text:
    Charles F. Gerard v. Erastus W. Bates.

      Partnership—Bill of Mortgagee of a Partner’s Interest for an Accounting—Judgments—Estoppel—1lent.

    Upon a bill for an accounting and other relief, filed by the mortgagee of a partner’s interest in a livery and stock business, who also held by purchase certain judgments under which a levy had been made on certain interests, it is held: That the complainant is entitled to share in the entire assets subject to the debts of the firm, although the executions were not levied on all of the firm’s property; that the appellant, who was one of the partners, is estopped from setting up a certain contingent claim against the interest in question, because of representations made by him as to the value of such interest at the time of the complainant’s purchase; and that the complainant is not chargeable with rent for the stable pending this litigation.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Logan County; the Hon, G-eobge W. Hebdman, Judge, presiding.
    Messrs. Beach & Hodnett, for appallant.

      Messrs. E. Lynch and Blinn & IIojblit, for appellee.
   Pleasants, J.

On the 21st of April, 1885, Gerard and Wert were partners in a livery and stock business at Lincoln, under the firm name of Wert & Company, with the proportions in interest of three-fourths and one-fourth, respectively. On that day Gerard, in consideration of a certain half section of land in Nebraska, taken at an agreed valuation of $3,200, conveyed to Danley two-thirds of 1ns interest therein, being one-half of the whole, by a bill of sale specifying the items of such stock and containing an express warranty of title; and by agreement of the parties Danley became a member of the firm, with that proportion of interest therein. The co-partnership so formed continued until the 18th of June next following, when it was dissolved by sale of Danley’s interest, under executions for $769.91 in favor of Harts. Appellee, holding an unrecorded mortgage for $600 on the same interest, talked with appellant about the advisability of his taking an assignment of the Harts judgments, and purchasing at the execution sale to protect his mortgage debt. He testified that appellant advised him to buy, assuring him that Danley’s interest would be good to him for $1,400, at the least, and in this was corroborated by Frank Hoblitt, cashier of the First National Bank of Lincoln. He accordingly made the purchases, paying about $750.

At the time of the exchange of land for livery stock above mentioned, Gerard and Danley entered into another agreement under seal, whereby, after reciting said exchange, and that Gerard agreed to pay him, besides, the sum of $200, and assumed to pay a debt of $576, secured by said land, said Diinley guaranteed that the cash value of said land should be $3,200, within eighteen months from that date, and if not, that he would then pay the deficiency “ out of the livery stock of Wert & Company at such a value as the different articles may, by the partners composing the firm of Wert & Company, be appraised.” It further provided that Wert and Gerard should be entitled to all moneys due to Wert & Company, and that Gerard should be responsible for all indebtedness of said firm, to that date.

According to the Sheriff’s return the Harts executions were levied upon Da.nley’s interest in the specific articles of property therein mentioned, embracing all of the firm stock that could be found; hut there were two horses and some hay, oats and corn in possession or under control of said Gerard which were not mentioned in said return.

After his purchase at the execution sale, appellee cHimed absolute ownership of an undivided half interest in the firm stock, subject, of course, like the other half, to firm debts. Appellant claimed that the interest of Danley so purchased was not one-half of the firm stock absolutely or subject only to firm debts, but was contingent upon what should prove to he the value of the Nebraska land eighteen months from April 21, 1885, and refused to account with appellee upon the basis c’aimed by him. Thereupon appellee filed the bill herein to the September term, 1885, against Gerard and Wert, stating his claim, charging their refusal to recognize them, and praying for an accounting and for a receiver, and for general relief. Answer and replication thereto were filed, the cause was referred to the master and proof was taken and reported. The outcome was that a receiver was appointed, who, under the direction of the court, made sales, collections and payments; and reported the same in substance as follows:

Further testimony was taken and the account stated by the master, which added to the receiver’s statement the following items: the firm was credited, for feed sold by Gerard, with §70, making a total of §2,041.04, and debited with claims allowed to Isaac Wert, §64.87, to Gerard for rent of stalfie, §89.60, and for repair bill, §91.01, and to Gas & Electric Light Company, §14.85; in all §260.33, reducing the 1 ahnce to §1,780.70, of which one-fourth, each, was decreed to be paid to Gerard and Wert and one-half to Bates; and all the costs were adjudged against the defendants. From this decree Gerard alone appealed.

He claims that the court erred in two particulars: one in that the decree allows Bates a half of the 870 received from the sale of feed by Gerard and of collections on the firm books, notwithstanding the executions were not levied upon the feed or book account; and the other, in that it ignored appellant’s' claim against Banley’s interest in the event that the value of the Nebraska land should fail to be of the value of §3,200, by the time in that behalf limited.

These objections seem to be of no force. The feed and accounts belonged to the firm, and were liable for its debts. Those debts were piaid, and of all the remaining assets, appellant got his full one-fourth. What more can he justly claim, or how is he injured, by applying on firm debts the proceeds of this feed and the book accounts, rather than the proceeds of the property levied on? If appellee received more than he was entitled to, the injury is done to Banley. Appellant, having received his full share of the assets, can not be heard to complain for Banley, but Banley was not wronged. Gerard and Wert, as well as Bates, understood that his entire interest in the firm assets was divested by the execution sale. Hence it was, probably, that he was not made a party to the bill, and that appellant interposed no objection to it on that ground. In the settlement, or partition between him and Wert of the feed referred to, the extinguishment of Banley’s interest, and the succession of Bates thereto, were distinctly recognized. Wert testified that they put the whole at §70, and he sold a half interest therein to Gerard for §35, but with the express understanding that “ if Bates claimed it, he (Wert) was to pay back so much.”

