author: Per Curiam.

text:
    Conrad Seipp Brewing Company v. Patrick Doody.

      Personal Injuries—Damages—Whether Excessive—Remittitur—Conflict of Evidence—Question for Jury.

    1. Where the evidence is conflicting the verdict must be held to settle the questions of fact involved, unless it clearly appears that the verdict is the result of misapprehension or of passion on the part of the jury.
    2. In an action to recover damages for a personal injury, the fact that the court differs from the jury as to the damages and requires a remittitur of a portion thereof, does not show that the verdict was the result of passion or prejudice.
    [Opinion filed January 25, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Butz & Eschekburg and I. N. Stiles, for appellant.
    Mr. Merritt Starr, for appellee.
   Per Curiam.

This appeal is from a judgment recovered by appellee against the appellant company for an injury sus tained by him through the alleged carelessness of one of appellant’s servants in driving a team and beer wagon of appellant over a railway crossing at which appellee was on duty as a flagman. The jury found a verdict in favor of appellee for §3,000, and the court required a remittitur of §1,000 of this verdict to be entered by appellee, and rendered judgment against appellant for §2,000.

Counsel for appellant do not claim that there was any error of law committed on the trial, but do insist that the verdict is not warranted by the evidence; that it is the result of passion and prejudice, or a misapprehension of the evidence on the part of the jury. The record discloses a conflict between the witnesses as to the occurrences at the time of and immediately preceding the accident, and the jury were in a far better position to settle that conflict correctly than this court can be.

It can not be contended that the evidence of the plaintiff poes not support the verdict, but only that upon the evidence the verdict should have, been the other way. Where such is the case, the verdict must be held to settle the question of fact, and unless we can clearly see that the verdict is the result of misapprehension or of passion, we are not authorized to set it aside.

It is strenuously contended that the size of the verdict and the fact that the trial court required a remittitur of one-third thereof, is proof positive that the verdict was the result of passion or prejudice. We do not concur in this view. There may be a verdict so excessive as of itself to furnish satisfactory proof of passion, but such a case will rarely occur.

On the question of what is just the correct measure of damages to be allowed in a personal injury case, no tivo men, no two Judges, will be likely to agree. There is not in the fact that the Judge in the trial court differs from the jury as to the correct amount to be given in such a case, the same impugnment of the verdict as there would be where the greater part of the verdict was for punitive damages.

The practice of sustaining judgments where remittiturs are entered is well established in this State, but the remittitur will not always be regarded by the reviewing court as sanctifying the verdict. That question must be governed in each case by the facts of such case, and the inferences to be justly drawn from the entire record. And while an Appellate Court may on proper occasion reform the abuse of a jury, it must not, on mere grounds of difference in judgment, invade their province or assume their functions.

In this case the evidence clearly shows that appellee was quite seriously injured, and it is very difficult to conclude from the testimony that there are no injurious results of a permanent character. At all events the injury could not be truly characterized as slight or insignificant, and we can not say that the judgment is an excessive or unjust compensation.

On a careful examination of the entire record, and full consideration of the arguments of counsel, we find no grounds for reversing this case, and the judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Merchants’ Navigation Company v. Maria Amsden.

      Personal Injuries—Compensatory Damages—Whether Excessive—Exclusion of Evidence in Mitigation—Ownership of Vessel—Records of Collector of Customs—Copies Admissible.

    1. Copies of the last enrollment of a vessel and of a bill of sale of the same, duly certified by a collector of customs, are competent evidence to show the ownership of such vessel.

      2. In an action to recover damages for personal injuries, wherein the instructions limit the recovery to compensatory damages, the defendant can not complain of the exclusion of evidence in mitigation of damages.
    8. In the case presented this court declines to hold that, the damages recovered are excessive.
    [Opinion filed February 1, 1888.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. Robert Rae, for plaintiff in error.
    Messrs. Abbott, Oliver & Showalter, for defendant in error.
   Bailey, J.

This was an action on the case, brought by Maria Amsden against the Merchants’ Navigation Company, to recover damages for a personal injury. The trial resulted in a verdict and judgment in favor of the plaintiff for $2,000, and the defendant brings the record here by writ of error.

The injury complained of was caused by a collision of the propeller, William J. A veril!, against the bridge over the Chicago River, at State Street, Chicago, while the plaintiff was crossing said bridge on a street car, and it was admitted at the trial by counsel for the defendant that the circumstances of the injury' as shown by the evidence, were sufficient to warrant a verdict for the plaintiff, provided the defendant’s ownership of the propeller was sufficiently established.

The collision that resulted in said injury took place on the loth day of June, 1885, and to establish the ownership of the propeller on that day, the plaintiff read in evidence, without objection, a copy of the record of the last preceding enrollment of said vessel, authenticated by the certificate of the collect- or of customs of the port of Detroit that it was a true copy of said enrollment on file in his office. Said enrollment is dated May 15, 1881, and shows by its recitals that the evidence required by law was presented to said collector proving that the Detroit Dry Dock Company was then the sole owner of said vessel, and that said vessel was duly enrolled as its property. The plaintiff also offered in evidence a copy of a bill of sale of said vessel, executed by the Detroit Dry Dock Company to the defendant, bearing date April 15,1885, duly acknowledged and recorded in the office of the collector of customs of the port of Detroit, said copy being authenticated by the cer-' tificate of said collector as a true copy of said record. Said document was objected to by the defendant’s counsel on the ground that a certified copy of said bill of sale was not competent evidence for any purpose, but said objection was overruled and said document admitted in evidence.

We are of the opinion that both of said documents are competent evidence, and that they are sufficient to establish prima facie the defendant’s ownership of the vessel. Both relate to matters in respect to which the law requires records to be kept by collectors of customs. Section 4319 of the Revised Statutes of the United States provides for the granting of enrollment of vessels to the owners thereof by collectors of customs, upon due proof under oath of such ownership, and requires a record of such enrollment to be made and an abstract or copy thereof granted to the owners. Section 4193 requires collectors to record all bills of sale of vessels in books to be kept for that purpose, but provides that no such bill of sale shall be recorded unless duly acknowledged. Section 4192 provides that no such bill of sale shall be valid against any person other than the grantor, his heirs and devisees, and persons having actual notice, unless recorded, and section 4194 requires the collector to furnish certified copies of such records on receipt of a prescribed fee.

The following authorities sustain the ruling of the court admitting said papers in evidence: 1 Greenlf. on Ev., Secs. 483-485; Lane v. Bommelmann, 17 Ill. 95; Seely v. Wells, 53 Ill. 120; People v. Lee, 112 Ill. 113; Tucker v. People, 117 Ill. 88; C. & R. W. Ry. Co. v. Traver, 17 Ill. App. 136; Sampson v. Noble, 14 La. An. 347.

The effect of said documents as .evidence is manifestly to show, prima facie at least, that, at the date of the plaintiff’s injury, the defendant was the owner of said vessel. In Sampson v. Noble, supra, the precise questions here presented, both as to the admissibility and effect of certified copies of the enrollment and of a bill of sale of a vessel, were raised, and it was held that such copies were admissible as evidence and that they tended to show that the vendee, named in the bill of sale, was the owner of the vessel.

It is insisted by the defendant that the damages awarded by the jury are excessive. The evidence as to the severity of the plaintiff’s injuries, and especially as to the permanency of their effect, is somewhat conflicting, but taking the evidence adduced by the plaintiff as true, we can not say that the damages are excessive. True, it is conceded that the case is not one for punitive damages, but if the plaintiff’s injuries are such, both in their nature and results, as she claims and as her evidence tends to show, we can not say that the amount recovered exceeds a reasonable and fair compensation.

Some complaint is made of the refusal by the court to admit certain evidence offered by the defendant in mitigation of damages, tending to show that the proper officers of the United States had just introduced a new code of signals on the lake to be used upon vessels of the description of the one in question^ and that the accident by which the plaintiff was injured happened through a misunderstanding by the officers of the vessel of the new code of signals. The court during the trial and in the instructions to the jury, held that the case was not one for punitive damages, and therefore, as no damages were recoverable, and none as it is to be presumed were recovered, beyond compensatory damages, we are unable to see how the defendant has been injured by the exclusion of evidence in mitigation. If the defendant -was liable at all, the plaintiff was entitled to recover compensation, and it is manifest that the measure of such compensation depended wholly upon the nature and severity of her injuries and the pecuniary losses which she has sustained by reason thereof, and not at all upon the excuses or palliations of the negligent conduct of its servants which the defendant might be able to present.

There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Michael Gordon et al. v. John Gordon et al.

      Practice—Incomplete Record—Presumption of Regularity of Judicial Proceedings—Dismissal of Bill for Want of Prosecution—Motion to Set Aside Decree.

      1. In the absence of a complete record this court is bound to indulge in every reasonable presumption in favor of the regularity of the proceedings of the court below.
    2. Before a complainant can challenge the propriety of a decree dismissing his bill, he must bring the bill itself before the court, or it will be presumed in support of the decree that no meritorious grounds for relief are shown.
    3. The dismissal of a bill for want of prosecution, while the cause is pending on a reference before a master, may, under certain circumstances, be proper.
    4. This court declines to consider a motion to set aside a decree, as it does not appear to have been made at the term at which the decree was entered nor that it was ever decided by the court below,
    [Opinion filed February 1, 1888.]
    In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. L. E. DeWolf, for plaintiffs in error.
    Messrs. Merriam & Whipple, for defendants in error.
   Bailey, J.

