text:
    John M. Stevens v. John E. Hurlburt.

      Replevin—Principal and Surety—Chattel Mortgages—Assignment— Defenses—Estoppel—Conflict of Evidence.

    1. A surety lias no right of action against his principal until he has paid the debt secured or has in some manner been damnified.
    2. Where a surety holds a note and chattel mortgage for purposes of indemnity and assigns the same, his assignee can not enforce the mortgage until the mortgagee has paid the debt for which he was surety, or in some way has been damnified.
    3. A mortgagor may make the same defenses against an assignee, though an innocent holder for value and before maturity, as against the mortgagor.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. L. H. Bradley and H. A. Stevens, for appellant.
    Messrs. Patton & Hamilton, for appellee.
    The mortgage was only assignable in equity, and any defense to it that the mortgagor could have made—had Manchester attempted to take and sell the property under it—he can make when the assignee undertakes to foreclose it. The only right set up by appellant to this property was as_ assignee, and he took it subject to the same defenses to which it was subject as between the original parties. Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 Ill. 272; White v. Sutherland, 64 Ill. 181; C., D. & V. Ry. Co. v. Lœwenthal, 93 Ill. 433; Miller v. Larned, 103 Ill. 562; McIntyre v. Yates, 104 Ill. 491; Foster v. Strong, 5 Ill. App. 223.
    This rule applies to chattel mortgages as well as real estate. Bryant v. Viz, 83 Ill. 11.
    It is not disputed that a mortgage may he given to indemnify the mortgagee for becoming surety or indorser for the mortgagor, but we deny that sueli naortgagee can take tlie property mortgaged from the mortgagor and sellitagainst the will of the mortgagoiyunless lie has had to discharge the debt of his principa'.
    As between them, the mortgage is a mere indemnity, the same as a bond or pledge of property, to be made available upon the happening of the contingency which arises only by the payment of the debt, or such assumption of it as would relieve the principal.
   Conger, P. J.

This was an action of replevin brought by Hurlburt against Stevens, in the Circuit Court of Sangamon County. A judgment was rendered against appellant (defendant below) and he brings the record to this court by appeal. The facts necessary to an understanding of the case are as follows:

Hurlburt being indebted to one McGuire, procured one V. P. Manchester to become his surety upon a note for $250, and to secure Manchester as such surety, on the 28th day of February, 1885, executed and delivered to him his own note for $250 due in ten months, and at the same time executed to Manchester a chattel mortgage upon the property in question to secure the note, due on the 1st of January, 1886. A few days after the execution of the note and mortgage to Manchester he, Manchester, sold and assigned the same to appellant, Stevens, for $160. On the 29th or 30th of December, 1885, the mortgaged property was taken possession of by virtue of the mortgage by a Constable acting for Stevens, and on the 2d day of January, 1886, the present action of replevin was brought for its recovery. Manchester had never paid the note upon which he was surety, nor in any way been damnified by reason of such suretyship, and for that reason could not have brought any action or in any way availed himself of the note and mortgage, had he retained them himself.

In Darst v. Bates, 51 Ill. 439, it is said: “A mere security^ or person ultimately liable, can not sue and recover until he has paid the debt, or in some manner been damnified; nor can he, when secured by a deed of trust, insist upon a foreclosure and the payment of the money to him.” Herman on Chattel Mortgages, Sec. 155.

As Manchester could not have enforced the mortgage until he had paid the debt, or in some way been damnified by reason of his suretyship, neither could his assignee; for it is the well settled doctrine of this State that mortgages, both real and chattel, are only assignable in equity, and in all proceedings to enforce the mortgage the mortgagor may make the same defense against such assignee, though an innocent holder for value, and before maturity, as against the mortgagee himself. Bryant v. Vix, 83 Ill. 11; Walker v. Dement, 42 Ill.272; McIntyre v. Tates, 104 Ill. 491; Olds v. Cummings, 31 Ill. 188.

It is insisted, however, by the appellant, that appellee is estopped from making this defense because, as appellant testifies, he met appellee upon the street a short time before he purchased the note from Manchester, informed appellee he was about to purchase the note and mortgage, and asked appellee if it was all right, and that appellee replied: “It is all right, buy it if you can.” This conversation is, however, denied by appellee, and we presume was regarded by the court below as not sufficiently proven to call for the application of the doctrine of estoppel.

There were but the two witnesses upon this question and their testimony was flatly contradictory, and we see no good reason for interfering with the conclusion reached by the court below.

We are, therefore, not called upon to notice further the question whether appellee was estopped from making the defense that he relied on against the enforcement of the mortgage.

It is also insisted that the present action could not be maintained because possession of the property was taken before the mortgage was, by its terms, due. There seems to be a discrepancy between the note and mortgage as to the date of the maturity of the note. The note upon its face, being due in ten months, would make it mature upon the 28th day of December, while the mortgage describes the note as maturing upon the 1st of January, 1886.

We do not deem it necessary, however, to decide the point raised, as the court below was justified in its judgment from the considerations already noticed.

The judgment of the Circuit Court will be affirmed.

Judgment affii'med.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Andrew Killpatrick, Administrator, v. Thomas Helston.

      Administration—Father and, Son—Recovery by Former for Services.

    In a proceeding by a father to recover against his son’s estate the value of services rendered by him as a clerk, it is held: That the evidence sustains the finding and the judgment for the plaintiff; that a mutual understanding between the two was tantamount to an agreement; and that it was proper for the claimant to increase his demand in the Circuit Court, if he thought he had before under-estimated the value of his services.
    [Opinion filed June 14, 1887.]
    In error to the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.
    Hr. J. M. Truitt, for plaintiff in error.
    Messrs. Lane & Cooper, for defendant in error.
   Pleasants, J.

Joseph Helston was long a hardware merchant at Hillsboro, where he died in February, 1885, intestate.

In May following, his father, the defendant in error, filed a claim against the estate for services as clerk for ten and a half years at §25 per month and board, on which the County Court allowed §2,000. In the Circuit Court, on appeal, he amended the account, substituting §35 for §25, and the trial there, without a jury, resulted in a finding and judgment in his favor for §1,800 and costs, to be paid in due course of administration.

It is not denied that he performed the services stated, from 1874 until the death of the intestate, and that he came for that purpose, at his express request, from Duqnoin, where he was then residing and working at his trade. He waited on customers, kept the books, attended to collections, had charge of his bank account, depositing, checking out and buying exchange as was required in the business, and did the marketing for the family. The evidence tends to show that he was faithful and industrious, an exceptionally good and useful clerk. Witnesses on the one side estimate the value of his services at $40 to $50 per month, and on the other at $25 to $3o, or from $8 to $12 in addition to board and clothing. Deceased himself declared he could not dispense with him without employing another man in his place, at not less than $50 per month, and that he preferred him to any other because he was his father and he could trust him.

When he entered upon this service, claimant was living with his second wife, step-mother of deceased, who was an invalid and died in the fall of 1879. He occupied with her, until her death, and afterward until the fall of 1883, an addition made by deceased to his dwelling house for their accommodation, and lived with his family, and afterward, by request or direction of deceased, boarded at the hotel, paying therefor out of money from the store. Except the board and clothing thus furnished and the little spending money he wanted from time to time, he had received no compensation for his services. Ho account of the amount or value of what he so received was kept or shown, beyond the estimate of witnesses referred to, of the value of his services with and without board and clothing. As appears from repeated declarations of claimant and deceased, it was mutually expected that this arrangement would be continued during the life of the former, but there was no formal agreement between them.

We incline to the opinion that these circumstances tend to show that the relation between them was that of employer and employe, and imply a promise to pay wages notwithstanding such relation was modified, as it necessarily is in all such cases, by that of parent and child. This inevitable modifying effect upon the conduct of the parties always obscures to some extent the question of the relation of master and servant, in the absence of an express contract, and we freely admit it here. But this case differs from the mass of those reported, j[n that the party claiming wages is the father and not the son, and that Ire came to the service from an independent employment at another place and upon express request of the son. Ordinarily it is the child, simply continuing to live with and work for the parent after arriving at majority, without any express request for the service or arrangement for compensation.' In such cases clearer proof and more significant circumstances are required to raise an implication of liability. Those referred to as existing here are of themselves sufficient to create the presumption and shift the burden of proof. "Wood on Master and Servant, Sec. 75, p. 179 et seq. and notes; Schwarz v. Schwarz, 26 Ill. 81; Warren v. Warren, 105 Ill. 568.

Another noticeable feature here is the clear understanding, on both sides, that the party’s services were to be compensated by this provision for his support during his life. A mutual understanding is tantamount to an agreement. If it could be performed in this case it is quite probable, from the evidence, that he would have claimed nothing more. But it failed without his fault, and that fact, though the son also was without fault in respect to it, would seem to bring it within the principle stated in Wood, supra, on pp. 128-9 and notes, which allows recovery upon a quantum meruit. See, also, as bearing upon both points, Freeman v. Freeman, 65 Ill. 106.

We see nothing important in the point of law or fact raised upon the amendment of the account. If claimant thought he had under-estimated his services, he was not thereby estopped to claim whatever he may have afterward come to believe was their reasonable value. In the absence of an express contract it was matter of opinion. The question of provision for claimant’s wife is eliminated by her death more than five years before this claim was filed. Under the statute pleaded he recovers nothing for services rendered during her life. On the whole, we can not say the finding was unsupported by the evidence, and the judgment will be affirmed.