An elaborate argument, referring to many authorities, is submitted by counsel to show that claims of Banley’s individual creditors against his interest in firm assets, would be postponed to that of appellant arising on the guarantee of the value of the Nebraska land. We deem it unnecessary, however, to discuss the rights of appellant, or other individual creditors of Hanley as against him, or as between themselves, since we apprehend that the case of appellee stands on another ground, and that as against him, appellant is estopped to urge his supposed claim.

He well knew that appellee’s attention was drawn to the Harts judgments by the peril of his mortgage debt, and that its protection was the sole motive for their purchase; and although he told appellee that he had a contingent claim upon Hanley’s interest, he declined to give him any particular information, or show him the papers, and distinctly advised him to make the purchase. The evidence on that subject warrants the conclusion that he assured him there was in it for him (Bates) at least a value of $1,400, which he knew was about the amount of the mortgage and these judgments. He denies such assurance in terms, but admits that he told appellee he was safe; and though this was in its nature matter of opinion, he did not state it merely as such, nor disc’ose the facts in his possession, which would have enabled appellee to estimate its weight, or exercise his own judgment at his own risk. . It would be unjust for him now, upon the strength of the facts thus withheld, to subject appellee to the loss of his mortgage debt and all he paid, upon his advice, to protect it.

In the reply brief counsel claim for the first time that appellant should have been allowed for rent of the stable during the pendency of this litigation. It was allowed for the time occupied by the firm of which Hanley was a member. But appellee never rented the premises. Immediately upon acquiring Hanley’s interest he sought to get it out of the stable by an accounting and settlement, which appellant refused. He was never a tenant and owed no rent. On the whole, we think appellant has no cause to complain of the decree.

Decree affirmed.


source: Caselaw Access Project

author: Congee, P. J.

license: Public Domain

text:
    W. A. Campbell v. Robert M. Karr et al.

      Trespass—Highway—Review of Evidence — Instructions—Excessive Number.

    In am action of trespass, the defense being that the locus in qiio was a highway, it is held: That the verdict for the defendants is contrary to the evidence; and that the iastruetioms were too numerous.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Ford County; the Hon. A. Sample, Judge, presiding.
    Messrs. Tipton & Moffett, for appellant.
    Messrs. Cook & Moffett, for appellees.
   Congee, P. J.

This is an action of trespass, brought by appellant against appellees for breaking and entering his close. The defense is that the locus m quo was a highway. It appears from the evidence that from 1859 to the spring of 1874 there was some travel along the western line of appellant’s land.

In the spring of 1874 a hedge was planted upon the land of appellant near the western edge thereof, and west of this some three or four rods there was another hedge, called by the witnesses the Mehary Hedge, and since 1874 the evidence is overwhelming the travel was between these two hedges, and appellant’s land lying east of his hedge had never been used as a road from 1874 down to the time of the alleged trespass. In September, 1885, defendants proceeded to plow up the ground east of the hedge, and made a grade for the road with appellant’s hedge near the middle of such grade, cutting down some three or four rows of appellant’s corn, and extending the grade and road some two rods east of appellant’s hedge, and taking that much of appellant’s land and throwing it into the highway.

We shall not discuss the question argued so elaborately, as to whether a road existed between the two hedges or not. There is shown no justification whatever from the evidence for entering the field of appellant east of his hedge. The testimony of the defendants themselves show this. Defendant Snyder says there was no travel east of this hedge since 1855, that he knew of.

Robert hi. Karr says: “I do not claim there was a road in his (appellant’s) field there. We claimed the right to go there' under the survey and proceedings had in 1877. He never told me that we might go into his field on east side of hedge. When he was talking about giving, he was talking of the land on the west side of the hedge.”

The proceedings of 1877, referred to by this witness, were certain unsuccessful attempts to lay out a highway at the place in question, which were only admitted in evidence by the court for the purpose of showing the lines established and to be followed by proof that appellant had made a dedication of a road based upon these proceedings.

The verdict of the jury was so manifestly wrong and contrary to the evidence, in holding the defendants guiltless of wrong in trespassing upon appellant’s field east of his hedge, that we can explain it only on the theory that they were so loaded down with instructions as to be unable to form any proper conception of the law applicable to the case. Forty-seven instructions,covering eighteen pages of the record, were given the jury.

Such a method of instructing juries has frequently been condemned by the Supreme Court, and can not give the jury clear views of the legal propositions involved in the controversy, hut necessarily must mystify and mislead, them, as was doubtless the case in the present instance.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Conger, P. J.

text:
    Charles F. Gerard v. C. M. Knapp.

      Negotiable Instruments—Note—Consideration—Wrongful Transfer— Action by Surety against Payee—Evidence.
    In am action against the payee of a note to recover the amount which the plaintiff as surety had been required to pay thereon to the holder to whom it is alleged to have been wrongfully transferred by the defendant In violation of an agreement, this court declines to interfere with the verdict for the plaintiff, such verdict being fully warranted by the evidence.
    [Opinion filed November 18, 1887.]
    Appeal from the County Court of Logan County; the Hon. J. T. Ho blit, Judge, presiding.
    Messrs. Beach & Hodnett, for ajipellant.
    Mr. E. Lynch, for appellee.
   Conger, P. J.

In January, 1886, appellant being engaged in the business of manufacturing carriages, wagons, etc., in Lincoln, proposed to sell his stock and business to his brother-in-law, E. A. Wright, who was insolvent for $390, provided appellee Knapp and one Lutz would sign a note with Wright for the purchase money.

The note was executed and by Wright delivered to appellant.

The trade or sale was not- consummated at the time and Wright removed to Dakota.