In this case the attorney for the plaintiff in error has filed in the office of the clerk of the Circuit Court a frcscipe, directing him to certify to this court a transcript of the decree of the court below dismissing the suit, and of the affidavits contained in the certificate of the evidence heard on the motion to vacate the decree of dismissal. A transcript containing copies of the portions of the record designated by the prcecipe, and of those portions only, has been filed in this court, and upon such transcript the plaintiff in error has assigned errors.

In the record thus presented we have a decree entered at the May term, 1887, of the Circuit Court, in a certain cause then pending in said court, wherein Michael Gordon and others were complainants, and John Gordon and others were defendants, dismissing the cause out of court at the costs of the complainants for want of prosecution, and a certificate of evidence filed in said court, at the June term, 1887, purporting to contain all the evidence heard by the court on a motion to set aside said decree of dismissal. The transcript brings up no portion of the pleadings, nor does it appear whether the motion to vacate the decree was entered at the May or June term, or what disposition was made of said motion, or whether it was ever decided by the court below. The only errors assigned call in question merely the propriety of the decision of the court entering the decree of dismissal.

It is manifest that upon such a record the assignments of error can not be sustained. In the absence of a complete record this court is bound to indulge in every reasonable presumption in favor of the regularity of the proceedings of the court below. It is true that in chancery cases the decree must be supported by the record, but where the entire record is not brought before ns, we see no reason why we may not presume that the omitted portions are sufficient to warrant the decree. As the pleadings are not before us, wre have no information as to the equities set up in the complainant’s bill, nor as to the relief which they sought to obtain. So far as appears, their case, as shown by the bill, may be wholly ’ without merit. So far as we can know, the bill may have shown no ground for equitable relief or no ground for relief in any form, or in any forum. Before a complainant can challenge the propriety of a decree dismissing bis bill, he must bring the bill itself before the court, or it will be presumed, in support of the decree^ that no meritorious grounds for relief are shown.

We can not consider the complainant’s motion to set aside the decree, for the two-fold reason: 1. That it does not appear to have been made at the term at which the decree was entered. After the term had elapsed, it was beyond the power of the court to vacate it. 2. As it does not appear that the motion was ever decided by the court below, it presents no question to be determined here. The decree, then, can be reversed only for matters appearing in the record proper, and as no portion of that record but the decree is brought here, there is nothing upon which to base a charge of error.

The only ground set up in the affidavits is, that at the time the bill was dismissed the cause was pending before the master upon a reference to take proofs and report his findings. If.it was error to dismiss the suit while pending before the master, such error should be shown by the record and not by the affidavits. A record can be tried in an Appellate Court only by itself. The order of reference should have been embodied in the transcript, and the pleadings and other matters of record, if such there are, should have been brought here, sufficient to show that the dismissal of the case was, under the circumstances, such an irregularity as must necessitate a reversal of the decree.

We are by no means prepared to say that the dismissal of a bill in chancery for want of prosecution while the cause is pending on a reference before a master, may not, under certain circumstances, be entirely proper. The failure to prosecute may consist in a failure to proceed before the master, and more than the mere fact that a reference is pending is necessary to show that such dismissal is error.

We find no error in the record, and therefore affirm the decree.

Decree affirmed.


text:
    The Consolidated Rapid Transit and Elevated Railroad Company of Chicago v. Thomas F. O’Neill.

      Bill to Cancel Sealed Instrument—Consideration—Seal Imports— Fraudulent Representations—Expression of Opinion—Elevated Railroad —Right of Way—Rules of Court—Contested Motions—Demurrer—When to he Heard—Negligence—Decree—Motion to Vacate.

    1. A contract under seal can not be avoided on the ground that it is a nudum pactum. The seal imports a consideration sufficient to sustain the validity of the instrument.

      2. Mere expressions of opinion as to future benefits to be derived from a projected railroad, are insufficient to sustain a charge of fraud to avoid a contract.
    3. Rules of court, while in force, constitute rules of law regulating the practice in the court by which they are adopted. Litigants and their solicitors are not chargeable with negligence in assuming that such rules will he pursued and enforced.
    4. Upon a bill to compel the surrender and cancellation of a certain instrument in writing, petitioning the Board of Trustees of Hyde Rark to grant the defendants permission to construct an elevated railroad in the rear of complainant’s lots, it is held: That the instrument in question is not shown to be invalid by the averments of the bill; that the defendant is entitled to record said instrument and to proceed to act under it; that, under the rules of the court below, ihe defendant's demurrer should not have been passed upon on Tuesday instead of Monday; that the averments of the bill are insufficient to sustain the decree; and that the defendant’s motion to vacate the decree and permit it to answer, should have been sustained.
    [Opinion filed February 1, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    This was a bill in chancery, brought by Thomas F. O’Beill against the Consolidated Rapid Transit and Elevated Railroad Company of Chicago and George A. Emery, to compel the surrender and cancellation of a certain instrument in writing executed by the complainant to said company. The bill alleges, in substance, that the complainant is the owner in fee of certain lots of land in Cook County; that on or about the 1st day of June, 1886, said Emery, acting for both defendants, applied to the complainant at a time when he was very busy transacting liis affairs and business, and represented to him that if he, the complainant, would sign a certain writing which said Emery stated was a proposition addressed to the Board of Trustees of Hyde Park, Illinois, petitioning said Board to grant to the defendants permission to construct and operate an elevated railroad in the rear of the complainant's said lots (but the exact terms of which said writing are to the complainant unknown, it being in the hands of the defendants), it would be for his interest so to do, as it would increase the value of the complainant’s property over 100 per cent, if said railroad was constructed and operated from the City of Chicago to certain places named by him, through and along which it was proposed to build said railroad; that the complainant, then and there relying upon the truth of said statements and representations made to him under the circumstances and in the manner aforesaid, signed said writing, which, as he is informed and believes, is in the nature of a deed or license granting the defendants, or some of them, the right to construct and operate a double track elevated railroad along the alley in the rear of said lots; that the complainant is informed and believes that said writing contains a provision authorizing the defendants, or one of them, to sign the complainant’s name, as owner of said lots, to a petition to said Board requesting said Board to grant permission to the defendants to construct and operate a railroad along, upon and over the streets, alleys and highways of said village, including the alley in the rear of said lots, and alsoa provision that, in consideration of the sum of $1 to the complainant in hand paid by the defendants, or one of them, the complainant granted the right of way and privilege to construct and operate a double track elevated railroad along the alley in the rear of said lots; that the complainant did not receive from the defendants, or either of them, the sum of $1 or any other sum of money in consideration of his signing said writing, and that said writing so signed by him was and is without any consideration whatever.
    The bill further alleges that, after investigation of the facts, and after fully informing himself in relation to the matters and representations so made to him, and upon the strength of which the defendant procured his signature to said paper, he has ascertained, and is given to understand and believes, that if the defendants are permitted to construct and operate the proposed elevated railroad along the alley in the rear of his said lots, the complainant will be irreparably injured thereby, as the complainant is informed that if said proposed elevated railroad is constructed and operated along the rear of said 1 ots, it will be impossible for him to sell them unless he does so at greatly reduced prices, and that if he should improve said lots, as he contemplates doing, by constructing tenement houses thereon, it would be difficult, if not impossible, for him to rent them at any price, as the rooms in the rear of the tenements would be exposed to the view of passengers riding upon said railroad, and that this, together with the noise, dust and smoke incident to the running of trains on the plane or level of the back windows would constitute an intolerable nuisance; that the defendants, or one of them, contemplates signing a petition in the name of the complainant requesting said Board of Trustees to grant permission to the defendants, or one of them, to construct and operate an elevated railroad along the alley in the rear of said lots, and also threaten to record said paper in the office of the recorder of deeds of said county; that they threaten to build, operate and construct said railroad, and that unless they are restrained from filing and recording said paper, and from constructing and operating said elevated railroad, the defendants will put their threat into execution, and the complainant will thereby suffer irreparable injury, and said paper will constitute a cloud upon the title of the complainant to said lots, and will constitute a nuisance to the complainant’s property, and the value of his lots will be thereby greatly depreciated.
    The bill prays that said instrument may. be set aside and declared void as against the complainant’s title and a cloud upon said title, and that said instrument maybe produced and delivered up by the defendants to be canceled, and also a general prayer for relief.
    On the 7th day of January, 1887, the defendants appeared and filed a demurrer to said bill for want of equity, and on the 1st day of March following, said demurrer was overruled, the order overruling said demurrer reciting that it was overruled for want of prosecution, and the defendants were by said order granted ten days in which to answer the bill. On the 15th day of March, 1887, the defendants were defaulted for want of an answer, and a decree was thereupon entered finding the allegations of the bill to be true, and declaring said instrument null and void as against the complainant and those claiming under him, and decreeing that the defendants be forever barred and foreclosed from setting up or asserting any right, title, interest or license under and by virtue thereof, either at law or in equity, and perpetually restraining and enjoining the defendants from signing the name of the complainant to a petition requesting the Board of Trustees of the Village of Hyde Park to grant the defendants, or either of them, the privilege of constructing and operating an elevated railroad upon and along the streets and alleys of said village, and particularly the alley in the rear of the complainant’s lots, and from filing said paper writing for record, and from using the same in any way for the purpose of constructing and operating an elevated, railroad along the alley in the rear of said lots.
    On the 18tli day of March, 1887, being at the same term of said court, the defendants appeared and filed their motion to vacate said decree and for leave to answer. Among the affidavits filed in support of said motion was one by defendant Emery, deposing, among other things, to the circumstances under which the instrument in question was executed by the complainant. Said affidavit states that, in the early part of May, 1886, the deponent called on the complainant with a view of securing his consent to the construction and operation of said elevated railroad by the defendant company; that the deponent had three interviews with the complainant in which he stated to the complainant that in his opinion the construction and operation of an elevated railroad in the rear of his lots would secure wdiat is most needed, rapid communication with the center of the City of Chicago, and would for that reason, in the opinion of the deponent, add largely to their value; that deponent stated his said opinion to the complainant at the time in good faith, believing it to be correct, and now reiterates said opinion and re-affirms its correctness to the best of his knowledge and belief; that deponent made no misrepresentations of any kind whatever to the complainant to induce him to give his consent to the construction and operation of said railroad in the rear of his lots; that at the first interview he handed to and left with the complainant a form of consent to be executed by him; that complainant retained the same', stating that he desired to think the matter over for a short time and confer with his counsel about it; that subsequently the deponent called upon the complainant and was informed by him that he had not as yet executed the paper, and requested deponent to call again within a day or two; that within a day or two thereafter deponent again called upon the complainant, and that he then voluntarily and willingly signed and sealed the said instrument and delivered it to the deponent, without any objection, reservation or hesitation; that it is true that deponent did not pay the complainant the sum of 81 specified in said instrument, but he required the execution of said instrument under seal, and was then and there ready and prepared to tender and pay said sum of 81 had it been requested by the complainant.
    The affidavit of one of the defendants’ solicitors was also filed stating that he had charge of the defense of said suit and filed the demurrer to the bill; that on the 12th day of January, 1887, he was notified by the complainant’s solicitor that he should call up said demurrer for disposal on the 17th day of January, 1887, at 10 o’clock a. m. of that day, before Judge Tuley; that at the time mentioned in the notice he attended at the court room of said Judge, and found that said Judge was absent from the city on account of the severe illness of a near relative; that said notice in no way indicated that said demurrer would be placed upon the calendar of contested motions ; that neither the deponent nor any member of his firm was ever notified that said motion had been placed on said calendar, and that deponent understood and believed that, tinder the practice of said court, said demurrer could not be heard without another notice from the complainant’s solicitor; that the first intimation that the deponent or any member of his firm received that said demurrer had been presented to the court was in the afternoon of March 15,1887, through a notice published in a daily newspaper that the court had entered a final-decree in said cause; that on examination of the various motion calendars published in the Law Bulletin made by the deponent the next day, he found that said cause appeared on the motion calendar for Monday, January 17th, and Monday, January 24th, but not on that for Monday, January 31st; that said facts concerning the condition of the motion calendar of the various dates above mentioned were unknown to the deponent until March 16, 1887, the day of making said examination ; that he was not present when the demurrer was disposed of and had no knowledge of such proceeding; that by examination of the files and records in the cause he has ascertained that on Tuesday, March 1, 1887, an order was entered overruling the demurrer for want of prosecution and ordering the defendant to answer in ten days, of which order and rule neither the deponent nor any member of his firm had any notice whatever; that he prepared and filed said demurrer in good faith, believing that the grounds of demurrer were good in law ; that upon the merits of the cause the defendants have a good and substantial defense.
    At the hearing of said motion the Law Bulletin, from January 15 to February 28, 1887, were produced and examined by the court, and it appeared that said cause was therein published in various issues as being on the calendar of contested motions to be heard by said Judge on the several Mondays during that period, down to the issue of February 26th, in which said cause appeared on said calendar for the following Monday, and in which it was announced that said calendar would also continue to be called on the following Tuesday. The issue of the Bulletin for Monday, February 28th, announced in like manner that said Judge would continue the call of said calendar the following day. The certificate of evidence shows that among the rules of practice of the Circuit Court are the following:

