text:
    The People of the State of Illinois, use, etc. v. M. C. McLain et al.
    Master in chancery—Failure to pay over money.—Scire facias was brought to assign new breaches on the bond of a master in chancery, for not paying over money received on a sale of lands under partition. The defendants contended that plaintiffs failed to show a decree of partition, and that the partition suit was not in equity. Held, that the proceedings in the case show that the partition suit was treated, all the way through, as a chancery proceeding, and the plaintiffs should not be defeated of their right to recover by such an objection; that even if it is admitted that if the proceeding in partition had been a purely statutory one, the sureties on the bond would not be liable, a point which the court do not decide, yet the distinction is so nice between that and a chancery proceeding in partition, that the court in order to uphold the jurisdiction in a collateral proceeding will refer the case to the law or chancery side, as may be necessary.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. D. T. & D. S. McIntyre, for appellants;
    that the bill in the partition suit was in chancery, it being directed to the judge “in chancery sitting,” and asking for- summons against an infant defendant and the appointment of a guardian ad litem, cited Cost v. Rose, 17 Ill. 276; Nichols v. Mitchell, 70 Ill. 258.
    Mr. Eli Wiley and A. M. Peterson, for appellees;
    that preceding the order of sale the court should - order a partition of the premises, cited Denning et al. v. Clark, 59 Ill. 218; LeMoyne v. Quimby et al. 70 Ill. 399.
    There are two methods for partition, at law and in chancery; Louvalle v. Menard, 1 Gilm. 39; Greenup v. Sewell, 18 Ill. 50; Tibbs v. Allen, 27 Ill. 119.
    The liability of sureties cannot be extended by implication: Field et al. v. Rawlings, 1 Gilm. 581; Sharp v. Bedell, 5 Gilm. 88; Governor et al. v. Lagow et al. 43 Ill. 134.
    After a case is closed, it is not error for the court to refuse further testimony: Welsh et al. v. The People, 17 Ill. 339; Wilborn v. Odell, 29 Ill. 458; Sprague v. Craig, 51 Ill. 288.
   Lacey, J.

This was an action by scire facias by appellants, to assign additional breaches on the official bond of M. C.McLain, master in chancery, judgment having been recovered on the bond. The bond was in the penal sum of $10,000, signed by M. C. McLain and the other defendants, dated Nov. 17, 1871. The additional breaches were filed by appellants Apr. 26, 1878, averring that the beneficial plaintiffs were the heirs of Philander Jones, who died seized of certain real estate described, etc. That at the Hay term of said Coles county Circuit Court, the said court decreed partition ©f the land in the suit of Fred W. Jones et al. v. W. W. Shaw. That partition of the land was decreed, and the master in chancery ordered to make the sale. That on the 3d day of July, 1871, the master did make the sale, the master being Michael 0. McLain, and who received on said sale the sum of $3,215.00. That it was received during his term of office, and that he failed to pay it over. Among other pleas, defendants pleaded, it not being necessary to notice the other pleas: “ That there was no record of the supposed recovery. That the proceeding mentioned in such breach was not a proceeding on the chancery side of the court, but a proceeding at law,” etc. On the 24th day of the May term of the court the cause was heard by the court, and on the 33d day the court found the issues for defendant, and gave judgment against plaintiffs for costs. To reverse the judgment the cause is brought here. The plaintiffs read in evidence to sustain the issues the decree of partition and sale, and the order that the master in chancery make the sale. Also report of defendant McLain, the master in chancery, made at the Oct. term, 1873, showing a balance in his hands as master of over $1,000. There was introduced the decree of court approving sale and ordering the master to pay over the money. The objection urged by appellees in bar of recovery is that the appellants did not prove the averments of their assignments of breaches. That they failed to show decree of partition, and that they also failed to show that the partition suit was in equity. That the original bill in the partition suit was not read in evidence.

The only denial in defendant’s plea that there was a suit of partition in chancery as set out in the breach, was that it was not a proceeding on the chancery side of the court, but a proceeding in law, not raising the question of fact, whether there was such a proceeding in fact, but whether it was in chancery or at law. It was tendering an issue of law rather than a fact, hence the existence of the papers and record was not denied. By an examination of the bill for partition, decree and master’s report, there can be no doubt that the partition suit was on the chancerv side of the court. The case even, without the bill, sufficiently appears it is so treated by the court and by the master in his report of sale. If it be admitted, a point which we do not decide, that if the proceeding had been a purely statutory one,, that the securities of the master would not be liable, yet the distinction is so nice between the chancery proceeding of partition, that the court, in order to uphold the jurisdiction of the court in a collateral proceeding, will refer the case to the law or chancery side of the court, as may be necessary. Nichols v. Mitchell, 70 Ill. 258. But taking the proceedings in this case, the decree of confirmation and of partition, and sale by the court and the report of master, it will be seen that the case was treated as one in chancery all the way through. The plaintiffs should not be defeated of their right to recover by such objections as these. The court erred in not rendering judgment on the assignment of breaches by plaintiffs for the amount shown to be due, by the evidence, the amount not paid over by defendant McLain, after allowing him his payments and all just charges. The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    John A. Crane et al. v. David B. Hutchinson et al.
    1. Practice—Demurrer in chancery.—On a general demurrer to a bill in chancery, if the complainant is entitled to any relief on the case made by his bill, the demurrer should he overruled. It does not follow that because the complainant may not be entitled to all the relief prayed for, the demurrer should be sustained.
    2. Consideration—Mutual promises.—One promise is a sufficient consideration to support another promise, and where a person does any act beneficial to another or agrees to do so, that forms a sufficient consideration to support an agreement.
    3. Statement.—Appellants charged in their bill of complaint that appellee B. sold an undivided third interest in certain land to appellee H., in consideration of a cash payment and three notes of appellee H., payable in one, two and three years, respectively; that B. gave to H. a bond for a deed on full payment of the notes; that B. afterwards indorsed said notes to appellants, who became the legal holders; that afterwards, by an agreement of all parties, B. executed a deed of the land to H., said deed to be delivered to H. on paying or securing to appellants said notes, and in the meantime the deed was to remain in escrow until compliance by H.; that H. fraudulently obtained possession of said deed and placed the same on record, and then conveyed said premises to P. without consideration. Prayer that said deeds be set aside, and for a lien upon said premises for payment of said notes, etc.
    4. Tender of deed not necessary—Action not premature.—Held, on demurrer to the bill, that a tender by appellants of a deed to H. was not necessary before bringing suit; that the fact that one of the notes was not then due constituted no defense to the action; and that appellants were entitled to a decree setting aside the deeds mentioned.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs Morrison, Wi-iitlook &.Lifpincott, for appellants;
    that the legal effect of the written agreement or title bond is a lien on the lands mentioned, cited Davis v. Clay, 2 Mis. 191; Jones v. Slawson, 1 Bail. ch. 463; 1 Hilliard on Mortgages, 660.
    That a written agreement intended to give a lien for security of a debt is a good equitable mortgage: Abbott v. Godfrey, 1 Mann, 198; Carpenter v. Mitchell, 54 Ill. 126; Wright v. Troutman, 81 Ill. 374.
    Mr. Oscar A. DeLeuw, for appellees;
    contending that there should have .been a tender of a deed, cited Baston v. Clifford68 Ill. 67; Burger v. Potter, 32 Ill. 66; Hulshizer v. Lamoreux, 58 Ill. 72.
   Davis, J.

Appellants filed their bill in chancery against appellees, charging substantially that on the 16th of March, 1876, Barrett was seized in fee of an undivided third of lots two, three and four in block No. 25, in the old plat of Waverly, in Morgan county Illinois, on which was erected a steam flouring mill; and that on- that day Barrett sold the same to David B. Hutchinson for the consideration of a certain sum of money paid down, and three notes of said Hutchinson of that date, payable to said Barrett; one for $300 in one year, and the other two for $350 each, payable in, two and three years from date, all at ten per cent, interest from date. That at the same time Barrett executed to Hutchinson a bond for a deed, conditioned that he would make a deed of said undivided third of said lots on full payment of the three notes and interest first being made. That said bond had been duly recorded, and the possession of said premises given to said Hutchinson on the day of sale. The bill further charges that prior to the maturity of the first of said notes, Barrett indorsed and delivered them for full value to appellants who still have and hold the same. That Hutchinson had full notice that each of said notes had been assigned to, and were held by appellants, and had paid to them one year's interest due on said notes; and that the whole of said principal and the interest thereon from March 16th, 1877, remains unpaid. Bill further charges that on or about the first of February, 1878, Hutchinson applied to Barrett and desired him to make him a deed of the. purchased premises, stating that he preferred to take a deed and take up the said notes and give to appellants a mortgage on the premises to secure the indebtedness. Barrett refused to make a deed without first consulting appellant Crane, and thereupon Hutchinson, Barrett and Crane met; and it was agreed between them that Barrett and- his wife should make out, sign and acknowledge a deed of said premises, and deposit the deed with appellants to be held by them for the benefit of Hutchinson, and to- be delivered to him only upon the full payment of said notes and interest. That pursuant to said mutual agreement, Barrett made out and signed a deed of said premises, and the same was given into the hands of a Mr. Arnett and Hutchinson for the purpose of procuring the signature and acknowledgment of the wife of Barrett, and when so signed and acknowledged, the deed was to be delivered to appellant Crane, to be held by him for the use of Hutchinson, and not to be delivered to him until the full payment of the said notes and interest.

