text:
    Canute R. Matson v. George Oberne.

      Injunctions—■Executions—Set-off—Statute—Equity—Jurisdiction.

    1. Where a judgment debtor has an unsatisfied judgment against his creditor who is insolvent and has left the State, he may maintain a bill in equity to enjoin the Sheriff from enforcing the judgment against him and for a decree of set-off.
    2. The statutory right to have different executions set off against each other in appropriate cases, may he enforced in a court of equity, the statute making no provision as to the forum in which relief shall be sought for a denial of the right.
    [Opinion filed January 11, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwyrn Garnett, Judge, presiding.
    Messrs. Moses & Newman, for appellant.
    The statute is mandatory upon the Sheriff, and can be enforced by ordinary motion, and we find this to be the unvarying practice.
    Michigan, Rhode Island and Missouri have like statutes, and perhaps other States. The legislation is copied from 6 Geo. II, Chap. 2, Sec. 2. See Waterman on Set-off, p. 421.
    In States where no statute exists, still the practice is to apply to the court for relief upon motion. Hooper v. Brundage, 22 Me. 460; Primm v. Ransom, 10 Mo. 464; Ocean Ins. Co. v. Rider, 22 Pick. 210; Pliilipson v. Caldwell, 6 Taunt. 176.
    In most jurisdictions trespass against the Sheriff is used as the proper and only remedy, and we question whether such a bill as at bar, has ever been filed in equity.
    The following cases were trespass against the Sheriff: Shapley v. Bellows, 4 N. H. 347; Leathern, v. Carr, 24 Me. 251; Jones v. Carpenter, 9 Mete. 509; Porter v. Leach, 13 Metc. 482.

      There is no element of irre[)arable damage alleged, and hence trespass against the Sheriff would be a sufficient legal remedy. But the motion to the court is the all-sufficient remedy, and cheaper than either trespass or bill in equity.
    Equity will not take cognizance, unless it appears that a court of law can not afford a sufficient remedy. Victor Scale Co. v. Shurtleff, 81 Ill. 313; Crumpton v. Baldwin, 42 Ill. 165; Wincock v. Turpin, 96 Ill. 135; Chittenden v. Rogers, 42 Ill. 96; Palmer v. Gardiner, 77 Ill. 143; Pindell v. Quinn, 7 Ill. App. 605.
    Messrs. Freeman & Walker, for appellee.
    The bill in this case shows that irreparable damage will be suffered by appellee if the injunction is not sustained. It shows that Gaylord and Wieland are insolvent, that they have both left the State of Illinois, and have no property anywhere out of which appellee’s executions can be collected. If, therefore, appellee’s property shall be sold by the Sheriff, he will be remediless, and his damage will be irreparable. In such cases injunction is the proper remedy, and a bill in equity will lie. High on Inj., Sec. 244, and cases cited.
    The statutes of this State recognize the right to grant an injunction to stay a suit or judgment at law. Bev. Stat., Chap. 69, Sec. 4—8.
    It has been expressly held by our Supreme Court that the rule that an injunction will not be granted against enforcing a judgment where defense might have been made in action at law, does not apply to set-off, but only such defenses as are required to be made in the suit in which the judgment is rendered. In the case of Walker v. Doane, 108 Ill. 236, it was held that a court of chancery would only relieve through the medium of an equitable set-off.
   Bailey, J.

This is an appeal from an interlocutory order overruling a motion to dissolve a preliminary injunction. The case comes here in pursuance of the provisions of the recent statute allowing appeals to this court from interlocutory orders granting injunctions or overruling motions to dissolve the same. The motion to dissolve was made on the face of the bill, and the only question presented by the appeal is whether the allegations of the bill are sufficient to sustain a preliminary injunction.

The bill is brought by George Oberne against Canute B. Matson, Sheriff of Cook County, to compel said Sheriff to set off two executions in his hands in favor of the complainant against an execution in his hands against the complainant, and to restrain him from selling certain property of the 'complainant levied on by him by virtue of the last-named execution. The bill alleges that on • the 1st day of September, 1887, Charles "W. Gaylord and Peter J. Wieland caused an execution to be issued to said Sheriff upon a judgment recovered by them against the complainant in the Circuit Court of Cook County for $75 damages and §20.40 costs, and that said Sheriff thereupon proceeded to levy said execution by seizing certain goods of the complainant; that on the 9tli day of September, 1887, the complainant caused two executions to be issued to said Sheriff from this court, upon two judgments recovered by the complainant against said Gaylord and Wieland for costs one for $81.25 and the other for $28.40, the first of said judgments being for the costs adjudged to the complainant by this court on reversing a former judgment in favor of Gaylord and Wieland in the same suit in which their present judgment was recovered, and the second being for the costs adjudged by this court to the complainant, on affirming the present judgment in favor of Gaylord and Wieland, the same having been appealed to this court by them; that the complainant, on delivering his said executions to the Sheriff, required him to set the same off against said execution in favor of Gaylord and Wieland, but that the Sheriff refuses to make such set-off, and threatens and is about to sell the complainant’s property levied on by him, and has advertised the same for sale; that both said Gaylord and said Wieland are wholly insolvent, and have no property out of which the complainant’s executions can be collected, and that both have long since left this State, and that no part of the execution in favor of Gaylord and Wieland is lawfully due to any attorney in that suit for fees or disbursement therein.

Sections 58 and 59 of the statute in relation to judgments and executions provide that executions between the same parties may be set off one against another, if requested by either party, in the following manner: “ When one of the executions is delivered to an officer to be executed the debtor therein may deliver his execution to the same officer, whether the second execution is directed to the same or to any other officer; and the officer shall apply it, as far as it will extend, to the satisfaction of the first execution, and the balance due on the larger execution may be collected and paid in the same manner as if there had been no set-off.” By Sec. 60 certain exceptions are made in which it is provided that no set-off shall be allowed, but none of said exceptions are applicable to the case made by the complainant’s bill. It follows that the bill shows a clear right on the part of the complainant to have his executions set off against the execution in favor of Gaylord and Wieland

The appellant’s contention is, that the complainant had a complete and adequate remedy at law, by motion in the court from which the first execution was issued, and "that therefore a court of equity has no jurisdiction. Set-off is laid down in treatises on equity jurisprudence as an original source of equity jurisdiction. 2 Story’s Eq. Juris., Sec. 1431 et seq. While the doctrine of set-off, at least as it exists at law, is purely of statutory origin, courts of equity -would seem to have been accustomed, in virtue of their general j urisdiction. and independently of the statute, to give relief in proper cases by setting off mutual and independent debts against each other. Ibid., Sec. 1435. Without attempting to enumerate the cases where equity has been accustomed to exercise this jurisdiction, it is sufficient to say, that the insolvency of one of the parties, if not of itself a sufficient ground for the interposition of equity to decree a set-off, is always held to be an important factor in this class of cases, and may, with other grounds of equitable relief, justify the interposition of such court by process of inj unction. Smith v. Felton, 43 M. Y. 419; Brewer v. Norcross,17 N.J. Eq. 219; Field v. Oliver, 43 Mo. 200; Reppy v. Reppy, 46 Mo. 571; Hamilton v. Van Hook, 26 Texas, 302. Substantially the same may be said of the non-residence of one of the parties. Wallenstein v. Seilzman, 7 Bush, 175.

The foregoing decisions were in cases where the demand sought to be set off had not been reduced to judgment, and in some of them it seems to be held that even under those circumstances insolvency alonéis a sufficient ground for equitable interposition. See also-Levy v. Steinbach, 43 Md. 212, where the right to an injunction in such case is broadly asserted. The case is much stronger, however, where the debt sought to be set off has been reduced to judgment, and there it is held to be proper for a court of equity to assume jurisdiction and grant an injunction. On this subject the rule is laid down by Mr. High in his treatise on Injunctions as follows: “ Where a judgment debtor, himself having an unsatisfied judgment against his creditor, files a bill to set off the one judgment against the other, alleging that his judgment creditor is insolvent and that he will be remediless if the judgment is permitted to be enforced against him, and praying an injunction to prevent such enforcement and a decree of set-off, the bill is not demurrable for want of equity.” High on Injunctions, Sec. 244.

The statute above quoted, giving the right to have different executions set off against each other, makes no provision as to the forum in which relief is_to be sought in case the right to a. set-off is denied. It follows that the right may be enforced in any appropriate proceeding. If, then, a court of equity had jurisdiction prior to the statute to compel a set-off of judgments against each other in case of the insolvency of one of the parties, we see no reason why such court may not now interpose, where a Sheriff refuses to obey the mandate of the statute, requiring him to set off the executions in his hands against each other, and decree the application of the complainant’s judgment and execution to the satisfaction of the judgment against him.

Some other points are urged by the appellant in support of his motion to dissolve the injunction, which we do not deem it necessary to notice further than to say that we have duly considered them, and are of the opinion that none of them are well taken. The order of the court below, refusing to dissolve the injunction, will be affirmed.

Order affirmed.


source: Caselaw Access Project

author: Moran, P. J.

license: Public Domain

text:
    Henry Wichert v. R. W. Stafford.

      Sales—Contractfor Future Delivery—Time—Enlargement of—Default of Vendee—Conflict of Evidence—Instructions.