Judgment affirmed.


author: Pleasants, P. J.

text:
    N. D. C. Hume v. M. P. Brower et al.

      Parties—Contract under Seal for Benefit of Third Persons—Consideration—■Acceptance—Rescission.

    1. A third ¿arty may maintain an action on a contract under seal entered into between others for his benefit.
    2. ' Under such an agreement between two parties for the payment by one of the debts of the other, whatever the consideration, any creditor of the latter may maintain an action.
    3. A rescission under a reservation of the power to rescind in such a contract contained, does not affect a creditor after notice. given of his acceptance, although he has since taken a note from the original debtor.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Pike County; the Hon. Charles J. Scofield, Judge, presiding.
    • Messrs. A. C. Matthews and H. D. L.. Grigsby, for appellant.
    When one enters into a simple contract for the benefit of another, the party for whose benefit the contract is made may sue upon the contract 'in his own name. Schemerhorn v. Vanderheyden, 1 Johns. 139; Elwood v. Monk, 5 Wend. 235; Arnold v. Lyman, 17 Mass. 400; Hall v. Marston, 17 Mass. 575; Brewer v. Dyer, 7 Cush. 337; Barker v. Bucklin, 2 Denio, 45; Carnegie v. Morrison, 2 Mete. 381; Eddy v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Ill. 88; Bristow v. Lane, 21 Ill. 194; Struble v. Hake, 14 Ill. App. 545; Snell v. Ives, 85 Ill. 279; Shober v. Kerting, 107 Ill. 344. In the latter two cases, it was held that if the contract was to pay all the debts of another, without specifying any, any creditor could maintain an action.
    The distinction between the form of actions on contracts under seal and those not under seal (except penal bonds), is abolished by See. 19, Chap. 110, R. S. 1874, p. 776; Protection Life Ins. Co. v. Palmer, 81 Ill. 88; City of Shawneetown v. Baker, 85 Ill. 563; Adam v. Arnold, 86 Ill. 185.
    Under the law as it now is, if a contract under seal is made for the benefit of a third party, the third party may maintain action for a breach in his own name. Dean v. Walker, 107 Ill. 540.
    An executory contract under seal can not be altered, changed or varied by an instrument not under seal. Loach v. Farnuim 90 Ill. 368; Hume v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216.
    When two parties enter into a contract for the benefit of a third party, it is not in their power to rescind the same after notice and acceptance by the third party, without his consent. Bishop on Contracts, Sec. 1223, and note; Wood v. McClaine, 7 Ala. 800; Taylor v. Robinson, 14 Cal. 396; Fiske v. Holmes, 41 Maine, 441.
    When one bargains for another without authority, the latter may ratify or repudiate the bargain at his pleasure. Bishop on Contracts, Sec. 1223, and authorities cited in notes; 35 Ill. 40-544; 41 Ill. 323; 50 Ill. 26; 69 Ill. 575; 82 Ill. 73; 81 Ill. 607; 83 Ill.136.
    Messrs. Wike & Higbee and Orr & Crawford, for appellees.
   Pleasants, P. J.

Appellees, who are brothers, jointly made an agreement under seal and dated July 1, 1884, with Philip S. Brower, their father, whereby, in consideration of Ms leasing to them certain personal property described, consisting of live stock, farming implements and growing crops5 for ninety-nine years, they bound themselves, among other things, “to pay all the debts now owing by the said party of the first part in two years ” from that date. It further provided “ that in case the parties of the second part fail to comply with any of the conditions of this lease, then the parties of the second part shall deliver up to the said party of the first part all the personal property or its value in money.”

At that time Philip S. Brower was owing appellant §80 on a note of January 1, 1884, payable one day after date, and §28 for a cultivator purchased of him June 16th, which was not due until September 1, 1884.

Appellant claims that he was advised of this agreement by one-of the sons and notified him that he accepted and ratified it, and about the first of September, 1886, he brought this suit thereon before a Justice of the Peace for the indebtedness mentioned, which was taken by appeal to' the Circuit Court whereupon trial was had without a jury; the issues were found and judgment rendered for the defendants.

It has long been settled that a third party may sue on a simple contract entered into by others for his benefit, and upon such an agreement to pay all the debts of one party, any creditor of such party may maintain an action. Shober v. Kerting, 107 Ill. 344; Snell v. Ives, 85 Ill. 279. The old distinction, with reference to this right, between simple contracts and specialties, is abolished by Sec. 19, Chap. 110, R. S.; Dean v. Walker, 107 Ill. 540.

Appellees argue that the agreement here was not witl/in the rule declared by the authorities, because (it is said) the consideration moving from the promisee to the promisors was not money, or property to be converted into money, for their payment. It was called a £l lease ” but it was of perishable property and for ninety-nine years. ISTor do we understand that the rule limits this effect to contracts induced by any particular species of consideration. The only question is whether it is a valid contract. It is so, as respects the consideration, if supported by any that is sufficient, as between the parties, of whatever kind.

The main defense, however, was that the agreement had been rescinded, in support of which a formal instrument, duly signed and purporting to rescind it, was introduced in evidence over objection by the plaintiff. It bears no date but the testimony shows it was executed in March, 1885. If appellant had notified them of his acceptance of it, they could not effectually rescind it, as against him, without his consent. Bishop on Contracts, Sec. 1223 and notes.

But it is claimed that the provision in the agreement, last above quoted, is a reservation of the right and power to rescind, by which, as a substantive part of what he accepted, appellant also is bound.

It does not appear that he ever had actual notice of this provision. But if he is chargeable with such notice, we are inclined to regard it, not as a reservation to appellees of the power to rescind, but a provision for the benefit of Philip S. Brower alone, in case of breach or failure to perform on then-part, for the reason that as the principal item of consideration to him was really an annuity for his life (under the name of rent), the property to be delivered, or the money value thereof, might be very considerably greater than the damages he could recover for any breach of the contract without this provision, since the value of the annuity would be constantly diminishing. Nor was it shown that they did deliver up to him all the property mentioned, or its value in money. Elwood Brower, one of the appellees, says their father took back what was then left of it, which did not include the hogs, and he could not say whether he had sold the sheep or not, and Philip' 8. Brower swore that the property was never in his possession after the original contract was made.

Appellees further claim that if appellant did notify them of his acceptance of the agreement, he did not abide by it, the evidence of which consists alone in the fact that he afterward took a note from his debtor for the amount standing in account. We do not consider this a repudiation of his acceptance. In view of the length of time given by the agreement for their payment of the debt, he had the right, consistently with his acceptance, so to liquidate the account when due, and thus secure interest thereon if payment should he postponed. It is not denied that he did notify appellees of his acceptance of their agreement to pay. He never consented to its rescission, and he gave them the full time prescribed for payment.

The court below refused to hold, as asked by appellant, that there could be no rescission to impair his right, after notice given of his acceptance, without his consent. It appears to us that the finding was controlled by the view of the law indicated by such refusal, which we think was error. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    The Provident Savings Life Assurance Company v. Kate English.

      Practice—Constitutionality of Statute—Dismissal for Want of Jurisdiction.

    In an action involving the constitutionality of the act giving the Circuit Court of the county, in which the plaintiff resides, jurisdiction where the defendant is an insurance company, this court, being without jurisdiction, dismisses the appeal with leave to withdraw the record, abstract and briefs.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Morgan County; the Hon. C. Epler, Judge, presiding.
    Mr. E. A. Ot.s, for appellant.
    Messrs. W. J. Bryan and J. W. English, for appellee.
   Per Curiam.

The first question presented by this record is as to the constitutionality of the Act of 1873, which provides that when the defendant is an insurance company, domestic or foreign, doing any business in this State, the Circuit Court of the county where the plaintiff resides may have jurisdiction, and process may issue and be directed to any county in the State for service and return. It is by virtue of this statute alone that the Circuit Court of Morgan County acquired j nrisdiction, if it had any.

It is insisted by appellant that this statute is in violation of Sec. 22, Art. 4, and Sec. 29, Art. 6, of the Constitution. It seems necessary that this question should be determined, as it lies at the threshold of the case and determines the jurisdiction of the court below over the appellant. By the Practice Act we have no power to pass upon such a question and hence the appeal will be dismissed. Leave will be given to withdraw the record, abstracts and briefs. Wright v. People, 92 Ill. 596; St. Louis Transfer Co. v. Canty, 103 Ill. 423; Marion Co. v. Lear, 108 Ill. 343; W., St. L. & P. Ry. Co. v. Stephens, 14 Ill. App. 507. Appeal dismissed.


author: Wall, J.

text:
    Emma Walker et al. v. Thomas J. Haughey et al.

      1leal Property—Conveyance—Action to Recover Discount on Judgment Liens—Agency—Joint Liability—Practice.

    1. In an action by a grantor against the grantee and her agent, to recover the amount of a discount obtained on judgments which were liens against the property conveyed, it is held: That although the defendants do not appear to have been entitled to the discount in question they are not jointly liable therefor.
    2. An objection to instructions which are not copied into the abstract can not be considered on appeal.
    [Opinion filed June 14, 1887.]
    Appeal from the County Court of Sangamon County; the Hon. J. H. Matheny, Judge, presiding.
    Messrs. Patton & Hamilton and Alex. J. Walker, for appellants.
    On motion of the appellants the case was decided on the merits although no brief was filed for the appellees.
   Wall, J.