      “ 3. Motions of course shall be heard on the opening of court and before the call of the trial calendar. All motions not of course shall be made in writing, and when based on matters of fact not otherwise appearing by the pleadings or other proceedings in the cause, such facts must be presented by affidavits filed with such motion. Two days notice to the solicitor of the opposite party (if there be any), if none, then to such opposite party, of the hearing of all motions, exceptions and demurrers must be given, and copies of all affidavits filed with such motion'shall he served at the same time with notice of such motion. Counter affidavits where the nature of the motion admits thereof, must be filed and copies thereof served upon the opposite party or his solicitor before 5 o’clock p. m., on the day preceding the day fixed for the motion, provided, however, that in motions relating to injunctions and ne exeats, the court may, by special order, vary the rule as the emergency may require.
    “4. A calendar of motions, etc., to be heard on Monday of each week, shall be made by the clerk, and all motions, demurrers and exceptions shall be placed thereon in the order in which they are given to the clerk. All motions, etc., not reached on the call of the calendar, shall have precedence on the calendar of the next week.”
    The defendants also, on the hearing of the motion, presented and asked leave to file an answer, duly verified by the affidavit of defendant Emery, denying the equities of the bill, and setting out the circumstances of the execution of the instrument in question substantially as the same are set out in the affidavit of defendant Emery as above set forth. The instrument in question, as set out in both said affidavit and answer is as follows:
    “For and in consideration of the sum of one dollar to me in hand paid by ‘The Consolidated Rapid Transit and Elevated Railroad Company of Chicago,’ the receipt of which is now and here acknowledged, consent is hereby given, and the right of way is hereby granted, conveyed and released unto the said railroad company, to construct and operate a double track elevated railroad along and in the rear of lots number 11, 12, 13, 14, 15,16, 17, 18, 19 and 20, in block 2 in Parker’s re-subdivision of lot 4, of court partition of Wilson, Heald and Stebbins’ subdivision of E¼. S. W. ¼ of Sec. 15, T. 38 N., R. 14, E. of the 3d P. M., Cook County, Ill., and containing a frontage of 242 70-100 feet on the east side of Prairie Avenue, village of Hyde Park, now owned by me, and I hereby authorize and empower the secretary of said company to sign my name to a petition to the Board of Trustees of Hyde Park, Ill., praying that a franchise be granted said company authorizing it to construct and operate said elevated railroad, as aforesaid.
    “Provided, however, that it is understood and agreed that all rights conveyed herein shall cease, and be void, unless the practical construction of said elevated railroad is commenced within one year after the entire right of way has been secured as required by law, unless such construction is delayed by proceedings at law or in equity, in which case all time absorbed by such delays shall he added as an extension of the said period of one year as aforesaid.
    “Given under my hand and seal, in the City of Chicago, Ill., this 18th day of May, A. D. 1886.
    “Thos. F. O’Neil, [l. s.]”
    The motion of the defendants to vacate the decree was denied by the court, and the defendants bring the record to this court by appeal. The errors assigned call in question the decision of the court overruling the demurrer, and the entry of the decree, and also the refusal to vacate the decree and to allow the defendants to answer and defend.
    Messrs. Doolittle & McKey, for appellant.
    The discretion of a court of chancery to relieve from default is subject to review in a Superior Court. Moore v. Bracken, 27 Ill. 23; Mason v. McKamara, 57 Ill. 274; Franz v. Winne, 6 Ill. App. 82.
    The bill of complaint does not state such a case as to entitle the appellee to the decree granted.
    On default, only such allegations as are properly pleaded in the bill are to be taken as true. Cronanv. Frizell, 42 Ill. 320; Chicago & N. W. Ry. v. Coss, 73 Ill. 394. See especially Parke v. Brown, 12 Ill. App. 291.
    The averments as to misrepresentations of the contents of the instrument which the complainant below signed, are not sufficient to sustain the finding of fraud in the decree. Bigelow on Fraud, pp. 73 and 66; M’Kay v. Jackman, 17 Fed. Rep. 641; Dunbar v. Bonesteel, 3 Scam. 32; Leach v. Nichols, 55 Ill. 273. In this last case the court examines the authorities in general, bearing upon the subject of what will be sufficient to constitute fraud in procuring the execution of an instrument. See also, Spurgin v. Traub, 65 Ill. 170; Swannell v. Watson, 71 Ill. 456; Tuck v. Downing, 76 Ill. 71; Emery v. Cochran, 82 Ill. 65; Roper v. Sangamon Lodge, 91 Ill. 518.
    The representation to the complainant below that it would benefit his property one hundred per cent, is a mere expression of opinion, and is no ground for rescinding the contract for fraud. Tuck v. Downing, 76 Ill. 71; Bigelow on Fraud, pp. 13-26.
    To justify a court in rescinding a contract executed by both parties, on the ground that one of the parties entered into it through fraud practiced by the other, the testimony must be of the strongest and most cogent character, and the-case a clear one. Walker v. Hough, 59 Ill. 375.
    The belief of the complainant that the building of the road would work irreparable injury to his property, is not ground for an injunction. Moses v. Pittsburgh, Ft. W. & C. R. R., 21 Ill. 516-522; C., R. I. & P. R. R. v. Joliet, 79 Ill. 25.
    That complainant below would be irreparably injured is merely a matter of reference, speculation and belief. It ,is not admitted by default. Parke v. Brown, 12 Ill. App. 291; Cronan v. Frizell, 42 Ill. 320; Madison Co. v. Smith, 95 Ill. 328; Augustine v. Doud, 1 Ill. App. 588.
    Mr. John Gibbons, for appellee.
    There is but one question which the court will consider: that is, did the Circuit Court abuse its discretion, upon the showing made in refusing to set aside the default and decree entered in the cause?
    It is a well settled rule in this State “that a motion to set aside a default is addressed to the sound legal discretion of the court, and unless it appears the discretion has been wrongfully and oppressively exercised, this court, on appeal, will not interfere.” Constantine v. Wells, 83 Ill. 192.
    “ Unless there has been such abuse of that discretion as works palpable injustice, it has not been the practice in this court to review such decisions.” Schroer et al. v. Wessell, 89 Ill. 113.
    Before a court can be called upon to exercise its discretion insetting aside a default and judgment, three things must be made evident. First, a meritorious defense; second, a full disclosure of the facts and grounds upon which the merits of the defense arise, so as to enable the court to judge of its merits; and, third, a valid excuse for the fault and negligence of defendant in not appearing to the suit. All three of these indispensable prerequisites are wanting here. The court refused to open the case for the simple reason that the defense sought to be interposed was not meritorious.
    The decree simply declares the paper writing to be void and enjoins the defendants from making any use of it to the detriment of complainant’s rights. In Hannas v. Hannas, 110 Ill. 53, 64, it is held that a decree pro eonfesso may be rendered without any evidence and “the only inquiry admissible is as to the sufficiency of the allegations of the bill.” Boston v. Nichols, 47 Ill. 353; Gault v. Hoagland, 25 Ill. 241, 266; Stephens v. Bichnell, 27 Ill. 444; Harmon v. Campbell, 30 Ill. 25; Manchester v. McKee, 4 Gilm. 511. The bill is not set out in full in the abstract, but both in the abstract and in the record it will be found amply sufficient to support the decree. The decree simply leaves both parties where they were before the paper writing was executed. It leaves the defendants at liberty to build and operate their road everywhere and anywhere —even in the rear of complainant’s lots, provided they do not use “said consent of complainant so obtained, in any way, for the purpose of constructing and operating an elevated railroad along the alley in the rear of said lots.”
   Bailey, J.