    1. Where the evidence is sharply conflicting great accuracy in the instructions is required.
    2. Where, under a contract for the sale of goods to be delivered within a certain time, the vendee directs the vendor not to deliver them until ordered, and the latter acts on such direction, the time fixed is enlarged to a reasonable time in which to perform the contract. The vendee can not then be put in default unless he refuses to receive the goods on a tender of delivery within a reasonable time, and the vendor, in order to recover, must show an ability to perform and an offer or tender of performance within such reasonable time.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook County; the lion. John P. Altgeld, Judge, presiding.
    Messrs. Byam, Parkhurst & Weinschenk, for appellant.
    Mr. J. V. LeMoyne, for appellee.
   Moran, P. J.

This action was brought by appellee against appellant to recover damages for a failure to receive and pay for pickles, under the following contract:

“ Chicago, 10—2—1884.
“I, E. W. Stafford, agree to deliver Henry Wichert, at his place of business, one hundred and thirty-five (135) bbls. medium pickles at §4.25, and sixty-five bbls. small pickles at §5.25, and forty bbls. gherkins at §6.25 per bbh, less three per cent., to be delivered in lots as wanted up to December 15, 1884, and paid for before above date.
“ Accepted:
“E. W. Stafford, “Henry Wichert,
“Per Sergal.”

There was a trial before a jury and a verdict in favor of appellee. On the trial appellee introduced evidence tending to show that he liad asked appellant to take pickles under the contract, and that he had sent pickles to appellant’s store to be delivered on the contract, but that appellant had sent them back, saying he had not room for them and had requested appellee not to send him any more pickles till he ordered them, and that appellee did not send any more, but that on the last day of the contract he went to appellant’s store and said to the person, who was in charge and acting for appellant, that he could deliver the pickles that day if they wanted them.

Appellant’s evidence was in conflict with that of appellee on both these points. Appellee also offered evidence tending to show that he had all the pickles called for by the contract on hand or under his control, and- ready to deliver to appellant on the last day of the contract, if he should call for them.

The court gave to the jury, at the request of appellant, the following instruction:

“If the jury believe from the evidence in this case that the parties made the contract of date the 11th day of September, 1881, and introduced in evidence in this case, and that the plaintiff was able to furnish and offered to .furnish to the defendant, at or within the time called for by said contract the pickles therein described, and that the defendant refused to take said pickles, or any portion of them, and to pay for the same according to the terms of said contract, then the jury are instructed that the plaintiff is entitled to recover, and the measure of his damages is the difference between the contract price of said pickles not taken, and the market price of pickles of the same grade and quality as called for by the contract on the first day of December, 1881, less two per cent, discount, with the interest thereon from that date at six per cent, per year, and if the jury believe from the evidence that the defendant, or some one authorized to act for him in the premises, told the plaintiff after making of said contract dated September 11, 1881, not to deliver any pickles to him on said contract unless they were ordered by him, and that he failed to give such order for any portion of said pickles during the time required by said contract, then the jury are instructed that the plaintiff would not be in default in regard to those not ordered, and that the defendant would be liable to the plaintiff for all pickles called for by said contract not so ordered by him.”

If the defendant or his agents told plaintiff not to deliver pickles on said contract unless they were ordered by him and plaintiff acted on such direction and acquiesced therein, then the element of time in the contract would have been waived by the parties.

In such case where a fixed time has ceased to be an element in the contract, neither party can put the other in default without some notice or demand of performance. Lawson v. Hogan, 98 N. Y. 44.

The element of time is enlarged from a definite or fixed time to a reasonable time in which to perform the contract, and the defendant could not in such case be put in default unless he refused to receive the pickles on a tender of delivery within a reasonable time, and the plaintiff in order to recover would be required to show an ability to perform and an offer or tender of performance within such reasonable time.

The latter clause of the instruction does not correctly state the law upon the hypothesis in said latter clause stated. The defendant would not be liable to the plaintiff for the pickles called for by the contract on said hypothesis simply because he failed to order them during the time named in the contract, unless the time named in the contract should be found to be the reasonable time for its performance, and the plaintiff further showed that he had the ability to perform and actually offered to deliver, and that defendant refused to receive the pickles within said time. Sanborn v. Benedict, 78 Ill. 309.

In the contest, developed by the record in this case, and the sharp conflict of evidence arising on material issues, we deem the misdirection in said instruction such error as requires us to reverse the judgment of the court below and remand the case for a new trial, without regard to other alleged errors in the record.

Reversed and remanded.


author: Bailey, J.

text:
    Miner N. Knowlton v. George L. Warner, Executor.

      Heal ^Property—Covenant—Action of—Former Adjudication—Evidence.

    In an action o£ covenant to recover damages for a breach of a covenant in a deed, a decree rendered in a former suit between the parties, finding that there was a breach of said covenant in the failure of the defendant to pay a certain amount of interest, is admissible in evidence, although the court did not deem it expedient in said suit to enter a personal decree against the defendant for such amount, as it was a legal demand.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Hr. B. M. Munn, for appellant.
    Messrs. M. A. Rorke & Son, for appellee.
   Bailey, J.

This was an action of covenant, brought by Anna Hanbury against Miner 3ST. 'Knowlton, to recover damages for a breach of certain covenants in two deeds conveying lands, executed by the defendant to the plaintiff. During the pendency of the suit the plaintiff died, and her death being suggested on the record, George L. Warner, her executor, was substituted as plaintiff. A trial was afterward had, resulting in a verdict in favor of the plaintiff for 8128.56, and for that sum and costs judgment was rendered for the plaintiff.

As to one of said deeds, the only covenant of which any breach is alleged is the covenant against incumbrances and taxes, the breach assigned being the non-payment of certain taxes which were a lien on the land at the time of the conveyance, and which the grantee was afterward compelled to pay. As to this breach and the damages recoverable therefor there is no controversy. THe other deed contained a covenant hy the grantor against taxes and all incumbrances, except a certain deed of trust for §1,800, and interest thereon from a date which was left blank in the deed, the payment of said deed of trust, with interest as therein specified, being assumed by the grantee. It is claimed that by a proper construction of the deed, the grantor covenanted against all incumbrances except the deed of trust and interest thereon from the date of the deed, and the breaches assigned are, the non-payment of certain taxes which were a lien on the land at that date, and also the sum of §307.55 Interest which had then accrued on the deed of trust, the grantee having been compelled to pay both said taxes and interest. As to the taxes there is no dispute, the only controversy being as to said sum of §307.55, accrued interest.

To establish the defendant’s liability for said interest, the plaintiff offered in evidence said deed, and also the record of a decree of the Superior Court theretofore rendered, in a certain suit in chancery in which said Anna Hanhury was complainant and said Knowlton, the holders of said deed of trust and others were defendants, and in which suit the construction of said deed and the liability of said Knowlton to reimburse said Anna Banbury the said sum of interest so paid by her were, among various other matters, in issue. In that decree the court found, among other things, that said Anna Banbury only assumed the payment of the principal sum of §1,800 of said deed of trust and interest thereon from the date of said conveyance, and that said Knowlton was liable to her for all interest accruing prior to that date; that said interest amounted to §307.55, and that said sum was due and unpaid from him to her, but the court further found that it was inexpedient to enter a personal decree in her favor against him for fear of error, on account of its being a legal demand, and that said decree ought to be entered without prejudice to any suit or suits to be thereafter brought by her against him to recover said sum of §307.55. It was thereupon ordered and decreed that said decree was entered without prejudice to the right of said Anna Banbury to institute a suit or suits against said Knowlton to recover said sum.

It can not be doubted that said decree was competent evidence against the defendant. It was rendered in a suit to which both he and the plaintiff were parties, and in which the very matters now in dispute were at issue. It establishes, and we think conclusively establishes, the liability of the defendant for the interest in question and the amount of such liability. Upon those questions it is an express adjudication, and its force as an adjudication is in no manner diminished by the fact that the court, for a reason which was deemed sufficient, thought best not to decree the payment of said money by the defendant to the plaintiff, but remitted her to her suit at law for its recovery.

The verdict and judgment are clearly supported by the evidence, and, as no error of law is shown, the judgment will he affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Bennett Jacobson v. Samuel Gunzburg.

      New Trial—Newly Discovered Evidence—Conflict of Evidence—Question for Jury.

    1. Newly discovered evidence, which is merely cumulative and not conclusive, is not sufficient ground for a new trial.
    ■ 2. Where the evidence is conflicting and there is no error of law this court will not interfere.
    [Opinion filed January 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Blum & Blum, for plaintiff in error.
    Mr. Bobert H. McMurdy, for defendant in error.
   Per Curiam.

We have carefully examined the record in this case and considered all the points of law made by counsel for plaintiff in error. There is a sharp conflict in the evidence, and the verdict of the jury has settled the issue of fact in favor of the defendant in error.

There are no errors as to the admission or exclusion of evidence, and none in giving or refusing instructions.

Tiie testimony of defendant in error in another case, which was presented on the motion for new trial as newly discovered evidence, is only cumulative in character and is not conclusive in its nature. It tends to show that defendant in error testified falsely in some particulars on this trial, but is by no means conclusive even to that extent.

It presented no' sufficient reason for granting a now trial. Under the well established practice in reviewing courts we must affirm the judgment in cases where there is no error of law and the facts have been found by a jury on consideration of conflicting evidence, and where they had the witnesses before them.

Judgment affirmed.


text:
    Abraham Bernstein v. E. R. Walker.