The bill also alleges that said deed was never delivered by Barrett to Hutchinson, and was never intended to be delivered to him only upon his first paying in full all sums due on said notes, but was intended to be deposited with said Crane or with said appellants as an escrow, to be held and only delivered upon the payment of said notes. It then charges that without the consent of Barrett, and without the knowledge or consent of Crane or appellants, Hutchinson fraudulently filed said deed for record in the recorder’s office of Morgan county, on the 19th February, 1878, and had the same recorded, and that said deed contains no lien reserved to secure the payment of the balance of said purchase money, and that on the 14th of March, 1878, the said Hutchinson and • his wife pretended to convey said premises to the appellee, Lambert Pond. Charges that said conveyance was a contrivance and a fraud, to cheat and defraud appellants, and was made without any consideration, and with a full personal knowledge on the part of Pond of the existence and non-payment of said notes, that said deed from Barrett and wife to Hutchinson had never been delivered to him, and also with a full knowledge of all the facts and circumstances connected with the transaction. Barrett, Hutchinson and Pond were made parties defendants to the bill, and appellants prayed that the deed from Hutchinson and wife to Pond, should be declared fraudulent and void as to them; that the deed from Barrett and wife to Hutchinson, should also be declared fraudulent and void, and be annulled and set aside; that the sums due to appellants on said notes be ascertained, and a lien declared to exist to secure the same; that Hutchinson be required to pay the amount found due, and on default that said premises be sold to pay the same; that Pond and Hutchinson be enjoined from encumbering or selling said property, and ior general relief. To the bill, appellees, Pond and Hutchinson interposed a general demurrer, and on Barrett failing to answer, a default was taken against him, and a decree pro< confesso rendered. On the hearing of the demurrer, it was sustained, and appellants abiding by their bill, a decree was rendered by the court below, dismissing the bill at costs of appellants. To reverse this decree this appeal was taken.

Appellees contend that the demurrer was properly sustained, because appellants did not tender a deed of the premises to Hutchinson before their bill was filed.

One answer to this objection is, that he was not entitled to a deed. By the express terms of the bond executed by Barrett to Hutchinson, which by an exhibit is made a part of the bill, the payment in full of the two first notes with interest, is made a condition precedent to the execution of the deed. The last note was not yet due, and the vendor was not bound to tender a deed until it was due and payable.

Another answer is, that even if a tender were necessary, Hutchinson, by his own fraudulent act in retaining possession' of the deed, put it out of the power of appellants to make the tender.

Had he permitted the agreement mutually made between Barrett, Crane and himself to be honestly carried out, the deed would have been deposited with Crane, to be held until Hutchinson became entitled to it by the payment of the money due, or until after the maturity of the notes, when on a failure to pay them, a tender of the deed might have been made, if necessary, to enable appellants to sue and recover upon them. Equity will not permit a person to take advantage of his own wrong.

Another point made by appellees is, that the third note for §350, due in March, 1879, was not due when the bill was filed.

The demurrer interposed was a general demurrer to the whole bill, and it does not follow that because appellants might not be entitled to all the relief prayed for, that it should have been sustained. The rule is that on a general demurrer to a bill in chancery, if the complainant is entitled to any relief on the case made, the demurrer should be overruled.

The only other point made by appellees is that there was no consideration, as between Hutchinson and appellants, for an agreement to leave the deed with them.

The facts as set out in the bill show that there was an agreement, supported by mutual promises, entered into between all the parties interested. Barrett on his part promised to execute the deed with his wife .to Hutchinson, and deposit it with appellants, to be held by them for the benefit of Hutchinson, and to be delivered to him only on the payment of the notes and interest. Hutchinson, on his part, promised that the deed should be so deposited, and held by appellants until he should pay the notes; and appellants on their part, through Crane, promised that the deed should be so executed, and that they would hold it for the benefit of Hutchinson until he paid such notes.

The rule is familiar that one promise is a sufficient consideration to support another, and that where a person does any act beneficial to another, or agrees to do so, that forms a sufficient consideration to support an agreement. Cooke v. Murphy, 70 Ill. 96. But we are not confined to this view of the case. The agreement entered into between the parties was evidently intended to protect the several interests or convenience of all concerned. The deed was to be deposited with appellants to afford them, by the control of it, some degree of security for the payment of the notes assigned to them; and by having it in their possession they would be in a position at all times to tender or deliver it when required. The deed signed and acknowledged by Barrett and his wife and deposited with appellants, would always be ready for delivery to Hutchinson immediately upon the payment of the notes, without loss of time or unnecessary delay in the preparation and execution of it. The delivery of the deed by appellants on the payment of the amount due would end the transaction, and relieve Barrett from his liability as assignor of the notes. To consummate this mutual arrangement the deed was placed in the hands of Hutchinson to obtain the signature and acknowledgment of Mrs. Barrett, when it was to be deposited with appellants to hold until the notes were paid. In violation of this trust Hutchinson retained the deed, filed it for record and had it recorded. This was a fraud upon the other parties to the agreement. Appellants and Barrett, or either of them, may justly call upon a court of equity to undo the wrong perpetrated by Hutchinson.

We think on the case made by the bill, if sustained by the proof, appellants would be entitled to a decree requiring 'Hutchinson to surrender to them the deed made to him by Barrett and wife; declaring the record of such deed null and void; that said deed was never delivered by Barrett and should be held as conveying no title to Hutchinson, and that the deed from Hutchinson to Pond should he held fraudulent and null and void as to appellants.

The court below having erred in sustaining the demurrer and in dismissing appellant’s bill, the decree must be reversed and the cause remanded for further proceedings consistent with this opinion.

, Decree reversed.


author: Per Curiam.

text:
    City of Clinton v. Town of Clintonia.
    Road tax collected within a village—To be paid to village treasurer.—The tax for road and bridge purposes levied and collected within the corporate limits of a village, under the provisions of the second clause of section 81, of the road law of 1877, should be paid over to the treasurer of such village, instead of to the treasurer of the commissioners of highways of the town.
    Appeal from the Circuit Court of DeWitt county; the Hon. Lyman Laoey, Judge, presiding.
    Messrs. Fullee & Monson, for appellant;
    that the tax should be paid over to the city treasurer, cited Law's of 1877, § 81; Eev. Stat. 1874, 916, §16; Eev. Stat. 1874, 932, §§120-125; Baird v. The People, 83 Ill. 387; City of Galena v. Com’rs of Highways, 2 Bradwell, 255.

    Messrs. Donahue & Lemon, for appellee;
    cited Laws of 1877, § 81.
   Per Curiam.

This was a bill of interpleader exhibited by Orlando P. Wilson, tax collector of the town of Clintonia, against the city of Clinton and town of Clintonia, on the 8th day of March, A. D. 1878, praying that they interplead and settle and adjust between themselves certain differences in relation to certain road and bridge tax collected by the said Orlando P. Wilson, tax collector.

The report of the master shows that the collector of the town of Clintonia had collected personal and real estate tax within the city of Clinton to the amount of the sum reported by the collector. The court below ordered the county treasurer, in whose hands the money, had been placed, by interlocutory decree, to pay over all the money collected within the limits of the city of Clinton for road and bridge purposes to the treasurer of the commissioners of highways of the town of Clintonia. From this decree the city of Clinton prosecutes an appeal to this court, and assigns for error such decree. This money was collected under the provisions of the second clause of section 81, statute of 1877, concerning roads and bridges. Are the commissioners of highways of the town of Clintonia or the city of Clinton entitled to this money? The same question involved in this case was decided by this court in the case of Cyrus McFarland et al. v. The People, who sue for the use of the town of Eantoul at the present term, (2 Bradwell 615) and we here adopt the opinion expressed in that case as the opinion in this, so far as the principles and reasons therefor are there announced. We there decided that such tax collected belonged to the corporate authorities of the village of Eantoul. So in this case, under the provisions of the statute under which this tax was collected, this money belongs to the city of Clinton, and the court below should have ordered the county treasurer to pay the money over to the treasurer of the city of Clinton, instead of the commissioners of highways of the town of Clintonia. For this error the decree of the court below is reversed and the cause remanded, with directions to the court below to proceed in accordance with this opinion.

