditioned for the payment of money, but to be paid wholly in keeping and feeding of horses, as aforesaid; and it was not to become due and payable until the amount thereof was discharged in the feeding and keeping of said horses. And that he, in full confidence in the truth of the statements so made, signed the said instrument, and thereby he was fraudulently induced to sign the same:” Issue was joined on the several pleas, and the cause was submitted to a jury, and verdict returned for the appellee.

A motion for a new trial was overruled, and judgment was rendered upon the verdict. The appellant brings the cause to this court, and assigns as error, first, the giving of the first and second instructions for the plaintiff below. We think both instructions should have been refused. In the first instruction the j ury are directed to find for the plaintiff if they believe, from the evidence, the defendant knew at the time he was signing the contract spoken of by him, that there was a note attached to it, and that the agreement spoken of by defendant in his evidence was that the note attached to it was to be paid by horse-feed; and that the plaintiff purchased the note for value before it was due, without notice, actual or constructive, of any defense to the note.” The fault in this instruction consists in not having any testimony upon which it can rest. The appellant is the only witness that testifies in reference to the contract, and he does not at any time state that he signed a contract with a note attached to it, but that he signed a contract or note which was conditioned to be paid in feeding and taking care of horses; that he was sure he never signed such a paper as the note sued on; that the paper he signed was twice as large as the note. There is another reason why these instructions should have been refused. The note is payable to O. P. Baker or bearer, and was passed to the appellee by delivery. Under Sec. 4, Chap. 98, B. S. 1874, promissory notes must be indorsed thereon under the hand of the payee, in order to vest the right of property absolutely in the assignee. And where suit is brought upon a promissory note by a person not the payee, and who becomes the owner thereof without its having been assigned, the maker can present his defense to the same extent that he could in case it was brought by the payee. Both instrucstructions are based upon the theory that if the appellee purchased the notes before maturity, without notice of any defense to the same, he stands in the position of an innocent holder. The rule of law is otherwise. Sturges v. Miller, 80 Ill. 241.

We are asked, also, to reverse the judgment, upon the authority of the case of Elliott v. Levings & Co. 54 Ill. 213. In that case the'court says: “ There is however a defect, in the proof, for which the judgment must be reversed. The bill of exceptions, which professes to contain all the evidence, sets out the note, but shows no assignment of it by the payee to the plaintiff, and the counsel for the appellant ask a reversal on this ground.”

It is so in the case before us; and the judgment, if there was no other error, would have to be reversed for this. But the counsel for the appellee urges that the rule laid down in this case has been changed by the 8th section of chap. 98, R. S. 1874. This section was enacted in 1874, and went into force on the 1st day of July of that year, and so far as we are now informed, has in nowise been construed by the courts. The note in the case before us, as has already been observed, is made payable to “ O. P. Baker or bearer.” In Hilborn v. Artus, 3 Scam. 344; and Roosa v. Crist. 17 Ill. 450, it is held that a note payable to A. B. or bearer, cannot be transferred by mere delivery, so as to vest the legal title in the holder or bearer. These cases are familiar to the bar, and we need make no quotations therefrom, in order to show the grounds upon which they rest. It is sufficient to say, such is the law. The note in suit before us has a definite payee. The term bearer is mere surplusage; and being made payable to a person by name, the title can only pass from him by his indorsement, in pursuance of the provisions of the statute in reference to this character of paper. To apply the rule for which the counsel for the appellee contends, in the case now under consideration, we would have to reverse the order of reasoning adopted by the Supreme Court, as the basis for rule in the cases before cited upon this point. The payee would be entirely ignored—his name regarded as mere surplusage. This view is not supported by reason or authority, To hold that by the 8 th Sec. of the Chap, on negotiable instruments, the legal title to this note p>assed to the appellee by mere delivery, would be assuming that the 4th Sec. of said Chap, has been repealed by implication. The doctrine of the repeal of existing statutes by implication is not favored, and is never applied where statutes are in pari materia, except where there is an irreconcilable repugnancy. This ruléis without exception and too well understood to demand, the citation of authority.