      Trover—Verdict—When too Small—New Trial.

    In an action of trover, where the verdict is for a less sum than the value of the property as fixed by the defendant, the trial court should set aside the verdict and grant a new trial.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Blum & Blum, for appellant.
    Ho brief filed for appellee.
   Per Curiam.

Appellant brought an action of replevin for certain furniture, and recovering but a small portion of the goods on the writ, a count in trover was filed and a trial had before a jury on the issues joined. The jury found appellee guilty of a conversion of the goods, and assessed the appellant’s damages at §43.84.

The main contest was on the value of the property converted. The testimony of plaintiffs witnesses tended to show the property to be worth upward of §500. Appellee in his testimony, fixing the value of the articles one by one, makes the value of the whole more than §160. Three witnesses called by appellee placed the value respectively at §175.90, §131.50 and §118.60. Under such evidence the verdict is manifestly too small, and we0know of no rule by which such a verdict can be sustained when complained of by the party who is injured by it. The court below should have granted the motion of appellant to set aside the verdict and grant a new trial, and for the error in denying such motion the judgment must be reversed and the case remanded.

Reversed and remanded.


text:
    Virginia B. Holmes v. Augustus A. Parker.

      Confession of Judgment—Warrant of Attorney—Printed BTanTc—Construction—Suiplusage—Motion to Open Judgment—Evidence.

    1. Although the power to confess a judgment must be strictly pursued and he clearly found in the warrant, such instruments are subject to the same rules of construction as other written contracts.
    2. When, from a consideration of the entire writing, the real meaning can be ascertained, the insertion of a word or words not intended will not be permitted to defeat the intent of the parties.
    3. In ascertaining the intent, the nature and purpose of the contract, or transaction, will generally influence the interpretation, and words which are meaningless or inconsistent with the manifest intent and without which the instrument can be sustained and given effect in accordance with such intent, may be rejected as surplusage.
    4. Where printed blanks are used and the written and printed portions are inharmonious, the written parts will be given greater weight than the printed ones in interpreting the instrument.
    5. Upon a motion to open a judgment entered by confession on a warrant of attorney, it is held: That the note and warrant must be construed together; that certain printed words in the warrant, which are inconsistent with the written parts of the note, should be rejected as surplusage; that the defendant properly took judgment on the note, although it was held by him as security for another note upon which he had not exhausted his legal remedies, as it appears that such remedies would have proved unavailing; and that the court below properly refused to open the judgment for a trial on the merits, there being no such conflict of evidence presented by the affidavits as leaves the mind unsatisfied as to the real merits.
    [Opinion filed January 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    In connection with this case see the following case of Holmes v. Beinis.
    A judgment by confession was entered in the Superior Court in favor of defendant in error and against plaintiff in error upon a note and warrant of attorney, of which the following is a copy, the words in italics being written in the blanks and the remainder of the instrument being printed:

    The note was indorsed: “ Pay Holder & Go. or order.
    Ira Holmes.”'

      Plaintiff in error moved the court to vacate said judgment and for leave to plead and have a trial of said cause, which said motion was heard upon affidavits filed by both parties, and was denied. To review the judgment of the court in denying said motion this writ of error is brought.
    Messrs. Bisbee, Ahrens & Decker, for plaintiff in error.
    The court below should, at least, have let the plaintiff in error into a defense on the merits, the judgment in the meantime being allowed to stand as security until the merits of the case were heard and determined; all proceedings upon it, however, being stayed until the final determination of the suit. Walker v. Ensign, 1 Ill. App. 113; Heeney v. Alcock, 9 Ill. App. 431; Martin v. Stubbings, 20 Ill. App. 381; Lake v. Cook, 15 Ill. 353; Condon v. Besse, 86 Ill. 159.
    But in this case the defendant in error certainly was not entitled to judgment at all on the note and warrant of attorney in question, and the court below should have vacated the judgment and have required the defendant in error to pursue the ordinary remedy by action. This warrant of attorney authorized the confession of a judgment on the note only in favor of the persons composing the firm of Holmes & Bro., or their assigns, and not in favor of defendant in error. The note was merely an accommodation note, and the judgment entered in favor of defendant in error was unauthorized and void under the rule of strict construction of such warrants of attorney, laid down by the decisions of this court and our Supreme Court. Follansbee v. Scottish Am. Mfg. Co., 5 Ill. App. 17; Chase v. Dana, 44 Ill. 262; Tucker v. Gill, 61 Ill. 236; Frye v. Jones, 78 Ill. 627; Keith v. Kellogg, 97 Ill. 147; Campbell v. Goddard, 117 Ill. 251.
    Mr. Henry S. Monroe, for defendant in error.
   Moran, P. J.

The first contention of plaintiff in error is that the warrant of attorney does not authorize the confession of judgment in favor of any person or persons other than “Holmes & Bro. or their assignsthat defendant in error is not the assign of'Holmes & Bro., for Holmes & Bro. have never indorsed or signed the note.

The note and warrant of attorney used was a printed form, the note and warrant being printed on the same piece of paper, with blanks filled in writing. The name of the payee, place of payment, etc., are written in, but the words, “Holmes & Bro. or their assigns,” are printed in the warrant of attorney.

It is very manifest that the note and power of attorney must be read and construed together as one instrument, for the purpose of arriving at the true meaning and intent of the parties between whom they were executed.

While the power to confess a judgment must, as counsel for plaintiff in error contend, be strictly pursued and be clearly found in the warrant purporting to confer it, still, such instruments are subject to the same rules of construction, for the purpose of ascertaining their true sense and carrying out the intent of the parties to them as all other contractual writings which the courts are called on to interpret and enforce. It is a rule of construction that no inaccuracy of language, whether from omitting a word or even a clause plainly meant to be inserted, inserting a word not meant, using the wrong word, or otherwise, will be permitted to defeat the intent, when from a consideration of the entire writing the real meaning can be ascertained.

In ascertaining the intent, the nature and purpose of the contract or transaction will generally influence the interpretation, and words which are meaningless or inconsistent with the manifest intent to be gathered from the whole Instrument and without which the instrument can be sustained and given effect in accordance with such intent, may be rejected as surplusage. Bishop on Contracts, Sec. 397-421.

In accordance with these principles, blanks left unfilled in warrants of attorney have been read as filled up with the proper date, and also with the name of the person against whom the judgment was to be confessed in the following cases: Sweeney v. Kitchen, 80 Pa. St. 160; Vleet v. Camp, 18 Wis. 221; Links v. Mayer, 22 Ill. App. 489, opinion filed by this court.

In the case now under consideration, the note portion of the instrument is payable to the order of Ira Holmes, while the power of attorney authorizes a confession in favor of Holmes & Bro., or their assigns. There is a manifest incongruity between the terms of the note and those of the power. Holmes & Bro. are not the payees of the note and could only become legally interested in it as the assigns of Ira Holmes. It is suggested that the plaintiff in error may have had some good reason for desiring that the judgment should be entered in favor of Holmes & Bro., but no reason is stated, and if any existed, which would account for the anomaly, it should have been made to appear.

The natural conclusion is that the warrant of attorney in this, as in all similar cases, was intended to be executed for the use and benefit of the payee of the note or the holder of it by proper transfer from him, and that by inadvertence the printed words “ & Bro. or their ” were not stricken out of the warrant at the time the instrument was executed.

Where a printed blank is used, the written portions will have greater weight in interpreting the instrument than the printed, where the two portions are inharmonious. Clark v. Woodruff, 83 N. Y. 523; American Ex. Co. v. Pinckney, 29 Ill. 392.

Printed blanks are generally used upon an assumption that they are appropriate, and little care is taken to see that such formal parts of the instrument match the special provisions written in the blanks, either as to the terms of the agreement or the persons named therein. Such, we are satisfied, was the case here, and therefore we regard the rule a safe one which will reject from the power of attorney the words “& Bro.” and leave it to read “said Holmes” instead of “said Holmes & Bro.” This interpretation seems to be reasonable and natural, and to effectuate the manifest intention of the parties to the instrument, and adopting it, we must conclude that the entry of the judgment was fully authorized by the warrant of attorney.

The remaining question is, did the court err in refusing to open the judgment and let plaintiff in for a trial on the merits. The defense set up in the affidavits filed in support of the motion to open the judgment, as stated in the affidavit of Ira Holmes, who indorsed and delivered the judgment note in question to the defendant in error, is, that plaintiff in error gave the said judgment note to said Ira Holmes without consideration and for his accommodation; that the said Holmes and one Eames were indebted to defendant in error and gave him their joint note for the amount of such indebtedness, and that said Holmes voluntarily and unsolicited by defendant in error, delivered said judgment note to him upon the express condition that he should hold it as security for the collection of the joint note, but that said judgment note should not be used in any manner until defendant in error had exhaustedall legal remedies against said Ira Holmes and Eames for the collection of the joint note; that defendant in error has not exhausted his legal remedies against said Ira Holmes and Eames on said joint note, and has commenced no suit against them, and that said Eames, since the maturity of said joint note, had, and still has, more than sufficient property to pay the full amount of said joint note.

Taking all this as trhe, it is plain that the claim of the defense rests upon the statement that defendant in error has complied with the condition upon which the note was given, and exhausted his legal remedies against Holmes and Eames. Defendant in error denies that he received the judgment note on any such condition, and gives a detailed account of the time and manner of its delivery to him, which’it is unnecessary in the view we take of the case to state here.