This was an action of assumpsit by appellees against appellants. There was a plea of non-assumpsit and a plea, properly verified, denying joint liability. Upon a trial by jury there was a verdict for appellees for $237, and a motion for new trial having been overruled, judgment was rendered accordingly.

The appellee, Thomas J. Haughey, sold to the appellant, Emma Walker, then Heal, through her agent, appellant Alexander J. Walker, certain real estate in the City of Springfield and delivered a deed therefor which was duly executed by himself and his wife, the appellee Judith Haughey. The claim in this suit is for the amount of a discount obtained by appellants upon two judgments, which were of record against Thomas J. Haughey, and were liens upon the property. It was contended that, by the arrangement between the parties, the benefit of this discount was to be enjoyed by appellants. We think the evidence did not justify the conclusion that the appellants, or either oí them, were entitled to this discount, and that very clearly there is no sufficient proof it was for their joint benefit.

It seems equally clear there can be no joint liability upon any possible view to be taken of the evidence in this record.

Whatever was said or done upon which to base the deniand sued for, was by Alexander J. Walker in his capacity as agent. If he acted within the scope of his authority, his principal being disclosed would be bound by his acts, but he would not be personally responsible. If he exceeded his authority and made himself liable, his principal is not jointly liable with him. 2 Kent’s Com., 630; Story on Agency, 261. Assuming that the sum in question should be paid to the appellees, or either of them, the appellants are not jointly bound therefor.

The court erred in refusing to set aside the verdict. The alleged errors in respect to instructions given for appellees will not be considered because the instructions arc not copied in the abstract. For the error indicated the judgment will be reversed and the cause remanded.

lieversed and remmded.


author: Conger, P. J.

text:
      William B. Barnes v. The People of the State of Illinois, for use, etc.
    Donatio Mortis Causa&emdash;Delivery to Third Person&emdash;Sufficiency of.

    A gift, to operate as a donatio mortis causa, mu«t be actually delivered to the donee, or to a third person for his benefit. Where it is delivered to a third person, the donor must part with all control over the subject of the gift. If the donor retains control over the gift, the holder is regarded as his agent, and a direction to keep it for the donee will not amount to a present delivery sufficient to create a donatio mortis causa.

      [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Greene County; the lion. G. W. Herdman, Judge, presiding.
    Messrs. Withers & Henshaw, for appellant.
    Where one, in apprehension of death, delivers a thing to another to be given by him to a third after the death of the donor, and on such donor’s death the thing is delivered accordingly to the donee designated and accepted by him, this is a valid gift mortis causa. Sessions v. Mosely, 4 Cush. 87.
    That the promissory note of a third person may be the subject of a donatio causa mortis is no longer a matter of controversy. Borneman v. Sidlinger, 15 Maine R. 429; Parish v. Stone, 14 Pick. 198; Grover v. Grover, 24 Pick. 261.
    Hannah Chapman may have had the right to recall the gift, but such power to recall constitutes the distinction between gifts inter vivos and causa mortis. She did not recall the gift, and it became absolute at her death. 2 Kent’s Com., 444 and 445.
    The delivery of the notes in controversy to Myrtle Barnes for her father, Wm. B. Barnes, became a donatio causa mortis• The gift is clearly intended; it was not recalled and Hannah Chapman died of her then present illness. The gift, therefore, became complete. 3 Redfield on Wills, 347; Delmotte v. Taylor; 1 Redfield’s Sur. Rep. 417.
    Mr. Mark Meyerstein, for appellee.
   Conger, P. J.

This was a proceeding instituted in the County Court by appellee as administrator of Hannah Chapman, under Sec. 81, Chap. 3, B. S., for the recovery of the notes in question, and was afterward heard on appeal by the Circuit Court, where judgment was rendered that such notes belonged to appellee as such administrator and were not the property of appellant Barnes.

Hannah Chapman, the deceased, had resided with appellant about eleven years, was fifty years of age and unmarried, and the aunt of appellant’s wife. About a year prior to her death she was afflicted with a dangerous and contagious disease called phlegmonous erysipelas, during which appellant nursed her, and she finally recovered. During this sickness, on two occasions, she told her physician that she didn’t think she would ever be able to repay appellant for all his kindness to her, but what she had she would leave to him.

During this sickness Miss Chapman gave the notes in question, one being for §1,000 and the other for §300, to appellant, and told him to keep them, which he did until the following June, when he returned them to her. Two days before she died, as appellant was about starting for Kansas, she told him to go to her trunk and get those notes out of her trunk; that it would not do for her to die with those notes in her trunk; but appellant told her they were all right there.

On Saturday, the next day after appellant had started to Kansas, Miss Chapman called a daughter of appellant, aged about twelve, and directed her to go up-stairs to her trunk and bring her a package, and when brought to her after looking at it, handed it to the girl saying: “ Mow, Myrtle, take this package and take care of it, and if I die before your father comes back, give it .to him.” She also told the girl that she “ should” or “could” put the package in a small paper box in the trunk from which the package was taken. The package was by the young girl put in this box, and the same day, by directions of her mother, wife of appellant, but without the knowledge of Miss Chapman, Myrtle took the package out of Miss Chapman’s trunk and placed it in her mother’s trunk, where it remained until a few days after Miss Chapman’s death, when Myrtle gave it to her father. Miss Chapman died on Sunday, the next day after giving the package to Myrtle.

The package consisted of the two notes in controversy, which were both the property of and payable to Miss Chapman.

Appellant’s mother was in the room at the time of the delivery of the - package to Myrtle, and her recollection of Miss Chapman’s language was: “ She told Myrtle to take care of it and give it to her father when he came home.”

It is not at all probable that the child would interpolate the words, “if I die before your father gets back,” unless they were in fact used, and we think it much more reasonable to suppose that these words were really used, but not heard or possibly forgotten by Mrs. Barnes, and we shall therefore consider the words used as those stated by Myrtle.

It is insisted by appellant that these facts constitute a gift mortis causa, by virtue of which he is now the owner of the notes in question.

The requisites which are indispensable to constitute a valid gift, mortis causa, are: 1. “That it be not only made in apprehension oE present peril of death, but death must ensue without any perfect remission of the apprehended peril.” 3 Bed field on Wills, 324. 2. The gift, to operate as a good donatio mortis causa, must have been made to take effect only in the event of the donor’s death, by his existing disorder.” Ibid. 325. 3. “ There must be an actual delivery of the chattel to the donee, so as to transfer the possession to him, but a delivery to a third person for the benefit of the donee will be sufficient, provided the donor part with all control over the subject of the gift. But so long as the donor retains control over it, the holder is regarded as his agent, and the direction to keep it for the donee will not amount to any present delivery sufficient to create a donatio mortis causa.” Ibid. 326 and 330; 2 Kent, 444 star paging, et seq.

The difficulty in this case arises upon the third proposition, i. e., whether there was a sufficient delivery.

When the words used by the donor, or the acts performed which are relied upon to constitute the delivery, are ambiguous, extrinsic circumstances, such as the relation between the parties and their interest in and obligations to each other, may be shown in explanation. Smith v. Maine, 25 Barb. 33.

The statements of Miss Chapman of her gratitude to appellant for his kindness toward her in her sickness, of her intention to give him all that she had, of actually placing the notes at one time in his possession, are all to be considered, and if her words at the time she placed the notes with Myrtle were ambiguous, would have weight in explaining her true meaning and intention.

But we think there is no ambiguity or uncertainty in the expression: “Now, Myrtle, take this package and take care of it, and if I die before your father comes back give it to him.”

The delivery by Myrtle to her father was to he made only on the condition of Miss Chapman’s death occurring before appellant returned to his home. Had he returned before her death, it is quite clear Myrtle would have had no authority to deliver the package to him. And it is equally clear, we think, from this language, that the donor intended to reserve to herself the control and possession of it in case appellant should return during her lifetime so that she might herself make the gift to him.

The expression is equivalent to saying, if I die before your father comes back, give it to him, if I am alive when he returns I will attend to the matter myself. If this he the true construction of the words used, it is clear that the delivery to Myrtle was not absolute but conditional; that she held it as the agent of the donor and not of appellant; that the death of the donor prior to appellant’s return was a condition precedent which must have happened before Myrtle would either hold the package absolutely for her father or bo authorized to deliver it to him.'

The fact that a gift mortis causa may he revoked and recalled by the donor, does not lessen or change the necessity for such an absolute unqualified delivery as will at once pass the present title and control of the gift to the donee, and exclude the donor from all control over, or property in it. The gift must be executed, the title must vest in the donee and the dominion and control of the donor over the gift must pass to the donee.

The condition of possible revocation, which inheres in a gift mortis causa, is a subsequent condition which may never occur to defeat or revoke the gift, and which does not prevent a present valid title from vesting in the donee, while the condition here imposed is a condition precedent, which must happen before it becomes a gift, and as the contingency contemplated is the donor’s death, the gift can not be executed in her lifetime, and consequently can never take effect. Basket v. Hassel, 17 Otto, 602; Walton v. Ford, 74 Mo. 195.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Peoria, Decatur & Evansville Railway Company v. James N. Shelly.

      Railroads—Sfoek—Damages for Killing—Renee—Highway Crossing —Evidence—Instructions.

    In an action against a railroad company to recover damages for killing a colt, it is held: That the evidence is sufficient to sustain the verdict, the point in question not being within the crossing of a public highway, but where a fence was necessary; and that there was no substantial error in the instructions.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Coles County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. J. S. Stevens and Wiley & Neal, for appellant.
    Messrs. Craig & Craig, for appellee.
   Wall, J.