The bill in this case avers the execution by the complainant to the Consolidated Rapid Transit and Elevated Railroad Company of Chicago, of an instrument, by which the complainant, among other things, consented to the construction by said company of an elevated railroad along the alley in the rear of certain lots belonging to the complainant, and seeks to obtain the cancellation of the instrument on two grounds: 1, that it was executed without consideration, and 2, for fraud. The first question presented by the appeal arises upon the defendants’ demurrer to the bill, and in considering that question we are of -course confined to the averments of the bill itself.

It does not distinctly appear from the bill whether said instrument was executed by the complainant under his seal or not, but as it is described in the bill as a deed or license granting to said company certain rights, it must be assumed, as against the complainant, that it was an instrument under seal. This conclusion, if not the necessary result of the express language of the bill, arises from the rule that a pleading should be construed most strongly against the pleader. If the instrument were of a character less solemn than a specialty, it must be presumed that the complainant would have so alleged. Assuming then, that the instrument was under seal, it is sufficient to say in relation to the first ground for relief, that the seal imports a consideration sufficient to sustain the validity of the -instrument. A party to a contract under seal can not avoid the contract on the ground that it is a nudum pactum.

The bill alleges that the complainant was induced to execute said instrument by fraud, and the fraud alleged-consists: 1, in presenting said instrument to the complainant for signature when he was busy in transacting his affairs and business, and 2, in making certain representations to him in relation to the advantages to him which would result from his signing said instrument and from the construction and operation of the proposed elevated railroad.

As to the first element of fraud there is no averment that provisions of the instrument were concealed from or misrepresented to the complainant, or that he had not a sufficient opportunity to examine and read the instrument, or that he did not read it or was not fully informed as to its contents. So far as appears by the bill the complainant executed said instrument deliberately and with full knowledge of all its provisions.

The representations averred are merely that it would be to the complainant’s interest to sign the paper, and that the construction and operation of the proposed elevated railroad would increase the value of the complainant’s property over 100 per cent. It is manifest that these are not representations which, even if false, are sufficient to avoid a contract. They are not representations of existing facts, but mere expressions of opinion as to the future benefits to the complainant of the projected railroad. It is nowhere averred that said representations were fraudulently made -and the question of their truthfulness is in its nature only mere matter of opinion. The rules of law on this subject are- too well settled to require a citation of authorities, and it is only necessary to say, that the frauds alleged are plainly insufficient to sustain a decree annulling and canceling the contract.

The averments that the defendants, unless restrained from so doing, will record said instrument and proceed to act under it by using it in obtaining their franchise and by constructing and operating their proposed elevated railroad, can not avail the complainant, since, if the instrument is a valid one, the defendants have both the legal and equitable right to make such use of it, and there are no averments in the bill by which the invalidity of the instrument is shown. Hot only, then, must we hold that the court below erred in overruling the demurrer, but also that the' averments of the bill are insufficient to sustain the decree.

We are also inclined to the opinion that the court erred in overruling the defendants’ motion to vacate the decree and permit the defendants to answer and defend. The affidavits filed in support of the motion show a meritorious defense. They establish the fact that the instrument in question was under seal, and, therefore, not liable to be avoided for want of consideration in fact, and they completely negative all charges of fraud. On the question of diligence it appears that, by the rules of practice in force in the Circuit Court, contested motions, including demurrers, are entitled to be placed upon what is called the calendar of contested motions, and that such calendar is to be called each Monday, and that motions not reached on that day shall go over and have precedence on the following Monday. The demurrer in this case was on the calendar of contested motions subject to call on Monday, February 28th, and it appears that said demurrer not being reached, and the call of the calendar not being completed on that day, the court announced orally that the call would be proceeded with on the following day. Ho order to that effect was entered of record, nor was the rule abrogated or in any way modified, but on the following day the call was resumed without the knowledge or notice to the defendants or their solicitors, and said demurrer being reached and no counsel appearing for the defendants; the demurrer was overruled for want of prosecution.

The rules of court, so long as they remain in force, constitute rules of law regulating the practice in the court by which they are adopted, and while they may be abrogated or modified by the court at its pleasure, so long as they are in force, they should be followed, and litigants and their solicitors are not chargeable with negligence in assuming that such rules will be pursued and enforced. We can not see that the defendant’s counsel were in any degree negligent in assuming that the demurrer in this case would not be called up for disposition on Tuesday, March 1st, the day it was overruled, and for absenting themselves from court ou that day. The affidavits then showing a meritorious defense, and also showing that the defendants and their counsel were in no degree chargeable with negligence, their motion to vacate the decree should have been sustained.

For the errors above pointed out, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


text:
    The People of the State of Illinois v. Kirk Hawes, a Judge of the Superior Court.

      Practice—Bill of Exceptions—Extension of Time for Signing—Stipulation—-Mandamus.
    1. The records of a court are not so far closed at the end of the term that the parties may not appear at a subsequent term and by stipulation authorize the court to open them and take further proce 'dings.
    2. The court may, at a subsequent term and within the time limited for filing the bill of exceptions, by an order entered in term time upon express stipulation of the parties, extend the time for filing such bill.
    3. Where a party presents a, bill of exceptions to the Judge who tried the cause, for his signature, within the time prescribed for filing the same, he will not be prejudiced by the neglect or refusal of the Judge to sign it until after the time fixed has expired.'
    4. Where the trial Judge improperly refuses to sign a bill of exceptions
    a peremptory writ of mandamus, requiring him to sign and seal it, will, be awarded. =
    [Opinion filed February 1, 1888.]
    On petition for mandamus.
    Messrs. Kraus, Mayer & Stein, for relator.
    Messrs. Moses & Newman, for respondent.
   Bailey, J.

This is an original proceeding in this court, by mandamus, to compel the respondent, one of the Judges of the Superior Court, to sign and seal a bill of exceptions in a certain suit lately pending before him in said court. The facts, as shown by the petition, answer and affidavits, so far as we deem them material, are substantially as follows:

On the 22d of March, 1887, there was pending and undetermined in said court, an action of assumpsit brought by Emilie Pul ver, the relator, agaiust the Bochester German Insurance Company, to recover her loss and damage by fire to certain personal property, covered by a policy of insurance issued to her by said company. The trial of said cause was entered upon the 22d day of March, 1887, and concluded on the 29 th day of the same month, the verdict of the jury being in favor of said company. On the 9th day of April, 1887, the relator’s motion for a new trial was overruled, and on the same day judgment was rendered by the court, the respondent presiding, against the relator for costs. The relator thereupon prayed an appeal to this court, which was allowed, on her filing her appeal bond in the sum of $300, to he approved by the court, together with her bill of exceptions, within sixty days from that date. On the 1st day of June, 1887, a stipulation in writing was entered into and signed by the attorneys of the insurance company and the relator, for and on behalf of their respective clients, by which it was agreed that the time for filing said bill of exceptions should be extended for the period of thirty days, from and after the time originally limited by said court for the filing of the same, and on the same day, it being one of the days of the May term, 1887, of said court, an order was entered in said cause in the following words: “ On the stipulation of the parties hereto, it is ordered that the time for filing the appeal bond and bill of exceptions herein, be, and is hereby, extended until the 9th day of July next.”