He admits said note was given to him as security for the same debt for which he held the joint note of Holmes and Eames, and that he has not instituted suit on said joint note against said Ira Holmes and said Eames because he has repeatedly been informed by said Holmes and Eames that they had no money and no property,'and that if affiant brought suit and recovered judgment he could collect nothing, and that he verily believes that said Ira Holmes has no money, property or assets out of wdiich any material portion of ¡aid debt could be made if the same was put in judgment against him.

It will be observed- that Holmes does not, in his affidavit, pretend that he is solvent or has property out of which an execution could be satisfied, and that in stating Eames’ ability he specifies no property, givesno details, but contents himself with the general statement that he has property more than sufficient to pay the note.

The condition that the legal remedies against Ira Holmes and Eames should be exhausted, must have a reasonable construction, and if plaintiff in error desired to rely on such condition as a defense, she was hound to show to the court facts and circumstances from which it would be inferred that she would be injured b)r defendant in error failing to comply with such condition. She should have shown that Eames or Ira Holmes either or both had property liable to execution, or that defendant in error could reach by legal process.

If nothing could be got by suing and issuing execution it would be idle and futile to proceed to the formal exhaustion of legal remedies. Defendant in error swears that he was repeatedly informed by Ira Holmes and by Eames that they had no money and no property, and that if he brought suit he could collect nothing, and that he believes that said Eames has no money, property or assets out of which he could collect. This being the only really material issue raised by the affidavits we can not say that there is presented any such conflict as leaves the mind unsatisfied as to the real merits. The defense amounts to no more than a claim that legal remedies should be exhausted where the evidence taken as a whole tends most strongly to show that such remedies would be unavailing.

Such a defense comes very near being purely technical, and certainly presents hut meagre merits. On consideration of the evidence we think the court was right in refusing to open the judgment for a trial of the merits.

The judgment of the Superior Court will therefore be affirmed.

Judgment affirmed.


author: Per Ouriam.

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    Virginia B. Holmes, v. Henry V. Bemis.

      Confession of Judgment—Warrant of Attorney—Surplusage—Motion to Open Judgment—Evidence.

    Upon a motion to open a judgment, entered by confession on a warrant of attorney, it is held: That certain printed words in the warrant, which are inconsistent with the written parts of the note, should be rejected as surplusage; that the plaintiff was without nctice that the note in question was accommodation paper; and that the court below properly denied the motion, there being no such conflict of evidence presented by the affidavits as required the formation of an issue to be settled by a jury.
    [Opinion filed January 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Roberts, Hutchinson & Thomas, for plaintiff in error.
    The judgment was not authorized hy the warrant of attorney, because the judgment was not confessed in favor of Holmes & Bro. or their assigns. It was confessed in favor c f Henry V. Bemis, who was the assignee of Ira Holmes only. The warrant of attorney must be strictly followed. In this case it was not. Chase v. Dana, 44 Ill. 262.
    “ The authority to confess a judgment without process must be clear and explicit, and must be strictly pm-sued.” The Man. and Mich. Bank, etc., v. St. John, 5 Hill. 497; Tucker v. Gill, 61 Ill. 236; Frye et al. v. Jones, 61 Ill. 627; Keith v. Kellogg, 57 Ill. 147.

      “ When it appears defendant has a meritorious defense judgment should be opened.” Hempstead v. Humphrey, 38 Ill. 90.
    £l In exercise of equitable jurisdiction over confessions of judgment, courts often set aside such judgments in whole or in part, in order to let in a defense.” Norton v. Allen, 69 Ill. 307.

      “ When, on application of a defendant to open a judgment by confession and permit him to defend, the affidavits show that his defense, if substantiated, would be a good one, and that a question was presented that should be presented to a jury, the court should set aside the judgment and permit the defense to be made.” Pitts v. Magie, 24 Ill. 610.
    “In case of judgment by confession on warrant of attorney, it is competent for the court, upon a proper showing, to so far vacate such judgment as to permit the parties to defend the same; but it is error to allow such right to defend on motion, unless upon face of the record or by some other showing as foundation of such motion, it shall appear, prima facie, at least that the defendant has a defense, in whole or in part, upon the merits.” Gibboney v. Gibboney, 2 Ill. App. 322.
    Messrs. Grant, Brady & Northrup, for defendant in error.
    To the note and warrant on which judgment was confessed herein, must be applied the fundamental canons of construction governing all contracts; (a) that the whole instrument should be considered in determining the meaning of any and all its parts; (5) that the contract between the parties should be supported rather than defeated. 1 Parsons on Cont. 501, 503. (c) And above all that the manifest intention must prevail. Walker v. Tucker, 70 Ill. 527.
    In the case of Keith v. Kellogg, where, after fully recognizing the general rule that the power to confess a judgment must be clearly given and strictly pursued, the court go on to say: “But this rule, like all others, has its reasonable limitations and must not be applied so rigidly as to defeat the manifest intentions of the parties to the instrument granting the power.” Keith v. Kellogg, 97 Ill. 147.
    In determining the intention of the parties surplusage should be eliminated. Griffith v. Furry, 30 Ill. 251.
    The affidavits, offered by plaintiff in error, failed to make any such showing as would have justified the court in vacating the judgment to allow plaintiff in error to plead.
    Generally, affidavits, in support of a motion to set aside a judgment by confession, are to be construed most strongly against the applicant; nor will it suffice if they “ state facts from which, if proved on a'trial, a defense might bo inferred.” The case must be made out “ uncquivocallj.” Crossman v. Wohlleben, 90 Ill. 537.
    The same rule applies to them as to affidavits to set aside judgments entered by default. Crossman v. Wohlleben, 90 Ill. 537; Freeman on Judgments, Sec. 108.
    Bor will the judgment be set aside to let in a bad defense. Crossman v. Wohlleben, 90 Ill. 537; Zuckermann v. Solomon, 73 Ill. 130; Hempstead v. Humphrey, 38 Ill. 90.
    The affidavits offered by plaintiff in error failed to show that Mrs. Holmes had any defense to the collateral note in the hands of Bemis.
    Even if Bemis was perfectly aware of the fact that the collateral note was accommodation paper, such knowledge constituted no defense to the note in his hands.
    “ The very purpose of making accommodation paper is, that the party favored may dispose of it, and unless restricted he may transfer it, either before or after maturity, and the maker will be equally bound. The authorities on this point are consistent and numerous.” Miller v. Larned, 103 Ill. 562, and cases cited; 1 Dan. Neg. Inst, Sec. 726.
    H Mrs. Holmes had put any number of restrictions on the negotiation of the collateral, they could not affect Bemis unless made known to him. Caruthers v. West, 11 Q. B. 143; 1 Dan. Neg. Inst., Sec. 726; Colebrooke Col. Sec., Sec. 38.
    Botice to Bemis of any restrictions placed on the negotiation of the collateral sufficient to defeat his claim must have been positive; must have been something more than “the knowledge of circumstances which would excite suspicion in the mind of a prudent man,” nor would he be affected by even “ gross negligence * * * at the time of the transfer.” Colebrook’s Collateral Security, Sec. 75; Comstock v. Hannah, 76 Ill. 535; 1 Dan. Neg. Inst., Sec. 769; Shreeves v. Allen, 79 Ill. 553.
   Per Ouriam.

This writ is brought to review an order of the Superior Court in denying a motion to vacate a judgment by confession entered against plaintiff in error, and to allow a trial on the merits. The note and warrant of attorney in this case is identical in form and substance, except as to the amount of the note, with that in the case of Virginia B. Holmes v. Augustus A. Parker, ante p. 225, and the point made in this case, as to the authority to enter the judgment under the warrant of attorney, is controlled by what is said in the opinion in that case on the same point.

On the question as to whether the court should have allowed plaintiff in error to plead and try the case upon an issue of fact, we have carefully examined the affidavits filed by the respective parties, and are of opinion that no case was made by the plaintiff in error which required the court to grant her motion in that regard.

Without discussing the evidence found in the affidavits at length, we think the facts established are, that the note in question was given by the plaintiff in error to Ira Holmes as an accommodation note, and that said Ira Holmes delivered it as collateral security to a §5,000 note upon which, at the request of said Ira Holmes, defendant in error became guarantor.

That said Ira Holmes failed to pay said §5,000 note, and defendant in error was compelled to and did pay the same, and therefore held said judgment note as collateral security for the indebtedness of said Ira Holmes upon the debt of which said judgment note was held as collateral, the amount for which judgment was allowed to stand in this case by the court below. That defendant in error had no notice that said judgment note was accommodation paper—he was not so informed as appears from the affidavits—and there was nothing in the circumstances sufficient to put him on notice of that fact.

That plaintiff in error gave the judgment note to said Ira Holmes without imposing any restrictions, as to its use, that were ever brought to the knowledge of defendant in error before the entry of jugdment.

There is no such conflict as to any of these, which we consider the material facts, as leaves the court in any doubt as to the truth, and none such as in our opinion required the formation of an issue to be settled by a jury. The defendant in error having taken the note before maturity and for value would not be affected by the fact that it was accommodation paper even if he knew that fact, unless notice was brought to him of restrictions placed upon its use by the maker which would exclude the use of it as collateral for the debt for which he took it. Miller v. Larned, 103 Ill. 562, and authorities there cited.