Eeversed and remanded.


author: Per Curiam. Davis, J.

text:
    Sarah Carson v. City of Bloomington.
    Verdict against evidence.—The Court, from an examination of the record, being of opinion that the verdict is against the evidence, reverse the judgment of the lower court, and remand the cause, but as the case will be submitted to another jury, the evidence is not discussed in detail.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Bloomfield & Hughes, for appellant;
    against the admission of the city ordinances as evidence, there being no authority for enacting such ordinances, cited City of Alton v. Hartford Fire Ins. Co. 72 Ill. 328.
    The court erred in remanding the defendant to the custody of the sheriff" till the fine and costs were paid: Kinmundy v. Mahan, 72 Ill. 462.
    This action was debt for a penalty when it was tried on appeal from the justice: Hoyer et al. Town of Mascoutah, 59 Ill. 137.
   Per Curiam.

The defendant was prosecuted before a justice of the peace for a violation of the ordinance of the city of Bloomington. On appeal to the Circuit Court defendant was found guilty, and a fine of twenty-five dollars assessed against her. She entered a motion for a new trial, for the reason, among others, that the verdict was against the evidence. This motion was overruled and judgment rendered against her, and the cause brought here by appeal.

It is assigned for error that the judgment is against the evidence, and after a careful examination of all the proof in the record, we think the error well assigned.

As the case will go before a jury again, we are not disposed to discuss the evidence in detail, but we think the verdict so clearly and manifestly against the weight of the evidence as to show that injustice has been done appellant, and that her case should be again submitted to a jury.

Appellee’s attorneys probably entertain the same view, as they file no brief in the case.

Judgment reversed and cause remanded.

Reversed and remanded.

Davis, J.

I think this cause should be reversed and remanded, but not for the reasons given by the court.


text:
    Charles M. Dally et al. v. Elbert S. Young.
    1. Judgment—Must be against abb.—A judgment at law must be a unit, and being erroneous as to one defendant, it must be reversed as to all.
    2. Malicious prosecution—Acts op agent.—The evidence fails to show that one of the defendants, L, in any way aided, advised or consented to the prosecution of the plaintiff by bis sub-agent D, and the judgment cannot be supported as to him. ' The fact of such agency would not of itself make him liable for a criminal prosecution commenced without his knowledge by a sub-agent. The principal will not be liable unless, with knowledge of all the circumstances, he adopts and continues such prosecution.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Bloomfield & Hughes, for appellants;
    that there must be malice and want of probable cause, to entitle a party to recover in actions for malicious prosecution, cited Anderson v. Friend, 85 Ill. 135; Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; McBean v. Ritchie, 18 Ill. 114; Bourne v. Stout, 62 Ill. 261.
    Acquittal of accused does not imply want of probable cause: McBean v. Ritchie, 18 Ill. 114; Israel v. Brooks, 23 Ill. 575; Thorpe v. Balliett, 25 Ill. 339; Anderson v. Friend, 85 Ill. 135.
    If the prosecution in controversy is not shown to have been tried on its merits, actual malice must be shown in a proceeding for malicious prosecution: Hurd v. Shaw, 20 Ill. 354; Ross v. Innis, 26 Ill. 259; Wicker v. Hotchkiss, 62 Ill. 107; Ames v. Snider, 69 Ill. 376; Anderson v. Friend, 71 Ill. 479; Anderson v. Friend, 85 Ill. 135.
    If the prosecutor acts under the advice of a respectable attorney, given after full and fair presentment of all the facts, he will be protected: Anderson v. Friend, 85 Ill. 135.
    Probable cause is a reasonable ground for suspicion, sufficiently strong to warrant a cautious man in the belief of the guilt of the person accused: Davie v. Wisher, 72 Ill. 262.
    A judgment must be against all the defendants or none: Earp v. Lee et al. 71 Ill. 193; Jansen et al. v. Varnum et al. 11 Chicago Legal News, 59.
    Messrs. Rowell & Hamilton, for appellees;
    that the witness was allowed to give the whole of his statement to counsel, and it was not error to refuse to allow him to be led by direct questions, cited Whitefield v. Westbrook, 40 Miss. 311.
    The prosecution of a person criminally with any other motive than that of bringing him to justice, is a malicious prosecution: Krug v. Ward, 77 Ill. 603.
    The term malice in this action is to be considered as denoting that the party is actuated by improper and indirect motives: Harphan et al. v. Whitney, 77 Ill. 32,
    Advice of counsel must be sought in good faith, and a full statement of all the facts must be made: Murphy v. Larson, 77 Ill. 172; Ross v. Innis, 26 Ill. 259; Kimmel et al. v. Henry, 64 Ill. 505.
   Per Curiam.

This was a suit brought by appellee against appellants, Charles M. Dally, E. Lathrop and the Remington Sewing Machine Company, in case, for a malicious prosecution.

The declaration avers that on the 9th day of January, 1876, the defendants, Charles M. Dally acting for himself and on behalf and at the instigation of the defendants E. Lathrop and Remington Sewing Machine- Company, appeared before a justice of the peace and' falsely, maliciously, and without any reasonable and probable cause charged the plaintiff with having in his possession $1,000, in promissory notes, drawn in favor of the Remington Sewing- Machine Company, and $90 in money of the goods and chattels of said company, and that he had embezzled the same.

A verdict and judgment were rendered against all the defendants below for $3,000 and the case is brought here and pumerons errors assigned, but as this case will be submitted to a jury again, we do not feel called upon to discuss questions involving a consideration of the evidence. We have examined the record carefully, but find no evidence in it showing or tending to show that defendant Lathrop either aided, abetted, advised or consented to the prosecution of appellee, or that he ever had any knowledge of such prosecution until after he was discharged from arrest and the prosecution dismissed.

The judgment at law must be a unit, and being erroneous as to one, must be reversed as to all. Jansen et al. v. Varnum, 11 Chicago Legal News, 59.

It is true, Lathrop was the general agent of the company at Chicago, and that Dally was a sub-agent at Bloomington, and subject to his jurisdiction in all matters pertaining to the business of the company, but this circumstance of itself woirld not make him liable for a criminal prosecution commenced by Dally without his knowledge or consent.

Where an agent institutes a malicious prosecution of his own head, .and without the instigation or direction of his principal, the latter will not be liable for the same, unless he adopts and continues the same with knowledge of all the circumstances. 2 Addison on Torts, p. 758; Burnop v. Albert, Taney’s C. C. Dec. 244; Stevens v. Midland Co. R. W. Co. 10 E. C. L. R. 351. Judgment reversed and cause remanded.

Reversed and remanded.


text:
    David Hutches et al. v. Millie W. Adams.
    T. Pleading.—A plea which seeks to divest a plaintiff of her legal title to lands, by setting up a judicial conveyance to another, is defective if it fails to show a decree against the plaintiff authorizing such conveyance.
    2. Decbee should be pleaded.—In all cases of judicial conveyances, it is necessary, in order to show a valid title, to show a valid decree and deed. The decretal order should be pleaded in order to show that the plaintiff was a party to and bound by it, and that the order did in fact authorize the conveyance of the plaintiff’s right in the land.
    Appeal from the Circuit Court of Cass county; the Hon. A. G-. Burr, Judge, presiding.
    Messrs. Warlow & Beeper, for appellants;
    that the rent passes to the grantee as an incident of the reversion, and the consideration of the note had failed, cited Crosby v. Loop, 13 Ill. 625; Dixon v. Niccolls, 39 Ill. 372.
    Mr. Richard W. Mills, for appellee.
   Per Curiam.

A petition for re-hearing is presented in this case, urging that the court below erred in sustaining a demurrer to appellant’s second jilea.

The plea avers that Hutches, one of the defendants below, leased certain real estate therein described from the plaintiff below, Millie W. Adams, for one year, beginning on the 1st day of March, 1877, and ending on the 1st day of March, 1878; and that in March, 1877, Richard W. Mills, Master in Chancery, etc., under and by virtue of a decretal order of the Circuit Court of said county, as such Master executed and delivered to Orvin Kendall a deed conveying to him all the right, title and interest of the plaintiff to the lands aforesaid, being the same lands described in the lease, and that the purchaser, Kendall, entered into and became possessed of the lands aforesaid prior to the 1st day of March, 1878. That the note sued on was given for said rent, and that the consideration had failed, etc. This plea is fatally defective. It seeks to divest the landlord of her title by a judicial conveyance, without showing a - decree against her authorizing the same.