On the 16th of February, 1886, appellant gave to appellee and Lutz the following instrument:

“Lincoln, III., Feb. 16, 1886.

“The undersigned holds a note dated January 17, 1886, for three hundred dollars due twelve months after date and drawing interest at eight per cent, from date, which was signed by Engene A. Wright, as principal, and O. M. Knapp and John A. Lutz, as security.. The said note was given in a trade between E. A. Wright and myself for my business, carriages, etc., in red building. Wright having gone back to Dakota the trade' has not been consummated, but he is expected to be back during the year, when the trade will be made; but in case it is not made I agree to return to said Lutz and O. M. Knapp the above mentioned note, and further agree not to di spose of it or sell it, unless the sale is made inside the year; then it becomes my property.

“C. F. Gerard.”

Before, the maturity of the note appellant sold it to one Andrews for value, and appellee was compelled to pay the note in full, which he did on the 22d of January, 1887, and the present suit was brought by appellee against appellant to recover the amount so paid.

Before the expiration of the year, appellant pretended to consummate the sale to Wright, who was still in Dakota, and the lana ftdes of this pretended sale is the vital question in the case. If such sale was a mere pretense, as claimed by appellee, then there was no consideration for the note, and appellee, having.been compelled to pay it to an innocent holder, is clearly entitled to recover the amount so paid from appellant, who transferred it for value to Andrews.

We think the evidence fully warranted the jury in finding such sale to be a more sham, made by appellant and his brother-in-law, Wright, solely for the purpose of compelling appellee to pay the note.

The judgment of the court below will be affirmed.

Judgment affirmed.


author: Pleasants, J.

text:
    William Lowry v. S. D. Kinsey.

      Replevin—Pleading—Plea—Replication—Demurrer—Surplusage—Estoppel—Attachment—Interpleader—Pendency of Another Action.
    In an action of replevin to recover certain property held by the defendant as Sheriff under a writ of attachment, it is held; That the fourth plea is not vitiated by the surplusage contained therein; that it does not amount to a plea of estoppel; that the claim of the plaintiff in this suit is not inconsistent with that set up by him by way of interpleader in the attachment proceedings; that no bar was set up in the plea except that of justification, or of property In a third person; that the replication was sufficient and the demurrer to it improperly sustained; and that, if the defendant wished to raise the question whether there was such another action pending as would abate this suit, he should have filed the proper plea in abatement.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Tazewell County; the Hon. N. W. Green, Judge, presiding.
    Messrs. Wm. Don Matjs, W. B. Curran and A. B. Sawyer, for appellant,
    Messrs. Bider & Pretty'man, for appellee.
   Pleasants, J.

Appellant brought this action of replevin, June 3, 1886, to recover a certain ice-house and tools which appellee, as Sheriff, had taken under a writ of attachment against John Lowry.

Defendant pleaded (1) non cepitf (2) non detinet/ (3) property in defendant, and (4): “ That at the said time, when, etc., lie, the said defendant, was Sheriff of said Tazewell County, and on the 12th day of March, 1886, one John Lowry was the owner of said property in this cause alleged, and was a nonresident of said State, and as such was then and there justly indebted unto one Henry Ziegenheim in the sum of, to wit, §2,500; and on said 12th day of March, 1886, said Ziegenheim sued out of the office of the clerk of the Circuit Court of said county, and under the seal thereof, a writ of attachment against the property of said John Lowry to recover said sum of money so due and owing to him from said John Lowry, which said writ of attachment was directed to the Sheriff of said county to be executed, and on said 12th day of March, 1886, said writ of attachment came to the hands of said defendant as such Sheriff to be executed, dated March 12, 1886; and said defendant avers that said debt was then due from said John Lowry to said Ziegenheim, and said writ of attachment then in full force and effect, and defendant then and there, as Sheriff of said county, by virtue of said writ, then and there levied the same upon the said property in said declaration mentioned as the property of the said John Lowry and subject to said attachment, and by virtue thereof, and as Sheriff as aforesaid, did then and there levy upon and take possession and custody of said property, being the same property in the declaration in this cause named; and he further avers that the same was then and there the property of said John Lowry, and subject to said writ of attachment, which was returnable to the May term, A. D. 1886, of said court; and said defendant further avers that said John Lowry was then and there duly served with said process in said cause, and pleaded therein to said May term of said court, and on issue then joined therein, verdict and judgment of said court in said cause of Ziegenheim v. John Lowry was rendered in favor of said Ziegenheim, and against said John Lowry, for the sum of §2,359.09 and costs of suit, by said court, on the-day of May, 1886, which said debt and writ and said judgment aforesaid was at all times, and still is, due and unpaid and in full force and effect, and the money due thereon wholly unpaid and unsatisfied to said Ziegenheim, and said defendant avers that said writ of attachment so levied upon said property was never dissolved, annulled or dismissed, or in any way canceled or impaired, but remained at all times in full force and effect, and said debt at all times so due; and defendant further avers that, to wit, on the 4th day of Hay, 1886, the said plaintiff, William Lowry, interpleaded in said cause of Zicgen"heiin v. John Lowry, and became a party to said prosecution in relation to said property attached, and then and there alleged that said property in the declaration in this cause mentioned was the property of him, said William Lowry, and not the property of said John Lowry, or subject to attachment against John Lowry, on which allegation in said interpleader said Ziegenheim took issue, and the said cause and issue on said interpleader of said William Lowry aforesaid is still pending for trial, and is undetermined before the said Circuit Court of said county, and wholly undisposed of, uncanceled and not dismissed or abandoned in or before said court; and defendant further avers that the said property in said declaration mentioned at said time, when, etc., was, and still is, the property of said John Lowry and subject to said writ of attachment aforesaid, and was then, and is, in the custody of the law, and was not, and is not, subject to the writ of replevin by plaintiff in this cause, and said defendant, as Sheriff of said county and officer of the law and of said court, was then and there lawfully entitled to the possession thereof, and plaintiff having elected to interplead and claim said property in said cause against John Lowry, etc., plaintiff is estopiped to 'bring replevin therefor without this, that the said goods and chattels, or any part thereof, in the said declaration mentioned were, or are, the goods and chattels or property of the said William Lowry, as by said declaration is above alleged, and supposed,” concluding with a verification.

