author: Lacey, J.

text:
    D. D. Alling v. Caroline A. P. Brazee, Administratrix.

      Booh Account — Death of Debtor — Admission of Boohs in Evidence— Sec. 3, Chap. 51, R. S.

    1. A plaintiff who has made the proper preliminary proof may produce bis books of account in evidence in an action against the administratrix of the debtor.
    2. Testimony of a creditor, in the absence of specific objection, that a certain account book “ was his book account and kept by him,” is sufficient preliminary proof to warrant the introduction of the same in evidence.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon. O. H. Hortost, Judge, presiding.
    Mr. A. D. Early, for appellant.
    Mr. E. F. Crawford, for appellee.
   Lacey, J.

This suit was originally brought before a justice of the peace by the appellant, who recovered in that court, and the cause was appealed to the Circuit Court, where, upon trial by the court without a jury, it found in appellee’s favor and gave judgment against appellant for costs, from which judgment this appeal is taken. The suit was originally brought against C. M. Brazee, the intestate of appellee, and judgment in the justice court was rendered against him, but at the trial in the Circuit Court C. M. Brazee had become deceased, and appellee had been appointed administratrix of his estate.

The action was based on a book account which the appellant presented against the deceased, C. M. Brazee. There was evidence in the case before the Circuit Court tending to show that C. M. Brazee, deceased, admitted the account, but it was weak and unsatisfactory.

The main point urged for reversal, is the refusal of the court to admit the book of accounts of appellant in evidence-The appellant was called as a witness and testified that he was the plaintiff; that the book now shown me is my book account where I kept my accounts of my work. It is a book of original entries, kept by me; is true and just. The account before me in this book is the account against Mr. Brazee.”

The appellant then offered the book in evidence, to which the appellee objected, and the court sustained the objection, to which ruling of the court the appellant excepted.

The correctness of this .ruling is now questioned. It will depend on the proper construction to be given to Sec. 3, Chajx 51, R. S., concerning evidence. It reads as follows:

“ Where, in any civil action, suit or proceeding, the claim or defense is founded on a book account, any party or interested person may testify to his account book, and the items therein contained; that the same is a book of original entries, and that the entries therein were made by himself, and are true and just.”

Sec. 1 provides; “ That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime; but such interest or conviction may be shown for the purpose of affecting the credibility of such witness; and the fact of such conviction may be proven like any fact not of record, either by the witness himself (who shall be compelled to testify thereto) or by any other witness cognizant of such conviction, as impeaching testimony, or by any other competent evidence.”

Then follows Sec. 2, limiting the operation of the above section, which reads as follows: “S o party to any civil action, suit or proceeding, or person directly interested in the event, thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard ór lunatic or distracted person, or as the executor, administrator, heir,, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called on as a witness by such adverse party so suing or defending, and also except in the following cases, namely:”

Then follow five different exceptions to the above inhibition, or rather exceptions to the exceptions to said Sec. 1.

There is some objection made by appellee’s counsel that the appellant did not, even if entitled to te.-tify to the preliminary facts under said Sec. 3, make the necessary proof that the entries were made by himself. That it was not, sufficient for him to swear that the book was kept by him.” We do not think the objection is well taken. If the proof had not been satisfactory, instead of a general objection to its introduction in evidence, it should have been objected that the preliminary proof was insufficient, when it could have been remedied.

The proof, we think, was sufficient, and the statute substantially complied with. Presbyterian Church of Hew Boston v. Emerson, 66 111. 269. We do not think that Sec 2 was intended to be an exception to the provisions of Sec. 3. The language of Sec. 2 is, ,cno person, etc., shall be allowed to testify, etc., in his own behalf by virtue of the foregoing section.” And the “foregoing section” is number 1 and not number 3.

Ho. 3 appears to be an independent section standing by itself, to the provisions of which there appears to be no exception named in the act. How the exceptions contained in number 2, which are limited to provisions of Sec. 1, can apply to Sec. 3, we are unable to see. The first section, no doubt, in providing that “ no person shall be disqualified as a witness,” etc., etc., means that “ no person should be disqualified as a general witness,” etc.

If this were not so there would have been no necessity for the enactment of Sec. 3. The proof which the plaintiff is allowed to make by Sec. 3, is in its nature preliminary proof, like that of the common law proof of the loss of deeds to enable the contents of the original to be shown by parol, or according to present statute, the record to be read. At common law, in many of the States a party might make the preliminary proof necessary to introduce books of account by his own oath. Strickland v. Wynn et al., 51 Ga. 600. The decision in that case allowed preliminary proof in the nature of the evidence offered here, to be made by the plaintiff, notwithstanding the debtor was dead, and the case defended by the administrator. The statute of Georgia contained provisions nearly exactly like Secs. 1 and 2 of our statute.

The decision was made on the basis that by common law the plaintiff could make such preliminary proof by his own oath prior to the passage of the statute and the statute did not repeal the law as it had existed. The statute contained no such provisions as section number three.

In North Carolina a statute similar to the provisions of Sec. 3 had existed for a long time, when a statute similar to Secs. 1 and 2 of our statute was enacted. In Leggett v. Grover et al., 71 N. C. 211, where a similar question as is here presented was raised as to the effect of the last statute on the first, it was held that the last did not repeal the old one. If Sec. 3 had been passed at a different time from Secs. 1 and 2, the case would have been similar to the case last above cited.

It could make no difference that our act is all in one. The statute in regard to evidence seems to be a general amendment of the common law rules on the subject of evidence and its production. At common law a party might introduce in evidence Ms books of account, provided he made certain preliminary proof. He was required to prove by evidence of disinterested witnesses the following points, to wit: That he kept no clerk; that the books were his books of account; that they were books of original entry; that the entries therein were in his handwriting; that they had settled by the same books and found them just and true; that some of the articles charged or work done were delivered or done about the time charged. Boyer v. Sweet, 3 Scam. 120.

This rule, as to the admissibility of a party’s account books, was an exception to the general rule of the common law, that no party was allowed to testify in his own behalf, or produce evidence that he had made himself, and grew out of the necessities of the case, and was intended to prevent a failure of justice, as in many cases a party would be wholly unable to prove his accounts unless he- could introduce his account book in evidence; but the right to so introduce the account book was hedged around with the foregoing preliminary conditions in order to protect the rights of the party against whom the account book was to be introduced, and to prevent fraud and imposition. The common law was extremely rigid and excluded every one from being a witness who had any interest in the event of the suit. There were one or two other exceptions to the general rule; one was that in a suit against a common carrier for the loss of baggage in-carriage, the plaintiff was allowed to testify in his own behalf as to what articles were contained in the package and their value. This exception also was adopted through necessity and to prevent the failure of justice. These exceptions held good not only in case the suit was brought against the debtor in his lifetime or against his administrator. They were of universal application.

In the course of time experience taught that the old common law policy, to exclude all persons from being witnesses who had any interest in the event of the suit, was not calculated to work for the general good of society, and a great change, though quite recent and long delayed, took place by the enactment of statutes repealing the old common law in that regard and allowing all parties to testify, with some limitations. The wonder is now with members of the bar and the general public how such an illiberal and narrow rule as the common law rule could ever have existed and why it was followed so long.

In regard to the requirements of the common law rule in respect to the introduction of account books it was found the preliminary proof required was in most instances exceedingly hard to make and in many cases could not be made; that the rule was so stringent that in many, and perhaps a majority of cases, ‘the account books could not be introduced on account of the impossibility to make proof of some one or more of the required facts to be proven. So the legislature, in the act generally liberalizing the common law rule of evidence, took cognizance of this rule in regard to the introduction of books of account and it came in for amendment; and was enacted as it was found in Sec. 3 above quoted, without limitations.

It may be more proper to say that it was repealed and superseded by the.new enactment in regard to it. Presbyterian Church, etc., v. Emerson, 66 Ill. 269. But, as we think, like the old rule on the same subject, it was intended, like it, to have unlimited application without regard to .the parties to the original transaction being dead or alive. Judging as well from the reason of the rule as the structure of the statute, as we have shown, we must hold that there is no limitation to the operations of the law as enacted in Sec. 3; that the appellant, having made the necessary preliminary proof, was entitled to have his books of account admitted in evidence, and that the court erred in refusing it.

Sec. 3 does not allow a party to testify generally to the items of his account any farther than is particularly specified in the section. He can not' be a general witness as to the items. It is not necessary to discuss other questions. The judgment is, therefore, reversed and the cause remanded.

Reversed and remanded,.


source: Caselaw Access Project

license: Public Domain

text:
    Morris & Lewis v. John M. Reticker.

      Sales — Fraud—Instructions.
    1. The mere suppression of facts as to his financial standing by a purchaser oE goods, is not fraudulent, unless his intention is to obtain possession of the goods and not pay for them.
    2. It is not error for the court to modify an instruction when the effect is simply to express the law applicable to the case.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Rock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. W. H. Gest and P. O’Mara, for appellants.
    Messrs. Pleasants & Hurst, for appellee.
   Lacey, J.

The appellants sued the appellee, who is the sheriff of Rock Island county, in an action of replevin to recover certain goods purchased by Willard G. Nickerson of appellants, residing and doing business in Philadelphia, Pennsylvania, and, before replevin, levied on by the appellee as the property of Nickerson, by virtue of certain executions issued out of the County Court of said county, one in favor of L. S. McCabe and one in favor of Wm. Meyer, against Nickerson, which judgments were confessed by said Nickerson.