Mo case for opening the judgment is shown by the evidence; the court below ruled correctly in denying the motion, and the judgment must therefore be affirmed.

Judgment affirmed.


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    Christoph Haltenhof v. Caroline Haltenhof.

      Divorce—Desertion—Issue—Practice—Dormer Adjudication.

    Upon a bill for divorce this court reverses the decree of the court below on the ground that an issue, other than that piesented by the pleadings, was tried.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamison, Judge, presiding.
    Mr. H. B. B. Wickeksham, for appellant.
    Mr. P. L. O’Meara, for appellee.
   Moran, P. J.

In this case appellant filed his bill for divorce against appellee, alleging that in August, 1881, she deserted him without just cause. To this bill appellee filed a plea setting up in substance that, on September 22, 1883, appellant had filed a hill for divorce against her in the Circuit Court alleging desertion; that she answered said bill denying such desertion; that said cause was heard upon the merits upon evidence introduced by both sides, and that upon said hearing the court dismissed said bill for want of equity, which decree of the court appears on record and that the desertion was the same as alleged in this bill. Thereupon appellant amended his bill and alleged a desertion on or about January 4, 1884, and appellee amended her plea, alleging that said former suit was pending at the time of the desertion alleged in the amended bill, and that the desertion alleged in the amended bill is the same desertion in said former bill alleged.

To this plea appellant replied, denying that the present bill was for the same desertion in the former bill mentioned. On the hearing the court dismissed the bill for want of equity. The issue made up for the court to try was simply the truth of the plea, i. e., whether the desertion' for which the complainant was now suing was the same desertion set' up in the former bill, and which was determined against defendant in the former decree.

So far as we can ascertain from the record, this issue was not regarded at all on the hearing, but the case proceeded upon the inquiry whether there was a desertion in August, 1881. Complainant by his evidence sought to prove that there was such desertion, and appellee by her evidence sought to justify the separation which then toot place. Manifestly there was no such issue for the court to try. The former suit, if it was prosecuted to decree of dismissal as alleged in the plea, determined finally between the parties the question of whether the separation in 1881 was a justifiable separation or a wilful desertion on the part of the wife, and on well settled principles the parties to that suit would not be permitted to retry that issue.

But we do not find from the certificate of evidence that any pleadings or decree in the alleged former suit were introduced in support of the plea, or that any effort- was made by the appellee to prove that there was a former suit, or what was the subiect-matter of it-

An issue not presented by the pleadings seems to have been tried, and the issue made, seems to have been ignored. In this state of the record we can not intelligently pass on the merits of the question attempted to be presented.

There must be some attempt in practice to try the case on the issue presented by the pleadings, and that issue ought to be brought to the court’s attention by counsel. We can do no otherwise in this case than to reverse and remand it for a hearing and decree on the issue as made.

Reversed and remanded.


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    Richard P. Travers v. Aaron F. Leopold.

      Bill to Compel Assignment of Stock■—Questions of Fact—Conflict of Evidence.

    Upon a bill filed to compel the assignment and delivery by the defendant to the complainant of certain shares of the capital stock of the corporation, alleged to have been pledged as security for a loan, but which the defendant claims to have purchased, this court declines to interfere with the decree dismissing the bill, no questions of law being presented and there being a sharp conflict of evidence.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook ‘County; the Hon. Egbert Jamison, Judge, presiding.
    Messrs. Smith & Pence and W. W. Evans, for appellant.
    Messrs. Moses & Newman, for appellee;
   Bailey, J.

This was a bill in chancery, brought by Richard P. Travers against Aaron E. Leopold, to compel the assignment and delivery, by the defendant to the complainant, of 300 shares of the capital stock of the Republic Iron Company of Michigan, of the par value of §30,000.. The complainant alleges that in March, 18S5, he pledged said stock to the defendant as security for a loan of §8,400, the defendant agreeing not to call upon the complainant for a repayment of said loan for a period of sixty days, hut that after that period the complainant was to repay said loan when requested by the defendant, with interest at the rate of six per cent, per annum, the defendant to retain one-lialf of all dividends which should he paid on said stock, and be also paid one-half of the increase in the value of the stock from the date of said pledge to the date of the repayment of the loan; that the defendant had not requested the payment of said loan, but that on the 3d day of December, 1885, the complainant tendered to the defendant the amount due him under said agreement, but that the defendant refused to return him said stock and pay him one-half of the dividends received thereon, or to allow him to redeem said stock.

The defendant by his answer denies that said transaction was a loan or a pledge of said stock, and alleges that he purchased said stock absolutely and without condition and paid the complainant therefor the sum of §8,400, that being at the time its full market value. The cause was heard on pleadings and pl-oofs, and a decree rendered dismissing the bill for want of equity.

The record presents no questions of law, but mere questions of fact, which are controverted and upon which the evidence is sharply conflicting. We have given the evidence careful consideration and are unable to say that the chancellor, who rendered the decree and who saw and heard the witnesses, was not warranted in the conclusion to which he arrived. It would serve no useful purpose for us to go into an analysis of the evidence, and we therefore dispose of the case by merely saying that we see no grounds for disturbing the decree.

Decree affirmed.


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    Chas. H. Quinlan v. Philip Bonte.

      Landlord and Tenant—Holding Over—Presumption—liébuttal of— Instruction. ,
    1. Where a tenant occupies premises under a lease for a year and holds over without a new agreement, the landlord may elect to treat him as a tenant for another year on the terms of the original lease.
    2. The legal presumption arising from the mere fact of holding over can not be rebutted by proof of a contrary intention on the part of the tenant alone.
    3. It is error to instruct the jury on a theory which there is no evidence to sustain.
    [Opinion filed January 18, 1888.]
    Appeal from the Oonnty Court of Cook County; the Hon. Bichard Pbendergast, Judge, presiding.
    Messrs. H. T. & L. Helm, for appellant.
    Mr. Jesse A. Baldwin, for appellee.
   Moran, P. J.

This action was brought by appellant to recover from appellee rent of a certain store for the months from September, 1885, till May 1,1886. The evidence at the trial showed without conflict that appellee occupied the store under a written lease commencing on the last day of April, 1883, and terminating on the last day of April, 1884, at a rental of $60 per month ; that in the spring of 1884 there was some talk between appellee and appellant about a further lease; that no written lease was made and no new agreement or understanding whatever was arrived at between them, but that appellee held over during the year 1884, and until September, 1885, paying rent at the rate mentioned in the written lease made the spring of 1883, to wit, $65 per month. Appellee’s testimony is explicit, that he asked appellant for a written lease about March, 1884, and that appellant refused to give him one, and that he occupied the premises from that on till he left, in September, 1885, and paid the rent without anything more being said or any new agreement or understanding being had. On this state of facts a verdict and judgment was rendered in favor of appellee.

, .The verdict is not supported by the evidence. All the material evidence introduced by both the parties shows that the verdict should have been in favor of appellant for the amount of rent claimed.

It is settled law that where a tenant occupies premises under a lease for a year or years, and holds over after the expiration of such lease without any new agreement with the landlord, the tenant may, at the election of the landlord, he treated as a tenant for another year on the terms of the original lease. The holding over without more gives rise to a legal presumption of a tenancy on the terms of the original lease, and while the legal presumption may be rebutted it can not he rebutted by proof of a contrary intention on the part of the tenant alone. If the holding over is shown to be with the understanding between the parties that it should not operate as a renewal of the original lease, this will rehut the presumption. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151. But such understanding must be shown by the evidence and, as we read this record, there is an utter absence of evidence tending, in the slightest degree, to prove such understanding between the parties.

There being no evidence from which such an understanding between the parties could be inferred, the court erred in giving defendant’s third instruction, which told the jury that if the defendant remained in possession of the premises referred to after the termination of his lease, with the understanding and agreement between the parties that such holding over should not operate as a renewal of said lease, the verdict should be for the defendant.

It is error to instruct the jury on a theory which there is no evidence to sustain. The judgment must be reversed and the case remanded. Reversed a/nd rema/nded.


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    Leslie Carter v. Caroline L. Carter.

      Jurisdiction—Injunction—Interlocutory Order—Appeal—Act of June 14, 1887—Divorce—Custody of Child.

    An order providing for the custody of a child, entered in divorce proceedings, upon a motion to dissolve an injunction affecting the custody of the child, is not an order overruling a motion to dissolve an injunction, or enlarging the scope of an injunction order, within the meaning of the Act of June 14,1887, providing for an appeal to this court.
    [Opinion filed January 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamison, Judge, presiding.
    Mr. F. J. Loesch, for appellant.
    Messrs. Dexter, Herrick & Allen, for appellee.
   Bailey, J.

The appeal in this case brings up an interlocutory order which the appellant seeks to have reviewed by this court, under the provisions of the Act of June 14, 1887, providing for appeals from interlocutory orders granting injunctions and appointing receivers. Said act provides that, whenever an interlocutory order or decree is entered in any suit pending in any court in this State, granting an injunction or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already-appointed, an appeal from such interlocutory order or deorée may be taken to the Appellate Court.