To this plea the plaintiff demurred, assigning for causes that (1) it tenders an immaterial issue; (2) it amounts to the general issue; (3) it professes to be a plea of justification, of former recovery, and of another action pending; (4) it is bad as a plea of justification; (5) the former recovery attempted to be set up is not for the same cause of action, nor between the same parties, nor does it show that any judgment has been recovered in the former action and recovery pleaded; and (6) is a joinder of pleas in abatement and to the merits.

The demurrer was overruled, and thereupon plaintiff replied as follows t

“Preeludi non, because he says, that all the property, goods and chattels in the said declaration mentioned at the said time, when,” etc., “ was the property, goods and chattels of him, the plaintiff, and was not the property of the said John Lowry, and was not subject to said writ, as is by said plea alleged, to wit, at the county and State aforesaid,” concluding to the country.

To this replication the defendant demurred on the grounds alleged, that (1) the issue tendered by the replication is upon the inducement and not upon the gravamen of said plea; (2) the issue tendered is immaterial; (3) the question of property in John Lowry is not the issue tendered by said plea; and (4) the replication admits the estoppel pleaded.

The demurrer was sustained, and the plaintiff abiding by the replication, final judgment on the demurrer was entered against him for costs and a writ of retorno hahendo awarded.

The ruling and judgment upon this demurrer being the only errors here assigned, the single question for us is whether the replication was sufficient; and the answer must be determined by the character of the plea.

What, then, is the defense set up or the issue tendered by it? If it can be fairly treated as a plea of justification, or of property in John Lowry, the replication was good; and it can not well be doubted that it does contain, in due form, all the matter required for either, though with much else that would be surplusage. Thus, as a plea of justification, the averments of final judgment in the attachment suit, and all that relate to the fact and effect.of the interpleader, would be immaterial ; but omitting these, there would remain just that plea, in matter and form. So, as a plea of property in John Lowry, the averment of that fact as inducement, followed by a traverse of the allegation of property in the plaintiff, as in the absque hoc., -would have sufficed. But mere surplusage > does not vitiate.

Appellee insists, however, that it is neither, but a plea of estoppel, and also in bar of the right claimed, upon the same facts; that in interpleading, under the circumstances stated, he elected another form of action,with which this is inconsistent, and which therefore estops the bringing of this, and also thereby solemnly admitted that the property was in custody of the law so that he could not be entitled to the possession of it, as he must be in order to replevy.

How if the plea in this view is no more free from surplus-age than in the other, and is chargeable besides with graver faults, then it would not be unfair to the defendant to treat it as of a character in which it would be substantially good.

With reference to the estoppel, the averments that John Lowry was the owner and in possession of the property, that it was subject to the writ of attachment, that the defendant therein was personally served with process, and that there was a final judgment against him therein, and the traverse under the absque hoc, were all surplusage, it was enough to aver that at the time when, etc., the defendant, as Sheriff, and by virtue of the writ, levied on the goods as the property of John Lowry, and that plaintiff interpleaded. But further, the plea shows that the estoppel claimed was by matter which must have been of record, and yet fails to aver any record. And still farther, it shows that the proceeding by interpleader was not in fact or law inconsistent with any claim made by plaintiff in this action. For the court will take judicial notice that in that proceeding he could and did claim nothing more than title to the property attached, and that no other question or issue was or could be involved, and the plea shows that he makes precisely the same claim here, together Avith others which folloAV from and strictly consist with it. Then it does not sIioav a proper estoppel, in fact or law, but only another action pending, which, if for the same cause between the same parties, would be matter of abatement, but not an estoppel, lie might dismiss his interplea and then reneAV this action. Moreover, this matter of abatement is not pleaded in proper form, and is also improperly joined with matter in bar.

The same averments that would have presented the alleged estoppel would have also sufficed to show the alleged bar by admission, leaving as much surplusage as in the other aspect of it. But regarding this as a bar, it would Avaive the pending of the other proceeding, the effect of which at mostAvould be to abate the present action.

We hold that the facts set forth do not show or amount to such admission, hut think the pendency of the other proceeding was waived by other matter in the plea, which, as a whole, was confessedly pleaded in bar, whatever the supposed bar really presented by it may be.

That the inter plea did not of itself admit that the goods were in custody of the law, must be manifest. By that act the plaintiff alleged that he, and not John Lowry, owned the goods taken by the defendant, and that therefore they were not subject to the writ which was against John Lowry. Unless they were the property of John Lowry they were not in the custody of the law, nor rightfully in that of the defendant, its minister, except as against him. There was no warrant in law for such custody except as against him. In Dunham v. Wykoff, 3 Wend. 280, the court say, that “in Clark v. Skinner, 20 Johns. 467, Mr. Justice Pratt has shown very conclusively that that proposition is correct only as between the defendant in the execution and the officer.” The reason is that in such case the real owner is, by virtue of his ownership, constructively in possession, though the actual possession may be in the defendant in the writ. The levy on goods of William, under a writ against John, is not a legal levy, and as to William, the officer is a trespasser.