In all cases of judicial conveyances it is necessary in order to show a valid title, to show a valid decree and deed. The averment is that the Master conveyed all her right, title .and interest by virtue of a decretal order. The order should have been pleaded to show that plaintiff was a party to it and bound by it, and that it did in fact authorize the conveyance of her right to the land. Every intendment is taken most strongly against the pleader.

The averment that the Master conveyed the title is not sufficient without showing his authority, and the averment that he had a decretal order without showing what it authorized him to do, or who were parties to it, is wholly insufficient.

The demurrer was properly sustained, and a re-hearing is denied.


text:
    Samuel C. Beam et al. v. Samuel A. Laycock et al
    1. Practice—Exception, how taken.—Where exception is desired to he taken in this court to the admission of improper evidence on assessment of damages, the party objecting should move to set aside the assessment, and on refusal should preserve an exception.
    2. Pleading.—A plea of nil debet being improper, and no answer to the declaration, it was properly stricken from the files, and defendants not offering to plead further unaccompanied with an affidavit of merits, it was not error for the court to render judgment nil dicit.

    Appeal from the Circuit Court of Logan county; the Hon. W. E. Dicks, Judge, presiding.
    Mr. Oscar Allen and Messrs. Season & Blinn, for appellants;
    that an affidavit of merits cannot be filed with the declaration on an appeal bond, cited Rev. Stat. 1874, 779, § 37.

      An affidavit of merits cannot be used as evidence injassessing damages upon a bond: Rev. Stat. 1874, 779, § 38.
    Messrs. Hoblit & Stokes, for appellees;
    that the court might render judgment upon affidavit filed with the declaration, cited Rev. Stat. 1874,779, § 37; Kern v. Strasberger et al. 71 Ill. 303.
    That appellants cannot object for the first time in this court to the assessment of damages: Bowden v. Bowden, 73 Ill. 111.
   Per Curiam.

This cause was heard and judgment affirmed at the present term. Appellants file petition for a re-hearing.

We have considered the petition and arguments of appellant’s counsel, and must adhere to the decision already made in the case.

Appellants suppose that this court decided that the appeal bond was such a contract that under sec. 37 of the Practice Act, affidavit might be attached to it, and proof as to the amount of damages are dispensed with, unless defendant should file a plea accompanied with affidavits of merits to their plea. The court did not, in considering the case, deem it necessary to pass upon that question. It appeared, from the record, that appellants did not move in the court below to set aside the assessment of damages and take exception to the ruling of the court in refusing to do so. In case of default, and where exception is desired to be taken in this court, to the improper admission of evidence taken on the hearing, of the assessment of damages, it is necessary after the assessment, for the party objecting to move the court to set aside the assessment, and in case of refusal to preserve exception. Unless this be done no objection can be taken in this court to the improper admission of evidence. McCord v. M. N. Bank, 84 Ill. 49; C. & R. I. R. R. Co. v. Ward, 16 Ill. 522. The other error assigned, that the court below refused to strike the affidavit of merits attached to declaration from the files is not well taken. In the first jilace the plea of nil debet was filed, and on motion of appellees, was stricken from the files by the court. The plea of nil debet was improper, and no answer to the declaration, and properly stricken from the files, for that reason. After this plea was stricken from the files appellants did not ask leave or offer to plead unaccompanied with affidavit of merits. Hence it was proper to render judgment nil dicit. Fanning v. Russell, 81 Ill. 398.

If defendant did not offer to, or desire to plead, no harm could be done to him by the action of the court in refusing to strike the affidavit of merits attached to the declaration from the files.

The motion for re-hearing is denied.


author: Higgbee, P. J.

text:
    Thomas J. Cox v. Richard H. McLean.
    Malicious prosecution—Probable cause—Conviction not necessary.—In cases of malicious prosecution it is not necessary for the protection of the prosecutor, that the person charged with an offense should be convicted. It is enough that there is a reasonable ground to believe the party guilty as charged, and that the prosecutor acts with caution and without malice. This action can only be sustained when the prosecutor acts from malice and without probable cause—both must concur.
    Appeal from the Circuit Court of MpLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. I. J. Bloomfield, for appellant;
    argued that if the prosecutor acts in good faith, on evidence, whether true or false, he is protected, and cited Anderson v. Friend, 85 Ill. 135.
    Where the prosecuting witness presents all the facts to an attorney and acts upon his advice, he will he protected Anderson v. Friend, 85 Ill. 135; Ross v. Innis, 26 Ill. 259.
    This is the rule, even though the advice so given was wrong, or the attorney was mistaken as to the law: Anderson v. Friend, 85 Ill. 135; Potter v. Larle, 8 Cal. 217; Leird v. Davis, 17 Ala. 27; Bliss v. Wyman, 7 Cal. 257; Gould v. Gardner, 8 La. An. 12; Williams v. Van Meter, 8 Mo. 339; Waller v. Sample, 25 Pa. St. 275.

      Appellant should have been allowed to show why the prosecution was abandoned: Anderson v. Friend, 71 Ill. 475; Collins et al. v. Fisher, 50 Ill. 359.
    It was error to allow appellee to show that a verdict of not guilty was rendered: Skidmore v. Bricker, 71 Ill. 164.
    Malice and want of probable cause must concur: Leidig v. Rawson, 1 Scam. 272; Bourne v. Stout, 62 Ill. 261; Anderson v. Friend, 85 Ill. 135.
    A failure to pay a debt due for goods sold on commission, alter demand made, constitutes a criminal offense: Warringer v. The People, 74 Ill. 346.
   Higgbee, P. J.

This was a suit brought in the court below by appellee against appellant, in case, to recover for an alleged malicious prosecution. Appellant caused appellee to be arrested before a justice of the peace, and subsequently to be indicted by the grand jury for a violation of section 78 of the criminal code, which makes it a misdemeanor for any warehouseman, forwarding or commission merchant, or other person selling on commission, to convert to his own use any flour, grain, etc., or the proceeds or avails thereof, without the consent of the owner, or who shall fail to pay over the avails or proceeds thereof, less hisjproper charges, on demand, by the person entitled to receive the same. The substantial charge made in the affidavit for the arrest and indictment, was that a certain mill company, of which appellant was one of the owners, had shipped to a mercantile firm of which appellee was one of the members, flour to be sold on commsssion, and that they had refused to pay over the proceeds of sales after demand made for the same.

The main facts appearing in the record are that the flour was shipped to appellee’s firm and received by them by one Wash-burn, a clerk in the mill, upon terms agreed upon between them and the clerk. That neither appellant or any member of the mill firm had any personal knowledge of the transaction, but derived all of their information from Washburn, their clerk, who transacted the business. The mill firm was in the habit of furnishing flour to dealers to be sold on commission. Subsequently, the grocers to whom the flour was shipped, were found to be in failing circumstances, and Cox, the appellant, called on his attorney, Mr. Hughes, and consulted him in reference to his demand. Mr. Hughes asked him if the flour was delivered to them to be sold on commission. He told him he thought it was, but could not tell until he consulted Washburn, the clerk, who made the arrangement. He then took Washburn to see Hughes, and he stated to Hughes in the presence of Cox that the flour was furnished to appellee’s firm by him to be sold on commission. Cox also informed Hughes that the drayman who delivered it told appellee that it was sent to be sold on commission, and this statement was fully justified by the evidence of the drayman subsequently given.

Appellant did not profess to have personal knowledge of the transaction but took the precaution to go to the only persons cognizant of the facts and inform himself with reference thereto before any definite action was taken in the matter, and this information he correctly and truthfully imparted to his attorney and asked his advice.

The attorney, who was one reputable and skillful in his profession, then informed appellant of the law upon the subject, and advised that a demand be made for the flour or the money, and in case of a refusal to deliver the same, that an arrest should be made. Cox then employed his attorney to go and make the demand for him, which he did, and upon appellee refusing to deliver to him the flour or the proceeds thereof, Cox, acting under the advice of his attorney, swore out a warrant and caused the arrest to be made, and subsequently, acting upon the same information and advice, caused an indictment to be found and returned. Hpon the trial of these charges appellee was acquitted. It now appears from the evidence that instead of the flour having been furnished to be sold on commission, it was sold by Washburn, the clerk to appellee’s firm. This fact was not known to appellant until after the trial on the indictment.