On the 22d day of June, 1887, the relator’s attorney having completed his draft of the bill of exceptions, presented it to the respondent and requested him to sign it, and the respondent thereupon took the bill and wrote thereon as follows: “Presented for signature June 22, ’87. Hawes.” The respondent then directed that the bill be delivered to the attorney of the insurance company for examination, which was done. Various circumstances which we do not deem it material to notice, prevented a meeting of said attorneys before the respondent to settle the hill of exceptions until some time in October, 1887, when all proposed amendments to said bill were passed upon and settled, by the respondent; but being in doubt as to his power to sign the bill at that time, he took that question under advisement until Hovember 3, 1887, on which day he decided that he had no power to sign said bill and refused so to do.

If the respondent had power to sign the bill of exceptions when it was presented to him on the 22d day of June, he should be required to sign it now. The rule is, that where a party presents his bill of exceptions to the Judge who tried the cause, for his signature, within the time prescribed for filing the same, he having thus done all that he can, will not be prejudiced by the neglect or refusal of the Judge to sign the bill until after the time fixed for that purpose has expiredUnderwood v. Hossack, 40 Ill. 98; Magill v. Brown, 98 Ill. 235; Village of Hyde Park v. Dunham, 85 Ill. 569; Hake v. Strubel, 121 Ill. 321.

The time limited by the court for filing the bill of exceptions at the time of entering the judgment and granting the prayer for an appeal, expired on the 8tli day of June, but before the expiration of that period, though at a subsequent term, by an order entered in term time, by express stipulation 'of the parties, the time was extended thirty days, and within the time, as thus extended, the bill of exceptions was presented to the respondent for his signature. The theory upon which his power to sign the bill on the 22d of June is denied, is that, at the adjournment of the term at which the final judgment was rendered, the record in the case was closed and was no longer within the power of the court.

It may be conceded that, in theory at least, the record was closed at the expiration of the term, but that theory, so far as it relates to the bill of exceptions, is complied with by an enforcement of the rule of practice which requires that bills of exceptions, though in fact signed and sealed long after the term, should purport on their face to be signed and sealed at the term. "While such is doubtless the theory, the actual fact, so far as it relates to the proceedings by which the bill is drafted, settled, signed and sealed, is that those matters which necessarily involve the exercise of both judicial and ministerial functions, are all to be.performed after the term is closed. In this respect the record, though closed, in theory, at the end of the term, is not so in fact, and all the proceedings necessary to complete the record, so far at least as they involve the performance of judicial functions, are necessarily as completely “within the breast of the Judge” until the bill is settled and signed, as are the records of the court during the term. The bill of exceptions when signed and filed, is doubtless to be regarded as a part of the records of the term, but the proceedings by which that document is put into form and duly authenticated are, at least so far' as the practical fact is concerned, matters which are not closed at the adjournment of the term, but which are subsequent to the term, and which may be regarded, when the term of the court ends, as “ pending and undisposed of.” We see no reason then, why the matter of settling and signing the bill of exceptions, where time for that purpose was given, may not be regarded as continued, by operation of the statute, in such sense, at least, as to vest the court with power over the subject at its next term, provided such term intervenes and the court takes action before the period limited has expired.

But the circumstances of this case do not require a decision of the question here suggested, as the extension of the time to file the bill of exceptions was granted by the court upon the express stipulation of the parties. It should be observed that no question is made as to the authority of the respective attorneys to enter into such stipulation for and on behalf of their clients. Such authority is averred in the petition, and is not denied or questioned by the answer to affidavits, and we do not understand counsel for the respondent as challenging such authority in the least. Furthermore, such authority must have been passed upon and found by the Superior Court, on entering the order extending the time for filing the bill of exceptions, as the order recites that the extension of time was made on the stipulation of the parties, which could only be true upon the theory that the attorneys had competent authority to enter into the stipulation, so as to make their act in law the act of their clients.

Whatever may have been the power of the court in the premises, in the absence of a stipulation, we can not doubt that such power was given by the express consent of the parties themselves. The records of a court are not so far closed at the end of the term that the parties may not appear at a subsequent term and by agreement, authorize the court to open them and take further proceedings. Can it be doubted, for example, that, where a judgment is entered by default at one term, the parties may not appear at a subsequent term and by stipulation, authorize the court to set the judgment aside and give leave to the defendant to defend? Orean it be doubted that where a decree of foreclosure is entered at one term, the parties may not appear at a subsequent term and by their agreement authorize the court to vacate the decree, and enter a new decree for a largei' or smaller sum, or permit the whole case to be re-litigated? We see no reason, either in law or public policy, why any proceeding, however final or conclusive, where the rights of no third party have intervened, may not be opened by the court, where all the parties so agree, and the court be thus re-invested with jurisdiction to take further proceedings therein. So in this case, if all proceedings in relation to obtaining a bill of exceptions were to be regarded as closed at the expiration of the time limited by the court at the preceding term, the parties had clearly the power and the right by agreement, to open them, and thus invest the court with power, by an order entered in pursuance of their stipulation, to extend the time, by granting a further period for filing the bill of exceptions.

But it is said that the Supreme Court has taken a different view of the law in the recent case of Hake v. Strubel, 121 Ill. 231. We do not so understand that case. There sixty days were given to file the bill of exceptions and before the time had expired, the Judge, in vocation, assumed to grant an extension of the time and the question presented was, whether a Circuit Judge in vacation has the power to extend the time for presenting and filing a bill of exceptions beyond the time fixed by the court at the term at which judgment was rendered and still make the bill of exceptions a part of the record. The answering of this question in the negative in no way militates against any of the views we have expressed. It can not be and never has been pretended, so. far as we know, that a Judge in vacation, in the absence of express statutory authority, can interfere with or change the records of the court over which he presides. Where the performance of particular duties in vacation are in conformity with recognized rules of practice, committed to him by an order, entered in term time, he may perform those duties according to and within the terms of the order, but he can not modify or enlarge the order and thus extend his powers.

The entry of orders in judicial proceedings are judicial acts, and must be performed by the court when in session and not by a Judge in vacation. As said in the case last cited, “the making of the order allowing appeal, and fixing the amount of the bond, and the time in which the bond and bill of exceptions in the cause shall be presented and filed, is a judicial act, which can only be performed by the Judge in term time, and when sitting as a court. The making of the order is an exercise of judicial power vested in the presiding Judge, but the order when made is the order of the court. If, then, the original order of appeal, providing inter alia, within what time the bill of exceptions in the cause might be presented and filed, was a judicial act which could only be performed by the Judge in term time, and when sitting as a court, as we have seen in this case, it follows that the act of changing such order by entering another order extending the time in which the bill of exceptions in the cause might be presented and filed, fourteen days, would be of the same judicial character—an execution of judicial power; and such act could be performed by a Judge only in term time.”

It follows necessarily from the same course of reasoning, that the Judge was powerless to change the order in vacation even by consent or stipulation of the parties. It being a judicial act which the Judge had no power to perform in vacation, such power could not be given by stipulation, upon the principle that jurisdiction, so far as it related to the subject-matter of judicial action, can not be given by consent. The same want of judicial power, however, does not exist where the Judge is sitting as a court. There the jurisdiction over the subject-matter is given by law, and the Judge has power to enter any proper order, where there is jurisdiction of the parties, either by the service of process or by voluntary consent.

We are of the opinion that the respondent had the power to sign and seal the bill of exceptions in the present case, at the time it was presented to him for his signature, and having the power, it was his duty so to do. It appearing that the bill of exceptions has been settled and all disputes in respect to its contents decided, so that nothing remains to be done but the ministerial act of signing and sealing the document as prepa: ed and settled, a peremptory writ of mandamus will be awarded commanding the respondent to sign and seal the same.

Peremptory mandamus a/warded.


author: Moran, P. J.

text:
    William A. Tyler v. John B. Tyler.

      Trusts—Creation of—Words—Real and Personal Property—Fraudulent Conveyances to Trustee—Constructive and Express Trusts—When Equity Will Execute—Fraud as a Defense—Husband and Wife—Conveyance to Defraud Wife.

    1. No particular form of words is necessary to create a trust or to make the person declaring the trust a trustee. Where a person orally or in writing explicitly or impliedly declares that he holds personal property in presentí for another, such declaration constitutes him a trustee of such property in an expressed trust for such other person. The same principles of construction apply to a declaration of a trust in real property, except that such declaration must be in writing.
    2. Where either personal or real property is held in trust, the beneficial interest in the property is vested in the cestui que trust and he is entitled to the aid of a court of chancery to enforce the trust.
    8. The court will not refuse to enforce an express trust for the reason that the conveyance to the trustee, who has declared the trust, was to delay, hinder and defraud the grantor’s wife in obtaining alimony and maintenance in a suit which it was apprehended she was about to commence.
    4. A secret trust is one that is constructive as distinguished from one that is expressed.
    5. A court of chancery will not execute a secret trust in behalf of the fraudulent grantor, because equity will not construct a trust upon a basis of fraud, but equity will enforce an express trust if well created. The trustee can not revoke a beneficial interest which by his own act has vested, by setting up a fraud in which he has participated.
    6. It seems that a transfer of property, real and personal, made to defeat or hinder a wife from obtaining support or alimony, is subject to the same rules as if made to hinder and defraud creditors.
    [Opinion filed February 1, 1888.]
    Appeal from the Superior Court of Cook County ; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Hutchinson & Luff, for appellant.
    Messrs. Roberts, Hutchinson & Thomas, for appellee.