The appellants claim that the sale by them to Nickerson of the goods in question was fraudulent on the part of the latter^ and that they have a right to retake the goods as against the execution creditors of Nickerson; that the latter are not Iona -fide purchasers without notice, and that they simply stand in Nickerson’s shoes. It is claimed by appellants that the fraud complained of by them was in the conduct of Nickerson at the time of the purchase of the bill of goods in controversy, of Wm. E. Somers, the traveling salesman of appellants, in that Nickerson made false and fraudulent representations in regard to his financial ability, which induced the sale, and also suppressed certain facts within his knowledge, with intent to defraud appellants by obtaining possession of the goods with intent not to pay for them. As to the alleged charge of false and fraudulent representations on the part of Nickerson, it is wholly denied by him, while they were testified to by Somers. It became a question as between those two witnesses, which the jury would believe; and we are unable to say that it was not justified in believing the testimony of Nickerson to the exclusion of that of Somers. Then the suppression of certain facts by Nickerson from Somers at the time of the purchase consisted in not disclosing to Somers the existence of certain judgment notes outstanding against Nickerson, including the notes upon which the judgments in favor of the execution creditors in this suit are based, amounting to about $1,500. It may also be properly claimed that he suppressed the further fact that he was indebted for goods to about the amount of $1,300 besides. It would not be a fraud in law, arising from the mere circumstance that these facts were suppressed, or other facts of like character, sufficient to annul the sale at the option of appellants, but in connection with the fact of such suppression it must further appear that it was done with the intent to get possession of the goods and not to pay for them. Or to authorize the court to instruct the jury, as though it were a matter of law, the suppressio veri must be under such circumstances as to lead irresistibly to the conclusion that such was the intent^ and where the court could pronounce that, no jury would be justified in finding otherwise. On the question: of the fraudulent intent on the part of Nickerson, as well as on the charge of false representation, we do not feel at liberty to hold that the jury were not justified in finding the issue for the appellee.

The appellants complain, also, of the action of the court below in modifying instructions Nos. 2 and 5, asked for by appellants, and the giving of them as modified. The objections made to the modification of the instructions are more in the nature of mere verbal criticism than of substance. It is claimed that the instructions, as asked, contained the hypothesis that the supposed suppression must have been made with the intention on the part of Nickerson not to pay for the goods, and that the modifications, while they presented the same idea, were couched in too strong language, being liable to mislead the jury in giving it to understand that the proof must show that “ a crime was committed by Nickerson in the purchase of the goods.” We do not think the criticism is just The words used by the court in its modification were that the suppression of facts must have been with the intent on Nickerson’s part to cheat and defraud ” when he bought them (the goods) or with intention of cheating plaintiffs.” The words used by the court imply no more than the law requires to make out appellant’s case. There must be an actual intent and purpose on the part of the purchaser in suppressing the material facts to obtain possession of the goods by such means, and not to pay for them. This amounts to cheating and defrauding. Besides, the expression used by appellants’ second offered instruction, “ and did not intend to pay for the goods,” is rather weak. This might imply that while he had no intention not to pay for them, he made the suppression without positive intention to pay for them. The jury might infer from it, if such a thing were possible, that if Nickerson’s mind in making the suppression in regard to paying for the goods was in a state of careless indifference, or inert on the subject, or he had not present or positive intention to pay for them, he would still be guilty of fatal fraud in suppressing the facts. It were better to make it plain to the jury what the law was, as the court did, by the modifications. The refusal on the part of the court to give appellant’s 6th, 7th and 8th instructions asked for, was not error. Each of them, as asked, omitted the hypothesis that the suppression must have been with intent not to pay for the goods, and the law was fully given in other instructions. We had occasion to fully consider the question of the sufficiency of similar instructions as those named in the case of Reticker v. Kotzenstein & Wachtel, 26 Ill. App. 33, and held them insufficient and reversed the judgment for such reason, citing Henshaw, v. Bryant, 4 Scam. 97; Patten v. Campbell, 70 Ill. 72; Morrill v. Corben, 13 Ill. App. 31; Catlin v. Warren, 16 Ill. App. 413; Flower v. Farwell, 18 Ill. App. 254, 341.

We see no error in the giving of appellee’s second and third instructions. They were not liable to mislead in the respects complained of. On the whole the jury was fairly instructed as to the law of the case.

The judgment of the court below is therefore affirmed.

Judgment affirmed.


text:
    City of Rockford v. Mary Falver.

      Municipal Corporations — Personal Injury — Dangerous Sidewalk — Ice and Snow — Negligence—Evidence—Privileged Comm unications — Instructions.

    1. A statement made by a witness to an attorney, no relation of attorney and client existing between them, is not a privileged communication.
    2. Evidence as to the extent of a city's streets, is not admissible in an action brought to recover for injuries suffered because of an alleged failure to remove snow and ice from a sidewalk.
    3. The appellant can not complain of an instruction given at the request of the appellee, which is substantially like one given upon his own request.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon. William Browh, Judge, presiding.,
    Messrs. A. E. Holt and Marshall & Taggart, for appellant.
    The instructions ignore the doctrine of the law, that the snow and ice, under the circumstances of this case, must constitute an obstruction, or defendant can not be held liable. The case of City of Aurora v. Parks was reversed for error in giving instructions as to the duty of the city in regard to accumulations of snow and ice, similar to the instructions in this case. The court says: “ They (the instructions) authorize the jury to find for appellee, if the sidewalk was unsafe and dangerous from ice and snow accumulating thereon, even though it had not accumulated to the extent to cause an obstruction. There may have been sufficient ice and snow on the walk to make it slippery, rough, uneven, dangerous and unsafe, and yet the appellant not be liable. To render the appellant liable, the ice and snow must have accumulated to such an extent as to cause an obstruction. Mere slipperiness and unevenness caused by the tramping, thawing and freezing, where the ice and snow has not accumulated to such an extent as to make it an obstruction, does not create a liability. These instructions are in conflict with the rule announced by the Appellate and Supreme Courts of this State. The Village of Gibson v. Johnson, 4 Ill. App. 288; City of Macon v. Smithers, 6 Ill. App. 47; City of Chicago v. McGiven, 78 Ill. 347; City of Quincy v. Barker, 81 Ill. 300; City of Chicago v. Bixby, 84 Ill. 82. They should not have been given.” City of Aurora v. Parks, 21 Ill. App. 459.
    Messrs. 17. C. Warner and Harry B. Andrews, for appellee.
    In Hew York, Massachusetts, Maine, Connecticut, Pennsylvania, Wisconsin and Iowa the courts of last resort have repeatedly sustained verdicts for personal injuries resulting from falls upon sidewalks which have been suffered and permitted to remain burdened with “ large and unusual accumulations of snow and ice.” Evans v. City of Utica, 69 N. Y. 166, 171; Todd. Adm’r, v. City of Troy, 61 N. Y. 506, 511; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 471; Luther v. Worcester, 97 Mass. 268, 271; Morse v. Boston, 109 Mass. 446; McAuley v. Boston, 113 Mass. 503; Gerald v. Boston, 108 Mass. 580; Collins v. Council Bluffs, 32 Iowa, 324; Dooly v. Meriden, 44 Conn. 117; Cloughessey v. Waterbury, 51 Conn. 405, 420 ; Cromarty v. Boston, 127 Mass. 329; Darling v. Westmoreland, 52 N. H. 413; Baltimore v. Marriott, 9 Md. 160, 178; Flynn v. Baltimore, 40 Md. 324.
    Whether a snow hummock is a defect is a question for the jury. Gerald v. Boston, 108 Mass. 580. Whether a walk is obstructed so as to be perilous to footmen is for the jury, subject only to the general qualification that all verdicts must rest on some evidence. Nebraska City v. Rathbone, 29 N. W. Rep 923. Whether a sidewalk is reasonably safe or dangerous is a question for the jury. Whitney v. Milwaukee, 57 Wis. 639. It was for the jury to draw the inference and form the opinion whether walking in consequence of ice was more difficult than usual. City of Rockford v. Hildebrand, 61 Ill. 159. The degree of care required of the plaintiff is a question for the jury Palmer v. Dearing, 93 N. Y. 10. . Whether sufficient time had elapsed to charge the city with constructive notice is a question of fact for the jury. Rehberg v. Mayor, etc., 91 N. Y. 144.
    Questions of negligence and of contributory negligence are ordinarily for the jury, and should not be withdrawn from their consideration unless the facts clearly warrant it. Born v. Plank Road Co., 101 Pa. St. 334. It is for the jury to decide whether the corporation has used ordinary care and whether the sidewalk was reasonably safe. Hall v. Lovell, 10 Cush. 260.
    Whether it was consistent with due care for appellee to proceed to cross the walk, was a question for the jury. South Bend v. Hardy, 98 Ind. 586; Pomfrey v. Village, etc., 104 N. Y. 469.
    All the law required appellee to do was to pass over in a careful and guarded manner. Owen v. Chicago, 10 Ill. App. 472; Lovenguth v. Bloomington, 71 Ill. 238; City of Rockford v. Hildebrand, 61 Ill. 158.
   Lacey, J.

This was an action on the case brought by the appellee to recover damages from the appellant for negligence on its part in neglecting to keep one of the sidewalks of the city free from an unreasonable and dangerous accumulation of ice and snow by means of which, while in the exercise of ordinary care, she slipped and fell, breaking her leg in the fall.

The cause was tried by a jury which found appellant guilty and assessed appellee’s damages at $300, upon which verdict judgment was rendered.

The main cause urged by the appellant for reversal is that the appellee’s instructions were erroneous in that they did not conform to the rule of law as laid down by this court in the City of Aurora v. Parks, 21 Ill. App. 462, in which case it was held that before a city can be made liable for damages occasioned by persons falling on the sidewalk by reason of the accumulation of ice and snow such accumulation must amount vo an obstruction. In that opinion this court followed various decisions of the courts of last resort of other States, as well as the Supreme Court of this State, cited in that opinion.