In Roberts v. Dunn, 71 Ill. 50, cited by counsel, the goods said to be in such custody were the property of the defendant in the writ. By interpleading, then, the plaintiff expressly denied what counsel say he admitted, and the supposed bar of admission is not set up in the plea.

It follows from the foregoing that no bar was therein set up except that of justification or of property in John Lowry; to either of which alike, and necessarily traversing the allegation of property in the plaintiff, the replication was sufficient, and the court erred in sustaining the demurrer thereto.

Whether there was such another action pending as would abate this suit we do not determine, because in our view that question is not properly before us. If the defendant wished to raise it he should have filed the proper plea in abatement and taken his chances upon such issue as might have been made up thereon. He can not have the benefit of it under a plea which is avowedly in bar.

Note.—The companion case of James H. Morris v. S. D. Kinseyis for the same reasons reversed and remanded.

The judgment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

li ever sed and remanded.


text:
    Robert C. Cox v. R. L. McGuire et al.

      Replevin—Pledge by Borrower—Ratification—Instructions—See. Qhap. 82, R. S.—Jurisdiction of Justice.

    In an action of replevin to recover a horse which was pledged to the defendant by the brother of the plaintiff, to whom it had been loaned, it in held: That the hypothesis of ratification contained in the instructions was without foundation in the evidence; that a lien for charges due for keeping a horse can only arise under Sec. 49, Chap. 82, R. S., in favor of one who has actually “ kept ” it; that the borrower of the horse was not clothed with such indicia of ownership as would affect the ow.ner’s right: and that the defendant can not now question the jurisdiction of the Justice of the Peace before whom the action was brought.
    [Opinion filed November 18, 1887.]
    Appeal from the County Court of Sangamon County; the Hon. J. A. Matheny, Judge, presiding.
    Messrs. S. D. Scholes and James M. Graham, for appellant.
    According to the testimony of appellees, it is apparent that appellant did not, and under all the circumstances could not, ratify the action of John Cox. To make a ratification binding, the principal must be fully and fairly informed of all the material facts and circumstances. G. C. & S. Ry. Co. v. Kelly, 77 Ill. 426; Kerr et al. v. Sharp, 83 Ill. 109; Reynolds v. Ferree et al., 86 Ill 570.

      Appellant in this case was neither fairly nor fully informed of the facts and circumstances.
    Messrs. Patton & Hamilton, for appellees.
   Pleasants, J.

Replevin for a horse by appellant against appellees, commenced before a Justice of the Peace and taken by appeal to the County Court. Verdict for defendants and judgment thereon for costs and for a return of the property.

Appellant, a farmer near Springfield, being the owner of the horse in question, loaned it to his brother John, a sewing machine agent, who used it for a time, then pledged it to McGuire for a little borrowed money, and left for parts unknown. The debt remains wholly unpaid. It is not pretended, however, that John owned the horse or was authorized to pledge it, but the defense was ratification by appellant of what he did.

It appears that after considerable fruitless search and inquiry, appellant got a clew to the whereabouts of the horse by a postal card, mailed to John by McGuire, and came to Springfield to see him. He did not find him at his law office, but learned from Mr. Colby, his partner, that he had taken the horse in pledge, and that it was at the stable of appellees Keys & "Wilson. Mr. Colby testified that he told appellant the amount of McGuire’s claim, and spoke of $15, but could not remember whether he stated the amount to be $15, $17, or $20, though inclined to think it was $17-—his recollection being that McGuire first loaned him §15, and then §2 more to pay for feed—and that apjiellant then said he “ would see McGuire and see what the bill was, and would either pay it and take the horse, or let the horse go to pay it.” Poffenbarger, the only other person present, paid but little attention to their conversation, and' did not hear all of it, but says lie heard appellant make the statement above quoted. Appellant denies the latter part of the alleged statement, and claims that what he did say was that he “ would rather pay $15 (which he also claims was the full amount stated by Colby) than have any trouble over it.” He then went to the stable and found the horse. The proprietors toid him that McGuire had left it there; that they had no interest in it except for three or four days’ feed, and that they held it subject to McGuire’s order. ¡Refusing to state the amount of their bill, he tendered them 83, and demanded the horse, but they declined to deliver it or to accept the tender, which he has kept good.

On the following day he met McGuire, and his account of the interview is that he told him he had come to make a legal demand for the horse; to which McGuire replied that he (appellant) could get it only at the end of the law, and that he (McGuire) would not give it up.

McGuire’s testimony is that he loaned to John 825 at first, and then $2 to pay for feed; that the horse was kept for a time at Little’s, where a liability for 816 for his keeping was incurred, and afterward, until replevied, at Keys & "Wilson’s, to whom he thought he had paid 82. His version of the interview with appellant is as follows: “ Plaintiff said he had come to demand the horse. I told him he could have the horse if he would pay me what I was out; that I had loaned his brother 827, and had incurred an expense of 818 for beeping the horse, and that if he would pay that he could have him, otherwise I would not give him up.”

The foregoing, with unquestioned proof by several of his neighbors that appellant owned the horse and merely loaned it to his brother, makes the case. Ho question arises upon the admission or exclusion of evidence. The principal feature of the instructions for defendants is the hypothesis of ratification, which was also introduced into those asked for plaintiff by the court’s modifications, to all of which exception was duly taken and which are here assigned for error.