      He who comes into a court of equity must come with clean hands, and a court of equity will not interfere in behalf of a fraudulent grantor. Dunaway v. Robertson, 95 Ill. 419; Ryan v. Ryan, 97 Ill. 38; Miller v. Marckle, 21 Ill. 152.
    In Phelps v. Curtis, 80 Ill. 109, it was held not necessary to render conveyance fraudulent that there should have been any actual defrauding of creditors intended. It is sufficient if there was a purpose to place it beyond their reach for the time being. Citing Nesbit v. Digby, 13 Ill. 387; Fitzgerald v. Forristal, 48 Ill. 228.
    It is not necessary that the intention or purpose should be to actually defraud the wife. It is sufficient if the purpose was to place property beyond her reach for the time being. Phelps v. Curts, 80 Ill. 109.
    A conveyance fraudulent in part is fraudulent in toto. Ward v. Enders, 29 Ill. 519; Russell v. Warner, 37 N. Y. 591; McQuade v. Rosencranz, 36 O. S. 442; Mitchell v. Beale, 8 Yerg. 140.
    A wife, as to her right of support and maintenance or alimony, is as much within the statute as a creditor. She may be regarded as a quasi creditor, or one of the othersmentioned in the statute. Draper v. Draper, 68 Ill. 17. See also Nix v. Nix, 10 Heisk. 546; Livermore v. Boutelle, 11 Gray, 290 ; Lonsdale Estate, 28 Pa. St. 413.
    Courts of equity will always refuse a decree for specific performance when the contract is fraudulent. 1 Pomeroy Eq. 400; Bump Fraud. Con. 447; Waterman Specific Per., 340; Wait Fraud, Con. 521; Taylor v. Merrill, 55 Ill. 52; Tamm v. Lavalle, 92 Ill. 263.
   Moran, P. J.

The appellant, William A. Tyler, in May, 1885, and when lie'was about sixty-four years of age, married for his second wife a lady who was less than half his age. The marriage took place in the State of New York and the parties thereto resided there until the final separation between them. Appellant was the owner of a large amount of property, consisting of notes and mortgages and some real estate, which latter was situated in the State of New York. Shortly after the marriage differences arose between appellant and his wife and it became apparent that they would not be able to continue to live together, and appellant was afraid that his wife would commence legal proceedings against him for support. Under the influence of this fear, that his property would be subjected to the demands of his wife, he sought the aid and confidence of his son, the appellee, and on the 27th of August, 1885, there was executed an agreement in writing between appellant and appellee, whereby there was transferred to appellee certain mortgages, securities and notes which in said agreement are particularly described and enumerated, and which amounted in the aggregate to about $80,-000. There was in said agreement a recited consideration for said transfer of $10,000 paid by said appellee, and an agreement that he would pay to appellant during the term of his natural life, the sum of $10,000 per annum in semi-annual payments, to be made only upon the consideration that said sum should be necessary for the support of appellant, and upon the personal demand of appellant, but when demanded said appellee was not to refuse payment on the ground that the 'sum was not necessary for support. Said instrument was signed by appellant and appellee and was left in the custody of the lawyer who drew it. A portion of the securities mentioned in it were then and there delivered to appellee and others of them subsequently.

Afterward and in the month of September, appellant procured to be conveyed to appellee certain real estate situate in the State of New York. In April, 1886, appellant filed his bill in the court below, seeking the aid of the court to compel appellee to surrender back to him the said securities transferred and to reconvey the said real estate. The bill set forth, as groundsTor equitable relief in substance, that at the time the transfers and conveyances were made the appellant was in a weak state of mind, and that said conveyances and transfers were made upon the suggestion and advice and through the influence of appellee, who took advantage of appellant to procure the said transfers and conveyances, and also that by certain writings executed by appellee and delivered to appellant, appellee constituted himself the trustee of appellant, and held for appellant the legal title to said real estate and said securities, and in and by said writings vested the beneficial and equitable title to said land and said securities in appellant.

Appellee placed his defense on a denial of the allegation that he had procured the conveyances or transfers to be made to him, or that he had taken advantage of appellant, and set up that the purpose of the said conveyances and transfers on the part of appellant, were to hinder, delay and defraud his wife, with whom he had had serious trouble, and who was at the time about to, and afterward did commence against appellant a suit for separate maintenance, and in which a decree against appellant was entered, and that the agreements to re-convey the land and to surrender back the securities were executory contracts and were secret, and part of the plan to defraud said wife of appellant, and that they did not create a trust.

The court on the hearing found that certain of the securities mentioned in the agreement between appellant and appellee had never been in fact delivered to appellee, and such were declared to be still the property of appellant, and ordered that as to such of the securities as were delivered to appellee, the court would not aid appellant by decreeing their surrender and that the court would not compel appellee to reconvey the real estate.

An examination of the evidence contained in the record, satisfiesus that the learned chancellor who tried this case in the court below, was clearly right in the conclusion reached by him, that the design of the conveyances and transfers from appellant to appellee was to delay, hinder and defraud the wife of appellant in obtaining alimony and maintenance in the suit which it was apprehended she was about to commence against him; that the design to so hinder and defraud originated with appellant, and while appellee became his willing instrument in aiding the design, he did not overmaster appellant or take advantage of him, and that therefore appellant and appellee were in the matter of the conveyance of said real estate, and the transfer of said securities in pari delicto—equals in guilt. We will assume (for the purposes of this ease, in the view we feel compelled to take of it), but without intending to decide the point, that the court below was right in treating a transfer of property, real or personal, made to defeat or hinder a wife from obtaining support or alimony, as subject to the same rule as though the conveyance was made to hinder and defraud an ordinary creditor.

It is too well settled to need the citation of authority to support the statement, that a court of equity will not aid a grantor to recover from the grantee property conveyed for the purpose of hindering, delaying or defrauding creditors, by raising a trust, or constructing out of the transaction a trust upon the ground that the conveyance was without consideration. Neither will equity specifically perform a contract to reconvey made by the fraudulent grantee. What the parties have executed for a fraudulent purpose the court will not aid either party to disturb. What the parties have fraudulently contracted to execute, the court will refuse to compel the contractor to perform.

But while equity will not raise or create a trust, when the consideration is founded on fraud, yet where a party constitutes himself a trustee by a sufficient declaration of trust, t-o that the trust is complete and express, it will not permit the trustee to defeat the trust or refuse to perform it, by the suggestion that the property of which the trust is declared was delivered to him in the execution of a fraudulent purpose, In Fast v. McPherson, 93 Ill. 496, this principle was applied by the Supreme Court. There Fast, the appellant, who was trustee by an express trust, set up to defeat his declaration of trust, that the property had been originally conveyed to defraud creditors, but the court said: “The same principle which would have precluded appellee from alleging that a deed absolute on its face and unaccompanied or followed by an express declaration of trust, was, in fact, held in secret trust so as to defeat or delay creditors, etc., precludes Fast from alleging, as an excuse for his breach of trust, that he executed the declaration of trust in order that creditors might ho defeated or delayed. Neither party is allowed to base a right upon an allegation of her or his own participation in the doing of an unlawful or fraudulent act.” In Owens v. Owens, 23 N. J. Eq. 60, it was held that when the trust is declared by a writing executed and delivered and the estate is vested in the complainant and the object of the suit is to compel a naked trustee to convey the property held in trust to the cestui que trust, it will not bar the relief sought, that the conveyance to the trustee was made for the purpose of delaying and defrauding the complainant’s creditors. It appears from the allegations of the bill, and from the proofs, that after appellant and appellee had executed the contract in writing, transferring the securities, and after a part of the securities mentioned therein had been delivered to appellee, appellee signed and delivered to appellant the following wilting:

Conneaut, O., Aug. 27, 1885.
“I, John B. Tyler, hereby agree, whenever demand is made by William A. Tyler, to surrender back to him certain personal property heretofore transferred to me, amounting to about eighty thousand one hundred dollars, by him, said William A. Tyler, together with the interest due upon the securities, and for which I bind .myself and my heirs for the above amount and the said accumulated interest.
“(Signed) John B. Tyleb.”

Under the rule established by the cases above cited appellant’s right to have the securities in said writing mentioned, depends upon the question whether said writing is to be construed as a declaration of trust, or as a mere executory contract. It may be first observed that the trust, if one is in fact created by this instrument, can not be said to be merely a voluntary trust, or one declared without valuable consideration. The transfer of the securities to appellee was without consideration, in fact, and the acknowledged receipt of them by him in this writing, is a consideration expressed. But if it were otherwise, it would make no difference, for a perfectly created trust will be carried into effect at the suit of the cestui que trust though without consideration.