A conviction of one charged with crime is not necessary to the protection of the prosecutor. It is enough that there is probable and reasonable ground to believe the party guilty, and that the prosecutor acts with reasonable caution and without malice. The criminal law 'must be enforced, and human agencies must be employed for that purpose, and the law wisely protects all [persons who in good faith act on reasonable presumptions of the guilt of the accused. This action can only be maintained where the party causing the arrest has acted from malice and without [probable cause—both must concur. Does this case meet these requirements ? We think it falls far short of it. Appellant seems to have acted from honest motives, under the advice of his attorney, after fully informing him of all the facts known to him. He sought his information as to the terms upon which the flour had been delivered from the proper sources, and neglected no means, apparently, within his reach to fully and ^correctly inform himself as to the nature of the transaction. If he was deceived by his clerk, it certainly was not his fault. Had the information which he received from him proved correct, the arrest would have been entirely proper.

That he believed the statements of his clerk can hardly be doubted.

There is no evidence of actual malice, and we think appellant, under the circumstances of this case, acted upon reasonable and probable cause, and without malice.

The judgment is therefore reversed.

Judgment reversed.


author: Lacey, J.

text:
    Thomas A. Apperson v. O. W. Gogin et al.
    I. Specific performance—Chancery jurisdiction.—The bill of complaint alleged the obtaining of certain judgments against the complainant, and a subsequent written agreement, whereby in consideration that the personal property therein mentioned would be delivered to the judgment plaintiff as therein agreed, the values fixed therefor should be credited to the complainant on said judgments until the same were satisfied. The bill further charged that the property had been delivered and that complainant had complied on his part with the agreement, but that credit therefor had not been given on the judgments. The court dismissed the bill on the ground that there was adequate remedy at law. This was an error. Nothing short of a specific performance of the agreement would be an adequate remedy, and equity alone can afford that remedy; and when equity obtains jurisdiction it will do complete justice between the parties under the contract, and adjust all questions arising under it.
    2. Estoppel.—The complainant and the sureties on his notes, by entering into the agreement for payment of the judgments, are estopped to deny the validity of such judgments on the ground that there was no sufficient power of attorney authorizing the entering of the same.
    8. Evidence—Death of party.—One of the defendants having died pending the suit, the complainant is incompetent to testify in his own behalf as to transactions occurring with such defendant previous to his death; and two of the other defendants whose interest was in common with the complainant in the result of the suit and opposed to the estate, were also incompetent to testify.
    4. Practice—Default.—It was error to enter a default against defendants while their answers were on file, and such default should be set aside.
    Error to the Circuit Court of Cumberland county; the Hon. J, C. Allen, Judge, presiding.
    Messrs. Decius & Everhart and Mr. Horace S. Clark, for plaintiff in error;
    that the judgments ought not to be sustained unless strictly within the power given in the notes, cited Chase v. Dana, 44 Ill. 262; Fry et al. v. Jones, 78 Ill. 627; 5 Hill, 497; 44 Ill. 263.
    That the computation of interest on the notes was illegally made, no allowance for interest on payments being given: McFadden v. Fortier, 20 Ill. 509; Heartt v. Rhodes, 66 Ill. 351.
    No judgment for attorney’s fees could he had under the terms of the notes: Nickerson v. Babcock, 29 Ill. 497.
    The contracts are a satisfaction of the judgments: Smith v. Hickman, 68 Ill. 314; Hoag v. Starr et al. 69 Ill. 365.
    The testimony of defendants, McAllister and Albin, was competent : Rev. Stat. 1874, 488.
    The case is one calling for equitable relief, and the court had jurisdiction: Adam’s Eq. 460; Kerr’s Injunctions in Eq. 13; Smith v. Hickman, 68 Ill. 314; Babcock v. McCamant, 53 Ill. 215; Hoag v. Starr, 69 Ill. 365; Sammis v. Clark, 17 Ill. 398.
    It was not error to allow amendments to the bill: Rev. Stat. 1874, 137; Jackson v. Warren, 32 Ill. 331; Gibson v. Rees, 50 Ill. 383.
    ' The order rendered in vacation, dismissing the bill, had no validity: Edwards v. Evans, 61 Ill. 492; Governor v. Dodd, 81 Ill. 162; Hughes v. Washington, 65 Ill. 245; Schneider v. Seibert, 50 Ill. 284; Stevens v. Coffeen, 39 Ill. 148.
    Mr. J. F. Hughes, for defendants in error;
    that the complainant and defendants, Albin and McAllister, were incompetent to testify as to transactions occurring before the death of defendant Wilson, cited Rev. Stat. 1874, 488; Whitmer v. Rucker, 71 Ill. 410; Alexander v. Hoffman, 70 Ill. 114; Com’rs v. Kansas Pacific R. R. Co. 9 Chicago Legal News, 369; Boester v. Byrne, 72 Ill. 466.
    That there was an adequate remedy at law: Stewart v. Mumford, 80 Ill. 192.
    The signing of the certificate of evidence in vacation without a previous order therefor, was. error: Hance v. Miller, 21 Ill. 639.
    The defendant in error may file an additional abstract of record: Rowley v. Hughes, 40 Ill. 71.
   Lacey, J.

■ Finley P. Wilson obtained three several judgments in vacation, by virtue of power of attorney contained in notes to confess judgment in vacation, in the Circuit Court of Cumberland county: one judgment for $872 and costs against the complainant, Thomas A. Apperson, July 7th, A. D. 1875; one on July 9th, A. D. 1875, against the complainant and George W. Albin for $1,484; also one on the last mentioned date against complainant, George W. Albin, and Robert McAllister, for the sum of $1,349.80 and costs. George W. Albin and Robert McAllister were security for Apperson on the above notes. On the 13th day of July, A. D. 1875, Apperson and Finley A. Wilson entered into a written contract in reference to the satisfaction of the several judgments in substance, after reciting the above judgments, and réeiting that they desired to effect a settlement of the said judgments without a levy and forced sale of the property of defendants, providing for the payment and settlement of the judgments in the order of their priority; and further providing that Apperson should turn over and deliver to said Wilson one hundred head of stock hogs then owned and possessed by said Apperson, which hogs were to be received by Wilson on the said judgments for $6 per hundred—Apperson having privilege to furnish buyer at better price within the next ten days. It was further agreed that Apperson should deliver to Wilson 120 acres of grass then standing and growing on the resident farm of Apperson, in Cumberland county; that Apperson should be permitted by Wilson to harvest and stack the grass on the premises "where it then stood, to be done in a good, husbandman-like ■ manner, and without expense to Wilson. One hundred tons of hay was to be credited on the judgments at least at $6 per ton, Apperson being at liberty to procure a better market any time before the first day of November, the rise being credited also. Apperson also was to deliver to Wilson 60 acres of corn then growing and standing on his home farm, 2,000 bushels of which was to be credited on the judgments at 30 cents per bushel and the rise of the market to January 1st, 1876. It was further agreed that Apperson should sell and deliver to Wilson at the farm of Apperson 120 head of smooth, nice Texas cattle, to average about 1,000 lbs., ranging from 850 to 1,100 lbs. each, at the price of $4 per hundred pounds. The sum of $1,905 of the value of the cattle was to be credited on these judgments, and for the balance Wilson was to give Apperson his note with bankable securities, due in 6 months from date. The contract further recites that the judgments contained a penalty of 4 per cent, per month after the maturity of the notes on which the judgments were rendered, and reciting that it was not desired by Wilson to exact the penalty, it "was agreed that on the final settlement of the judgments each party was to do what was right in the matter, and if they could not agree what was right, that Dr. Albin and Robert McAllister should say what was right, their decision to be final between the parties. It was further agreed that the judgments and executions should remain in full force as they then stood until discharged by full performance of the contract, the levy on about 15 yearlings and six two-year olds and one three-year old cattle tó be released. The consent to the contract of Albin and McAllister was given by them by their agreement on the back of the contract. The bill in this case was filed by complainant, Apperson, against the above named Albin, McAllister, and Finley P. Wilson, Jan. 29, 1876. - At the August term, 1876, the death of F. P. Wilson was suggested, and O. W. Gogin, his executor, was made party.

The above state of facts were set up in the bill. The complainant avers in his bill that he delivered the corn, hogs, hay, and cattle, and in everything substantially complied with the written agreement. Complainant further avers that on the 17th day of July, A. D. 1875, the parties to the original agreement modified that agreement by a verbal agreement in relation to the Texas steers specified-in the written agreement; that complainant was to furnish Wilson pasture; that Wilson was to loan complainant $3,000 in St. Louis, by 13th Aug., ’75, to enable complainant to buy cattle; that Wilson did not furnish the money in the time agreed, but did furnish $2,800 after that time, and after cattle had risen in market, to the large damage of complainant. The bill charges that Wilson refused to satisfy the judgments and release the levies, and was ordering the sheriff to collect them.