This suit was brought to recover damages for the loss of a colt killed by the train of appellant.

There was a verdict and judgment thereon for the appellee. It was claimed that the animal was struck at a point where the law required a fence. The appellant insisted that the point in question was within the crossing of a public highway where no fence was necessary, and this is the real and only substantial issue in the case.

The highway runs north and south, crossing the i-ailroad very near the northwest corner of Pleasant Grove Township. The southwest corner of Lafayette Township lying north of Pleasant Grove, is fifty-five links west of the latter township, and the highway at this place “jogs” west, not making a square turn, but running diagonally across the corner and thence following the township line north as it did south. The width of the highway is forty-five feet. On the south side of the railroad there is a fence running west from the highway some seventy-five feet, to a cattle-guard. From this cattle-gnard a fence runs north, but there is no fence running east along the north side of the railroad.

It was in this space near the cattle-guard that the animal was struck. Was it necessary to fence here? It is quite clear from the proof, including the plat, which was referred to by the witnesses and without which the oral evidence would be quite obscure, that there was a considerable distance on the north side of the railroad west of the west line of the highway where there was no fence.

This distance, estimated at seventy-five feet by some of the witnesses, covers and includes the point where the collision occurred. It is urged by appellant that this was all within the highway where no fence could properly be placed, but this position can not be maintained if the highway crosses the township corners diagonally as, from the plat as well as the other testimony, it does. The fence might well have been extended on the north side parallel with that on the south side, and we think it was legally necessary to do so.

The want of it made what is termed by the witnesses a “pocket,” into which aniznals would readily pass and from which they would naturally seek escape by crossing the track We are of opinion there was sufficient evidence to sustain the verdict.

The assignment of errors contains an objection to the ruling of the court in giving and refusing certain instructions. The brief, however, is confined in this respect to the suggestion that there was no evidence upon which to base the first given for the.plaintiff. In the view we take of the evidence this objection is unsound.

We have examined the other instructions given as well as those refused and find no occasion for complaint on the paz-t of appellant. Flo substantial error appearing in the record the judgment will be affirmed.

Judgment affirmed.


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    Jesse Foval v. Anna Stahl.

      Action for Goods Sold—Husband and Wife—Agency.

    In an action brought by a wife, in whose name her husband carried on business, to recover for goods sold, this court reverses a judgment for the ■plaintiff, as it appears from the evidence that the goods were bought upon an understanding, known to the plaintiff, that they were to be credited on a judgment, against her husband.
    [Opinion filed June 14, 1887.]
    Appeal from the County Court of Calhoun County; the Hon. Stephen McDonald, Judge, presiding.
    Messrs. Pinero & Selby, for appellant.
    Mr. F. M. Greathouse, for appellee.
   Conger, P. J.

Jesse Foval, appellant, on the 11th day of April, 1883, recovered a judgment against Herman Stahl, husband of appellee, and Herman Benken, for $870.40 and costs..

Stahl and Benken were at that time engaged as partners, running a mill, store and saloon. Shortly thereafter they failed and the business was carried on in the name of appellee, both her husband and Benken acting as her agents and conducting the business for her and in her name, without salary.

In May, 1884, appellant states he asked Stahl to pay his judgment, and he replied that he could not do that, but if appellant would take things out of the mill and store for himself and his tenants, he would pay a portion of the judgment that way every year; he also states that appellee was fully apprised of such arrangement. That under such arrangement he did get goods to the amount of $232.

One Stewart, the tenant of appellant, says that after getting some goods for himself of Stahl on appellant’s account at harvest time in 1885, he asked for more goods in the same way. Stahl told him he had better take them on his own account as he did not think he could stand it to let Foval have so much on that old claim; but upon Stewart’s refusing to take them upon his own account, Stahl let him have them and charged them to appellant.

Stahl testified that he offered appellant goods on the judgment at 50 cents on the dollar, but does not know what appellant’s reply was, but that afterward appellant got the goods. That his wife may have known of the arrangement but asked no questions about it. He generally did the business, and whatever he did they (his wife and Benkcn) were satisfied with.

Benken testified that he don’t know that appellant ever told him of the contract between appellant and Stahl. Stahl might have told him that appellant was to have goods, but does not remember it. For these goods appellee brought suit and re-cox-ered.

We think the clear preponderance of the evidence goes to show that appellant bought these goods with the understanding that they were to be credited upon his judgment, and with the knowledge of appellee, and for that reason appellee had no right of recovery.

The judgment of the County Court will be reversed and the cause remanded for a new trial.

Reversed <md remanded.


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    Turner Brothers et al. Alabama Mining and Manufacturing Company et al.

      Foreign Corporations—Bill by Creditors to Charge Resident StocJcholders on Unpaid Subscriptions for Stoch—Requisites—Parties—Jurisdiction —Attachment and Garnishment—Secret Agreement—Fraud—Trusts— Res Adjudicata.

      1. The subscriber for capital stock of a corporation does not, as such, sustain any direct trust relation to its creditors, but is simply and solely its debtor.
    2. Where a creditor of a corporation merely seeks to reach indebtedness due it on supscriptions for stock without winding up its affairs, he is only required to bring into court the corporation and the stockholders whose indebtedness he seeks to reach.
    3. Before a creditor of a foreign corporation can maintain a bill in this State to reach indebtedness due it on subscription for stock, he must exhaust his remedy at law by obtaining a domestic judgment, and having execution returned unsatisfied.
    4. Where resident stockholders of a foreign corporation are legally liable to it on their stock subscriptions, it seems that its creditors may proceed at law by attachment and garnishment, although service on the corporation can not be had. It also seems that a secret agreement between the corporation and its stockholders, releasing them from further assessments, will not bar a recovery in such a proceeding, especially when the agreement has been declared void in a former adjudication.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. William H. Benneson, for appellants.
    The capital stock and all other property of a corporation is a trust fund, pledged and held in trust, primarily, for the payment of its debts, and secondly, for ultimate distribution to its stockholders, and on this fund the creditors of the corporation have an equitable lien and prior rights of payment thereto paramount to any liens or claims of the stockholders thereon and this fund may he pursued by the creditors into whosesoever hands it may come, other than in the hands of a Iona fide purchaser. Thompson’s Liability of Stockholders, See. 10, and cases there cited; 2 Story’s Eq. Jur., Sec. 1252, and cases there cited; Curry v. Woodward, 53 Ala. R. 371; Clapp v. Peterson, 104 Ill. 26; Tinkham v. Borst, 31 Barb. (N. Y.) 407; Sanger v. Upton, 91 U. S. S. C. R. 56; Hatch v. Dana, 101 U. S. S. C. R. 205; Union Ins. v. Frear Manufacturing Co., 97 Ill. 537.
    The capital stock of a corporation embraces all subscriptions for its stock, whether the same are paid into the treasury of the corporation or not; and the subscription money remaining unpaid, in the hands of the subscribing stockholder, forms a part of the aforesaid trust fund, subject to the like equities and trusts as that paid in. Thompson’s Liability of Stockholders, Sec. 11, and cases there cited; Allen v. Montgomery R. Co., 11 Ala. R. 437; Alder v. Milwaukee Pat. Brick Co., 13 Wis. R. 57; Union Ins. Co. v. Frear Manufacturing Co., 97 Ill. 537; Ogilvie v. Knox Ins. Co. et al., 22 Howard (U. S. ), 380.
    So far as any of such trust fund consists of unpaid subscription money remaining in the hands of the subscribing stockholder, it can be reached, directly, by the creditors of the corporation through a court of equity and applied in payment of their claims against the corporation, and this remedy will he awarded, by a court of equity, when the creditor is unable to obtain satisfaction in the ordinary mode, and the directors of the corporation refuse or neglect to make and enforce assessments against the delinquent stockholders. In such case the jurisdiction of equity is exclusive. 2 Story’s Eq. Juris., Secs. 962, 963,1252, and cases cited; Thompson’s Liability of Stockholders, Secs. 12, 13, 14, 15 and 258, and cases cited.
    While it is a general rule that a judgment at law against the debtor and in favor of the creditor, upon the claim sought to be enforced by a creditor’s bill, is a prerequisite to the filing of the bill, the rule is far from being universal, and it is dispensed with in divers classes of cases as: "

      First. When the creditor’s claim is to be satisfied out of a fund which is accessible only by the aid of a court of equity, the rule will he dispensed with. Russell v. Clark’s Ex., 7 Cranch, 69; O’Brien v. Coulter, 2 Blackf. 421; Tinkham v. Borst, 31 Barb. 407.

      Second. Where a debtor, primarily liable, is entitled to indemnity from another, equity will enforce the claim at the suit of the creditor against the party ultimately liable, treating it as a trust, and no such judgment is requisite; and this is so when the debtor is solvent, a fortiori when he is insolvent. 2 Story’s Eq. Jur., Secs. 1250 and 1251; Riddle v. Mandeville, 5 Cranch; 322; Russell v. Clark’s Ex., 7 Cranch, 60; McCall v. Harrison, 1 Brock. Cir. 126; Back v. Swasey, 35 Maine, 52; Anon., 1 Vernon, 162.
    Third. Where the debtor is so situated that no service of common law process can be made on him, and no judgment at law can be obtained against him, such judgment is not requisite. Scott v. McMillan, 1 Little, 302; Anderson v. Bradford, 5 J. J. Marsh, 73.