Said Chancellor Kent in Bunn v. Winthrop, 1 Johns. Ch. 937: “Nor do I think that the want of some good or valúable consideration appearing on the face of the deed, ought to preclude this court from lending its assistance. There is no rule of the court against giving effect, as between the parties, to a voluntary actual transfer, by deed of a personal or chattel interest, without any consideration appearing.” See also Perry on Trusts, Sees. 96-98.

Whether a trust is created or not is always a question of fact, and is usually determined by construction of the instrument which is set forth as the evidence of it, considered in connection with facts or parol declarations, and it not unfrequently becomes a question of some nicety.

Where there is a plain declaration in so many words that the property is hold in trust, the question is simple and there is no room for inference, but where there must be construction the same rules govern as obtain in the interpretation of other writings, and the intent as gathered from the entire instrument will control.

Ho particular form of words is necessary to create a trust or to make the person declaring the trust himself a trustee. The word trust need not be used. It is a rule of equitable construction that there is no magic in particular words—any expressions which show unequivocally the intention to create a trust will have that effect. Hill on Trustees, 65; 2 Spence, Equitable Jurisdiction, 51; 1 Perry on Trusts, Sec. 82, and cases cited in those works.

We think it may be safely stated as a concurring result of all the authorities that when a person sui juris orally or in writing explicitly or impliedly declares that he holds personal property i/n, presentí for another, such declaration constitutes him a trustee, in an express trust for such other, of the property, and in such case the beneficial interest in the property is considered as vested in the cestui que trust, and he is entitled to the aid of a court of chancery to enforce the trust. Looking at the writing signed by John P. Tyler and delivered by him to the appellant, in the light of the foregoing considerations, we are led to the conclusion that it must be held to be a sufficient declaration that the beneficial interest in the securities is in appellant, and that he, said John B. Tyler, is to hold tlie.m for him and deliver them up with all interest accrued on them upon demand. The agreement is “ to surrender back to him certain personal property heretofore transferred to me * * by said William A. Tyler, together with interest due upon the sureties whenever demand is made by said William A. Tyler.” There is nothing executory about this instrument except the agreement to surrender back the property. The words used are not those of one who intends to sell or transfer his own property and binds himself to do so in the futu:e. They are the words of a bailee who acknowledges that he has received certain securities of value which he is to give hack with the interest that shall accumulate thereon. The securities are not beneficially his, but have been transferred to him and he is to be charged with them, and in specie he is to surrender them back on demand and account for the interest.

The words, “ and for which I bind myself and my heirs for the above amounts and the said accumulated interest,” do not add to or change the signification of the writing. They amount to nothing more than an agreement to account, and such obligation would arise without the words. The agreement to surrender back, which is executory, is but an agreement to1 clothe the beneficial owner with the legal title and indicia of ownership, and if not expressed would be implied in a declaration of trust, whether of real estate or personal property, in which the cestui que trust was given the power to terminate the trust. The trustee has agreed to do that which, having admitted himself to be a trustee, equity will compel him to do, not by way of specifically performing a contract, but in executing the trust. There is a difference between a trust and a contract, and the one will be enforced when the other can not be. Crawford’s Appeal, 61 Pa. St. 52.

Counsel for appellee are mistaken in supposing that the trust declared by this writing is a secret trust. The secret trust which the courts denounce and refuse to enforce, is not an express trust, but a trust which is attempted to he raised upon the facts. A secret trust is a constructive trust as distinguished from am expressed trust. This secret or constructive trust is raised upon a conveyance which is in form absolute, and while the existence of such a trust enables creditors to avoid the conveyance, the court will not execute it in behalf of the fraudulent grantor, because equity will not construct a trust upon the basis of a fraud. The creditor can reach the property of Ms debtor held upon an express as well as that held on an implied or secret trust, but the difference is that equity will enforce the express trust, where well created, and that the trustee can not revoke the beneficial interest which by his own act he has vested, by setting up a fraud in which he has participated. In pa/ri delicto portior ,est conditio defendentio, what has been executed between the parties can not he defeated or undone by the suggestion of either as against the other, of the fraud of which they were equally guilty. The evidence which supports the trust here asserted is found in the writing itself and the cestmi gpie trust is not compelled to resort to the fraudulent transaction to establish his right. The writing is supported by the testimony of witnesses in the record that appellee at different times declared that he held these securities in trust for his father. Such parol declarations are admissible to establish a trust in personal property, and are competent to be considered in this case as confirming the construction which we have given to the writing.

It follows that the appellee should have been held a trustee for appellant under the complete express trust declared by him and should have been decreed to transfer, surrender and account for the securities mentioned therein.

As to the real estate situated in Hew York, we think the trust quite as clear, if not more clear, than that established of the personal property. It appears that appellant had conveyed to one Henry A. Sheldon, a resident of the State of Hew York, two farms situate in said State, and which are known to and described by the parties and witnesses in this case as the Whitney Point Farm and the John Slack Farm. Sheldon gave his note for $5,000 to appellant for the farms, but it is clear that the conveyance was not bona fide, but was for the purpose of placing the property beyond the reach of appellant’s wife in any proceeding she might bring against him£- A few days after the deed to Sheldon appellee paid Sheldon the sum of $5,100 and Sheldon conveyed the property to appellee. Appellant furnished to appellee the money which appellee paid to Sheldon and with the money so received Sheldon paid his $5,000 note to appellant. After the conveyance from Sheldon to appellee, the following writing was signed by appellee and delivered to appellant.

“Binghamton, H. Y., September 11, 1885.
“ I have received the value of the lands this day deeded to me by Henry A. Sheldon and wife, of William A. Tyler, and I bind myself, heirs and assigns, to give him as good title on demand ás I received, for value received.
“ J. B. Tylee.”

This is a plain acknowledgment that appellee holds the legal title of said lands for appellant. The value of the lands is admitted to have been received from appellant, and this can only be construed as an admission that the beneficial interest in the land is in appellant, formal words or technical terms being unnecessary in such an instrument. Any words which sufficiently declare the trust will vest the equitable title. It is unnecessary to repeat here the considerations or the citations to the authorities which led us to the conclusion that the writing referring to the securities declared an express trust. The same principles of construction apply to trusts of real estate that apply to trusts of personalty, save only that a trust of real estate can only be evidenced or manifested by a waiting, while that of personalty may be declared by parol. When, however, a trust of either the one or the other is declared, the equitable interest in the property is at once vested in the cestui que trust. Equity regards only the beneficial estate, the equitable title, and it is believed that no case can be found when equity has refused to execute a trust actually declared and vested.

We have already seen that the court will not refuse to enforce such a trust for the reason that the conveyance to the trustee, who has declared the trust, was for the fraudulent purpose of hindering or delaying creditors:

Tlio view we have taken in this case is one that courts have seldom had occasion to announce, because the discussion of trusts connected with conveyances made to defraud creditors have generally related to the secret or constructive trusts which, as a badge of fraud, aids the creditor to avoid the conveyance and allows the perfidious friend or relative to retain the fruit of the fraud in which he has participated, as against his partieeps criminis. While we do not question the wisdom of this rule, which is firmly established in this State, it must be admitted that it has frequently operated to sustain double fraud. The w greed of mammon ” which has induced the trusted friend or the favorite soñ to cruelly abuse and outrage the confidence reposed, and to disappoint the hope by the basest moral treachery, must, under such rule, be satiated, and the false friend be allowed to retain the ill-gotten portion.

We confess that we apply to the facts of this case with considerable judicial satisfaction a well established rule of equity, which will operate to° defeat the attempted treachery of this son toward his father.

The decree of the Superior Court will be reversed and the cause remanded with directions to enter a decree requiring the said appellee to surrender, transfer and set over to appellant, and to fully account to him for all securities referred to him in said declaration of trust, bearing date August 27,1885, and also requiring said appellee to convey by proper deed to appellant, the legal title to the said land situate in the State of ¡New York and referred to in the declaration of trust dated September 11, 1885, and signed by said appellee.

Reversed and remanded.


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    Edward S. Richards and John W. Maynard v. Lake Shore & Michigan Southern Railway Company.

      Jicrisdiction—Equity—Waiver of Objection—Bonier of Court to Interpose Objection—Breach of Contract—Damages.