The bill prays that the judgments be declared satisfied and canceled and the executions quashed.

The bill was afterwards amended setting up that the judgments were confessed without proper warrant or authority and were void, etc. Alleges the judgments were satisfied in full; that Wilson in Ms life time received $368.88, and it has never been credited; avers the death of Wilson and appointment of Gogin as his executors, etc. That since the suit was commenced, the attorneys of Wilson have entered full satisfaction of the judgment against complainant alone, and given credit on the judgment against complainant and Albin of $240.15, for hogs and corn delivered to Wilson under the contract. That they refused to enter credit for cattle furnished, for hay delivered and for pasture furnished. The executor Gogin, answered and admits the allegations in the bill, except that he denies judgment was entered without authority of law; that the contract was a settlement and satisfaction of the judgment; denies that-complainant complied with the contract, and denies verbal contract, etc. The answer sets up demurrer to bill for the reason that the complainant has a remedy at law. Albin and McAllister also filed their answers.

The cause was referred to the master, and a good deal of evidence was taken in the case, tending to show that there were large sums of money due complainant under the written contract not credited, on account of the Texas cattle furnished by complainant to Wilson; also on account of the 100 tons of hay, some evidence also tending to show there had been a verbal change of contract in regard to furnishing money. But as to the question, how much there is due to complainant under the original contract or its modification, if anything, we purposely refrain from expressing an opinion, for the reasons that the question will have to be passed ujoon by the court below. It appears that after the case was submitted to the court below for its decision, the court found that.the complainant as to all the material allegations in the bill, had a complete remedy at law, and therefore dismissed the bill. Thus the court refused entirely to consider the merits of the case. We are" satisfied that in thus deciding the court erred.

This is not a case where one attempts to obtain in equity a set-off of a mere demand, sounding in damages against a judgment at law.

The agreement in this instance by its terms, provided that when, and as fast as the complainant fulfilled it, the amount should be applied in satisfaction of the several judgments: hence to the extent the contract was fulfilled, the judgments were satisfied in equity. How could it be said complainant had a complete remedy at law, when if he should sue on the contract at law, the only recovery he could obtain, would be the amount due under the contract by the rules of the law, in such case applicable to the measure of damages. But by this agreement, the performance of the contract was to be the satisfaction of the judgments. The recovery at law would leave the judgments wholly unsatisfied, and the plaintiff in the judgments would be free to sell the property of complainant under execution, or compel complainant to pay them off, when in justice they should he satisfied.

Hothing short of a specific performance of the agreement in this case would be an adequate remedy, and equity alone can afford that remedy. And again when equity obtains jurisdiction it will do complete justice between the parties under the contract, and adjust all questions arising under it.

A question by appellant has been raised by his bill and in his argument as to the validity of the judgments in the first instance, on the ground that there was no sufficient power of attorney to authorize the confession of judgments in vacation. We are of the opinion that complainant by entering into the written contract, and Albín and McAllister by consenting to it, are estopped from disputing the validity of the judgments; The contract admits their validity, and they a/re the basis of the contract. When the complainant asks performance of the contract on the part of Wilson, he must allow Wilson the benefit of the consideration for such performance, the satisfaction of the judgments which complainant had agreed to-receive in payment in part for his cattle, hogs, corn, &c., to be delivered. The question has been raised as to the admissibility of the evidence of complainants, George W. Albín and Robert McAllister. Their evidénce was inadmissible and should have .been rejected. As to the complainant, the defendant Gogin was the opposite party, as the executor of Finley P. Wilson, deceased, and is expressly prohibited by statute to testify; and as to the other two, their interest is identical with that of the complainant, although they are respondents in the case. Their interest is directly opposed to Gogin, the executor of Wilson, deceased, their co-defendant, and if admitted would tend to defeat his claim and decide the cause of action in favor of complainant, and relieve themselves from the payment of the judgment in favor of Gogin, executor, against themselves. They fall within the spirit and meaning of the statute. Alexander v. Hoffman et al. 70 Ill. 114; Winter v. Rucker et al. 70 Ill. 410. Their evidence should be excluded.

Default was taken in the court below against Albín and Mc-Allister while their answer was on file. This was error, and such default should be set aside. The decree in this cause is reversed and the cause remanded, with leave to complainant to amend his bill if he so desires. The court below should hear and determine all the rights of the parties under the contract, either as originally made or modified, if the evidence shall show any modification of it. Whatever may he found to be due to. complainant, if anything, after hearing all the evidence taken or to he taken, the court should credit on the judgments. The court should do complete equity between the parties.

Beversed and remanded.


author: Higbee, P. J.

text:
    John D. Johnson v. John W. Sommers.
    1. Evidence—Levy oe execution.—Defendant pleaded that he took the property in dispute by virtue of an execution in his hands as sheriff, and after reading the execution in evidence, offered to show that he took the goods hi question by virtue of such execution, which was refused. This was error. The evidence directly tended to prove the issue, was material and competent.
    2. Amending levy before return.—Defendant then offered in evidence the endorsement of levy on the hack of the execution, which was general in its terms, which was refused, and thereupon the sheriff amended his levy by making a schedule particularly describing the goods levied upon, the execution being still in his hands for collection and had not been returned. Held, that the levy of the officer was proper evidence, and should have been admitted.
    Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Messrs. Somers & Weight, for appellant;
    that while an execution is in the hands of an officer he may change the indorsement thereon, cited Nelson et al. v. Cook, 19 Ill. 450.
    That goods seized by virtue of an execution are not subject to replevin unless they are exempt from execution: Bev. Stat. 851, §2.

      Mr. M. B. Thompson, and Mr. William B. Webber, for appellee;
    that the sheriff, by breaking ¡into the premises of appellee, was a trespasser, and his- pretended levy, therefore, void ab initio, cited 2 Hilliard on Torts, 93.
    An officer interested in a cause cannot amend his return on process: O’Connor v. Wilson, 57 Ill. 226; Snydacker v. Brosse, 51 Ill. 357.
   Higbee, P. J.

This was an action in replevin by appellee against appellant for a stock of drugs.

Defendant below pleaded that he was sheriff and as such an execution came to his hands for collection against appellee, and that he levied the same on the goods replevied as the property of appellee. To this plea a replication was filed traversing and taking issue upon it.

On the trial, after the plaintiff below had rested his case, the defendant testified in his own behalf that he was sheriff of the county, read in evidence the execution described in the plea, and was asked by his attorney to state in substance whether he levied upon and took the goods replevied, under and by virtue of the execution, as the property of the plaintiff in the replevin suit. On objection by plaintiff, the court refused to permit defendant to answer the question. This was error. The evidence directly tended to prove the issue, was material, and was competent evidence to prove the fact sought to be established.

Defendant then offered in evidence the indorsement on the back of the execution, showing the levy on one general stock of drugs and other articles, such as soaps, tobacco, etc., etc.,” as the property of the defendant in execution. To which offer objection was made, and the defendant then attached to his execution a schedule more particularly describing the articles, and amended the levy by referring to, and making the schedule a part of, the same; and then again offered to read the same in evidence; but the court sustained the objection, and refused to admit the levy in evidence. It seems from the evidence of the sheriff that at the time he amended the levy and offered it in evidence, the execution was still in his hands for collection, and had not been returned. The levy of the officer was proper evidence, and should have been admitted by the court. The refusal by the court to admit the evidence of defendant was necessarily followed by a judgment against him from which he appeals to this Court, and assigns for error the ruling of the court in refusing to receive the evidence offered. We think the errors well assigned, and for that reason the judgment below is reversed and the cause remanded.

Reversed and remanded.


text:
    Edwin Hays et al. v. The People of the State of Illinois, use, etc.
    1. Justice op the peace—Failure to deliver over papers—Liability op sureties.—The duty of delivering to the person entitled thereto, all papers in his hands as an officer, upon proper demand therefor, is expressly enjoined by the statute upon a justice of the peace, and for a failure to do so 1ns sureties on his official bond are liable.
    2. Measure op damages.—For a failure to deliver up, when demanded, securities left with him for collection, a justice of the peace is liable, and the measure of damages would be the loss thereby sustained by the owner. So, where the evidence showed that at the time the justice received the note, and ever since, the makers were wholly insolvent, the plaintiff was entitled to recover nominal damages, and beyond that only the value of the note.
    Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Messrs. Somers & Wright, for appellants;
    that the contract of a surety is to be construed strictly, cited The People v. Tompkins et al. 74 Ill. 482.
    Mr. S. F. White, for appellee;
    that it is the duty of justices of the peace to receive money on notes placed in their hands for collection, cited Rev.. Stat. 652, § 104.
    Failing to pay over the same on demand, their sureties are liable : Rev. Stat. 652, § 104; Huckler v. Shulze et al. 27 Ill. 40.
   Higbee, P. J.