      Fourth. When no lien could be created by such judgment Or by an execution issued thereon, upon the property or thing sought to be reached by the bill to satisfy the creditor’s claim, no such judgment is requisite.
    When the object of the creditor’s bill is simply to collect a debt of a corporation to the creditor, out of the unpaid stock of a corporation, it is not requisite that all the creditors should be made complainants, nor that all the stockholders should be made defendants. Ogilvie v. Knox Ins. Co., 22 How. (U. S.) R. 380; Hatch v. Dana, 101 U. S. S. C. R. 205.
    Ho right of action accrues to a corporation, against its stockholders for unpaid stock, payable on call, till a call for the same has been made by it. But when the corporation is insolvent, and no such call has been made by the corporation, a right of action accrues to the creditors of the corporation against such holders of unpaid stock, upon a call or demand upon them by the creditors, and the bringing of a suit by the creditors is a sufficient and timely call to sustain the action. Lamar Ins. Co. v. Moon, 84 Ill. 575; Thompson’s Liability of Stockholders, Secs. 15 and 119; Curry v. Woodward, 53 Ala. R. 371; Hatch v. Dana, 101 U. S. 205.
    Under the laws of Illinois the process of its common law courts, in ordinary common law suits, can not be served on a defendant outside of the limits of the State, and the attachment laws of the State confer no jurisdiction upon its common law courts when the defendant in attachment has no property within the State, either in his own hands or in the hands of another, susceptible of being levied upon and taken in execution, nor is any debtor within the State, liable to him on a claim recoverable at law. R. S. 1874, Chap. 110 (Practice Act) Sec. 2; May v. Baker, 15 Ill. 89; Thormeyer v. Sisson, 83 Ill. 188; Clymore v. Williams, 77 Ill. 618; Samuel v. Agnew, 80 Ill. 553.
    A foreign corporation that does no business in Illinois, and has no office or local agent there for the transaction of business, is outside of the ordinary jurisdiction of the common law courts of the State, and no process issuing from such court, in ordinary common law suits, can be served upon it. Midland Pacific R. R. v. McDermid, 91 Ill. 170; Angell & Ames on Corporations, page 64, Sec. 5; p. 97, Sec. 2.
    Mr. William W. Beery, for John Schmidt, appellee.
    Messrs. Carter & Govert and J. Sibley, for Rupp Brothers and Deuerlein, appellees.
    This proceeding amounts simply to an ordinary creditor’s bill to reach assets of the corporation in the hands of third parties, not subject to levy and sale upon an execution against the company. It is an effort on the part of the creditors to reach the equitable estate of the corporation before reducing their claims to judgment and the issuance of execution upon the judgment, where an execution could rightfully issue. At the very threshold of the case, we meet an insuperable obstacle to any relief in a court of equity. For the very ground of equity jurisdiction in such cases is, that the creditor must first have exhausted his remedy at law against the debtor, by reducing his debt to judgment and obtaining an execution previous to resorting to a. court of equity to reach the equitable assets of the debtor in the hands of a third party. This, as a general proposition, may be admitted, but can not be denied. Hence, until the complainants have exhausted their remedy at law by first obtaining a judgment and execution against the Alabama Mining and Manufacturing Company returned unsatisfied, they have no standing in a court of equity. Manchester v. McKee, 4 Gil. 511; Ishmael v. Parker, 13 Ill. 324; Greenway v. Thomas, 14 Ill. 271; Bigelow v. Andress, 31 Ill. 322; Steere v. Hoagland, 39 Ill. 264; McConnel v. Dickson, 43 Ill. 99; Dewey v. Eckert, 62 Ill. 218; Patterson v. Lynde, 112 Ill. 196; Payne v. Sheldon, 63 Barb. 169; Dunlevy et al. v. Talmadge, 32 N. Y. 457; Wiggins v. Armstrong, 2 Johns. Ch. 144.
    The judgment must be a domestic one upon which an execution can issue in this State, and it is therefore held that a judgment obtained in the Federal Court even is to be treated as a foreign judgment for this purpose and is not such a judgment as to give a court of equity jurisdiction to grant relief to the creditor. Tarbill v. Griggs, 3 Paige, 207; McLeeme v. Bencan, 2 Ired. Eq. 513; Davis v. Dean, 26 N. J. Eq. 436; Furnard v. Harris, 11 S. & M. 366; McElmoyle v. Cohen, 13 Pet. 312; Steere v. Hoagland, 39 Ill. 264; Patterson v. Lyne, 112 Ill. 196; Freeman on Executions, Secs, 427-428.
   Pleasants, P. J.

The bill herein having been dismissed on demurrer thereto by the individual defendants, the sole question here is upon its sufficiency. Appellants filed it as creditors of the defendant company, on behalf of themselves and all others in like case who should join therein, against the corporation and certain of its stockholders, to reach balances alleged to be due it for stock subscribed for, issued to aud still held by them respectively. It is a purely foreign corporation that never did any business or had any office or agent in Illinois, and when the bill was filed had ceased to do any or to have any office, officer, agent, employe, stockholders or debtors, or any books, papers or property of any kind in Alabama, where it was incorporated, and was unable to pay its debts without resorting to those balances, which it had hitherto neglected to do, but was sti'l in existence. Complainants respectively had there obtained judgments, or money decrees, against it, on which executions were issued and returned nulla hona, but none here. The defendant stockholders, from a time prior to its organization, continuously resided and still reside at Quincy, Illinois. When they subscribed for their stock they made an agreement with the company, unknown to complainants when its indebtedness to them was contracted, by which only a small percentage of the amount subscribed for the shares issued to them was to be paid or called for, and this percentage was paid by them, but the balance of their subscriptions is-much more than enough to satisfy all the claims of complainants.

It is declared by the act of incorporation that “ any person subscribing for or owning stock in said company shall be liable for the debts and liabilities of the company in proportion to the amount of' their stock.” This liability rests as wrell upon those who have, as upon those who have not, fully paid for their stock, and is not what is here sought to be enforced. The bill expressly avers that “no redress is sought upon the statutory liabilities of the stockholders of said company created by its charter; that the sole object of this bill is to reach said unpaid balances on the aforesaid stock, owned and held by said defendant stockholders as aforesaid, and have the same applied in payment of the complainants’ said judgment and decree claims.” There is nothing in the charter of the company, or any other positive law of Alabama, relating to indebtedness on subscription for stock. It is governed by the general law, which treats it as a trust fund, like other assets of the corporation, for the payment of its debts. 2 Story’s Eq. Jur., Sec. 1252; Wood v. Dummer, 3 Mason, 308; Curran v. Arkansas, 15 How. 304; Sawyer v. Hoag, 17 Wall. 610; Sanger v. Upton, 91 U. S. 60; Patterson v. Iynde, 106 U. S. 520; Spear v. Grant, 15 Mass. 505; Bartlett v. Drew, 57 N. Y. 587; Thompson on Liability of Stockholders, Sec. 10.

The principal objections to the bill, urged on demurrer, are the want of necessary parties and of a domestic judgment or decree against the defendants; and the principal authority cited in support of them is Patterson v. Lynde, 112 Ill. 196, in which the demurrer was sustained and the bill dismissed on these grounds.

That case, in most of its features, was singularly like the one at bar, but with these differences: there the domicile of the corporation was in Oregon, and by the Constitution and statute of that State, as had been held by its Supreme Court (in Ladd v. Cartwright, 7 Ore. 329), the liability of the defendant stockholders was for the debts of the corporation fro rata, and so enforceable only in equity,where the rights of the corporation and all its creditors and delinquent stockholders could be adjusted in one suit, and before suit brought they had, at least in form, assigned their stock, so that under the statute they were liable for the balance unpaid by them only in case and to the extent that the assignee had not paid it Neither the other delinquent subscribers nor the assignee of the defendants were made parties.

"We do not understand that by the general law or any rule recognized in this State, the creditor of a corporation seeking only to reach indebtedness due it on subscription for stock, and not to wind up its affairs, is in all cases required to bring into court any other than the corporation and its stockholders, whose indebtedness is sought to be reached. Hatch v. Dana, 101 U. S. 205, and cases there cited; Patterson v. Lynde, 112 Ill. 196 ; and no objection to this bill, on account of parties or the want of any, is perceived.