We are of the opinion that the appellant is not in a position to take advantage of any failure in the instructions in question to conform to the rule announced in the Parks case, if they do fail, for various reasons. First, the evidence very clearly shows that there was a very serious obstruction on the sidewalk in question which was one of the most frequented streets in the city, caused by the accumulation of snow and ice in ridges in the center of a narrow sidewalk from eight to eighteen inches in height, there being very little reliable testimony to the contrary. The jury, as we think, could not have reasonably found otherwise.

Secondly, the instructions given at the instance of the appellant as well as for appellee agree; and by them the jury were plainly told that if the sidewalk was rendered unreasonably unsafe by such accumulation of ice and snow, and the city had notice, then, if the accident was occasioned thereby, that would be sufficient to render the city liable, if the appellee was in the exercise of reasonable care for her own safety. The point now made as to the law seems to be an afterthought. The appellant can not be allowed to ask the court on the trial to instruct upon one theory of the law and, when it fails on the trial, appeal to this court and assign for error the giving of similar instructions on the part of appellee.

That would be to trifle with justice. The question in issue being the dangerous condition of the sidewalk occasioned by the accumulation of ice and snow, the appellant by its second instruction procured the law to be laid down by the court to the jury as follows: “ Its (the city’s) duty is only to use reasonable care to see that its sidewalks are reasonably safe for persons exercising proper care and caution in using them.” ,

By the third of appellant’s instructions the jury were told that “obstructions or defects in the sidewalk of a city to znake the corporations liable for an injury occasioned thereby must be of such a nature that they are in themselves dangerous, or such that a person exercising proper care and pi udence can not avoid danger or injury in passing them.”

The fourth of appellant’s instructions recognizes the same rule by implication. The instructions given for appellee only laid down the same rule in substance although it may be more clearly and in different words.

Next we come to the question of the ruling of the court on admission and exclusion of evidence. While the admission of evidence that the sidewalk where the accident happened was cleared off after the accident, might have been improper and incompetent to show that the city recognized its dangerous condition, if such was its purpose, we do not consider it, even if error, to be of sufficient gravity to cause reversal. Nor was it error to refuse to allow the appellant to show the extent of its sidewalks.

If the city was large and had a great extent of sidewalks it should be reasonably supplied with appliances commensurate with the work to be done in clearing them of snow. It would appear also that the time during which the sidewalk was obstructed with ice and snow was ample for the city to have cleaned it off.

The evidence allowed by the court in behalf of the appellee that the city was provided with appliances to remove snow speedily was in excess of what was necessary under the circumstances and could do no harm. If the obstructions were dangerous, then we think it clearly appeared that the city had ample time to remove them and the jury was justified in so finding.

We do not think it was error to admit the evidence of George M. Blake, who had been the attorney of appellant on the trial of this cause at a former term of court. Hart, the street commissioner, had been called as a witness by appellant, and testified that he had caused the sidewalk in question to be cleared of ice and snow January 24, 1886. Blake was called to show that Hart, at the former trial, had been consulted by him in reference to the clearing the sidewalk and that when questioned he failed to state to Blake that the sidewalk had been cleared. That Hart appeared to know nothing about when the sidewalk had been cleared. That he did not know whether the sidewalk had been cleared or not. That he, Hart, then examined his time book and reported to Blake that the time book showed that the men had worked, but where they had worked or what they did the book did not show.

This evidence was given in for the purpose of impeaching the witness Hart and we can not regard this knowledge obtained by Blake from Hart as privileged. The evidence was of a negative character and personal to Hart and only bore on his veracity. It was not evidence tending to show by any knowledge obtained by Blake that the city did not clear the sidewalk. In Granger v. Warrington, 3 Gihn. 299, it was decided that communications made by a party to a State’s Attorney in reference to a proposed criminal prosecution were not privileged, but might be given in evidence by such State’s Attorney against such party in a civil action in which he was a party. In that case the following citation was quoted with approval: “ But the privilege of exemption from testifying to facts actually known to the witness is in contravention to the general rule of law. It is therefore to be watched with some strictness and is not to be extended beyond the limits of the principle of policy upon which it is based. It is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other as an interpreter, agent, or attorney’s clerk. And this principle is confined to counsel and attorneys when applied to as such and when acting in that capacity.” Wilson v. Russell, 4 T. R. 753. Hnder this rule we think that communications made by: a street commissioner to an attorney for a municipal corporation on matters of this kind should not be regarded as communications made by the city to its attorney in confidence.

It is true, Blake leazvned these facts when he was acting as corporation counsel, yet they were not communications made by the city to its attorney by virtue of the relationship of client and attorney. Hart was only a witness and made the statement as a witness and not as agent of the city. We are of the opinion it would clearly be without the reason of the rule to regard these as privileged communications. Blake is only called on to state what he has 1 earned or failed to learn from Hart, a witness, which tends to contradict and impeach him upon his being offered as a witness by the city and swearing to a different state of facts.

Blake was not the attorney of Hart, nor was Hart the agent of the city to make the communications. Seeing no error in the record of sufficient importance to reverse the judgment it is therefore affirmed.

Judgment affirmed.


text:
    Danforth S. Clark et al. v. Osman J. Wilson et al.

      Assignment — Fraudulent Conveyance — Bill to Set Aside — Evidence— Acknowledgments.

      1. An acknowledgment of a deed to which is attached the notary’s seal, without his signature, is insufficient.
    2. The record of an unacknowledged deed will not be received as evidence of its execution.
    3. Conveyances can not be proved by parol, nor the execution of a deed by the admissions of persons not first shown to have been in privity with the title under which the grantee claims.
    [Opinion filed May 28, 1888.]

      In error to the Circuit Court of La Salle County; tho Hon. Charles Blanchard, Judge, presiding.
    Messrs. Bull, Strawn & Huger, for plaintiffs in error.
    If the acknowledgment to the deed was imperfect, still the recording of the deed was notice to subsequent purchasers of all it contained. Starr & C. Ill. Stat., Ch. 30, Sec. 32; Reed et al. v. Kemp, 16 Ill. 445; Stebbins v. Duncan, 108 U. S. 32.
    A deed may be valid and binding on the parties to it without any acknowledgment. Semple v. Miles, 2 Scam. 315; McConnell v. Reed, 2 Scam. 371; Robinson et al. v. Robinson et al., 116 Ill. 250; Roane v. Baker et al., 120 Ill. 308.
    And the execution of the deed may be proved by admissions of the grantor or any other competent evidence. Dundy v. Chambers et al., 23 Ill. 369.
    It is hard to see how the court below could dismiss the bill as to Boozle and Abram Wilson under the evidence, unexplained and uncontradicted. The evidence raised a strong presumption of fraud, and therefore it devolved upon Boozle to prove that he paid the purchase money for the property. Draper v. Draper, 68 Ill. 17; Brown et al. v. Welch, 18 Ill. 343.
    Whatever circumstances convince the mind that fraud has been perpetrated are sufficient to prove it. Bryant et al. v. Simonean et al., 51 Ill. 324; Reed v. Noxon, 48 Ill. 323; Carter v. Gunnels et al., 67 Ill. 270.
    Messrs. McDougall & Chapman, for Henry Boozle, defendant in error.
    The record of the alleged deed of Abram Wilson to O. J„ Wilson, under date of October 20, 1833, is not competent evidence, for the reason that the certificate of acknowledgment is not signed, and no effort was made to secure and make proof of the execution of the original, if, indeed, any such deed ever existed. Ill. Stat., Chap. 30, Sec. 21, Starr & Curtis’ Ed., p. 580; Ill Stat., Chap. 30, Sec. 32, Starr & Curtis’ Ed., p. 596; Reed v. Kemp, 16 Ill. 445.
    The rule is well settled that the declarations of a vendor after sale of land are not admissible to impeach the title of his vendee. Fyffe v. Fyffe, 106 Ill. 646.
    The admissions and declarations of a grantor of land made when the grantee is not present can not be admitted in evidence to invalidate his deed or to affect his grantee. Bentley et al. v. O’Brien et al., 111 Ill. 53.
    The statements of a vendor of land made after the sale are not admissible for the purpose of showing the transaction was fraudulent, or to prove any other fact affecting the title of the vendee. Gridley v. Bingham, 51 Ill. 153; Minor v. Phillips, 42 Ill. 123; Myers v. Kinsey, 26 Ill. 36; Simpkins v. Bogers, 15 Ill. 397.
    The alleged declaration of O. J. Wilson to George McDonald, in October, 1884, is not competent, for the. reason that though made prior to the deed of said O. J. Wilson to Abram Wilson, December 18, 1884, the defendant in error, O. J. Wilson, at that time had not, so far as this record shows, any title to or interest in said premises, nor was he in possession thereof, nor had he ever been the owner or in possession thereof; nor would the sale have been different had he been the owner and in possession thereof if made in the absence of Henry Boozle. Wash. Real Prop., Vol. 3, Sec. 53, p. 638, 4th Ed.; Barrett v. French, 1 Conn. 635; 6 Am. Dec. 241; Pettibone v. Phelps, 13 Conn. 445; 35 Am. Dec. 88, and note.
    The admission of 0. J. Wilson in his answer that, prior to December 18, 1884, he held the legal title to said premises, and the confession of Abram Wilson, by permitting a default to be taken against him, can not be regarded as evidence against Henry Boozle, their co-defendant. Russ et al. v. Mansfield et al., 25 Ill. 338.
    Messrs. Mayo & Widmer, for John J. Wilson, defendant in error.
   Lacey, J.

This was a bill brought by the plaintiffs in error, judgment creditors of defendant in error, Osman J. Wilson, in aid of the assignee for the benefit of the creditors of said Wilson, the assignee neglecting a,nd refusing to bring the suit.

It was sought by the bill to set aside certain deeds, mortgages, notes and acknowledgments of indebtedness executed and made by the said Wilson to different parties shortly before the execution of the deed of assignment by him, as fraudulent and void and as in fraud of the assignment.