This hypothesis, Ave think, Avas entirely without foundation in the evidence. All that is claimed to warrant it is the alleged statement by appellant to Colby, in the absence of McGuire, that he “ would see McGuire and see Avliat the bill Avas, and would either pay it and take the horse or let the horse go to pay it.” If he made it, Avhich is denied, and on its face it is someAvhat improbable, it was not a promise to Colby, for the benefit of McGuire, for he made none to him nor had any dealing with him which could furnish any occasion for it. Hor was it a promise to McGuire through him, for he was in no sense the agent or representative of McGuire in this behalf, and so he testified. It was not a statement' left by appellant • with Colby as his own agent, for McGuire, for it in terms imported that he would himself see McGuire about the matter. And thus it also shows he did not then know what his brother had borrowed, nor what, if any further claim had arisen in consequence of the pledge; and. hence he can not be held to have ratified it. His information was that it did not exceed §17, but it is clear his informant did not claim to know; and appellant’s language implied that he would not do any thing about it until he should see McGuire and got from him the amount of his claim. We regard it rather as excluding the idea of a present ratification, and only the expression, of a disposition on his part, in view of the information then possessed. Clearly to our minds there was nothing in it to bind him.

Attention is called by counsel to Sec. 49 of Chap. 82, B. S., which gives to stablekeepers and “ any persons ” a lien upon horses * * * kept by them for the proper charges due for the keeping thereof and expenses bestowed thereon at the request of the owner or the person having possession thereof.” Whether this means a lien upon anything more than the interest of the person by whom or by whose authority, express or implied, the property mentioned is delivered to be kept, we do not feel called upon now to decide, simply referring to Story on Bailments, Sec. 93, 93a, and 279, because we apprehend that a rightful claimant under this statute must be one who has actually “ kept,” and so had actual possession of the property mentioned, and not one who has only paid or contracted to pay some other for the keeping. There is no evidence that McGuire, as a stablelceeper or otherwise, ever “ kept ” this horse, and Keys & Wilson have been paid and tendered all they can claim.

We are also referred to the effect upon the owner’s rights of his clothing another with the indicia of ownership, and to the rule by which it is determined which of two innocent parties must suffer. If the law referred to applied to cases like this it would soon put an end to lending and all other forms of bailment.

Finally, it is said that the plaintiff could not rightfully recover because the value of the property and consecpiently the jurisdiction of the Justice of the Peace was not shown.

Appellees appear, however, to have accepted the judgment of the County Court for a return of the property replevied, without questioning its jurisdiction on appeal, instead of having the case dismissed and suing on the bond. But we are not considering errors in favor of the plaintiff below, if the entertaining of jurisdiction was an error, because no cross-errors are assigned. Besides, the bill of exceptions shows that when plaintiff “was proceeding to prove the contents of the writ,” counsel for the defendants waived it, saying there was no controversy about them. What is meant by the contents of the writ may not be entirely clear, hut we presume they included the value of the property in controversy. The affidavit on which the writ issued stated that if was an old blind farm horse, of the value of §60, and under all these circumstances we will venture to overrule this point.

The judgment of the County Court will be reversed and the cause remanded.

lievet'sed and remanded.


author: Pleasants, J,

text:
    People of the State of Illinois ex rel., etc., v. Thomas W. McFall et al.

      Schools—-Special School for Colored Children—Quo Warranto—Practice —Petition for Leave to Pile Information—Counter Affidavits—Pr¡deuce.

    Upon a petition, in the name of the Attorney General, for leave to file an information in the nature of a quo warranto, against the members and officers of the Board of Education of the City of Quincy, and also against said Board, to require them to show by what authority they maintained, as alleged, a special school in said city for colored children, and excluded them from other schools, it is held: That leave to file the information was not a matter of right on showing a prima facie case, ex parte; that the action of the court in affording respondents, by means of a rule nisi, an opportunity to be heard by counter affidavits, if erroneous, worked no injustice; and that the evidence sustains the action of the court in refusing the leave asked.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. Wm. Marsh, Judge, presiding.
    Messrs. George Hunt and J. N. Sprigg, for appellant.
    Leave to file an information in the nature of a quo warranto should be granted to the Attorney General, as of public right, upon the complaint of the latter, and ex parte showing. R. S., Ch. 112, See. 1; People v. Golden Rule, 114 Ill. 42; High, Ex. Rem., 2d Ed., Secs. 697, 699, 707; People v. North Chi. R. R., 88 Ill. 544-6.
    Hpon a charge of usurpation in quo warranto proceedings, the burden is on the defendant to show that no usurpation has been committed. High’s Ex. Rem., Secs. 629, 6966, ■ 747.
    Separate schools maintained at public expense for piqfils of African descent, the exclusion of such pupils from the public schools where they reside, or the discrimination in such schools against pupils of African descent, are each unlawful. Ill. Const. 1870, Art. VIII, Sec. 1; R. S. Ill., Ch. 122, Secs. 105-107 (1874); Laws of Illinois, (1885), p. 64, Secs. 1, 2; Chase v. Stevenson, 71 Ill. 383; The People ex rel. v. The Board of Education of the City of Quincy, 101 Ill. 308; The Board of Education v. Tinnon, 26 Kas. 1; S. C., 40 Am. Pep. 203; Clark v. The Board, 24 Iowa, 266; Smith v. The Directors, 40 Iowa, 518; Dore v. Independent School District, 41 Iowa, 689; Kane v. Com., 101 Pa. St. 490; People v. Board of Ed., 18 Mich. 400; School District v. Aldrich, 13 N. H. 139.
    Public school officers have no power to exclude pupils of whatever color solely for tlie reason that there is no room in the school house for them. It is the duty of such officers to provide equal accommodations for all children eligible to attend the public schools. Const 1870, Art VIII, Sec. 1; R. S., Ch. 122, Sec. 119 et seq. Chase v. Stevenson, 71 Ill. 385.
    Messrs. L. E. Emmons and Carter & Govbet, for respondents.
    Leave to file an information, in the nature of quo warranto is in the sound discretion of the court or Judge to which the application is made. And it is proper practice to lay a rule ■nisi on the defendants to show cause why the leave to file the information should not be granted. People v. Moore, 73 Ill. 132; People v. Waite, 70 Ill. 25; The Peopde ex rel v. Callaghan, 83 Ill. 128; The People ex rel v. North Chicago R. R. Co., 88 Ill. 543; Dillon on Mun. Corp., Sec. 72; Commonwealth v. Arrison, 15 Serg. & R. 133; People v. Sweeting, 2 Johns. 183; State v, Tehoe, 7 Rich. 246; State v. Tolan, 33 N. J. L. 195; State v. Centerville Bridge Co., 18 Ala. 678; State v. Frisbee, 28 Vt. 714.
    Whether the application for leave is on behalf of the Attorney General or a private relator, the statute requires that the court, or the judge thereof in vacation, shall be satisfied that there is probable ground for the proceedings before leave to file the information is given. See. 1, Chap. 112, Quo Warranto, 2 Starr & C., p. 1872, as amended by the laws of 1SS1, p. 125.
    Whatever the rule might be where the petition is presented to a Judge in vacation, it is not error, whore the petition is presented in term time, to lay a rule nisi on the defendants before granting leave to file the information. At any rate the defendants would he entitled to notice of the application. State v. Burnett, 2 Ala. (N. S.) 140; State v. Bummersall, 24 N. J. L. (Zab.) 529; The People ex rel. v. Golden Rule, 114 Ill. 43.
    Granting leave to file an information in the nature of a quo warranto being in the sound discretion of the court, the judgment of the court refusing such leave must stand unless such discretion has been abused.
   Pleasants, J,