An important question, as bearing upon the character of the bill and the jurisdiction of equity, is the relation sustained by the delinquent stock subscriber to the creditors of the corporation. Appellants claim that as to what is due on the subscription, it is that of a trustee, directly, on the well settled principle that whoever is found in possession of a trust fund, obtained with notice of its character, holds it cum onere% and is bound to account therefor, as trustee, to those beneficially interested. Thompson’s Liability of Stockholders, Secs. 13,10 and 9, and cases cited in notes. This principle is nowhere more forcibly asserted than by our own Supreme Court in the case of Clapp v. Peterson, 104 Ill. 26, in which it was held to rest upon the reason that the act by which the property or fund is thus obtained is essentially a fraud upon the cestui que trust. And even though it be by contract with the trustee,, valid as between them and free from actual fraud, if it is clearly injurious to his rights, he may impeach the transaction, pursue the property or fund so far as it can be traced, and' except as against an innocent purchaser, subject it to the purposes of the trust. It also holds, in harmony with all the authorities, that the capital stock of a corporation, or indebtedness for it, is a trust fund for the benefit and security of its creditors, and a stockholder is conclusively chargeable with notice of its character as such, so that with respect to it he can not be an innocent purchaser. Indeed, while all indebtedness to the corporation, like all its other assets, is a trust fund for that purpose, indebtedness for its capital stock is said to be different from any other in that, and so far as we are aware, only in that it is not subject to set-off of claims due to the debtor from the corporation. Sawyer v. Hoag, 17 Wall. 610.

notwithstanding all this, however, we hold that the subscriber for capital stock docs not, as such, sustain any. direct trust relation to the creditors of the corporation, but is simply and solely its debtor. He is not in possession of any thing that is or ever was a part of the trust fund. What he has is a certificate, showing in him a certain amount of the capital stock, with whatever rights and liabilities are incident to it. But this is represented by and consists of his obligation upon his subscription which is said in Patterson v. lynde, 106 U. S. 520, to be “part of the assets of the corporation, at least so far as creditors are concerned; ” and this obligation is in possession of the corporation. The certificate is his own, and rightfully so, as against the creditors. The contract by which he obtained it was not a fraud upon them on his part, nor an abuse of its trust on that of the corporation, as in Clapp v. Peterson, supra. '' His liability and relations, then, must be determined by that contract. It defines and limits them. The promise in terms is not to or for the creditors of the corporation but to the corporation itself, and so, as in other like cases, can be enforced only by or through the other contracting party, the promisee, or its legal representatives. He is simply its debtor and it alone is trustee for its creditors. There is no privity between him and them. So we understand the authorities. Patterson v. Lynde, 106 U. S. 520; Scovill v. Thayer, 105 U. S. 155-6; Hatch v. Dana, 101 U. S. 210; Terry v. Anderson, 95 U. S. 636; Ogilvic v. Knox Ins. Co., 22 How. 380; Patterson v. Lynde, 112 Ill. 196; Hickling v. Wilson, 104 Ill. 54, 63. In these Illinois cases, and in Hatch v. Dana, it is said the creditor of the corporation reaches its debtor not directly as a cestui qxie trust but by subrogation to its rights, in a proceeding in the nature of an equitable attachment, in other words, by a creditor’s bill or proceedings supplementary to execution. Thompson on Liability of Stockholders, Sec. 12-, and eases cited.

We regard this bill, then, as a proper creditor’s bill, seeking to reach certain assets of the complainants’ debtor by the aid of a court of equity because they can not reach them at law.

But to do this, the rule is, they must show they have exhausted . their remedy at law by obtaining a domestic judgment and having execution thereon returned unsatisfied. Patterson v. Lynde, 112 Ill. 196; Dewey v. Eckert, 62 Ill. 218 ; Greenway v. Thomas, 14 Ill. 271. The complainants here do not show it.

It is said, however, that there are cases which are exceptions to, or outside of, this rule, and counsel describe four classes of such, each of which is claimed to embrace the one act at bar.

Jd'irst. “Where the creditor’s claim is to be satisfied out of a fund which is accessible only by the aid of a court of equity.”

The fund here intended must be one not otherwise accessible by the immediate creditor of the party holding it—that-is to say, a trust fund in his hands for the benefit of the complainant; as in the cases cited in support of this proposition, which are Russell v. Clark’s Ex., 7 Cr. 69 ; O’Brien v. Coulter, 2 Blackf. 421. See also Beach v. Bestor, 45 Ill. 341. It can not mean the legal credits of the primary debtor, which is the fund here sought. Otherwise the exception would be broader than the rule. The claims of the corporation here are such, as would be satisfied, not out of any particular fund, but generally out of the goods and chattels, lands and tenements of the indebted stockholders, which the corporation could reach by execution at law.

Second. “Where the debtor primarily liable is entitled to indemnity from another, equity will enforce the claim at the suit of the creditor against the party ultimately liable, treating it as a trust, and no such judgment is requisite.”

If we understand this proposition, we suppose the remedy would be not by a. creditor’s bill, but a bill to enforce the execution of a direct trust, as in the cases last above referred to. A subscriber for stock, however, as we have attempted to show, is not an indemnitor of the indebted corporation, nor a trustee of its creditor, nor ultimately liable for its debts any more than is its debtor, who is not a stockholder. If the fact that the corporation is insolvent and unable to pay its debts except by resorting to what is due it on subscription for stock may limit its right of recovery against the subscriber to what is required for such payment, it is not because he is an indemnitor, but because as a stockholder he has, as against it, a counter claim for the excess. But to that extent he is simply its debtor, and liable as such like any other.

Thvrd. “Where the debtor is so situated that no service of common law process can be had on him and no judgment at law can be obtained against him.”

Without now stopping to question or consider the soundness of this statement in all its breadth, we observe it does not embrace the case in hand if, as we think, there is an absolute legal liability on the part of the defendant stockholders to the defendant company xxpon their subscriptions for stock, for, while its non-residence without an officer or agent xvithin the jurisdiction, would prevent personal service upon it of common law process, the further fact that it had such resident debtors would make it liable to a sufficient judgment by the statutory process of attachment and garnishment.

Fourth. “When no lien could be created by such judgment, or by an execution issued thereon, xxpon the property or thing sought to be reached by the bill to satisfy the credit- or’s claim.”

It is possible we do not apprehend the meaning of counsel in this statement. In xxo case of a creditor’s bill is the preliminaxy judgment against the primary debtor, or the execution issued thereon, a lien upon his credits or other assets sought to be reached. It is for that reason that the bill in equity is brought, but the jxxdgment and execution are, nevertheless, indispensable requisites to its maintenance.

Then it would seem that the want of a judgment at law of a court of this State, and exeention thereon returned xxnsat'is-' lied, must be fatal to this bill. Such want appears to have been so considered in the case of Patterson v. Lynde, 112 Ill. 196, though the debtor there, as here, was a purely foreign corporation.

But counsel suggest that this might well be said in that case because there was nothing there to hinder a judgment in attachment; that the indebtedness of the stockholders to the company might have been garnisheed and judgment thus obtained against the company; but that it was not so with the indebtedness of these defendant stockholders, because of the secret agreement with the company that it should make no further assessment or call upon their subscriptions; that this agreement was valid as between the parties to it and would bar a recovery by the company; and that the plaintiff in attachment could recover against the garnishees only what was due as between them and the defendant in the attachment.

It is true that in garnishment the issue is npon the indebt • edness of the garnishee to the defendant in the attachment, and it follows, as a rule, that a defense which is good as against the defendant, is good also as against the plaintiffs. But the agreement referred to was good in equity as well as at law against the corporation, and so if it would prevent a judgment against the garnishee, why not also a decree npon a creditor’s ' bill? It would, therefore, seem that the rule should not apply to a release which, though valid as against the releasor, is void as to his creditor for whose use the debt so released is sought to be reached. The recovery in garnishee proceedings is on their face as plainly for the use of the plaintiff in attachment as it is for the complainant in a creditor’s bill. In both alike it is based on the claim of the primary debtor upon his debtor, and if a court of equity may disregard a release to the latter which would be a fraud upon the complainant, it must he a .purely technical and unsubstantial reason that would prevent a court of law from doing the same. The proceeding against a garnishee by attachment, though statutory and in a court of law, is in some sense an equitable one, and the equities of the parties as well as their strict legal rights are taken into consideration. The statute authorizes the attachment of the defendant’s claims for the nse of the plaintiff, and no defense by the garnishee which is a fraud upon him should be admitted. See Crain v. Gould, 46 Ill. 294.

That the secret agreement in this case was void as to creditors of the corporation is alleged in the bill and clear beyond question. Sanger v. Upton, 91 U. S. 60; Scovill v. Thayer, 105 Ill. 143. And however it might be before, it could not be interposed as a defense, even at law, after it was judicially so found and declared. See the case last above cited. This agreement was substantially so found and declared by the court of last resort in Alabama, in a suit between these same parties, as also appears by the bill. It shows that these defendant stockholders, having a claim against the corporation secured by trust deed of its land in that State, and having directed the trustee to advertise its sale in default of payment, the complainants here filed their bill in equity against said company, defendant stockholders, trustees and others to enjoin the sale so advertised, and for other relief, on the ground alleged that said defendants respectively were largely indebted to the company on their subscriptions for stock; that the company was indebted to the complainants and without means to pay them except said land and the money so due from said defendants; that it had refused and neglected to call for payments on said unpaid subscriptions, and that said lands were insufficient for that purpose, and, therefore, that it was inequitable to the creditors that the defendant stockholders should appropriate the land to the payment of their claim against the company while they were thus indebted to the company for n capital stock in a sum largely exceeding the value of said land and the company’s indebtedness to all its creditors other than said defendants. This bill was contested, all the defendants here appearing by their solicitors. The court found and declared the amounts due from the corporation to the complainants and from the defendant stockholders to the company respectively, enjoined the sale of the land under the trust deed, ordered it to be sold by its own officer and excluded the defendant stockholders from participation in the t proceeds except upon cond tion that they should first pay into court the amount remaining unpaid on their stock, for the benefit of the creditors of the company. This decree was affirmed by the Supreme Court on appeal by the defendants, and the sale was made and proceeds distributed to the other creditors fro rata,.to the exclusion of the defendant stockholders. The balances remaining unsatisfied by those proceeds are what the complainants are here seeking.

Thus in the interest of other creditors of this corporation was a specific lien, of those defendants upon its property for a valid claim of over $11,000, set aside on the ground that at least so much of what remained unpaid on these subscriptions as was required to satisfy the claims of these creditors was a valid and subsisting indebtedness, notwithstanding the secret agreement of release, and the amount still so required after the application of the proceeds of "the land sale has also been judicially ascertained and declared.