"Upon final hearing the Circuit Court rendered a decree in said cause granting complainants certain relief and refusing certain other relief asked for.

Among the matters of relief asked for by the plaintiffs in error was the setting aside as fraudulent a certain supposed deed, executed by said Osman J. Wilson, the assignor, and wife, prior to his assignment (Dec. 18, 1884) to Abram Wilson in consideration of §1, as named in the deed, for the west one-half of lot 19 in Earlville, and also a deed on the same lot executed by said Abram Wilson and wife to Henry Boozle, one of the respondents, December 20, 1884, for a consideration named in the deed of §3,000, and also a certain promissory note executed by the said O. J. Wilson to his son John T. Wilson for the sum of §1,000 executed December 18, 1884, just prior to the assignment.

The court below refused the relief asked as to the above named deeds and note and dismissed the bill as to Abram Wilson and Henry Boozle, no relief being sought as to them except as to said-deeds, but held and decreed, as regards the note of $1,000 given to John T. Wilson, that it be allowed as a claim against the said estate of O. J. Wilson to be paid 'pro rata the same as other claims.

The above ruling and action of the Circuit Court is all that is sought to be reversed on this writ of • error.

It appears from the evidence that Abram Wilson was the owner of the said half lot in Earlville as far back as April 18, 1883, by deed to him of that date for said lot from the lega] heirs of Benjamin Reynolds. It therefore became indispensable for plaintiff in error to show that O. J. Wilson at some time owned the said lot in question, otherwise, he never having owned the lot and never having any interest in it, there could be no fraud in his conveyance to his son Abram by mere quit claim deed.

It appears from the evidence that O. J. Wilson never had possession of the lot; the possession always having been in Abram. In order to show that O. J. Wilson ever had title in the said premises the plaintiffs in error offered what purported to be the record of a deed to said lot by Abram Wilson and wife to him, dated October 20, 18S3. It appeared from an examination of the record that the deed purported to have been acknowledged before a notary public, and while a notary’s seal was attached to the acknowledgment the name of the notary was not signed to it.

The reading of this record in evidence was objected to by Boozle for the reason that the acknowledgment was not signed. We are clearly of the opinion that the deed was not properly acknowledged, so as to make the record evidence of the execution of the deed. We are also of the opinion that there was no other competent evidence of the execution of the deed. Certain witnesses, Kelley, Munson, Bliss, Poole and Taylor, were introduced to show admissions of O. J. Wilson, made out of the presence of Boozle after he had acquired title to the lot from Abram, to the effect that O. J. Wilson had been the owner of the land at one time; also McDonald, to show that prior to the time that O. J. Wilson executed the deed to Abram, October, 1884, and after the supposed deed from Abram to O. J., the latter claimed to own the lot.

We hold that none of the above evidence was competent to prove the execution of the supposed deed from Abram to O. J. Wilson. Abram had had a complete chain of title to the lot without deriving title to it through O. J. Wilson, and after the deed from Abram to Boozle he also had a complete title to the lot without reference to the deed from O. J. Wilson to Abram, unless it should be shown that the supposed deed'from Abram to O. J. Wilson had, in fact, been executed. The law did not require him to claim title through O. J. Wilson. He might rely on his chain of title without the latter’s conveyance to Abram Wilson.

Defendant in error’s (Boozle’s) title was not dependent on showing that O. J. Wilson once had title as supposed by counsol, but it was sought to prove that O. J. Wilson had once the legal title, as a starting point to attack the title of defendant in error, Boozle.

Such admissions are incompetent to show the execution of the deed either made after or before the deed from O. J. Wilson to Abram Wilson. Conveyances can not be proved by parol evidence and the execution of a deed can not be proved by the admissions of persons not first shown to have been in privity with the title under which the grantee claims.

Evidence of possession is competent to show title, but in this case O. J. Wilson never had possession of the lot. Even if admissions of the holder of the title to real estate may he competent evidence to impeach title when made by a person while the owner is in possession against his subsequent grantees under certain circumstances (a question we need not decide), yet this would be an exception to the general rule against hearsay evidence based on the ground that such admissions are made against the owner’s interests and are res gestm. But this ownership must in some way be shown by evidence other than the admissions. It would be just as competent to prove agency by the admissions of the supposed agent as to allow title to be shown by the declarations of the supposed grantee.

We are clearly of the opinion that the execution of the deed can not be proven by showing the state of the accounts between O. J. and Abram Wilson.

That throws no light on the subject. The plaintiffs in error can not invoke either the answer to the bill of O. J. Wilson or the default of Abram Wilson as admitting title against their co-respondent, Boozle. The latter not admitting, in his answer, title in 0. J. Wilson at any time, the matter must be regarded conformably to the rules of pleading as though expressly denied.

Plaintiffs in error are put on their proof. The plaintiffs in error having failed to prove the allegations of the bill and to show the execution of the alleged deed from Abram to O. J. Wilson, the question of fraud on the part of O. J. in the execution of his quit claim deed to Abram becomes immaterial, there appearing to he a complete title in Boozle without such deed. It would be improper to set aside Boozle’s title and subject the lotto sale for the payment of O. J. Wilson’s debts. There only remains to determine whether the §1,000 note given by O. J. Wilson to John T. Wilson was given for a bona fide debt. The evidence on this point is quite voluminous and we have examined it with care, but find nothing in it to convince us that the court below erred in holding that the note was given fora bona fide consideration. It would serve no good purpose to canvass the evidence in detail, and therefore we omit to do so. The allowance of the claim payab’e fro rata is also proper under the circumstances. We, upon the whole case, are satisfied with the decree of the court below.

The decree is therefore affirmed.

Decree affirmed*


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    John H. Evans v. The People.

      Bastardy Proceedings — -Appeal—Dismissal—Second Appeal — Evidence-
    1. Courts take judicial notice of their own records.
    2. A record of dismissal, unless it appears otherwise therein, is a bar to a second appeal.
    3. In order to pass upon the merits of the action of a court on a motion, the grounds of the same and the collateral facts must appear in a bill of exceptions, unless tke*order of the court discloses the grounds upon which it acted.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    The facts in this case are, that at the October term, 1886, of the County Court of Warren County, the case was tried bef re a jury and a verdict rendered against appellant, the then defendant, upon which a judgment was rendered on the 9th day of November, 1886, and on that day he prayed an appeal to the Circuit Court, which was “ by the court allowed on filing bond in the sum of $800 in twenty days from this date, the said bond to be approved by this court.” On the 18th day of November the bond was filed and on the 19th was presented to and approved by the county judge. On the 29th day of December, 1886, all the papers were filed in the Circuit Court, and on January 3, 1887, being the first day of the January term of the Circuit Court, a motion was made on tlio part of the people to dismiss the appeal, which was by the court allowed, and at the same time, on motion of appellant, leave was granted to withdraw liis appeal bond by leaving a certified copy. On March 5, 1887, counsel for appellant made a motion in the Circuit Court for leave to withdraw the papers filed in the cause, which was allowed-, and the papers were withdrawn, and were taken back to the County Court and re-filed therein on that day, March 5th. On March 7, 1887, the case was reinstated upon the docket of the County Court and an approval of the bond made by the court. The record of January 6th was an allowance of the motion of the people made January 3d to dismiss the appeal, and allowing motion of defendant below to withdraw appeal bond. The motion of March 5th was an independent motion by defendant to withdraw papers.
    The papers were re-filed in the County Court, approval of the bond made, and were, on April 23, 1887, taken back and re-filed in the Circuit Court, where, at the May term, 1887, the appeal was again dismissed. The record as made out and certified by the circuit clerk, at the instance of appellant’s attorney, did not contain the orders made in the case at the January term of the Circuit Court. It being claimed that inasmuch as those orders were not introduced in evidence and preserved in a bill of exceptions, they are not properly a part of the record in this case.
    Mr. R. J. Gbibk, for appellant.

      The case still being in County Court on the matter of the approval of the appeal bond, the Circuit Court could not dismiss the appeal so as to preclude appellant from rightfully talcing the case into the Circuit Court at the May term, after the proper approval of the appeal bond in the County Court. Hook v. Richeson et al., 106 Ill. 392.
    The appeal was not perfected until the bond had been approved by the County Court. Approval of the bond was necessary. Miller v. Superior Machine Co., 79 Ill. 450.
    The case was not out of the County Court and in the Circuit Court until the bond had been filed and approved. Simpson et al. v. Alexander, 5 Gilm. 260; Branigan v. Rose et al., 3 Gil. 133.
    The order of the County Court was that the bond should be approved by the court. The judge, then acting at chambers, in vacation, could not approve the bond. Statute, title Courts, Chap. 37; McFarland v. McFarland, 4 Ill. App. 157.
    The court having adjourned the day the order granting the appeal was entered, there was no court which could approve the bond until the next term, to wit, the February term, 1887.
    Messrs. Kirkpatrick & Alexander, for appellee.
    An appeal can only be taken when given by statute, and the provisions of the statute granting appeals must „be strictly complied with. Kemper v. Town of Waverly, 81 Ill. 279; Murphy v. McDonald, 3 Ill. App. 19; Andrews v. Rumsey, 75 Ill. 598; Bowlesville Co. v. Pulling, 89 Ill. 58; Hileman v. Beale, 115 Ill. 355; Rozier v. Williams, 92 Ill. 188.
    The power of a court ceases at the end of the term. Goucher v. Patterson, 94 Ill. 525; Cook v. Wood, 24 Ill. 296; Becker v. Sauter, 89 Ill. 596; Dunham v. Commissioners, 87 Ill. 185; Baragwanath v. Wilson, 4 Ill. App. 82.
    An appeal may be prayed at any time during the term. McMillen v. Bethold, 40 Ill. 34; Balance v. Frisby, 1 Scam. 595.
    And can not be allowed after the term. Marris v. Deshazo, 4 Rand. (Va.) 460; Bagley v. Hazard, 4 Yerg. 487.
   Lacey, J.