These several provisions of the statute are not repugnant, and we hold that section 8 does not in the least affect the provisions of section 4, as construed by our court, in the cases to which we have already referred. Section 4 was re-enacted by the General Assembly in 1874 without alteration, and long after it had been repeatedly construed by out Supreme Court, and its re-enactment must be presumed to have been done with the intention of continuing it in force, as construed by the courts. Other errors are assigned, but as they are of such character as would likely he corrected if another trial was had, it is unnecessary to notice them.

For the errors already indicated, the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Asa D. Harper et al. v. The Town of Dodds.
    1. Highway—Dedication—Not inferred from use.—In this State, no inference or conclusion will be drawn against the owner of unenclosed land, which is traveled, to establish an easement in the public. The voluntary use of a way by the public, with the assent of the owner, is not of itself sufficient to make it a public highway; but such use and assent, in connection with proof of actual recognition and repair by the public authorities, may warrant a jury in finding that the way is a public highway.
    2. Highway by prescription.—The mere fact that people may have traveled over the way in question, and that it may have been denominated a public highway, does not make it such, even though such travel may have been permitted without objection for more than twenty years. So, where the way in question was but a short piece of road, having no connection with prominent points, was used only by a neighborhood, and had never in any way been regarded by the public authorities as a public highway, it cannot be considered as a public highway in the legal sense of tire term.
    Appeal from tie Circuit Court of Jeifer'son county; the Hon. Mokroe C. Crawford, Judge, presiding.
    Messrs. Casey & Laird, for appellants;
    contending that the description of ■ the road as set forth in the complaint must he proved, cited Martin v. The People, 23 Ill. 395.

      The existence of the road at the point named must be proved: Houston et al. v. The People, 63 Ill. 185; Town of Lewiston v. Proctor, 27 Ill. 414.
    Ho inference exists against the owner of unenclosed land to establish an easement in favor of the public: Warren v. The President, etc., 15 Ill. 236; Kyle v. Town of Logan, Sup. Ct. Ill. 1878.
    Occupation, without an acceptance by the public, will not create an easement: State v. McDaniel, 8 Jones, 284.
    Voluntary use by the public with the assent of the owner of the soil, is not of itself sufficient to make a public highway: Alvord v. Ashley, 17 Ill. 363.
    1 There must be an acceptance by the public: Martin v. The People, 23 Ill. 395; Town of Lewiston v. Proctor, 27 Ill. 414; Green et al. v. Oakes, 17 Ill. 249; White v. Bradley, 66 Me. 254.
    To establish a highway by prescription, the use must be open, adverse and under a claim of right: Gentleman v. Soule, 32 Ill. 271; State v. Joyce, 19 Wis. 92; Kilburn v. Adams, 7 Met. 33; Yute v. Bradbury, 40 Me. 159.
    It is better, when there is doubt about the existence of a highway, to lay out the road anew and condemn the right of way, that vexatious litigation may be avoided: McIntyre v. Storey, 80 Ill. 127; Davis v. Rumsey, 5 Jones 240.
    Messrs. Pollock & Son and Green & Carpenter, for appellee;
    in favor of a prescriptive right in the highway, cited Town of Lewiston al Proctor, 27 Ill. 414; Onstott v. Murray et al. 22 Iowa, 457; Worrall v. Rhoads, 2 Whar. 437; Hart v. Trustees of Bloomfield, 15 Ind. 226; State v. Hill, 10 Ind. 219.
    The intention of a party to dedicate may be manifested by express consent or acquiescence in the use: Warren v. President, etc. 15 Ill. 236; Smith et al. v. Town of Flora et al. 64 Ill. 93; Marcy v. Taylor, 19 Ill. 634; State v. Hill, 10 Ind. 219; Cincinnati v. Lessee of White, 6 Pet. 431; Com’rs of Highways v. Glass, 19 Barb. 179; Chicago et al. v. Wright, 69 Ill. 318; Angell on Highways, § 137; 7 Met. 33.
    A neAV trial will not be awarded Avhere the evidence tends to sustain the verdict, or where it is conflicting, unless clearly against the weight of evidence: Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Gilbert v. Bone, 79 Ill. 341; Varner v. Varner, 69 Ill. 445; Kightlinger v. Egan, 75 Ill. 141; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217.
   Allen, J.