On the 25th day of September, of the September term, A. D. 188S, there was filed in the Circuit Court for Adams County, a petition in the name of the Attorney General, verified by the oath of Samuel Jenson, J. W. Monroe, Garrett Douglass and David Jones, for leave to file an information in the nature of a quo warranto against the appellees, who are alleged to he m'embers and officers, and all the members and officers of the Board of Education of the City of Quincy, and also against said Board, to require them to show by what authority they claimed to exercise, and did exercise, certain powers therein mentioned, and alleged to be without warrant of law and in derogation of the rights of colored citizens of said city.

It set forth that the city is divided into nine school districts, in each of which is a public school building; that the Lincoln District is about a mile square, in which there reside about one thousand white and one hundred colored children of age entitling them to admission to the public school of said district ; that it embraces more colored persons than any other locality of equal dimensions in said city; that it was laid out and established with its present bounds in February, 1882, and was so bounded for the puiqrose of including the largest number of colored children of school age that could be located in one district of like size within said city, and of establishing and maintaining that sphool as a sphool for oolored children only, and with intent to evade the laws and decisions of the Supreme Court of the State in that behalf; that ever since its establishment it has been and is now maintained for that purpose and no other; that only colored teachers have been and are provided for it, and that, with few exceptions, they have been and are greatly inferior in fitness to those provided for the other schools, and that the system of grade, discipline and instruction therein maintained has been and is lower than that maintained in- said other schools; that white children of school age residing in said district have been and are, without lawful reason, sent to other public schools of said city outside of said district, being required for that purpose to travel unnecessarily and unreasonably long distances; that about one hundred and fifty colored children of school age reside in other school districts of said city, and that, though in a few cases a small portion of them are admitted into these respective district schools, they are denied the equal rights, privileges, advantages, education and teaching to which they are entitled by law, and which are provided for and accorded to the white pupils in such schools respectively, and that other colored children of school age, being a large proportion of those so residing in said other districts, are wholly and unlawfully excluded from the public schools of the districts respectively in which they reside and are eligible to admission; that by reason of the establishment and maintenance of said Lincoln School, as a school for colored children only, and sending large numbers of white children of said district to other schools, those schools nearest said Lincoln District are crowded to such an extent as to overtax their teachers and endanger the lives and health of their pupils by imperfect ventilation and impure air, while the seating capacity of the Lincoln School is only about one-half occupied.

The petition does not specify an instance in which any right of any person, white or colored, has been denied or disregarded by the respondents, or any or either of them, but the unlawful and wrongful acts and doings so generally stated, are therein charged against the corporation, the Board of Education of the City of Quincy, and respondents as members and officers thereof, as done continuously and persistently since February, 1882, and in determined defiance of the law, and especially of the express decision of the Supreme Court in January of that year in reference to this same Board of Education and Lincoln School. 101 Ill. 308.

If true, these charges would make a clear case for the information, and very nearly also, if not quite, for an attachment as for contempt.

As shown by the petition, the Board consists of one member elected from each of the six wards of the city, together with the Superintendent of the schools and the Mayor of the city, who are ex officio members. The course of conduct set out would imply a conspiracy expressly entered into by every member of this body, and to which most, if not all, the principa Is and teachers of the nine districts, mostly ladies, must also have been parties. What motive, personal to any, could have influenced them to snch action, is not made to appear. If it was race prejudice, which could hardly have actuated all, unless they were elected and appointed with special reference to it, it is strange that they did not exclude all colored children from the other schools. For, since according to the petition the Lincoln School, though attended by the colored children of that district, and by some, if not 16 a large proportion ” of the remaining one hundred and fifty residing in others, was only about half full, there must have been left in that school room for all the colored children in the city who desired to attend a public school; and yet there were colored children in others besides the Lincoln School.