The question presented by this record is whether the first dismissal of the appeal from the County Court was a bar to the second appeal. Upon the decision of this question, if in the affirmative, depends the right of the appellant to maintain the case in court upon the second appeal, or the second time he filed his papers in the Circuit Court.

We think that the dismissal of the appeal might, at least, be a bar to the presentation of any other appeal in the same ease. If the appeal had been dismissed simply because it had not been perfected in the proper manner by the bond and security being approved in open court, the dismissal of the appeal as first presented might not have been a bar to any further appeal. But if the appeal had been dismissed by agreement, or for other reasons than the not perfecting the appeal in the proper form, the dismissal would be a bar. There was no bill of exceptions presented on the dismissal of the appeal January 6, 1887, and we are unable to see upon what grounds it was dismissed. A general record of dismissal stands against the second presentation of the appeal and everything will be presumed in favor of its being a bar unless it otherwise appears from the record. The dismissal is general, as appears from the record, -and we must presume that it was a final disposition of the entire appeal unless, by bill of exception preserved, it otherwise appears. The appeal at first presented in the' Circuit Court was brought there by the appellant as being perfect. If the appellee had made no motion to dismiss and the case had gone to trial and been tried on its merits, can it be doubted that the proceedings would have been sustained and the proceedings upheld ? Under such circumstances the informality in the approval of the appeal bond would have been regarded as waived by the appellee. It has been held by the Supreme Court uniformly that in order to pass upon the merits of the action of the court on a motion, the grounds of the motion and all the collateral facts must be preserved in a bill of exceptions. Buettner v. Norton Mfg. Co., 90 Ill. 415; Hyatt v. Brown, 82 Ill. 28; Thompson v. White, 64 Ill. 314; Horn v. Neu, 63 Ill. 539; Goddy v. McClure, 59 Ill. 182; Douglass v. Pratt, 43 Ill. 146; Daniels v. Shields, 38 Ill. 198; Lucas v. Farrington, 21 Ill. 32; Parson v. Evans, 17 Ill. 238; Snell v. Trustees, etc., 58 Ill. 290.

There is. so far as we can discover, but one exception to the rule, and that is in cases where the dismissing or other order of the court discloses the grounds upon which the court acted as shown by the following cases: Offield v. Seller, 15 Ill. App. 308; Randolph v. Emerick, 13 Ill. 344; Blair v. Ray, 103 Ill. 615; Zimmerman v. Cowan, 107 Ill. 637. In Blair v. Ray et al., supra, the court say: “But the ground of the court’s decision in dismissing the suit rested upon the reasons which defendants assigned for the motion to dismiss, and the matter which was submitted to the court in support of the motion, all of which the record fails to show. It is easy to conceive there might have been matter submitted to the court which would have justified the order of dismissal; there might have been a stipulation to dismiss.” The plaintiff’s objection to the motion does not rebut this. If there had been an agreement in the case at bar to dismiss the appeal of January 6, 1887, as' a final disposition of the case, can it be doubted that an order of dismissal under such circumstances would have been a final disposition of the appeal? and this and other facts to uphold the general order of dismissal as final we aré bound to suppose existed in the absence of a bill of exceptions. The written motion is no part of the record. The appellant should not have submitted to a general order of dismissal without a bill of exceptions showing the grounds on which it was based. lie should have asked to withdraw the papers and to strike the case from the docket. And if the court had erroneously ruled against him he could have appealed. Two appeals in the same case will not lie, and courts will take notice of all the records in the case. It was not necessary to plead the first dismissal in bar. The court could and should take notice of its own record of dismissal previously made. It was not necessary that the first order of dismissal should have been preserved in a bill of exceptions. The record order of dismissal was before the court, which it was bound to take notice of. It is not necessary to pass on the other questions raised in the case.

Judgment is therefore affirmed.

Judgment affirmed.


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    Lionel W. Richardson v. William H. Gregory.

      Partnership — Dissolution—Statute of Limitations.

    1. A specific agreement is not necessary to terminate a partnership; words and acts implying such intention are sufficient.
    2. The statute of limitations begins to run from the dissolution of a partnership as to an action to settle the partnership accounts.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon. O. H. Horton, Judge, presiding.
    Messrs. Marshall & Taggart, for appellant
    Mr. Wm. Lathrop, for appellee.
   Lacey, J.

This was a bill in equity filed by appellant against appellee July 10, 1885, seeking to settle a partnership account between the parties. It appears that the articles of co-partnership were entered into between them on the 23d day of June, 1870. By such articles the firm name was to be £l Richardson & Gregory,” and the object of the partnership was the manufacture and sale of diamond plows and vending and selling the right to others to sell the same, etc., to be constructed according to a patent that Richardson had applied for to the commissioner of patents of the United States, and which was not then issued but was expected to be. The co-partnership was to commence on June 23, 1870, and continue for the time said patent should run unless sooner dissolved by mutual consent.

Gregory was to furnish a sum of money not exceeding $10,000 at ten per cent, interest per annum, as the necessities of the business should require. Each of the parties at all times during the continuance of the partnership was to give his attendance and each do their best and use their utmost skill and power to forward the interests of the concern, and to share equally the expenses.

The gains were to he divided as follows: Bichardson to have 9-16 and Gregory 7-16. Boobs and true accounts were to be kept. Settlements were to be made first days of June and November of each year. At the end, or other sooner determination of the partnership agreement, a full and final settlement was to be made between them and all the gains and assets divided between them.

It was further stipulated that the said Bichardson shoxild never in any way or manner deprive or permit said Gregory tobe deprived of his full share of 7-16 of said patent, “but the same shall be at all times used to their mutual benefit and advantage during the continuance of said co-partnership.”

I In appellee’s answer the statute of five years limitations was set up and insisted on as a bar; it being averred that the partnership had been mutually dissolved more than five years prior to the bringing of the suit, and that the partnership affairs had been fully adjusted between them more than five years before filing the bill.

The issue seems to be whether the partnership had beexx dissolved for the length of time claimed by appellee, it being contended on the part of the appellant that the partnership did xxot terminate by its own limitation until about the time the complainant’s bill was filed; it is claimed by the appellant that there had been no final settlement for the reason that the firm “still owned the patent, the source of almost all their other assets.”

The facts tending to show that there was a dissolution of the partnershij) are not much disputed so far as the main features are concerned. Appellant testifies that the partnership had not been dissolved and that there had been negotiations or transactions between them, concerning the dissolution. “No negotiations between xxs concerning division of interests or sale of interests by one to the other in the patent.” But it appears that there was an attempted settlement of all the partnership accounts which ended May 15, 1878, in which, as the appellant swears, they “ divided whatever assets they found in the company, principally notes, a portion of which I took and a portion went to him.” “ E think I took the plows and plow press; he took the letter press. There was a lease of college land divided previously. I don’t think of anything more. There was a purported balance struck; that was what we were attempting to do. If there had been no errors that would have been a settlement up to that time. I don’t know whether there would have been anything more aside from that.” The settlement was never completed.

The appellee swears that there was a full and final settlement. It appears from the testimony of both parties that after 1873 no manufacturing was done or selling further than to settle up what had been previously sold. Appellee went to buying grain in August or September, 1880; up to that time he was engaged in settling up the old partnership accounts with its customers. Ho license fee was received or plows made after the attempted settlement.

The appellee swears that “ no co-partnership act has taken place since 1877, other than the settlement of some old partnership matters that existed prior to 1877.” The patent at the time of settlement was not considered; as appellee swears, “it was considered to be of no account, virtually dead, superseded by others; for that reason no account was made of it in the settlement.”

It appears plain that the business of the partnership ceased as far back as 1877 by mutual consent. Although there was no express agreement that the partnership should be dissolved, it appears perfectly plain that it was dissolved by tacit consent and acquiescence, long prior to the attempted settlement in May, 1878.

At that time the entire known assets were divided, and each’ one took what at the time was considered to be his share according to the partnership agreement. It is true that the appellant claims there were large errors in the figuring by which the basis of the division of assets were arrived at-But certainly the business of the firm to all intents and purposes had been dissolved in accordance with the terms of the agreement “ by mutual consent.”

As regards the patent, it will be seen by reading the agreement that there was nothing in it to show that the patent itself was assets of the firm, unless the partnership extended its full length. The use and benefit of the patent was all that was contracted for, and that was only for the time the partnership) lasted.

In case the partnership was sooner dissolved by mutual consent, the p)atent would naturally belong to aprpellant. It was not assigned to the firm or agreed to be.

As far as the question of the dissolution is concerned, it would not matter whether the patent -was an asset or not. At the dissolution, if it belonged to the firm, its value could have been adjusted and settled the same as the other assets. A bill might have been maintained by either party to compel settlement any time since 1877, and beyond doubt since 1878, if mistakes in settlement had occurred.

The last of appellee’s letters concerning settlement was June 15, 1880, more than five years before the commencement of this suit.

A partnership is dissolved when both parties refuse to go on with the business. It is as effectual to dissolve a prartnerehip as though there was an expwess agreement to dissolveBotli parties may by statements and acts treat the partnership) as ended. Legare v. Peacock, 109 Ill. 94.

A partnership closes when there is an end put to the business itself. Bank of Montreal v. Page, 98 Ill. 119; Spurk v. Leonard, 9 Ill. App. 174.

The statute of limitations begins to run" from the termination of the partnership in actions of account or bills in chancery to settle partnerships. Pierce v. McClellan, 93 Ill. 245; Quayle v. Guild, 91 Ill. 378; Askew v. Spuing, 111 Ill. 662; Bonney v. Stoughton, 18 Ill. App. 562.

The court below dismissed the bill and we think properly.

The statute of limitations of five years having run since the dissolution of the partnership, the bill could not be maintained-

The decree of the court below is, therefore, affirmed.