This suit was brought by appellee against George L. Pigg, and appellants as his securities on his official bond as justice of the peace.

The evidence shows that Mrs. Laybourn, for whose use this suit is brought, placed in the hands of Pigg, a justice of the peace, for collection, a note dated August 14, 1876, payable to her one year after date, for $108 and 10 per cent, interest, signed by S. W. Brown and G. E. Shauhan. The note was due when placed in. the justice’s hands, and instead of collecting it, he transferred' it to one White, to whom he was indebted for rent, to be credited on his rent • account when collected. After this, in April, 1878, Mrs. Laybourn gave the makers of the note notice not to pay it to White, and demanded the note of Pigg, who refused to surrender it, and thereupon this suit was'brought on his official bond.

A judgment was rendered in the court below for $127.17, the amount of principal and interest then due on the note, from which judgment appellants, the securities on the bond, prosecute an appeal to this Court. The condition of the bond is as follows:

Condition of iond: “ The condition of this obligation is such that whereas the said George L. Pigg has been duly elected a justice of the peace in and for the town of Sidney, in the county of Champaign aforesaid. Mow, therefore, if the said George L. Pigg shall justly and fairly account for, and pay over all moneys that may come to his hands under any judgment or otherwise by virtue of his office, and shall well and truly perform every act and duty enjoined upon him by the laws of the State to the best of his skill and ability, then this obligation to be void, otherwise to remain in full force and virtue.”

The statute provides, Sec. 110, p. 653: “Any justice of the peace failing or refusing to deliver any statute books, dockets or papers to his successor in office, or the person entitled to the same, for the sj)ace of ten days after the same are demanded by his qualified successor, or by the person entitled to the same, shall forfeit and pay, etc. * * * And he and his securities on his official bond shall be liable to all persons interested for all damages and losses which may be sustained by reason of such failure or refusal.”

The condition of the bond requires the justice to perform every act and duty enjoined upon him by the laws of this State.

The duty of delivering to the person entitled thereto, all papers in his hands as an officer, upon proper demand therefor, is expressly enjoined by the statute, and his securities are made liable for a failure to perform his duty in this regard.

The only remaining question presented in this case is as to the measure of damages.

The evidence abundantly shows that at the time the justice received the note, and ever since, the makers of the same were wholly insolvent.

Sec. 10, Chap. 79, Rev. Stat. 1874, p. 655, makes the justice and his securities liable for all damages and losses sustained. What damages has the owner of the note sustained? Certainly not the face of the note and interest thereon, for the note had no such value. In cases of .the wrongful conversion of the property of another, the true measure of damages is the value of the property at th'e time of conversion. Where the property sued for in trover is a chose in action, as a bill, note, bond or other security for the payment of money, it seems that the measure of damages is 'prima facie the amount due on the security, the defendant being at liberty to reduce that valuation by evidence showing payment, the insolvency of the maker, or any fact tending to invalidate the security. Sedgwick on the Measure of Damages, 609.

That plaintiff was entitled to recover nominal damages seems clear, but beyond that, the evidence in this case shows she was only entitled to recover the value of the note. This would cover her actual loss by the failure of the justice to perform his duty, and is the limit of her right of recovery against his securities, as fixed by the statute.

The damages found below, upon which judgment was rendered, were excessive, and for this reason the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Chicago, Burlington and Quincy Railroad Company v. J. Thomas Farrelly.
    1. Railroads—Killing stock—Cattle-guards.—The stock got on the track, near where it was injured, by jumping the cattle-guard from the highway; hut it appearing that the railroad company had performed its duty in making the cattle-guard at the public highway, as required by law, and that the same was sufficient to turn ordinary cattle, the company is not liable, unless the injury was caused carelessly or willfully.
    2. Fences—Condition at other places.—The bad condition of appellants’ fences at other places than that where the stock got upon the track, could not be shown. The want of a sufficient fence at the place where .the animal got upon the track is the precise thing' to be considered, and if no fault existed there, no liability attaches.
    Appeal from the Circuit Court of Green county; the Hon. A. G. Bure, Judge, presiding.
    Messrs. Sweeney, Jackson & Walker, for appellant;
    that if the fences and guards were good and sufficient for turning stock under ordinary circumstances, the company is not liable, cited C. & A. R. R. Co. v. Utley, 38 Ill. 410.
    The condition of the fence at places other than where the animal got upon the track, cannot be considered: G. W. R. R. Co. v. Hanks, 36 Ill. 241.
    Mr. Wm. M.Ward and Mr. H. C. Withers, for appellee;
    that where a railway company is liable to expect stock upon its track, it is bound to exercise a greater degree of diligence, and should have trains under control, cited C. & A. R. R. Co. v. Engle, 84 Ill. 397.
    Where an animal is seen or could have been seen by the exercise of ordinary care, it is the duty of an engineer to slacken the speed so as to avoid the injury, and a failure to do so will be such negligence as will render the company liable: R. R. I. & St. L. R. R. Co. v. Rafferty, 73 Ill. 58; C. & A. R. R. Co. v. Ford, Sup. Ct. Ill. unreported; T. P. & W. R’y Co. v. Ingraham, 58 Ill. 120; Ill. Cent. R. R. Co. v. Wren, 43 Ill. 77; T. P. & W. R. R. Co. v. Bray, 57 Ill. 514.
    Negligence is a question -for the jury: Nor. Line Packet Co. v. Binninger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174.
    If a series of instructions properly present the law of the case, it will not be reversed because one may be objectionable: Walker et al. v. Collier et al. 37 Ill. 362; Nor. Line Packet Co. v. Binninger, 70 Ill. 571.
    Where there is evidence from which the jury could properly find their verdict, it will not be disturbed: T. W. & W. R. R. Co. v. Moore, 77 Ill. 217.
   Davis, J.

Appellee sued appellant before a justice of the peace to recover the value of a mule claimed to have been killed through the negligence of appellant.

On appeal to the Circuit Court appellee recovered a judgment for $125, and to reverse this judgment appellant appeals to this Court.

The evidence shows that the mule was on the farm of appellee, and escaped from his pasture on the Saturday night it was injured. His fences were not very good, and his mule got out of his pasture into a neighbor’s field, and out of this field into the- highway. The mule crossed the cattle-guard from the public highway, jumping over the guard between the rails in the center of the track, and running about forty rods, after jumping the guard, off at one side before getting oil the track, and then running about one hundred and twenty rods, when he was knocked off by the locomotive and so badly injured that he was afterwards shot. It was dark when the accident happened, and between six and seven o’clock in the evening. The weight of the evidence is that the cattle-guard was made new about a month before the occurrence, and was at the time in good condition and sufficient to turn ordinary stock.

From this it appears that the mule was on the track of the railroad where it had no right to be when it was struck, and the company having performed its duty in making the- cattle guard at the piiblic highway as required by law,-it is not-liable unless the appellee has proved against it carelessness or willful injury. C. & A. R. R. Co. v. Utley, 38 Ill. 410.

. We think the evidence fails to show any carelessness or willful injury on the part of those in charge of the train, ánd that,

. therefore, appellant is not liable. Evidence was allowed to be given to the jury against the objection of appellant, to-show that the fences approaching the cattle-guard were out of repair, and that there were no fences on the side of the track where the mule was killed.

• This evidence was improperly admitted. The mule got upon the.track by jumping over the cattle-guard, tod it was wholly immaterial what was the condition of the fences approaching the cattle-guard, and the want of fences at the place where the mulé was 'injured. The rule is that the place where the animal-gets upon the track is the precise thing to be considered, and if no fault existed there, no liability attaches. Great Western R. R. Co. v. Hanks, 36 Ill. 241.

.. The judgment must be reversed and the cause remanded.