    1. A court of chancery can not be compelled, by stipulation of the parties waiving objection to the jurisdiction, to entertain a bill where the proper remedy is at law, and where the case is wholly foreign to its own jurisdiction.
    2. Where the parties interpose no objection to the jurisdiction, it is within the power of the court at any time to interpose the objection for its own protection.
    8. The subject-matter of a bill filed purely and solely for the recovery of damages for breaches of a contract, is wholly foreign to the jurisdiction of a court of chancery.
    [Opinion filed February 8, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    The appeal in this case is from a decree of the court below sustaining a demurrer to a bill in chancery, and dismissing the bill at complainants’ costs for want of equity. The bill alleges that on the 2d day of January, 1884, Edward S. Richards, one of the complainants, entered into an agreement in writing with the Lake Shore & Michigan Southern Railway Company, tlie expressed object of which was to procure a cheaper method of transferring grain, mill feed and seeds from one car to another than was then employed by said company, and for that purpose to use a device of said Richards, secured to him by letters-patent from the United States. Said agreement recited that said Richards intended to erect a grain transfer house on certain property in the agreement described, for the purpose of so handling, weighing and transferring in bulk such grain, mill-feed and seeds as might he delivered to him for that purpose by said company, and it was thereupon agreed that said company, for a certain consideration, granted and leased to said Richards, for the term of ten years, certain grounds on which to erect said transfer house, and, .as soon as said house should be constructed, to build and maintain on said grounds, and through said house, the tracks, etc., necessary for the transaction of the business contemplated by the agreement, and do all switching of loaded and empty cars to and from said transfer house at its own expensé; and in case there should be any saving to it in the switching, weighing and transfer of its products through the methods and devices of said Richards over and above the actual cost of doing the same work by the ways and methods then in use by said company, to pay the amount thereof to be ascertained in accordance with certain rules specifically laid down in said" agreement to said Richards, such payments to be made on or before the middle of each month for the month preceding.
    Said Richards agreed on his part to build said transfer house in accordance with his said patented device, and to maintain the same for said period of ten years, and furnish said building, with scales and other devices necessary for properly weighing and transferring said commodities, at his own cost, and to receive, weigh and transfer the same with promptness and dispatch, at his own costs and expense. And it was mutually agreed that said Richards should have charge of the operation of the transfer house, and of the employes connected there-' with, and have for his own use all the emoluments and profits of the business; that all shipments originating at points west of Chicago, and properly billed through to eastern points and requiring transfer through said house should be classed as 6c through shipments,” and transferred in the same manner as re-consigned property, it being agreed that said company should, under no circumstances, be charged weights upon any transfers made through said house, but the right was reserved to said Richards to charge such fees as might be agreed upon between him and the owners of the property for weights and transfer, and for such other services as he might render in connection therewith. It was further agreed that said Richards should receive his compensation for his time, labor and investment, except as to the saving in the cost of transferring said commodities above specified, from the weighing of property passing through said house, and from the owners of said property and not from said company, and that said company should not make use of the weights obtained from said Richards in the conduct of its business for any other purpose than billing the property to its destination, but upon request of said Richards, should collect the weighing charges in the same manner as other advanced charges are collected, and pay the same to him monthly.
    It was further agreed that if said transfer house should furnish inadequate facilities, said Richards should erect additional buildings on grounds to be furnished by said company for that purpose; that in case of differences between said parties as to the meaning or execution of said contract the matter should bo submitted to arbitration; that at the expiration of the agreement it should be optional with said company to retain said buildings with all the devices, equipments and instrumentalities then in use, paying to said Richards their value to be ascertained by appraisement; that if said company neglected for twenty days to exercise its option, said Richards should have ninety days tliereaf.er to remove said buildings and equipments and surrender to said company said grounds; that during the term said company should pay all taxes and assessments on the grounds and said Richards on the buildings and equipments; that said company should render to said Richards monthly accounts of the business done under said agreement.
    The bill alleges that on the 23d day of January, 1884, said Richards assigned all his interest in said agreement to the firm of Richards, Maynard & Company, composed of said Richards and John W. Maynard, the other complainant; that immediately thereafter the complainants commenced the erection of said transfer house, and completed the same, with the equipments, on or about June 24, 1884, and that they theieupon entered upon the business of transferring and weighing the commodities specified in said agreement; that they could not conveniently transfer mill-feed, and that they therefore waived their right to be given the business of transferring that commodity; that by the terms of the agreement it was the duty of said company to deliver to the complainants for the purpose of being transferred and weighed, all the grain • and seeds to be transferred by said company from cars of western and other connecting railroads to cars used by said company in transporting such grain and seeds over its railway to eastern points, from the date last mentioned to the end of said term of ten years; that it was its duty not to make use of the weights obtained from the complainants for any other purpose than billing said commodities to their destination at eastern points; that it was the duty of said company to assist the complainants in every reasonable way in collecting their charges for the weighing, of grain and seeds of the owners thereof and to do nothing to prevent the complainants from charging and collecting such fees; and that it was the duty of said company to submit any matter of difference arising between it and the complainants, in the course of said business, to arbitration.
    The bill alleges breaches of said agreement in refusing to deliver to the complainants, in their transfer house, for the purpose of being transferred and weighed, all the grain and seeds which were transferred from the cars of western and connecting railroads to cars used by said company in transporting the same over its railway to eastern points, and states specific instances in which said company had been guilty of such breaches of its agreement; also in obtaining weights from the complainants in the course of its business for other purposes than billing the property to its destination, and giving and selling such weights to western railroads connecting with said company’s railway, the number, of car loads of grain and seeds of which the weights had been thus obtained and improperly used by said company being particularly specified; also in failing to assist the complainants in every reasonable way in collecting their fees and charges for weighing a large number of carloads of grain and seeds and in hindering and preventing the complainants from charging and collecting their fees upon a large number of other car loads of grain and seeds ; also in refusing to submit the differences arising between said company and the complainants out of said business to arbitration; that in consequence of said breaches of said agreement, the complainants have been deprived of large" and divers profits, amounting to the sum of, to wit, $250,000. The bill prays that a decree may be entered to establish the damages suffered by the complainants in consequence of said breaches of said agreement by said company, and that they may have a judgment therefor, and also a general prayer for relief.
    To said bill said company filed a demurrer for want of equity, but afterward said company came by its solicitor and filed a stipulation, as follows:
    “The defendant waives the objection to the jurisdiction of a court of equity in said cause which-might arise on the possible ground of there being a remedy at law, hereby intending no to waive any other defense, objection or exception whatever.’
    The court, notwithstanding said stipulation, sustained the demurrer and dismissed the bill for want of equity.
    Messrs. Gardner, MoFadon & Gardner and Smith & Pence, for appellant.
    Mr. Pliny B. Smith, for appellee.
   Bailey, J.

The bill in this case is filed purely and solely for the recovery of damages for breaches of a contract. Ho other relief is asked and no ground for any other relief is alleged, the subject-matter of the bill thus being wholly foreign to the jurisdiction of a court of chancery. The case, therefor, is purely one of legal as distinguished from equitable cognizance. To such a bill the court below has sustained a demurrer for want of equity, notwithstanding the stipulation of the defendant waiving the objection to the jurisdiction of the court on the ground that there is a remedy at law. The question thus raised is, whether a court of chancery can be compelled, by the stipulation of the parties, to entertain bills in matters where the proper remedy is at law, and where the case is wholly foreign to its own jurisdiction.

The rule has been so often repeated as to have become a recognized legal maxim, that a party can have no standing in a court of equity who has a plain and adequate remedy at law. Gore v. Kramer, 117 Ill. 176; Werden v. Graham, 107 Ill. 169; Long v. Barker, 85 Ill. 431; Coughran v. Swift, 18 Ill. 414; Puterbaugh v. Elliott, 22 Ill. 157; City of Peoria v. Kidder, 26 Ill. 351; Bigelow v. Andress, 31 Ill. 322. There are cases, it is true, where it is held that, if a defendant in chancery answers without objecting that the defendant has a remedy at law and consents to a hearing on the merits, and thus submits himself to the jurisdiction of the court, it is too late for him afterward to object that the court has no jurisdiction because of the existence of an adequate legal remedy. Dodge v. Wright, 48 Ill. 382; Ohling v. Luiljens, 32 Ill. 23. But this rule applies only where the subject-matter of the bill is not wholly foreign to the jurisdiction of a court of equity. Stout v. Cook, 41 Ill. 447; Comstock v. Henneberry, 66 Ill. 212; Magee v. Magee, 51 Ill. 500; Hickey v. Foristal, 49 Ill. 255.

In Kimball v. Walker, 30 Ill. 482, the court, after stating the general rule that, if the objection is not taken advantage of by plea or demurrer in the first instance, it can not be urged on appeal or error, say: “This is, no doubt, the rule as to the parties, but,we hold it is in the power of the court at any time, to interpose the objection for its own protection, and thus prevent drawing into the vortex of a court of chancery matters purely cognizable at law and that by the management and consent of the parties interested. If such power did not exist, the lines dividing the jurisdiction of court of law and of chancery would be speedily obliterated.” The foregoing language is quoted with approval in Stout v. Cook, supi'a, with this explanation added: “What was meant by this remark was, that if the subject-matter were of such character as to be wholly foreign to the jurisdiction of a court of chancery, as for example, a claim for damages for slander, or for an assault and battery, the court might properly dismiss the cause at any -stage of the proceedings.”

It is not necessary for us to determ'ne in this ease whether the court, if it had seen fit to do so, might not have retained jurisdiction and rendered a valid decree in favor of the complainants for their damages. All that we need to decide is, that it was not obliged to entertain jurisdiction for. .that purpose. The parties could not, by their stipulation, break down the proper barriers which the law has interposed between the powers and functions of courts of equity and courts of law, and compel a court of equity, against its will, to assume and exercise the powers and functions of a court of law. Even if no pleading had been filed challenging the sufficiency of the bill, the court might at any time, on ascertaining by inspection of the pleading that the case presented was purely one of legal cognizance, have dismissed the bill sua sponte. But the defendant having demurred for want of equity, we know of no principle upon which the decision of the court sustaining the demurrer can be held to be erroneous.

The decree will be affirmed.

Decree affirmed.