The bill in this case is brought by the appellee against the appellant, praying for a divorce, for alimony, for the custody of the infant child of the parties, and for an injunction restraining the appellant from selling, assigning or otherwise disposing of his property or effects, or taking, or sending, or permitting them to be sent out of the jurisdiction of the court, and from in any manner interfering with the appellee or with said child, or taking or attempting to take possession of said child until the further order of said court, and also a general prayer for relief. An injunction was awarded in accordance with said prayer, and thereupon a writ of injunction wasissued and served on the appellant, restraining him “from selling, assigning, transferring, incumbering, or in any way disposing of his property and effects, or taking, or sending, or permitting them to be taken or sent out of the jurisdiction of this court, or from in any manner interfering with the complainant or the chi'd, Leslie Dudley Carter, or taking or attempting to take the said child from the custody, possession or control of said complainant.”

Afterward the appellant entered his motion “to dissolve the injunction issued in said cause, upon bill, answer and affidavits filed, and that the court order the complainant to return said child, Leslie Dudley Carter, to the custody of said defendant * during the pendency of these proceedings.” On the hearing of said motion the following order was entered:

“ This cause coming on to be heard upon the motion of the defendant to dissolve the injunction granted herein, and that the child, Leslie Dudley Carter, be restored to the defendant, and also upon the cross-motion of complainant for a continuance of defendant’s said motion, after hearing the affidavits read and the arguments of counsel, doth overrule the complainant’s motion for a continuance; and the defendant’s motion for a dissolution of said injunction, so far as it seeks a return of said child, Leslie Dudley Carter, to the custody of said defendant during the pendency of these proceedings is overruled; and it is ordered that said injunction be modified so as to permit the parents equal access to their child, Leslie Dudley Carter; that Miss Helen Carter and Mrs. Catherine B. Dudley be, and they are hereby appointed custodians of said child. And it is further ordered that said child shall visit with the complainant until the 31st instant, and then shall visit with the defendant for and during the month of January, 1888, and pass each month thereafter alternately with the complainant and defendant, until the further order of this court; said child, while visiting with complainant, to he in the custody of Catherine Dudley, and when visiting with the defendant, to be in the custody of Helen Carter. And it is further provided that the defendant shall he allowed to see said child once each week during the time he is in the custody of Mrs. Dudley, and that the complainant shall he allowed to see said child once each week during the time said child is in the custody of Miss Helen Carter, and at the times of such visits each party may have the society of said child alone if he or she so desires.”

The present appeal is prosecuted from the foregoing order, and the appellee now enters her motion to dismiss the appeal for want of jurisdiction. The question thus arises whether said order is an order or decree overruling a motion to dissolve an injunction, or enlarging the scope of an injunction order, within the meaning of the act above referred to.

It is not urged in support of the appeal that the order appealed from constitutes in any proper sense a refusal by the court to dissolve the injunction so far as it restrains the appellant from disposing of his property. It does not appear nor is it claimed that that question was presented to or was passed upon by the court. The order appealed from makes no reference to it, and if the dissolution of that branch of the injunction order was within the purview of the appellant’s motion, the court, so far as appears, still holds that question under advisement, as the order by its terms purports to overrule the motion for a dissolution of the injunction only so far as it seeks a return of said child to the custody of the appellant.

Does the order appealed from then, in substance, overrule the motion to dissolve the injunction so far as it relates to the custody of the child ? We think not. The motion, it will be observed, was not merely a motion to dissolve the injunction, but for an affirmative order on the appellee to return said child to the appellant’s custody. It is only this latter branch of the motion which is overruled. It is not material that the order, in overruling the motion, designates it as a motion to dissolve the injunction, so long as the substantial fact is, that the motion, so far as it is overruled, is not a motion to dissolve the injunction but for an affirmative order on the appellee. The injunction, though not in terms dissolved, was really so, it being superseded by an order of a different nature disposing of the custody of the child during the pendency of the suit. The injunction thereby became fwnctus officio. From that time the custody of the child is held, not under the injunction but under the order.

We are of the opinion that the order is not appealable, and the motion to dismiss the appeal will therefore be sustained.

Appeal dismissed.


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    Porter S. West v. James S. Carter.

      Action on Appeal. Bond—Plea—Waiver—Practice—Default Judgment —Gambling Transaction—Sec. 135, Chap. 38, 5. S.

    1. The fact that a judgment obtained by default before a Justice was based on a gambling transaction, is not available as a defense in an action on the appeal bond given on appeal from such judgment.
    2. The judgments which may be set aside on motion under Sec. 135, Chap. 38, R. S., are only such as are “ given ” contrary to the provisions of the statute. A judgment taken by default is an adversary judgment, unless affirmatively shown to have been so taken by consent of or collusion with the defendant..
    3. Where a plea raises an immaterial issue and all other issues are found for the plaintiff, he is entitled to judgment, although by replying to the plea, he has waived his right to assign the overruling of his demurrer for error.
    [Opinion filed January 18, 1888.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Jones & Lusk, for plaintiff in error.
    Mr. S. K. Dow, for defendant in error.
   Moran, P. J.

This was an action on an appeal bond given to appeal a judgment rendered by a Justice of the Peace in favor of the plaintiff in error, and against the Chicago Driving Park Association. The defendant in error became surety on the bond.

The appeal was dismissed in the Circuit Court, and to the action on the appeal bond defendant in error pleaded that the judgment rendered by the Justice “ was based upon a gaming transaction, to-wit, a wager upon a certain horse race and upon no other cause or thing whatsoever;” that said judgment was by default with no trial upon the merits. Plaintiff demurred to the plea, but the court overruled the demurrer and then a replication was filed. The trial was by the court. The finding and judgment was as follows:

“On this 18th day of July, A. D. 1887, this cause came on for trial before the court without a jury, the said plaintiff appearing by his attorney, D. C. Jones, and the defendant by his attorney, S. K. Dow, and the court finds all the issues for the plaintiff, except the issue on the plea filed May 11, 1887, setting up the defense of gambling, which issue the court finds in favor of the defendants, to which last mentioned finding said plaintiff excepts, and thereupon the said plaintiff moves the court for a judgment in his favor for his debt and damages as alleged in his declaration, notwithstanding the finding by the court of said last mentioned issue in favor of the defendant, which motion is by the court denied, to which decision denying said motion said plaintiff excepts, and thereupon the said plaintiff moves for a new trial of said last mentioned issue, which motion is by the court denied, to which decision denying said motion for a new trial the plaintiff excepts.
“ Therefore it is considered by the court that the defendants do have, and recover of, and from the plaintiff, their costs and charges in this behalf expended and have execution therefor.”

We are of opinion that the court erred in overruling the said motion and rendering judgment against plaintiff.

The plea was bad in substance and therefore presented an immaterial issue, and while the plaintiff waived his right to assign the overruling of the demurrer for error by replying to the plea, he was entitled to judgment, all other issues being found in his favor, notwithstanding the issue on such immaterial plea was found against him. Wood v. Hynes, 1 Scam. 103; Hitchcock v. Haight, 2 Gil. 604.

The plea seeks to attack a judgment at law collaterally.

A judgment by default settles the rights of the parties to the action as fully as a judgment on a contest does. A defendant is bound, if he has an opportunity, to make a defense and fails to do it. Because by express statute the defendant in the judgment might go to a court of chancery and on proving that it was founded on a gaming transaction have it set aside, a court of law is not authorized to inquire into it collaterally or to treat it as void while it is still a subsisting judgment.

Sec. 135, Chap. 38, R. S., on which the counsel for defendant in error relies to sustain the plea, has no application to adversary judgments, except so far as it authorizes them, if based on a gambling debt, to be set aside in equity. The judgments which may be set aside on motion are those which are “given” contrary to the provisions of the statute. A judgment taken by default must be held to be adverse, unless it is affirmatively shown to have been so taken by consent of or collusion with the defendant. See Gruby v. White, 23 Ill. App. 604, in this court.

We do not find it necessary to consider the question as to whether the judgment before the Justice was based upon a wager. As the question arises on this record, it is conclusively answered by the judgment itself.

The defense of gaming was available to the defendant in that suit, but having failed to assert it the judgment is conclusive against him and the surety on his appeal bond until the judgment is set aside in the mode provided by the statute. The court erred in rendering judgment against plaintiff in error on the issue presented by the plea, and said judgment will therefore be reversed and the case remanded with directions to the Superior Court to enter judgment for the plaintiff for the penalty of the bond sued on in debt and damages for the amount of the judgment, interest thereon, etc.

Reversed and remanded.


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    Chicago and North Western Railway Company v. Lucius T. Benham et al.

      Practice—Defective Bill of Exceptions—Stipulation—Presumption.

    1. A bill of exceptions which is not signed and sealed by the Judge of the court below will not be considered a part of the record.
    2. Errors in the admission of evidence or in overruling a motion for a new trial can be shown only by a bill of exceptions.
    3. Pacts admitted by stipulation, in order to become- part of the record must be embodied in a bill of exceptions.
    4. In the absence of a bill of exceptions it will be presumed that there was sufficient evidence produced to warrant the finding and judgment of the court below.
    [Opinion filed January 18, 1888.]
    In error to the County Court of Cook County; the Hon. Richard Prendebgast, Judge, presiding.
    Messrs. William B. Keep and W. C. Goudy, for plaintiff in error.
    Mr. Hervey H. Anderson, for defendants in error.
   Bailey, J.