Decree affirmed.


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    Ernest H. Ricker v. Cyrus H. Larkin et al.

      Corporations — Record of Incorporation — Fraud—Injunction—Costs.
    1. A corporation is not authorized to proceed to business until the certificate of complete organization and a copy of all papers filed with the Secretary of State have been duly recorded.
    2. Where such papers have been fraudulently and surreptitiously recorded, contrary to the agreement of the incorporators, such record is of no effect.
    3. An injunction lies to prevent one of the incorporators of a proposed corpor,ilion from doing business in its name before it is duly incorporated.
    [Opinion filed May 28, 1889.]
    In error to the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.

      On Motion to Tax Costs.

    The defendants in error move the court to tax the costs of the additional abstract made by them to the plaintiff in error.
    The motion will be overruled.
    After an examination of the abstract of the plaintiff iu error, and a comparison of it with that filed by defendants in error, we are of the opinion that the abstract filed by the former is in substantial compliance with the rules of this court, though it may have failed in some unimportant particulars. We do not think the failure was sufficient to call for a new abstract.

      Statement of Facts.

    The defendants in error filed their bill of complaint against the-plaintiff in error, .praying to restrain him, his agents, attorneys, etc., from issuing catalogues purporting to be printed by the “Elgin Uurseries and Seed Co.,” and from transacting any business under the name of the company. The bill charges that the plaintiff in error, Bicker, had been engaged in the nursery business in Elgin'for the six years past; that the part ties hereto entered into the following agreement to form the said stock company, and marked “ A,” as follows:
    Exhibit “A,” memorandum of agreement between Bicker of the first part, and Larkin, of the second part, dated August 24, 1886.
    Becites that the parties and Scofield are about to form a corporation, to be known as Elgin Nurseries and Seed Company, capital stock 500 shares at §50 each, and that first party wants second party to become interested; the covenants are :
    1st. First party will subscribe for 258 shares of stock, and pay company 50 per cent, of the par value by assigning and conveying his nursery stock, chattel property, etc., for which company is to pay him §5,000 in cash, and credit him with 50 per cent, of his subscription to be paid on 258 shares of stock.
    2d. Second party will subscribe for 240 shares of stock, and will pay into the company, within five days of its organization, 50 per cent, of the par value thereof.
    3d. First party to act as business manager, unless company should appoint some one else; to devote his time, etc., and receive §100 per month salary.
    4tli. Shall keep a true account, open to inspection of second party, and on demand of second party shall immediately' pay over .to company the money in his hands.
    5th. For any service second party may render he shall be paid a reasonable compensation.
    6th. For any money second party may advance to the company over 50 per cent., second party guarantees 8 per cent, interest on same,- and the company shall promptly repay on demand.
    7th. Neither party shall sell any of the capital stock without first giving the other the refusal.
    8th. At the end of one year, second party to have option to receive §6,900 for his stock, in cash, or retain same and share in profits, which first party guarantees to be not less than 15 per cent., and in case he elects to take the §6,900 cash, the first party is to take the same and pay for it within thirty days and indemnify second party from any liability by reason of his having been a stockholder; if second party retains stock, first party guarantees that company shall pay annual dividend of not less than 15 per cent, for the term of — years ensuing.
    9th. To securethepromptpaymentandfaithful performance of this contract on part of first party, he will, within five days of the time of the complete organization of said company, assign and turn over to second party 250 shares of the capital stock of such company, which shall henceforth stand in the name of second party on the books ■ of the company and be controlled by him. In event of failure on part of the first party to comply with the terms of this contract, second party shall have the right to sell any or all of the 250 shares of stock at public or private sale, without notice to first party, for the best price that he can obtain for cash. If at the end óf the year second party shall elect to hold his stock, instead of selling it for $6,900, he shall return to first party 200 shares and retain 50 shares.
    The following are the -main allegations of the bill upon which relief was granted, to wit:
    Charges that before this time, and about August 6th, Ranstead had prepared the preliminary papers for the organization of a company to be called the “ Elgin ¡Nursery and Seed Company,” which were signed by Ricker, Scofield and one Ezra Rue, as commissioners, Larkin being absent; that a license was at once issued to open books to take subscriptions to the capital stock, and that thereupon the capital stock was fully subscribed, as follows: Scofield two shares, Ricker 258 shares, Larkin 210 shares; that the commissioners called a meeting of subscribers to elect directors, at which meeting, hold September 1st, all the said subscribers were elected directors; that the commissioners thereupon made their report, and a certificate that the corporation was duly organized was issued from the office of the Secretary of State, and received on or about September 3d. (A copy of certificate and papers relating to organization attached, marked “Exhibit B.”)
    Larkin charges that when he subscribed for the stock Ricker understood that he, Ricker, was to sign a contract and carry out verbal agreements; that Bicker insisted upon having the company fully organized, so that the fall trade in the nursery business might be carried on in the name of the company; charges that Bicker got out some circulars, to be distributed with catalogues, announcing to patrons the formation of the new company, but that Larkin would not consent to their distribution until a contract and bond was signed by Bicker.
    Charges that Bicker and the defendant had an informal meeting at Scofield’s house September 8th, and that Larkin submitted a draft of by-laws of such company; among other things, that the treasurer and the manager, who was also to be secretary, should give bonds in the sum of $20,000. Bicker objected to giving so large a bond; charges that. Bicker at this time wanted a modification in the proposed contract between himself and Larkin. Instead of condition to take Larkin’s stock at end of year for $6,900, Bicker wanted option to take at that price before end of year, and would give Larkin a mortgage on 320 acres of land in Dakota, and give bond with approved surety. Larkin considered this, and on the 10th of September said lie would agree to it, but that Bicker must execute a contract and furnish a bond at once or drop the whole matter; charges that Bicker said he would.
    Scofield admits that he signed the call for a meeting of stockholders, dated September 13th, but states that he did it under the impression that Bicker and Larkin had arranged their difficulties; and also states that he did not know at the time that Bicker had caused the corporation papers to be recorded.
    Larkin charges again that it was understood that Banstead was to draw the papers, ‘‘who was to hold such papers and documents until the said contract was executed by both parties;” states on information and belief that Banstead had sole charge of said papers; and charges that he, Larkin, fully understood that the papers were not to be filed for record until a contract was signed between himself and Bicker; states that in Larkin’s absence Bicker went to Banstead’s office and asked to take the papers to examine them; that Banstead gave Bicker the papers thinking he would return them, but that Bicker filed them for record September 8tli, without the knowledge or consent of either defendant and in violation of the said agreement or understanding.
    Larkin admits that he received the notice for the meeting of stockholders September 23d, and attended the meeting, and there first learned that Bicker had filed the papers; that he, Larkin, protested, and said that he wouldn’t go any further with the business unless Bicker would sign the contract with him and give a bond; that Bicker said he would not sign such contract or give such bond, and that if Larkin wouldn’t unite with him to call a meeting to elect officers and adopt by-laws, he would apply to the courts; and that thereupon Bicker did file his petition for a manda?nus to compel Larkin and Scofield to act, and that such proceedings are now pending in this Circuit Court.
    Larkin states that he was afraid that Bicker would use the name of the corporation in his business, and made some inquiries in November, but was unable to find that Bicker was doing any business in the name of the corporation; states that the complainants have never recognized the corporation except as stated in the bill, and they did what they did under the belief that Bicker would sign the contract.
    Complainants charge that on the 5th of January, 1887, they each received a letter from Bicker, stating that he had written up a catalogue for “ The Elgin Nurseries and Seed Co.” for the spring trade of 1887, and that if they wished to see it they could call; that Larkin went to Bicker a day or two afterward and protested against the publication of the circulars and catalogues; that on the 7th Scofield procured a copy which is filed as an exhibit with this bill; that said catalogue purports to be issued by “ The Elgin Nurseries and Seed Co.;” represents the company as incorporated in 1886. with a capital stock of §25,000; is a successor to E. H. Bicker & Co., and that, “during the year 1886, we have formed a corporation under the name of ‘The Elgin Nurseries and Seed Co./ with a capital stock of $25,000. The directors are E. H. Bicker D. C. Scofield and C. H. Larkin.
    “E. H. Bicker, Business Manager.”