We think, upon the authority of Scovill v. Thayer, supra, that these proceedings removed whatever hindrance may have previously existed to a recovery at law by the company against the delinquent stock subscribers for the use of these creditors. In substance and effect they amount to a cancellation of the agreement of release to the extent required for their satisfaction, and to a call for that amount so required. Their liability to the company for it was legal and fixed, and it could have been reached and made available to them by garnishment. For a case in point see In re Glenn Iron Works, 17 Fed. Rep. 324. There was then no necessity for the intervention of equity, and upon the authority of Patter, son v. Lynde, 112 Ill. 196, specifically, and the cases there cited generally, the demurrer was properly sustained. The decree will therefore be affirmed.

Decree affirmed.


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    DeWitt County National Bank v. Ira I. Nixon et al.

      Note—Indorsement in Blank—Whether a Guaranty—Conflict of' Evidence.

    1. Clear proof is required to overcome the presumption from a blank indorsement by a third party that a guaranty was intended.
    2. Where the question involved is one of fact and the evidence is conflicting, the finding of the jury will not be disturbed.
    [Opinion filed June 14, 1887.]
    In error to the Circuit Court of DeWitt County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. George B. Graham and O. E. Harris, for plaintiff in error.
    The signature of a third person on the back of a note, in the hands of the payee, is friona facie evidence that it was placed there as a guaranty. Camden v. McKoy, 3 Scam. 437; Cushman v. Dement, 3 Scam. 497; Carroll v. Weld, 13 Ill. 682; Klein v. Currier, 14 Ill. 237; Webster v. Cobb, 17 Ill. 459; Parkhurst v. Tail, 73 Ill. 343; Glickauf v. Kaufmann, 73 Ill. 378; Pahlman v. Taylor, 75 Ill. 629; Stowell v. Raymond, 83 Ill. 120.
    “In order to rebut the legal presumption (of guaranty) the proof must be clear and satisfactory as to a different intention.” Stowell v. Raymond, 83 Ill. 120; Cushman v. Dement, 3 Scam. 497; White v. Weaver, 41 Ill. 409; Glickauf v. Kaufmann, 73 Ill. 378.
    Messrs. Moore & Warner, for defendants in error.
    The holder of a negotiable note, indorsed in blank, may fill up the blank with such undertaking as is consistent with the nature of the instrument and the intention of the parties, and Ihe indorsement of a note in blank, by a third party, raises' a presumption only, that it is intended thereby to assume the liability of a guarantor, which may be rebutted by proof that the real agreement between the parties was different. Eberhart v. Page, 89 Ill. 550; Boynton v. Pierce, 79 Ill. 145; Webster v. Cobb, 17 Ill. 459.
    Where the evidence is conflicting, and that produced by either party, considered alone, is sufficient to require a verdict in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence. Howitt v. Estelle, 92 Ill. 218; Lewis v. Lewis, 92 Ill. 237; Buchanan v. McLennin, 105 Ill. 56; Clark v. Day, 93 Ill. 480; Connecticut L. Ins. Co. v. Ellis, 89 Ill. 516; Sullivan v. Dollins, 13 Ill. 85.
   Pleasants, P. J.

Plaintiff in error brought this suit against the defendants, who were co-partners, on an alleged guaranty of a note made by Cresmer Brothers and Danison for $1,273.50. Their firm name only was indorsed, and the president of the bank wrote the guaranty over it. Nixon, the partner who so indorsed it, testified that the agreement was to be responsible only in case the money could not be made out of the makers, and for that reason he refused the request to sign it as security. It further appears that the president wrote to the defendants expressing a willingness to extend the time of payment to the makers, if they, the defendants, as “indorsers,” would consent. And although the use of the term “indorsers” is, perhaps, sufficiently explained as being the language of the clerk who wrote by his authority as to the substance, the requirement of their consent is not, and indicates that he did not understand they were guarantors, whose consent would not be necessary in order to preserve their liability. The president denied all recollection of the conversation related by Nixon, but the latter was clear and positive about it, and it was for the jury to find the fact upon this conflict of evidence. Clear proof is required to overcome the presumption from a b’ank indorsement by a third party that a guaranty was intended, yet we can not say it was not so found and properly found. There being no complaint except of the verdict, the judgment for defendants will be affirmed.

Judgment affirmed.


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    James R. Ward v. Thomas Luneen.

      Conveyances—Deceit as to Title—Action on the Case—Defective Declaration—Fraud—Necessary Averments—Demurrer.

    1. A deceit, as to title, in a pretended sale of lands, to support an action on the case, must be an actual fraud involving the use of known and positive falsehood, or the suppression of known truth amounting to a falsehood, in respect of some matter of fact, and be material as an inducement to the conduct of the party deceived.
    2. An allegation, in general terms, that the defendant fraudulently executed a deed, or fraudulently induced the plaintiff to accept it, is not a sufficient allegation of fraud. The facts constituting the fraud relied on must be set forth in the declaration:
    3. A general assertion of title is not such a repres'-ntation of fact as is required to be alleged and proved to sustain an action of deceit.
    [Opinion filed June 14, 1887.]
    Appeal from the Circuit Court of Greene County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. James R. Ward and Frank A. Whiteside, for appellant.
    Messrs. Withers & Henshaw, for appellee.
   Pleasants, J.

The only question in the record is upon the sufficiency of the declaration, to which the Circuit Court sustained a general demurrer, and thereupon rendered judgment for the defendant.

It contains but one count, which avers that the defendant, on May 10, 1884, wrongfully and unlawfully bargained, sold and warranted to the plaintiff, the fee simple title” to lots 91 and 92, of the original town of Carrollton, for $7,500, payable, according to the terms of plaintiff’s note then given therefor» on or before June 1, 1884; that he then and there “made, acknowledged and delivered to the plaintiff his warranty deed of conveyance, in fee simple, of the said real estate, and then and there wrongfully, unlawfully and fraudulently induced the plaintiff to take and accept said deed of conveyance, and to part with and to deliver to defendant the promissory note in consideration and. payment thereof; * * * and that the defendant did not own and had no lawful authority to bargain, sell, convey and warrant to the plaintiff, as aforesaid, the fee simple title to said real estate, as the defendant then and there well knew.”

It then proceeds to state at length that upon discovering, shortly afterward, for the first time, that defendant had no title, he informed him thereof, tendered a reconveyance, and demanded the return of his note, “ but the defendant then and there wrongfully contriving to injure and defraud the plaintiff, and to enforce the payment of the said note by the plaintiff, wrongfully, unlawfully and fraudulently refused,” by means whereof the plaintiff was compelled, at great expense, to prosecute a bill in chancery against him for injunction and other relief, in the Circuit Court, and also in the Appellate Court, where the decree in favor of plaintiff was affirmed ; that upon the rendition of said decree he made a like tender and demand, as before stated, which was in like manner as before refused; and again upon its affirmance; and that the defendant, persisting in such refusal, afterward sold and conveyed said lots to other parties named, and converted said note to his own use.

Manifestly the cause of action counted on was not conversion of the note, but deceit, as to title, in the pretended sale of the lots.

Such deceit, to he a good cause of action, must be an actual fraud involving the use of known and positive falsehood, or the suppression of known truth, amounting to falsehood, in respect to some matter of fact, and be material as inducement to the conduct of the party deceived thereby. Merwin v. Arbuckle, 81 Ill. 501; Budlong v. Cunningham, 11 Ill. App. 28

"We think this declaration fails to state sufficiently such a case. It does not set forth .with certainty to a common intent any particular fact or matter of fact, in relation to which it avers that any false representation was made, or the plaintiff was deceived. The terms “ wrongfully ” and “ unlawfully,” used to characterize the execution of the deed, and the further term “ fraudulently,” applied to the act of inducing its acceptance, do not add materially to the averment of what was done. The facts supposed to have made it unlawful, wrongful or fraudulent should have been stated, unless the acts were such as of themselves necessarily imported these qualities. Mr. Chitty says: “The words ‘duly,’ ‘lawfully,’ ‘sufficient,’ etc., without showing the matter of fact with convenient certainty, are seldom of avail in pleading.” 1 Ch. Pl. (marg.) p. 236. In Slack v. McLagan, 15 Ill. 242, 249, it was said that “ to hold it to be a sufficient allegation of fraud to allege in general terms that certain fraudulent representations were made * * * is not sustainable upon the principles of pleading or of justice. The facts constituting the fraud should be set forth.” To the same effect are Beatty v. Uickerson, 73 Ill. 605; Hopkins v. Woodward, 75 Ill. 62. In Roth v. Roth, 104 Ill. 35, 47, Mr. Justice Ivlulkey, delivering the opinion of the court, said: “It is not sufficient, as it has often been held by this court, for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally; but the complaining party must state in his pleading, and prove on the trial, the specific acts or facts relied on as establishing fraud.” Then the allegation, in general terms, that the defendant fraudulently executed a deed, or fraudulently induced the plaintiff to accept it, is not a proper allegation of fraud.

Thus the entire substance of the declaration is comprised in the statements, (1) that for a valuable consideration the defendant bargained, sold and warranted to the plaintiff the fee-simple title to the lots described, and executed his warranty deed of conveyance thereof in fee simple; (2) that he did not own them- nor have any lawful authority thus to bargain, sell, convey and warrant them, and (3) that he knew he did not own them or have such authority.