Beversed and remanded.


text:
    Columbus C. Smith v. Sarah J. Brittenham.
    Writ op assistance—How issued.—Where a writ of assistance becomes necessary to put the complainant in possession of the land to which he is entitled, he should be required to present the facts requiring such writ to the Circuit Court, so that the court may judge of the propriety of awarding it.
    Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Tipton & Pollock, for plaintiff in error;
    that a partial failure to perform a contract, although there may be compensation in damages, will not authorize the other party to put an end to it; cited Franklin v. Miller, 4 Adol. & Ell. 599; Weintz v. Hafner, 78 Ill. 27.
    Fraud gives jurisdiction in chancery only where there is no remedy at law: Larned v. Holmes, 49 Miss. 30.
    Jurisdiction for damages does not attach in equity except as an incident or auxiliary to some other relief: Scott v. Bilgerry, 40 Miss. 119; 2 Story’s Eq. Jur. § 794; Willard’s Eq. Jur. 309.
    Fraud will give equity jurisdiction where there is no adequate remedy at law: Scott v. Bilgerry, 40 Miss. 119; Ware v. Houghton, 41 Miss. 370; Davis v. Heard, 44 Miss. 57; Halls v. Thompson, 1 S. & M. 443; Story on Contracts, § 977; Story’s Eq. Pl. § 472.
    Misrepresentations to obviate a contract of sale of land must relate to a material matter of inducement which misled the other party to Ms injury: Slaughters v. Grum, 13 Wall. 379; Harding v. Hondley, 11 Wheat. 103.
    Before a party can rescind a contract he must restore the «Consideration received: Griffith v. Frederick Co. Bank, 6 Gill & J. 424; Martin v. Bordus, 1 Freem. Ch. 35; Blen v. Bear River, etc. Mining Co. 20 Cal. 602; Kimball v. Cunningham, 4 Mass. 502; Conner v. Henderson, 15 Mass. 319; Fisher v. Wilson, 18 Ind. 133; Cook v. Gillman, 34 N. H. 557; Shepard v. Fisher, 17 Ind. 229; Shaw v. Barnhart, 17 Ind. 183; DeSha’s Ex’rs v. Robinson’s Ex’rs, 17 Ark. 228; Weeks v. Roby, 42 N. H. 316; Clarkson v. Mitchel, 3 E. D. Smith, 269; Willmanson v. Moor, 2 Disney, 30; Getting v. Newell, 9 Ind. 572; Garand v. Boling, 1 Hempst. 710; Lone v. Latimer, 41 Ga. 171; Turner v. Green Clay, etc. 3 Bibb. 52; Ellington v. King, 49 Ill. 449; Jarrett v. Martin, 44 Mo. 275; Johnson v. Martin, 44 Mo. 275; Johnson v. Walker, 25 Ark. 196; Complin v. Burton, 2 J. J. Marsh, 216; Waters v. Lemon, 4 Ohio, 220; Wolf v. Dietzsch, 75 Ill. 210; Buchanan v. Hornet, 12 Ill. 338; Bowen v. Schuler, 41 Ill. 193; Ryan v. Brant, 42 Ill. 78; King v. Mason, 42 Ill. 223; Clark v. Dickson, El. B. & E. 148; Hunt v. Silk, 5 East. 449.
    If a vendor sells any part of the goods, he cannot repudiate the sale: Wolf v. Dietzsch, 75 Ill. 210; Chitty on Contracts, 351; Story on Sales, § 427; Cox v. Montgomery, 36 Ill. 396.
    A party rescinding on the ground of fraud must do so at once upon discovery of the fraud: Thomas v. Barton, 48 N. Y. 193; Flint v. Wood, 9 How. 622; Jennings v. Brighton, 5 DeG. M. & G. 139; Lloyd v. Brewster, 4 Paige, 537; Saratoga & S. R. R. Co. v. Rowe, 24 Wend. 74; Minitum v. Main, 3 Seld. 220; Campbell v. Fleming, 1 Adol. & Ell. 40: Diman v. Providence, etc., R. R. Co. 5 R. I. 130.
    A reconveyance should be ordered only upon terms of repayment of purchase money and all sums laid out in improvements, with interest: Harding v. Handy, 11 Wheat. 103; Brooke v. Berry, 2 Gill. 83; Mirely v. Buck, 3 Munf. 232; Tyler v. Black, 13 How. 230; Ellis v. Groves, 5 Dana, 119; Bullock v. Berries, 1 A. K. Marsh, 432; Underwood v. West, 52 Ill. 397; Donovan v. Friclar, 1 Jac. 166; 2 Hilliard on Vendors, 149.
    The writ of assistance should be issued by the court: Kenshaw v. Thompson, 4 Johns. Ch. 610; Williams v. Waldo, 3 Scam. 264; Bruce v. Roney, 18 Ill. 67; Frelinghuysen v. Col-den, 4 Paige, 204; Van Hook v. Throckmorton, 8 Paige, 33.; Insurance v. Co. Stebbins, 8 Paige, 565; Brush v. Fowler, 36 Ill. 58; Jansen v. Acker, 23 Wend. 480; Jackson v. Warren, 32 Ill. 340; 4 Kent’s Com. 184; 1 Lennox Dig. 534.
    After a cause is stricken from the docket it cannot be restored without notice to the opposite party: Heywood v. Collins, 60 Ill. 328; Hall v. O’Brien, 4 Scam. 408.
    Where there has been long delay in filing a bill, account of rents and profits will be limited to the filing of the bill: Drummond v. Duke of St. Albans, 5 Ves. 433; Pickett v. Loggin, 14 Ves. 433; Kerr on Fraud and Mistake, 348.
    Messrs. Lodge & Weldon, for defendant in error;
    that the default in this case admitted all the facts properly charged in the bill, cited Mansfield v. Hoagland, 46 Ill. 539.
    Hpon a bill taken pro confesso it cannot be objected that the facts do not warrant the relief granted: Boslin v. Nichols, 47 Ill. 353.
    Defendant is not guilty of laches; Cox v. Montgomery, 36 Ill. 396; 2 Story’s Eq. 695.

      Compensation need not be tendered before filing the bill: Bryant v. Brant, 42 Ill. 75.
    Unless exceptions are taken to "the master’s report, they cannot be urged on appeal: Rygard v. McNeal, 38 Ill. 401.
   Per Curiam.

We find no error in the record of this case, except in that portion of the decree rendered by the court below, in which it provides that the possession of the premises in controversy be surrendered to appellee within thirty days, and upon failure or refusal, that the clerk of the court issue the usual writ of assistance, under the seal of the court, to the sherifi to put appellee in possession of the lands. The authority to the clerk to issue the writ of assistance could not be conferred by the court in the manner attempted by the decree. In Bruce v. Roney et al. 18 Ill. 74, it was held, “ should a writ of assistance become necessary to put the complainant in possession of the interest in the land to which he is entitled, he should be required to present the facts requiring the assistance to the circuit court; so that the court itself may judge of the propriety of awarding the writ.”

The decree of the circuit court must be reversed and the cause remanded, with directions to that court to proceed with the execution of said decree in accordance with this opinion.

Beversed and remanded.


text:
    Isaac Smith v. Rachael Bingman.
    Verdict against evidence.—The court being of opinion, from an examination of the record, that the verdict was not warranted by the evidence, reverse the judgment.
    Appeal from the County Court of Cass county; the Hon. J. W. Savage, Judge, presiding.
    Messrs. Whitney & Tinney, for appellant.

      Mr. Oscar A. DeLeuw, for appellee;
    .that a verdict should not be set aside except where the preponderance is clearly against it, cited Pafineau v. Belgarde, 81 Ill. 61.
   Per Curiam.

This was a suit brought in the County Court of Cass county, by appellees against appellant, in assumpsit.

The only count in the declaration is for money had and received, to which appellant pleaded non assumpsit and Statute, of Limitations. Plaintiff below filed with her declaration the following account:

“ Isaac Smith to Bachael Bingman, Dr. To amount collected by you on the interest of plaintiff in lands conveyed by you to Walker, in Sangamon county, $800.00.”

The trial resulted in a verdict and judgment against appellant for $600, and he brings the case here, and assigns for error that the evidence does not sustain the judgment.

We have examined the evidence in the record carefully, and do not find any proof that appellant ever sold any land in which appellee had any interest to Walker, or that he ever received any money from Walker belonging to her. The record discloses some admission of indebtedness by appellant to appellee; but without further explanation they are not sufficient to warrant the verdict and judgment. We purposely refrain from discussing the evidence in detail, as the case must again be submitted to a jury, but upon the whole evidence we think the error well assigned.

We cannot refrain from expressing our disapproval of the criticisms upon the county judge who tried the case, injected into the brief of appellant. The judge is not before this court, and has no opportunity to defend himself against unjust reflections upon him. Under such circumstances it is ungenerous and highly improper for counsel to indulge in reflections uncalled for, and not warranted by anything in the record.

We also disapprove of the insinuations in the brief of appellee against the professional conduct of the attorney of appellant. Briefs should be respectful to the court, the parties, and all persons named in them; and this court will, as far as it has power, see that this rule is enforced.

Judgment reversed and cause remanded.

Beversed and remanded.