This was a suit instituted by appellee against appellants, before a justice of the peace, on a charge against appellants of having obstructed a “ public highway.” An appeal was taken to the Circuit Court, and upon a trial in that court appellants were found guilty. A motion for new trial was overruled, and judgment on tire verdict for $300 and cost against each of the appellants, and the cause is brought to this court by appeal.

The controversy turns upon the question as to whether the road where the obstruction was placed, was a public highway within the meaning of that term-—such a road as gave to the public an unconditioned right to use, independent of the will of the owner in fee of the land over which it passed. It is claimed by appellee that the public have such right by prescription or user, and this is denied by appellants. It is claimed by appellee that the place obstructed was on a line of travel by the public in going to and from the towns of Mt. Vernon, in Jefferson county, and Benton, in Franklin county; but the evidence shows that as a line of travel between these two points it has long since been abandoned, if ever so used. That at one time there was a mill in the vicinity of which this obstruction is charged to have been made, but that the mill was abandoned many years since, and for that purpose it ceased to be used, and that for several years it has only been used by neighbors in passing to a church or school-house, and a graveyard in the vicinity, and as an outlet to a public road leading east and west, near the church, and near the place where this obstruction was placed.

It is further shown by the evidence that about nine years since, on the petition of a number of citizens living along a line from Benton to Mt. Vernon, the county authorized the survey and location of a road leading from Mt. Vernon south, in the direction of Benton, over the very line of travel now claimed as a public highway, and that said line was surveyed and the line established, and the road ordered to be opened; but that, upon a remonstrance of a still greater number of citizens along the line, the county authorities set aside the order and vacated the line, and neither in the petition to establish a road, nor in the petition for the vacation of the line, is any mention made of a public highway existing on this or any other portion of the route. The evidence shows that the short line claimed to be a public highway, has for a number of years been in bad condition, obstructed by brush, limbs and fallen timber, washes and ruts; so as to make it difficult, if not dangerous, to pass over with loaded wagons. The road has never been recognized by the public road authorities, or any of the road labor of the district performed on it; that the little work that was ever done on it to make it passable was done by individuals on their own account, and not for the public convenience. That this short line of travel was always through an ojien wood; that the ground to the margin of the line of travel had never been enclosed until fenced by the owner, which is the obstruction complained of. One witness testifies that he ordered the road worked at one time while supervisor, but there is no evidence that work was ever done on it; he says he was ordered to do so while supervisor, eight or nine years ago. It is probable that the order to work was the order to open the road by the county authorities, which was afterward revoked by them. The evidence shows that slight changes in the line of travel were made from time to time, as obstructions might render necessary. The evidence shows that travel is and has been for years obstructed by fencing, but for a short distance both north and south of this obstructed part. We think this evidence falls far short of showing that this was a public highway, in the sense in which that term is used in the statute.

It cannot be claimed that this is a dedication by the owner of the land to the public for a highway. “ For no inference or conclusion will be drawn in this State against the owner of land lying unenclosed, which is traveled, to establish an easement in the public.” Warren v. President and Trustee, 15 Ill. 236. The voluntary use of a way by the public, with the assent of the owner of the soil, is not of itself sufficient to make it a public highway, and impose upon the proper public authorities the duty of repair. But when these are connected with proof of its actual recognition and repair by the proper public authorities, the whole facts should go to the jury, from which they might be warranted in finding from such use by the public, acquiescence by the owner and recognition and repair by the proper public authorities, “ that the way is a public highway in the full sense of that term.” Alvord v. Ashley, 17 Ill. 369.