This was a suit brought by Lucius T. Benham and others against the Chicago & North Western Railway Company, to recover damages for the failure of the defendant to transport and deliver certain goods received by it as a common carrier. The cause was tried by the court, a jury being waived, and a judgment rendered in favor of the plaintiffs for $400 and costs. The defendant brings the record to this court by writ of error, and assigns for error the admission of improper evidence, the rendition of judgment in favor of the plaintiffs and the refusal of the court to grant the defendant’s motion for a new trial.

There is an insuperable obstacle in the way of our considering any of the errors assigned, in the fact that the record contains no bill of exceptions. The clerk has copied into the transcript a certain document which is called a bill of exceptions, and which purports to set forth all the evidence given at the trial, and also the finding and judgment of the court. It then recites that “the defendant, by its counsel, excepted to said judgment and moved the court to set aside said judgment and grant a new trial, which motion was filed in writing and is in words and figures as follows, to wit:” and there the document terminates. There is appended to it neither the certificate, signature or seal of the Judge before whom the cause was tried. Such a document must be regarded as a mere nullity. A “bill of exceptions not signed and sealed by the Judge of the court below will not be considered a part of the record. Reeves v. Reeves, 54 Ill. 332; Miller v. Jenkins, 44 Ill. 443; Jones v. Sprague, 2 Scam. 55; W., St. L. & P. Ry. Co. v. Peterson, 15 Ill. App. 149; Thompson v. Duff, 17 Ill. App. 304; City of Bunker Hill v. Johnson, 12 Ill. App. 255; Pierson v. Watters, 7 Ill. App. 400. Errors in the admission of evidence or in overruling a motion for a new trial can be shown only by a bill of exceptions, and in the absence of a bill of exceptions it will be presumed that there was sufficient evidence produced to warrant-the finding and judgment of the court.

It is true various facts bearing upon the issues in the case are admitted by stipulation, but while the clerk has copied such stipulations into the transcript, they are no part of the record. To be made a part of the record so as to be subject to examination in this court, they should be embodied in a bill of exceptions. Wilson v. McDowell. 65 Ill. 522; Eureka Coal Co. v. Powers, 10 Ill. App. 61; People v. Coultas, 9 Ill. App. 39; I. C. R. R. Co. v. Gilchrist, 9 Ill. App. 135. The stipulations^ in this case are not even copied into the document which purports to be a bill of exceptions.

Ho error being apparent in the record, the judgment must be affirmed.

Judgment affirmed.


text:
    Merchants’ Detective Association v. Detective Mercantile Agency.

      Corporations—Corporate Name as a Trade Mark—Fraud—Injunction.

    1. A simulation of the name, character, system and methods of another, for the purpose of deceiving the public and leading persons dealing with the usurper to suppose that they are really dealing with the party whose rights are thus usurped, constitutes an offense which entitles the party injured to an injunction.
    2. A corporation is entitled to protection in the use of its corporate name upon the same principles and at least to the same extent that individuals are protected in the use of trade marks.
    8. It seems that a corporation is entitled to protection in the use of its corporate name as a trade mark, although the words composing such name are generic terms or descriptive words.
    [Opinion filed January 18, 1888.]
    Appeal from the Circuit Court of Cook County •> the Hon. Richard S. Tuthill, Judge, presiding.
    This is an appeal from a decree in chancery sustaining a demurrer to and dismissing the complainant’s bill. The bill alleges that the complainant is a corporation duly incorporated under the laws of this State on or about the 18th day of December, 1884, under the name and style of “ The Merchants’ Detective Association,” and having its principal office and place of business at 164 Dearborn Street, Chicago; that at that date no association or body corporate existed in this State or elsewhere under that name or under any other name similar in sound or meaning ; that under said name and style the complainant announced its corporate existence and capacity to the world, transacted its business, carried on an extensive and continuous correspondence, arid entered into and sustained intimate and valuable business relations with mercantile and business men of all classes throughout this State and elsewhere; that by said name and style the complainant is known and by that name only; that the chief objects and purposes of the complainant’s corporate organization is the collection of debts due to merchants, traders and others carrying on lawful occupations, and that in conducting said business it had employed a large staff of clerks and agents, and had expended large sums of money, amounting to many thousand dollars annually; that it has had great success in the. collection of debts, chiefly through its detective system, which has always peculiarly distinguished its work, and has thereby built up an extensive and lucrative clientage among the business public of this State and elsewhere ; that it was by the adoption and use of its trademark, “ The Merchants’ Detective Association,” which was new and unused by any other firm or body, the complainant acquired its start in business and much of its fame and acquaintance, and by. the selection, adoption and use of the style and character of a Detective Association, it has lived under a name peculiarly its own, and under that name has acquired its large and increasingly valuable interests; that it has always claimed and still claims the right to use and enjoy its said name without hindrance or interference either by direct assumption or fraudulent imitation on the part of any other association, agency or corporation; that said name and style has been and is a very valuable franchise, and is identified in the public mind with the success, honesty, fidelity and energy always exhibited by the complainant in its business, and with no other organization or agency; that the complainant’s corporate existence is only the continuation of a previous unincorporated association ; that for thirteen years previous to said incorporation the complainant had existed as such unincorporated association under the same name, and had become well and widely known throughout the State and elsewhere, and that its reputation and the good will of its business passed to said corporation upon its organization.
    The bill further alleges that, in February, 1887, certain envious and evil disposed persons, being covetous of the fame and standing of the complainant, fraudulently and by false, deceitful and malicious methods, assumed and adopted and do now use, publish and adopt a name, style and title for an organization formed by them in this State, so similar in sound, meaning and general application, to the complainant’s name and title, that great injury has been and is being wrought thereby to the "complainant’s franchise and business; that said new organization is denominated “The Detective Mercantile Agency,” and has been organized and established by one San-born and divers other persons who are residents of this State; that said Sanborn was the promoter and organizer and is the president and active manager of said “Detective Mercantile Agency;” that said organization, in its arrangements, details, name, forms, system, circulars and other means of conducting its business was founded upon and organized through the fraudulent practices of said Sanborn in this: that said Sanborn, by means of special visits and inquiries at the office of the complainant, and by means of false and fraudulent pretenses then and there made, learned and studied the name, system, methods and other instrumentalities of the complainant, and haying so learned said methods and system, forthwith proceeded to use and adopt them and still does adopt and use them for the business of said Detective Mercantile Agency, for the express purpose of deceiving the complainant’s patrons and customers and the general public, and that said patrons and customers and the general public are thereby deceived and defrauded; that said Detective Mercantile Agency, for the deceitful, fraudulent and malicious purpose of misleading the public by the similarity of title, the adoption of the complainant’s methods, the use of stationery as closely resembling that of the complainant as possible, and by circulars framed and expressed in language similar to those of the complainant, assumes the place of the complainant and is surreptitiously and fraudulently stealing the complainant’s' clientage and attracting away the complainant’s customers and defeating the good will and value of the complainant’s business, so that it may enjoy the same, to the complainant’s great and lasting injury; that said acts, pretenses and doings do actually mislead the complainant’s customers and patrons, and induce them to suppose that in dealing with said Detective Mercantile Agency, they are dealing with the complainant, and that by said acts and doings ordinary business men, acting with ordinary prudenee and caution, are misled in manner aforesaid; that the letters and correspondence received by the complainant from its friends and patrons are replete with complaints of the confusion created by said Detective Mercantile Agency, and that correspondence of great importance has been diverted from its intended recipients by such confusion; that money and information of great value, if sent speedily, have been delayed and turned aside into wrong channels to the great loss of the complainant and its clients; that said Detective Mercantile Agency, for the purpose of injuring the complainant and of still further deceiving the public, has lately removed its office and place of business from 60 Wabash Avenue to 142 Dearborn Street, Chicago, that being on the same street and near the place where the complainant has its office and transacts its business; that the complainant has repeatedly requested said Detective Mercantile Agency, said Sanborn and said other persons, to discon tinue the nse of said name so misleading to the public, yet they persist in the nse of said name and refuse to discontinue their aforesaid deceitful practices; that said parties deceived the Secretary of State by the adoption of a name apparently different but really the same as that of the complainant, and that any license or official authority of any kind, if such was ever given by the Secretary of State to said parties, was given inadvertently and without due consideration and in mistake, and was given in violation of the complainant’s rights in the premises.
    The bill prays for an injunction restraining said new organization, said Sanborn and said other persons, from using the name, style or title of “The Detective Mercantile Agency,” and from doing any business under that name, and from using any name, style or title containing the word “Detective,” and also a general prayer for relief.
    Mr. Robert H. Vickers, for appellant,
    Messrs. Paths & Porter, for appellee.
    The name Merchants’ Detective Association does not contain a word capable of being adopted as a trade-mark.