These statements fail to show any representation whatever, true or false, respecting any matter of fact, unless a general assertion of title is such a representation, and the one first above given sufficiently avers such assertion.

We are inclined to hold against both these propositions. The declaration, in all its averments, is to be taken most strongly against the plaintiff. It does not purport to set out the language of the deed, nor state with certainty its legal effect. The clearest phrase is he “ warranted to the plaintiff the fee-simple title.” But against whom or what did he warrant it? It is said he “ bargained and sold” the lots. But whether the deed contained any express covenant or what Were the words of conveyance, does not appear. If they were “bargain” and “sell,” the statute declares their effect to be that of a covenant that the grantor was seized of an indefeasible es ate in fee simple, free from incumbrances done or suffered from him, as also for quiet enjoyment against him, his heirs and assigns (R. S. 1874, Chap. 30 Sec. 8); which is held to be only a covenant against his own acts. Prettyman v. Wilkey, 19 Ill. 242; Hawk v. McCollough, 21 Ill. 220. Such a covenant is a warranty, and a deed containing it a warranty deed. But if the defendant represented no more than “ that he had done no act, nor created any incumbrance, whereby the estate granted by him could be defeated,” he asserted no particular interest, nor title generally. Nor would the averments that he had no title and knew he had none, be a traverse of that representation; and for that reason also the declaration would be bad. Slack v. McLagan, 15 Ill. 242, 249; Dwight v. Chase, 3 Ill. App. 67; Stephen Pl. 154; 2 Chitty Pl. 688. Thus we have only the conclusion of the pleader, and that uncertainly stated, as to the representations expressed or implied by tire conveyance, and no averment that any other was made.

Nor is a general assertion of "title, if it had been properly averred, such a representation of fact as can be the subject of complaint for deceit. Title is not a fact in the sense of the rule of pleading that here applies, but a right, estate or interest arising from facts proper, under rules of law applicable to them. Absolute title in fee simple to real estate is the highest degree of right or interest therein.

In the case of town lots it must always depend, under these rules, upon divers facts, and whether in any given case they support the claim is necessarily matter of opinion. Its gen. eral assertion is, therefore, assertion of matter of opinion and not of fact. So marked is the distinction, in the common understanding, that no sensible person would consider his veracity brought into question by a refusal to accept such assertion as reliable. lie would certainly expect an ordinarily prudent man, contemplating a purchase, unless already otherwise informed, to make further inquiry or examination.

And this suggests another reason for the conclusion that mere assertion of title is not such a representation as is required to be alleged and proved in order to maintain this action. It must appear, cither on its face or by other circumstances alleged, to be such that the plaintiff, as a reasonably prudent man, would be justified in relying and acting upon it. He can not rightfully complain of deceit in respect to any matter as to which, by the exercise of ordinary.cr.ro. he could have detected Eames v. Morgan, 37 Ill. 260; Schwabaker v. Biddle, 99 Ill. 343. How, the facts required to constitute title in the defendant were not peculiarly within his knowledge. Under the registry acts, at least enough of them to show a prima facie case for or against his claim, were open to the plaintiff, and an examination of the records, with such further inquiry into matters in pais, as they suggested, was clearly a dictate of the most ordinary prudence. ■ If he saw ñt he might rely, without further inquiry, upon covenants in his deed and have his remedy thereon in case of breach, but, to maintain an action on the case in the nature of deceit, we think more precaution was required.

Again, the representation complained of must be alleged to have been known to the defendant to be false when he made it and to have been made with intent to deceive. Owings v. Thompson, 3 Scam. 502; Sims v. Klein, Breese, 234; Hiner v. Reichter, 51 Ill. 299; Walker v. Hough, 59 Ill. 375; Fountleroy v. Wilcox, 80 Ill. 477, 481; Tone v. Wilson, 81 Ill. 529. How, while a general assertion of title includes all facts that under the rules of law are required to constitute it, yet, it does not indicate what particular facts are so required, or any of them, nor, though false in fact and a breach of covenant, does it imply a wilfully false assertion .of any that the grantor did not suppose to be so required. Therefore, from the averment of a general assertion of title, it cannot be known what particular fact is intended as having been represented with knowledge that it was false and with intent to deceive, nor what particular representation is traversed by the averment that he did not own the land described, and hence the necessity of alleging some particular representation of fact and traversing it specifically. For aught that here appears it may be that the plaintiff was fully apprised of all the facts affecting the title, including the defendant’s understanding that he had none, and yet, being of a contrary opinion, or for some other reason, was willing to take the deed for the price stated, especially if he was secured against loss, to his satisfaction, by the covenants therein contained. It is not necessarily true that a conveyance by one who understands he has no title, even by a warranty deed, is fraudulent or wrongful to the grantee, ■for there may be no deception in it or none that is wilful.

For these reasons we think the demurrer was.properly sustained, and the judgment will be affirmed.

Judgment affirmed.


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    Thomas Fernandes v. David E. McGinnis.

      Landlord and Tenant—Forcible Detainer—Conflict of Evidence—Instructions,

    1. Where the evidence is conflicting great accuracy in the instructions is required.
    2. In civil actions the plaintiff is not required to make out his case “ to the satisfaction of the jury.”
    8. In an action of forcible detainer, it is held: That the evidence was of such a character as to require accuracy in the instructions; and that certain instructions given for the defendant were erroneous.
    [Opinion filed June 14, 1887.]

      In error to the County Court of Sangamon County; the Hon. J. H. Matheny, Judge, presiding.
    Messrs. Bradley & Bradley, for plaintiff in error.
    Messrs. Cross & Broad well and J. F. Barrow, for defendant in error.
   Wall, J.

This was forcible detainer brought by the plaintiff in error against the defendant in error, to recover possession of certain lands in Sangamon County containing 133 acres. The lands were conveyed by defendant in error to WW. McGinnis, and as asserted by the latter, the defendant in error then became his tenant at the annual rental of eight per cent, on §50 per acre and the taxes.

W. W. McGinnis afterward conveyed the lands to Henry C. Latham, to whom defendant in error paid one year’s rent, and with whom, as is averred by him, a verbal agreement was made for an extension of the lease for another year. Latham conveyed the lands to plaintiff in error, by.whom this action was instituted after the termination of the year covered by the last or renewed lease. The case was tried by jury, resulting in a verdict for defendant in error. The court below denied a motion for new trial, and the record is presented to this court, various errors being assigned thereon.

The testimony upon tlie trial was given by the three persons named, W. W. McGinnis, Henry C. Latham and tlie defendant in error.

That of the two former strongly supported the plaintiff’s theory that tlie relation of landlord and tenant existed first with W. W. McGinnis and next with Latham, while the defendant in error insisted that he was never a tenant of either, but was a purchaser and rightfully in possession as such.

We do not care to discuss the relative weight of the testimony further than to say that we should have been better satisfied with a different verdict. Regarding the case as it appears from the record before us, the version of the defendant-in error is not so consistent with admitted facts as it should be, and while he insists that he was in as a purchaser, he fails to give the particulars of the purchase upon which he relies.

Perhaps, however, the evidence is not so strongly against the verdict as to require us to reverse the judgment, but it can not be doubted that the case was such as to call for accuracy in the matter of instructions.

The court gave the following instructions for defendants

•“ The court instructs the jury that in order to maintain this action the plaintiff must prove to the satisfaction of the jury, that Latham was entitled to the possession March 1, 1885, or that he leased the land in controversy to the defendant from the 1st day of March, 1885, for the term of one year, ending March 1, 1886, and unless the jury believe from the evidence that there was such a lease by Latham to D. E. McGinnis, commencing March 1, 1885, and ending March 1, 1886, you must find for the defendant.”
“ If the jury shall believe from the evidence that the defendant was, at and before the beginning of this suit, in the possession of the premises in controversy as purchaser thereof, they will find for the defendant.”
“ The jury is instructed that in order to maintain this suit the plaintiff must show, to the satisfaction of the jury, that Latham leased the premises to defendant from the 1st day of March, 1885, to the 1st day of March, 1886, and if they shall believe from the evidence that there was no such lease, they will find for the defendant.”

The first and third are objectionable for the reason that they require the plaintiff to make out his case by proof “to the satisfaction of the jury.”

In Herrick v. Gary, 83 Ill. 85, the Supreme Court, in commenting upon an instruction containing this requirement, say that it places the standard of proof higher than the law demands in civil controversies; that it is enough that the jury shall believe from the evidence, the essential facts are true, and that they may so believe, though the same may not be shown by the evidence “to the satisfaction of the jury.” “ This instruction requires not merely that the evidence shall produce belief in the mind's of the jury of the facts alleged, Ait that such belief shall be so strong as to be satisfactory. This is, perhaps, not quite so strong as to require proof beyond a reasonable doubt, but it approximates it. The mind can not well be satisfied as to a given proposition so long as such matter remains at all in doubt. For this reason the instruction must be condemned.”

In the case of Graves v. Colwell, 90 Ill. 612, a similar view was expressed. See also Buchman v. Dodds, 6 Ill. App. 25. In each of the cases cited it was held that the error was substantial and calculated to affect injuriously the rights of the party complaining. We must so hold in the present case.

The second instruction is objected to, and while it is somewhat vague and indefinite, yet, when taken in connection with others given involving the point as to whether tho relation of landlord and tenant existed between the parties, we are not prepared to say the jury were misled by it.

For the error indicated in the first and third instructions for defendant the judgment will be reversed and the cause remanded.

Reversed and remanded..