It is manifest that if this be a public highway it has become so by prescription or user. The mere fact that people may have traveled over it and that it may sometimes have been denominated a highway, do not make it such, though such travel may have been permitted without objection for over twenty years. What is there in this record, then, that contradicts the idea that this is a public highway? First, it is but a short piece of road, and only used by neighbors in going to mill when it led to a mill, which ceased to exist many years ago, and in going to a church that stands or that stood on a public highway, or to a graveyard in the vicinity of the church. It started from no town or village and public place, aud led to none. Its existence as a public highway was not recognized in an attempt to establish a highway over the very ground upon which it is claimed to exist, either by those who petitioned for the establishment of the road or wdio asked for its vacation, or by the county authorities who had the survey made and the line located and who afterwards declared the line vacated, who are presumed to be cognizant qf all the highways in their county.

But perhaps the strongest evidence that it was not in fact or in the opinion of the public a public highway, is to be found in the fact that it never was so regarded by the authorities of the neighborhood, who were especially charged with repairing and keeping in order the highways of the district; it cannot be said that as a highway it needed no repairs, for the evidence is conclusive upon that question, that for a great number of years it had never been in fit condition for the public to pass over, and that no work by the road authorities had ever been done on either in opening it originally or in keeping it open by repairs as the same might he required for the public convenience. All these facts and circumstances contradict the theory that it was, either at the time it was obstructed by building a fence in it by defendants, or that it had been at any time previous a public highway in the legal sense of that term. We do not hesitate to say that the verdict of the jury was contrary to the evidence, and that the court erred in refusing plaintiffs in error a new trial. Feeling the fullest confidence that under the law and upon the evidence as it appears in this record, no recovery can rightfully he had against these appellants, we reverse the judgment of the circuit court and refuse to remand the cause.

Judgment reversed.

Tanner, P. J., not sitting.


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    Meyer & Stratman v. Madison T. Stookey, Adm’r.
    1. Surety—Right to recoup damages sustained by his principal. —A surety may recoup for any damages arising out of the same subject matter, to the same extent as the principal might if he were sued alone.
    2. Damages in recoupment.—The evidence failing to show any data by which the jury could arrive at the amount of the damages sustained, the verdict should have been set aside. Only actual damages can be allowed in recoupment, and these must be proved.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Charles W. Thomas and Mr. Henry A. McGindley, for • appellant;
    against the right of the surety to set off damages arising in favor of his principal, cited Henderson v. Lewis, 9 Serg. & Rawle, 379; LaFarge v. Hasley, 4 Abbott, 397; Waterman on Set-Off, 294.

      The opinion of the witness as to amount of damages is not sufficient: Sedgewick on Measure of Damages, 693.
    Messrs. Gr. & Gr. A. Koerner and Mr. R. A. Halbert, for appellee;
    that the surety, when sued, can recoup damages occasioned to his principal, cited Waterman v. Clark, 76 Ill. 428; Hardy v. Wadsworth, 8 Mich. 350; Hinerod v. Baugh, 85 Ill. 435.
    A court of prohate, in the allowance of claims, is a court of equity, and equitable defenses may be set up: Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 203; People v. Harrison, 82 Ill. 84; Garvin v. Stewart, 59 Ill. 229.
   Allen, J.

This was .an appeal from the County Court of St. Clair county to the Circuit Court, on a claim of appellants for $2,431.60, allowed by that court. Defendant, as administrator, resisted the allowance of the claim, upon the ground that Geo. W. Stookey, deceased, was only a surety on the notes filed for allowance. That James H. Wyatt was the principal. That the notes had been given in part payment of a livery stable, purchased of appe lants in East St. Louis. That at the time of the purchase plaintiff in error gave to Wyatt a bond not to carry on the livery business in East St. Louis for three years. That the giving of this bond was a part of the transaction, and formed a part of the consideration of the notes; and that plaintiffs in error had, in violation of the condition of the bond, engaged in the livery business, to the damage of Wyatt, the principal in the notes. And defendant sought to set up the damages Wyatt had sustained by way of recoupment against the notes upon which the allowance in the County Court was made. A trial was had in the Circuit Court, which resulted in a verdict for defendant. It is insisted by plaintiffs that Stookey could not recoup any damages that Wyatt had sustained by reason of a breach of the conditions of plaintiffs-’ bond to Wyatt. We believe the law is otherwise, and that a surety may recoup for any damages arising ont of the same subject matter, to the same extent as the principal might if he were sued alone. Waterman v. Clark, 76 Ill. 431; Hinerod v. Baugh, 85 Ill. 435; and in Hardy v. Wadsworth, 8 Michigan, the same doctrine is held. But we are unable to perceive in this record evidence to support the finding of the jury. The evidence does show that plaintiffs violated the condition of their bond to Wyatt by engaging to some extent in the livery business, hut there are no data in the evidence by which the jury could arrive at the amount of the damages. How much he was damaged by their furnishing livery for funerals, or for any other purpose, does not appear from the testimony of any witness.