      Mr. Justice Strong in Canal Co. v. Clark, 13 Wallace,'311, says: “The trade-mark must either by itself, or by association, point distinctly to the origin or ownership of the article to which it is applied. * * * No one can claim protection for the exclusive use of a trade-name or trade-mark, which would practically give him a monopoly in the sale of any goods, other than those produced or made by himself, * -x- * nor ean a generic name, or a name merely descriptive of an article of trade, of its qualities, ingredients or characteristics, be employed as a trade-mark, and the exclusive use of it be entitled to legal protection.”
    The names are not the same, the only word used in common is detective, and this does not occupy the same relative position in the names. Agency and association, are very dissimilar.
    Terms in common use, to designate a trade or occupation, can not be exclusively appropriated by any one. Choquski v. Cohen, 39 Cal. 501; Town v. Stetson, 5 Abb. P. R. (N. S.) 218; 2 Kent, 366.
    Courts of equity clearly have power to restrain the use of a name, when a proper case is made, but it seems clear to us this is not such a case.
    The same question arose in England in 1847. The London and Provincial Law Assurance Society, registered in 1846, sued the London and Provincial Joint-Stock Life Insurance Company, registered in 1847, for an injunction, alleging injury on account of the use in common, of the words London and Provincial. The Vice-Chancellor, in refusing the application, said:
    “ The court will consider whether there is such deception as is likely to produce injury. Now it strikes me, that when persons are going to insure, they would look at the nature of the society before doing so; the first describes itself as a Law Assurance Society; that is to say, a society which lawyers maintain. The other is a joint stock Life Insurance Company. No assumption of anything like the feature which is described by the word { law.’ * * * I think it a very fair question, whether any damage is likely to arise.” 11 Jurist, p. 938. The Vice-Chancellor remanded the plaintiff to its remedy at law.
    The distinction pointed out by the Vice-Chancellor runs through the case at bar. The complainant corporation is the Merchants’ Association, i. e., an association of Merchants, while the defendant corporation is only a Mercantile Agency, a distinction most manifest. See also Bell v. Loche, 8 Ill. р. 74.
   Bailey, J.

The complainant is a corporation under the laws of this State. In forming its corporate organization it was required by law to select a corporate name, and having selected such name it is entitled to be protected in its use upon the same principle and at least to the same extent that individuals are protected in the use of trade-marks. Holmes, Booth & Hayden v. Holmes, Booth & Atwood Manufacturing Co., 37 Conn. 278: Newby v. Oregon Central R. R. Co., Deady, 609.

Considering the complainant’s corporate name, then, merely as its trade-mark, the question arises whether, under the cir.

с. imstances alleged in the bill, the complainant is entitled to protection against infringement, or against any of the fraudulent acts alleged in the bill.

The bill, of which a substantial epitome is set forth in the foregoing statement, is somewhat inartificially drawn, but it appears with sufficient certainty from its averments that the complainant, in December, 1884, after having existed as an unincorporated association for thirteen years under the name of “ The Merchants’ Detective Association,” became incorporated under that name, and since that time, as well as during said thirteen years, by methods peculiarly its own, has been and is doing a large and lucrative business in the way of collecting debts due to merchants, traders and others carrying on lawful occupations; that in February, 1887, the defendants, with the fraudulent purpose and design of deceiving the complainant’s patrons and the public, and of fraudulently usurping the business and patronage which the complainant was enjoying, formed a new organization under the name of “The Detective Mercantile Agency,” and embarked in the same line of business in which the complainant was engaged; that in prosecution of their fraudulent design, the defendants have not only adopted said name, but after having surreptitiously become acquainted with the complainant’s system and methods and the instrumentalities by which its business was being carried on, adopted the same in carrying on the business of their new organization, and to complete the deception, made use of stationery, as closely as possible resembling that used by the complainant, and issued circulars framed and expressed in the same language as those issued by the complainant, and in all their methods of doing business so closely copied the methods used by the complainant, that business men, using ordinary prudence and caution, were induced to deal with said new organization under the supposition that they were dealing with the complainant; that in further prosecution of their fraudulent designs, the defendants have recently removed the office and place of business of their new organization to the same street, the same side of the street, and within a few doors of the place where the complainant’s office and place of business is situated; that as a result the complainant’s patrons and customers have been and are being deceived and the complainant’s business has been and is being greatly injured.

It is doubtless the rules that generic terms or mere descriptive words are not ordinarily susceptible of appropriation by an individual as a trade-mark, such words being the common property of the public. Thompson v. Winchester, 19 Pick. 214; Fulton v. Sellers, 4 Brewster, 42; Chavin v. Walker, L. R., 5 Cli. Div. 850; Dunbar v. Glenn, 42 Wis. 118; Gilman v. Hunnewell, 122 Mass. 139; Candee v. Deere, 54 Ill. 439.

It may be doubted whether the foregoing rule should be held to apply to the name of a corporation when treated as a trade-mark. Under the law the corporate name is a necessary element in the existence of the corporation, and the necessary consequence of the wrongful appropriation of such name is to injure the business and rights of the corporation by destroying or confusing its identity. The corporate name is, therefore, a trade-mark from the necessity of the case, and there is consequently much reason for holding that a corporation should be protected in the use of its name as a trade-mark, irrespective of whether the words composing such name are generic or descriptive or not. See Newby v. Oregon Central R. R. Co., swpra.

But waiving the point last suggested, and applying to the complainant’s name only those rules which are applicable to ordinary trade-marks, it must be conceded that, while the general rule debars a party from protection in the use of descriptive words as a trade-mark, the tendency of the more recent decisions seems to be to hold that the fact that the words are descriptive will not prevent the issuance of an injunction where there is conclusive evidence of a fraudulent design and sufficient reason to presume that the public will be misled. In Knott v. Morgan, 3 Keen, 215, this view seems to have been first adopted. In that case the London Conveyance Company, having their omnibuses painted and their servants clothed in a special and distinctive manner, the defendant began' to run omnibuses similarly painted, with servants similarly clothed. An injunction having been issued restraining the defendant from imitating the plaintiffs’ line of omnibuses, the court said: 68It is not to be said that the plaintiffs have any exclusive right to the words 6 Conveyance Company,’ or 8 London Conveyance Company,’ or any other words, but they have a right to call upon this court to restrain the defendant from fraudulently using precisely the same words and devices which they have taken for the purpose of distinguishing their property and thereby depriving them of the fair profits of their business by attracting custom on false representation that carriages, really the defendant’s, belong to and are under the management of the plaintiffs.” In Wollam v. Ratcliff, 1 H. & M. 259, Vice-Chancellor Wood, commenting on the foregoing case, said that there “the words ‘Conveyance Company,’ the green omnibus, etc., were held sufficient together to entitle the plaintiffs to an injunction. The defendant might have had those words painted on a yellow omnibus without objection, and so of the other resemblances; the wrong lay in their accumulation, not in any one of them alone.”

In Croft v. Day, 7 Beavan, 84, the plaintiffs, being the executors of the surviving partner of the firm of “Day & Martin,” at 97 High Holburn, London, the blacking manufacturers, who sold their blacking in bottles labeled with the name and address of the firm, the defendant obtained the authority of a man named Martin to use his name, and began to sell blacking in bottles labeled with the name and address of “Day & Martin, 90J Holburn Hill,” in imitation of the genuine labels. On motion of the plaintiffs an injunction was granted to restrain the defendant from using labels or show-cards calculated to produce deception. Lord Langdale, in rendering the decision, reiterated the principle laid down in Knott v. Morgan, and concluded his opinion as follows: “My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the name of Day & Martin, but upon the fact of the defendant’s using those names in connection with certain circumstances arid in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day’s estate, a benefit for himself, to which he is not in fair and honest dealing entitled.”

In Lee v. Halley, L. R. 5 Ch. App. Cas. 155, the complainants being coal merchants carrying on business at 22 Pall Mall, London, as “ The Guinea Coal Company,” the defendant, their former manager, set up for himself in Beaufort Buildings, Strand, as “ The Pall Mall Guinea Coal Company,” and afterward removed to 46 Pall Mall. An injunction having been granted restraining the defendant from trading in that name in Pall Mall, it was held by the Court .of Appeal in Chancery that the injunction was properly issued. In announcing the decision Lord Justice Giffard said: “I quite agree that they (the plaintiffs) have no property in the name, but the principle upon which the cases on this subject proceed is, not that there is property in the word, but that it is a fraud on a person who has an established trade and carries it on under a given name, that some other person should assume the same name, or the same name, with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name. * * * I think this injunction has been properly granted upon the well known principles of this court, which are applicable to all cases of this description, viz., that it is a fraud on the part of a defendant to set up business under such a designation as is calculated to lead and does lead other people to suppose that his business is the business of another person.” .

In McLean v. Fleming, 96 U. S. 245, it is held that it is not necessary to entitle a party to an injunction that a specific trade-mark has been infringed, but that it is sufficient that the court is satisfied that there was an intent on the part of the defendant to palm off his goods as the goods of the complainant. See also Williams v. Johnson, 2 Bosw. 1.

In this case the allegations of the bill being admitted by the demurrer, the fraudulent design alleged as well as the fraudulent means employed by the defendants for its accomplishment, stand admitted of record. The fraud being thus conceded, we think it clear", in the light of the authorities above cited, that the complainant has shown itself entitled to relief. The complainant has a right to protection against a usurpation' of its patronage, its business, its credit and reputation by false, fraudulent and improper means. Honest and open competition is not forbidden by law, and furnishes no ground for complaint. But a simulation of the name, character, system and methods of another, for the purpose of deceiving the public and leading persons dealing with the usurper to suppose that they are really dealing with the party whose rights are thus usurped, constitutes an offense against the rules of honesty and fair dealing which should invoke the aid of a court of equity. We think the demurrer should be overruled and the defendants required to answer the bill, and if, upon final hearing the allegations of fraud a:e sustained, the court should apply such remedy as will protect the complainant against a continuation of the fraud.

The decree will be reversed and the cause remanded with directions to the court below to overrule the demurrer, with leave to the defendants to answer, or for further proceedings.

Decree reversed.