      Charges that Bicker used envelopes with the name of the corporation printed in red ink as successors to the old company of E. II. Bicker & Co; states that the complainants believe that it is Bicker’s intention to give a large number of such catalogues printed for general distribution, and that unless restrained he will send them out; have reason to believe that he intends to conduct his business in the name of the said company.
    Charges that Bicker has never signed the contract or executed bond and refuses to do so; that the incorporation papers were fraudulently taken from Baustead’s office and wrongfully filed by Bicker as stated, with the intention óf forcing complainants into the company, as they believe, without their consent.
    Charged that the company has no existence in fact; that the subscriptions are not paid, has no tangible property, no business, no by-laws and officers, except as stated; charges that they aided in organization in order to help Bicker, and to secure Larkin for the money he was to advance, and that the action of Bicker in filing the papers is a gross fraud on the complainants.
    Charges that the complainants are old residents of Bane County and men of means; that they believe Bicker to be a man of limited resources; that they are told that Bicker claims to have already paid out §300 in behalf of the said company and incurred liabilities on behalf of the company tothe amount of §100; besides are afraid if Bicker should send out catalogues with their names as directors they might be charged as to third persons; that unless restrained he will incur obligations for which they may be charged.
    Messrs. B: M. Ireland and B. Ü. Butsford, for plaintiff in error.
    The effect of granting the injunction, whether the corporation is regularly organized or irregularly organized, whether the same is a valid corporation or invalid, is to wipe it out of existence. The bill shows that the defendants in error, who are two of the three directors, refuse to act, and deny the vajiditv of the corporation, and, of course, the restraining of the third, Ricker, who alleges its validity would destroy the corporation as completely as if it were ousted of its franchise, or dissolved by a direct proceeding brought for the purpose and in a legitimate way. We think, therefore, that we are right in our position that the validity or integrity of a corporation is involved here. The defendants deny its validity, the plaintiff asserts it; the effect of a decision in favor of the defendants would be to destroy the corporation.
    But, if this proposition is correct, the bill should be dismissed, for it is almost elementary that the validity of a corporation can not be attacked collaterally. Baker v. Adm’r of Backus, 32 Ill. 83; Tarbell v. Page, 24 Ill. 46; McCarthy v. Lavisclie, 89 Ill. 270.
    Even then, if the defendants in error are right in their con. tention that this corporation was never legally organized and the plaintiff in error wrong in his contention that it is a valid corporation, a direct proceeding should be brought by them for the purpose of setting it aside; and, under a thin disguise of seeking to avoid a collateral or incidental injury, they should not be heard here in their attempt to destroy the corporate character of this company, or render the same nugatory, against the protest of a stockholder, and, also, without the franchise it should not he heard. Baker v. Adm’r of Backus, 32 Ill. 83; Campbell v. Morgan, 4 Ill. App. 100.
    It is apparent that if the injunction should be granted, it would have the effect not only to destroy the corporation, but it would have the further effect to release the defendants from the payment of their subscriptions. The law is settled that this can not be done except by the unanimous consent of all the subscribers. Binmore Corp. Manual, Sec. 25; Melvin v. Lamar Ins. Co., 80 Ill. 447.
    The subscription to stock is a contract, not to be varied by extrinsic agreements. Ridgefield, etc., R. P. Co. v. Brush, 43 Conn. 86; Corwith v. Culver, 69 Ill. 503; Thompson, Liability of Stockholders, See. 121.
    The defendants in error having assisted in the organization of the company, and subscribed to its stock, acted in their capacities as stockholders in electing themselves directors, and having accepted the trust embodied in the position of directors, are estopped now to deny the validity of the corporation. Stone v. Great Western Oil Co., 41 Ill. 92; Binmore’s Corp. Manual, Sec. 277; McCarthy v. Lavasche, 89 Ill. 270; Rutz v. The Essler and Ropiegnet Mfg. Co., 3 Ill. App. 87; Corwith v. Culver, 69 Ill. 506; Thompson on Liabilities of Stockholders, Secs. 161, 162, 163.
    Mr. J. W. Banstead, for defendant in error.
    Injunction is the proper remedy in this ease. In'publishing the proposed catalogue and using the stationery proposed by Bicker, the defendants in error would have been held out to the public as directors in this company, and, as to third persons, would have been liable, to the extent of their stock subscriptions at least, for any obligations incurred in the name and upon the credit of the company. If such holding out by Bicker was unauthorized by them and in his own wrong, then they were threatened with serious damage, and such publication and use of their names should be enjoined. Ruth v. Webster, 10 Beav. 561; 2 Lindley on Partnership (Ewell’s Edition), 999, 1000; High on Injunction, Secs. 1091, 1339; 2 Story Eq. Juris., Sec. 951.
    The company was not fully organized and could not proceed to business until the final certificate of incorporation was recorded with the recorder of deeds of Kane County. Revised Statutes, Ch. 32, Sec. 4; Bigelow v. Gregory et al., 73 Ill. 197, Gent v. Manf. and Mer. Ins. Co., 107 Ill. 652; Morawetz on Corporations (2d Ed.) 30.
    The filing of the certificate was unauthorized and does not bind the defendants in error.
    The case is similar to that of a deed in escrow which is recorded contrary to the conditions of the deposit; such recording would not amount to a delivery of the deed. Haddock v. Haddock, 22 Ill. 388; I. C. R. R. Co. v. McCullough, 59 Ill. 166.
   Lacey, J.

The bill was demurred to by the plaintiff in error, and upon hearing the court overruled the demurrer, and the plaintiff in error choosing to abide his bill, the court rendered a decree in favor of the defendants in error in accordance with the prayer of the bill. To reverse this decree this writ of error is sued out. It is insisted that the bill shows that the organization of the Elgin Nurseries and Seed Co.” had been completed; hence the relief prayed for was within the control of the corporation itself.

The main question arising in the case is, was the organization of the company completed? We are clearly of the opinion it was not. Sec. 4, Chap. 32, E. S., provides that, “ the Secretary of State shall thereupon issue a certificate of complete organization of the corporation making thereof a copy of all papers filed in his office in and about the organization of the corporation and duly authenticated under his hand and seal of State, and the same shall be recorded in a book kept for that purpose in the office of the recorder of deeds in the county where the principal office of such company is located. Upon the recording of the said copy the corporation shall be duly organized and may proceed to business.”

It would seem clear without reference to any judicial construction of the above section of the statute that the organization of the company could not he complete without the filing of the copy as required.

The grant “ to proceed to business ” is plainly made to depend on such recording. The prohibition to proceed to business need not be in express words. The corporation depends for its powers upon the provisions of the statute either express or implied, and none is granted without the record.

But the statute in question has received judicial construction, by both this court and the Supreme Court, both holding to the principle here announced. Bigelow v. Gregory, 73 Ill. 197; Gent v. M. & M. Ins. Co., 107 Ill. 652; Same case reported in 13 Ill. App. 308; Deversey v. Smith, 103 Ill. 378. The case of Cross v. Pinckneyville, 17 Ill. 58, is explained in Bigelow v. Gregory, supra. It is true that the copy of the papers were actually filed in the recorder’s office, but surreptitiously and fraudulently, by the plaintiff in error, and contrary to the agreement of the incorporators and against the will and without the contest of the other proposed members of the proposed incorporation. It is true that the original agreement to incorporate did not require plaintiff in error to give bond, but by mutual agreement a change was made in the agree-, meut in which concessions were mutually made and by which the plaintiff in error agreed to give a bond with security before the completion of the organization. This was binding and should have been complied with. The bill shows a clear case of fraudulent intent on the part of the plaintiff in error to obtain the benefits of the organization without complying with his part of the agreement. The procurement of the recording of the papers fraudulently had no more effect to-make a legal record than though the papers had never been recorded. Haddock v. Haddock, 22 Ill. 388; I. C. R. R. Co. v. McCullough, 59 Ill. 166. According to the allegations of the bill the defendants in error never ratified the act of recording of the copy of the incorporation papers by plaintiff in error. Holding, as we do, that the bill shows that the proposed organization was never completed, it will be unnecessary to notice the argument of plaintiff in error’s counsel based on the supposition that there was a complete, organization. Finding no error in the record the decree of the Circuit Court is affirmed.

Decree affirmed.


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    Porter E. Chamberlain v. John Bain.

      Sales — Auction—Rescission—Instructions—Improper Question.

    1. In an action to recover the purchase price of cattle bid off by the defendant at an auction sale, an alleged rescission of the sale being the issue presented, it is improper so to instruct the jury as to throw on the plaintiff the burden of showing that he still keeps the cattle ready for delivery to the defendant.
    2. An auction sale is not executory, but is completed when the property is knocked down to the purchaser.
    a. A question calling for the conclusion of the witness is improper.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon.William Brown, Judge, presiding.
    Mr. B. A. Knight, for appellant.
    Mr. J. C. Garver, for appellee.
   Lacey, J.

The appellant brought suit against the appellee in an action of assumpsit to recover the purchase price of twenty-four steers bid off by appellee at the former’s auction sale for the sum of something over 825 per head. The c^use was tried by a jury and resulted in a judgment in favor of appellee. It is claimed by appellant that the cattle were knocked off to appellee by the auctioneer to be paid for in one year at six per cent, interest, the appellee giving his note with approved security for the amount.

It is claimed by the appellee that by agreement at the sale he was only to give his own note without security. The time of credit given by the terms of the sale had expired before the suit was commenced. The note not having been given or the money paid for the cattle, the suit was instituted to recover their purchase price. The following Saturday after the sale appellee went to appellant’s premises after the cattle, but had no signer for the note, and the appellant refused to let him have the cattle without security on the note, which he refused to give, and did not give it, or his individual note. On the following Monday appellant went to appellee’s house and offered to let him have the cattle on his own note, but the latter refused to give the note on the grounds that the appellant had refused to take his note at first. There is some evidence tending to show that appellant refused to let appellee have the cattle because they had risen in price, when called for, and the want of security was not the reason. The evidence also tends to show that the parties by mutual consent rescinded the sale soon after it was made, the appellant saying, If you don’t want the cattle I will dispose of them, as I can not handle them,” the appellee replying, “All right, sir, you can;’’ again, appellee saying, “I have bought more cattle and I don’t want them,” the appellant replying, “ Well, then I will dispose of them to somebody else.” It is claimed that appellant can not recover under his declaration for cattle sold, as he had rescinded the sale and sold the cattle.

The evidence fails to show whether the appellant still had the cattle at the time the suit was commenced or not.

The "appellant assigns for error the modification of the court of the instructions Nos. 3 and 5, as follows:

No. 3. “ If the jury finds .from the evidence that the bargain for the sale of the cattle in controversy was complete, and that a term of credit was to be given by the terms of the sale and that such terms of credit had expired, then the court instructs the jury that the plaintiff has the right to sue for the price agreed to be paid for such cattle at such sale without a delivery or offer to deliver such cattle.”

No. 5. “ The court further instructs the jury that if they believe from the evidence that John Bain purchased from Porter E. Chamberlain, the plaintiff, at public sale, the cattle in controversy in this suit, and by the terms of the said sale a credit of one year’s time with approved security was to be given, and the said Bain has not given his note with approved' security for the price agreed to be paid for the cattle, or otherwise satisfied the price agreed to be paid for them, and that such term of credit has expired, that then said Chamberlain has a right to recover in this suit of said Bain the price agreed to he paid for said cattle.” The court refused to give the instructions as ashed, but modified each of them by adding the words to each, “ This is so ,if you believe from the evidence that the plaintiff kept the cattle for the defendant, and still holds them ready to be delivered to the defendant,” and gave them as modified.