It is true that Wyatt testifies that he was damaged six or seven thousand dollars by the conduct of plaintiff, but he gives no facts or circumstances upon which the jury could arrive at the correctness of his conclusions. This is too vague and uncertain to warrant a jury in finding that he had been damaged to the extent of $2,431.60, or any other particular sum. And as this is not a case in which exemplary or punitive damages could be allowed at all, but only actual damages, juries are not allowed to enter the field of speculation in arriving at their verdict. We think it was error for the court to refuse to set aside the verdict and grant the parties a new trial. In this view of the case we do not stop to examine the points made in the instruction given or refused.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


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    Winfield Stilley v. Nathan G. King.
    Amending appeal bond.—Plaintiff appealed from a justice and filed a bond. In response to a rule in Circuit Court he filed an amended bond, which mis-recited the date of the judgment, as shown'by the transcript. On motion to dismiss the appeal for this defect in the bond, plaintiff asked leave to amend by giving the correct date. Held, that the amendment should have been allowed.

      Error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding
    Mr. George Terror and Mr. James M. Eourtree, for plaintiff in error;
    that the amendment should have been allowed, cited Eev. Stat. 1874, 648, § 69; Wear v. Killeen, 38 Ill. 259; Horner et al. v. Goe, 64 Ill. 178
    Mr. L. M. Phillips and Mr. Charles Eose, for defendant in error;
    that the variance between the bond and the record of the judgment was fatal, cited Lemon v. Stephenson, 40 Ill. 45; Dietrich v. Rumsey, 40 Ill. 50.
    The offer to show that the transcript was incorrect as to dates, was properly refused: Zimmerman v. Zimmerman, 15 Ill. 84; Garfield v. Douglass, 22 Ill. 100; Wiley v. Southerland, 41 Ill. 25.
    Leave to amend was discretionary with the court, and in this case there was no abuse of such discretion: Crain v. Bailey, 1 Scam. 321; Harlan v. Scott, 2 Scam. 65; Griffin v. City of Belleville, 50 Ill. 422; Wood v. Tucker, 66 Ill. 276.
   Allen, J.

The only question in this case is, whether the Circuit Court erred in not allowing plaintiff in error time to file an amended appeal bond, and in dismissingliis appeal. The record shows the case was brought to the Circuit Court on appeal from the judgment of the justice of the peace. The record further shows that on the 9th day of October term, 1876, a motion was entered to dismiss the appeal on account of the insufficiency of the appeal bond accompanied by an affidavit of the irresponsibility of the sureties on the bond. That on the 10th day of the term plaintiff in error asked and obtained leave to file amended bond by 12th Oct. day of the term. Amended bond was filed, and on the 13th day of October defendant moved to dismiss because the bond misdescribed the date of the judgment; and on the 14th October plaintiff’s attorneys asked leave to file affidavits showing the date in bond was the true date, and that transcript bore wrong date, but the court refused to hear the affidavit; whereupon plaintiff asked further time to file amended appeal bond, conforming to the date of transcript as shown by the transcript, but the court refused to give further time, and dismissed plaintiff’s appeal. We are of opinion that under the circumstances further time to perfect appeal bond ought to have been given. Plaintiff’s counsel may have made a mistake in supposing it was better to amend the transcript { than to amend the bond, and unless the cause was called for trial, leave ought to have been granted to file amended bond. Por this reason this cause is reversed and remanded.

Beversed and remanded.