The instructions were erroneous as asked, as being injurious to the appellee, in that they wholly ignored the issue presented to the jury, whether or not there had been a rescission of the contract of sale by mutual consent. If that had been done there would have been no right of recovery, but as modified the instructions instead of aiding the appellant were turned into a weapon against him. There was no evidence tending to show that the appellant still kept the cattle for the appellee, ready to deliver them or otherwise.

The evidence was silent on that subject, and the effect was to throw the burden of proof on the appellant to show that fact.

We think the court misapprehended the nature of - the transaction. This was not an executory sale of cattle where the vendor agrees to sell and the vendee to purchase and pay for one delivery, but an executed contract, completed when the cattle were knocked down to appellee, with nothing to do on his part but to give the note and take the cattle. According to the well established rules of the law the cattle were simply held by the vendor as bailee at the vendee’s request. Under the circumstances it was appellee’s duty to show that the cattle had been disposed of by appellant if such was the case and the value of them if he desired recoupment.

This rule of law is well recognized in Wade v. Moffitt, 21 Ill. 110. Instructions ÜSTos. 1, 2 and 3, offered by appellant and refused by the court, were properly refused as having a tendency to mislead.

The form of the question propounded to appellee, as follows, “Were you ready and willing to perform your part of the contract at that time? ” was erroneous. It called for a conclusion and was immaterial. It mattered not what he was ready and willing to do if he did not do it, or offer to perform. It involved a construction of what he understood the contract to be. The witness should have been confined to a statement of the facts. We will not notice any other assignment of error. For the foregoing errors noted the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Joseph Corcoran v. The People, etc.

      Bastardy — Evidence.
    1. In bastardy proceedings evidence tending to prove the poverty of the mother, or that she has named the child after the reputed father, is inadmissible.
    2. Under the circumstances of the case presented, this court approves the action of the trial court in permitting certain young men to testify that they had never had sexual intercourse with the prosecuting witness.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court, La Salle County; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Duncan, O’Conor & Gilbert and Bull, Strawn & Huger, for appellant.
    Messrs. Moloney & Stead, for appellee.
   Lacey, J.

The appellant was charged with being the father of the illegitimate child of Bridget Cash man, who was an unmarried w'ornan. The truth of the charge rested upon the unsupported testimony of the mother of the child, who testified to but one act of illicit intercourse between her and the appellant, which she claims took place at a picnic on William Butler’s premises on the evening of the 24th of August, 1884, and that the child was born May 17, 1885. According to her testimony no other act of illicit intercourse ever took place with him either before or after that time, though he had attempted it once before but never afterward. The appellant unqualifiedly denies in his testimony that he ever had any act of illicit intercourse with her in his life. There is no evidence that corroborates her, but some that seems to throw discredit on her statements. To say the least, the evidence is weak and of an unsatisfactory character to establish the paternity of the child on the appellant. We are not entirely prepared to say, however, if there had been no error committed by the court in the conduct of the trial, that we would set aside the verdict for the want of evidence to support it. Various errors are assigned as to the ruling of the court in the admission of evidence. Among other things the court allowed appellee, against appellant’s objection, to show that the complaining witness had named her child, which was a boy, Joseph Corcoran, after the reputed father, and had had him baptized in the Catholic church by that name; also that she was too poor to buy clothes for the child before it was born. We think this was error on the part of the court. The evidence certainly did not tend to establish any issue in the case. Itwras in the nature of manufactured evidence to allow the complaining witness to corroborate her own oath by her own acts, which are in the nature of declarations that appellant was the father of her illegitimate child. The question of the poverty of the prosecuting witness had no bearing on the issue in the case. It was improper to go to the jury. It was immaterial, and could only have a detrimental influence against appellant by creating a strong feeling of sympathy in the minds of the jury in' favor of the prosecuting witness. Such evidence has been condemned by the Supreme Court in various cases, in principle the same as this. Chicago v. O’Brennan, 65 Ill. 160.

The other objections to rulings of the court complained of by counsel for appellant, we do not think well taken. The instructions given for appellee, in regard to the quantum of evidence sufficient to establish appellant’s paternity of the child, we think are not erroneous. The evidence of certain young men, members of the family with which Bridget Oashman lived, to the effect that they had never had sexual intercourse with her, was not, as we think, improper under the circumstances, provided appellee desired to show such facts. It might be considered by the jury for what it was worth.» But for the errors above indicated the judgment of the court is reversed and the cause remanded.

Reversed and remanded.


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    Charles Gurney v. James Brown.

      Promissory Note — Liability of Joint Maher- — Disputed Signature— Hearsay Evidence — Instructions.
    To admit evidence upon the ground that it is desired to prove a certain immaterial fact, when the result will be to produce hearsay evidence, not within any of the exceptions to the rule prohibiting the introduction of such evidence, is reversible error.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Bull, Strawn & Rucker and Mato & Widmer, for appellant.
    Mr. Walter Reeves, for appellee.
   Lacey, J.

This suit was brought on a promissory note of 5320, given by Fred. Gurney'to appellee through the agency of one Dions, and the appellant is. charged as a joint maker of the note as security. Fred. Gurney, prior to the commencement of the suit, had absconded and left the State. The appellant filed his plea under oath, denying the execution of the note. The only proof of the genuineness of the signature of the appellant was the testimony of the appellee himself, who' did not see appellant sign the note, but swears to certain circumstances, which it is claimed are sufficient to raise the presumption that his signature was genuine. Before the money was loaned by appellee to Fred. Gurney, Dicus had the note made out and placed in the hands of the principal to procure the signature of appellant. After a time, Fred. Gurney brought the note back with his own signature and the name of appellee upon it. The money was then loaned on the note by appellee to Fred. Gurney. On the trial the appellee, Brown, testified that in two or three days, not to exceed a week after loaning the money, he saw appellant across the street in Streator, and went over to him and said to him that he had loaned Fred. Gurney, through Squire Dicus, $320, with the promise of Charles Gurney as security, and that Squire Dicus didn’t see him sign the note, and he, appellant, wanted to know' whether he signed it or not, and the appellee answered and said he did sign it. The appellee, on the contrary, testified that in the fall of 1885, the appellee stepped up to him and asked him if he did not sign a note for Fred. Gurney, and lie said he did, and passed on; that the reason he made this reply was that he signed a note for Fred, which was then outstanding, and he thought that was the one referred to by ajipellee. He further stated that apjiellee did not show- him any note. At another conversation with appellee in reference to signing the note appellant claimed that he denied it; this was also in 1885, after the first conversation. Appellee denied any conversation of like nature in 1883. It was very important to appellee to show that such conversation as he testifies to, or a similar one, occurred in 1883, in order to corroborate his own and to impeach appellant’s testimony. To establish this fact Dicus was called and this question was propounded to him by counsel for appellee: “Did Mr Fred. Gurney speak on the subject (of the conversation)? I don’t ask you to state, but did he speak to you on the subject of Charles Gurney coming to him and talking upon the question of Brown, the plaintiff, approaching him, Charles Gurney, concerning this note?” This question was objected to and the objection sustained by the court. Thereupon Mr. Beeves, attorney for appellant, stated to the court: “I don’t seek to show the contents of the conversation, but I want to fix a date; it is a question of date; 1 desire to ask when it was, with reference to the date of the note, if Mr. Gurney did so speak to you, that is, if Fred. Gurney did so speak to you, when was it with reference to the date of the note?” Thereupon the court overruled the objection and instructed the witness that lie might answer the question as to whether or not Frecl. Gurney spoke to him upon the subject alluded to by the counsel in the question. Mr. Beeves then repeated, “ upon the subject of Charles Gurney coming to him and talking about Brown’s coming to him, Charles Gurney.” The objection was again overruled and exception taken. The witness answered. “He did.” Upon being asked when it was, the witness further stated that it “ occurred a short time after this note was executed and delivered to Brown, I should say; I should place it within two months of the time, and my version is, a shorter time; might ha^e been two months,” etc. In this the court erred.

It is apparent that this evidence must have been very damaging to appellant. It is evident that it would have been of no benefit to appellee, to show that at that date Dicus had á conversation with Fred. Gurney in regard to some unknown subject, but it was very important to show that the subject of that conversation was the acknowledgment by appellant to Fred. Gurney, at that date, that appellee had approached him on the subject of his signature to the note in question. That was all the value there was in the question and answer. The jury was invited by this testimony to infer that a conversation took place in 1883, soon after the execution of the note in which the appellee had demanded to know whether appellant had signed the note. This could only he inferred by reason of statements of Fred. Gurney to the witness Dicus. This was the purpose of the question and answer, however much it might be concealed by the claim that its purpose was simply to fix a date; for a date was of no consequence outside the subject-matter of the conversation. To prove the statements of Fred. Gurney, either express or iapplied, that appellant had told him in 1883 that appellee had approached him in regard to his signature to the note, would be to introduce hearsay, and violative of one of the primary rules concerning the prodnotion of evidence. Bor does this come within any of the exceptions to the rule prohibiting the introduction of such evidence. Weyrich v. The People, 89 Ill. 90.

We see no error in the refusal of the court to give appellant’s instructions Nos. 3 and 4, offered. The principle announced in No. 3, was covered by instruction No. 2, given for appellant. The instruction No. 4, concerning the oral admissions of appellant, was properly refused. It is in substance the same as the one on the same subject condemned by this court in Byrne v. Hartshorn, 21 Ill. App. 650. We see no other error. The court erred in allowing the evidence of Dicus above mentioned. For this error the judgment is reversed and the cause remanded.

Reversed and remanded.