The petition is not verified by the Attorney General. Of the facts in relation to the action of respondents, being local, he could hardly have had any personal knowledge. ¡Nevertheless, being verified by the oath of four persons, and affecting the rights of a whole class of citizens under a general law, he could not well refuse to charge them officially, leaving with the parties thus verifying them the responsibility for their establishment by proof. Who they are, and what their motives or means of knowledge, except as hereinafter stated, does not appear. But from the nature of the charges, the number and character of the persons implicated directly and indirectly, and the absence of evidence as to the parties undertaking to verify them, it is no. matter of surprise that the Circuit Judge, upon the supposition that under' the statute the leave asked was not of right, and that lie still had some discretion as to its allowance, not satisfied from the petition thus verified that there was not some misunderstanding of the facts, or some unworthy motive for making the charges, declined to grant it upon this ex parte showing, and only laid a' rule nisi against the respondents, returnable October 4th, to show cause why it should not be granted; to which exception was duly taken.

On October 2d, the time for showing such cause was extended to the 14th, when the parties appeared by their respective attorneys and the hearing under the rule was had. Appellants, with twelve days further time for preparation to support their application, again read their petition, verified as aforesaid and treated as an affidavit, and their proposed information, together with the fortifying affidavits of America Campbell, Mary Bynum, Lawrena Bedding, Eliza Clay, Martha Scott, Caroline Berger and Simon Parish.

The first count of this information charges that respondents unlawfully provided schools and teachers for the Lincoln District, inferior in quality and fitness to those provided for the others; that they refused to admit colored children residing in other districts to the public schools thereof, respectively, but required them to attend the Lincoln School or none, for mo other reason than their color; and, to keep alive and cultivate distinctions on account of race and color, unlawfully permitted and directed white and refused to permit colored children of that district, purely on account of their color, to attend any other than the school in that district.

The second count charges that they maintain the Lincoln School out of public funds, purely as a colored school, and employ only colored teachers therefor, and ■ refuse, permit and require attendance of white and colored children as stated in the first count.

The third charges substantially the same facts as the first, with the further averment that all the unlawful acts and doings therein charged were and are done solely "on account of the race of the children and with intent to collect the colored into one school and the white into other schools.

The fourth count charges the same facts in substance set forth in the first, but with the introductory averment that the defendants have unlawfully usurped and exercised the power of selecting, designating and setting apart one of said schools as a school at which all colored children of the city who attend the public schools shall attend, and proceeding to aver the unlawful acts charged as committed in usurpation of authority on account of color, and for the purpose of separating the colored from the white children in the public schools.

The fortifying- affidavits mentioned, excepting that of Auierica Campbell, show that the affiants respectively were colored persons residing in the Washington District, and on the 6th and 7th days of September, being the first and second days of the school term, and during which, according to the rules, application for the admission of pupils are to be made, attended at the school house in said district with one or more children eligible to admission, and applied to the principal of said school for the admission of said children thereto, but were refused, and that since such refusal other pupils have been admitted to seats in the school room from which they were so excluded. Some of these children so excluded resided nearer to the Washington than to the Lincoln School, and in several of these affidavits it is further stated that like applications were refused in former years.

That of Mrs. Campbell shows that she and two neighbors named,residing in the Lincoln District, made application to the principal in the presence of the Superintendent, for the admission of their children to the school in Jackson District, which was refused, and the applicants told that their children must attend Lincoln School or stay away from school.

It further states that a like application by them had been refused for several years last past, and that during all that time and now, white children residing in Lincoln District and farther than affiant from Jackson School, have been and are admitted to said Jackson School. The reason for such application was that the Jackson School was nearer to their residence than was the Lincoln, and that one of Mrs. Campbell’s children was of delicate constitution, by reason whereof it was unable to walk to the Lincoln, but could attend the Jackson School, if permitted.

The papers above mentioned constitute the entire showing made for the leave asked. In opposition thereto were submitted :

1. The rules of the Board of Education, duly published, and showing among other things that no pupil could be admitted to a public school other than that in the district of his oilier residence without a special permit from the Superintendent, applying to the case of the children of Mrs. Campbell and her neighbors mentioned; that the criteria of eligibility to admission were the same for all the public schools of the city, and that no distinction in respect to any right or privilege of the children is made on account of race or color, and that the Superintendent is required to Cssee that the rules and regulations of the Board are uniformly and faithfully observed and executed in all the departments of the schools.”

2. The joint affidavit of respondents Demerree, Bobbins, Bagby, Wells, Xingsbaker and Baker, stating that since August 7, 1886, affiants and respondent MeFall, the Superintendent, have constituted the Board of Education of the City of Quincy, and that respondent Parkliurst is not nor ever has been a member thereof; that they disclaim all right or authority or purpose to do, and deny that they have do íe, or authorized or consented to any or either of the unlawful or wrongful acts or things alleged against them in the petition or proposed information, either as a Board or as members thereof; that while some white children of the Lincoln District have been permitted to attend school in others, the like permission has also been given to some colored children of that district—in all eases alike upon the request of their parents and in accordance with the general rules of the Board; that they have not, directly or indirectly, through the Superintendent or any principal or teacher, or otherwise, in any instance, required any pupil to attend school out of the district of his or her residence, nor forbidden the admission of any to the school within such district on account of race or color, but have positively and in good faith instructed all the officers of the Board and the principals in charge of the different public schools of the city .¡that the rules should be enforced and obeyed, and that all children, irrespective of their color, complying with them, might and should be admitted as pupils to the respective public schools within the district of their residence; and that they have not known of any children being excluded •from any public school building, or the school taught therein, by reason of color, by any teacher or principal, since they became members of this Board. These denials, going specifically to each of the charges, are as clear, direct, absolute and emphatic as language can make them.

3. Another joint affidavit of respondents .Demerree, Bag-by, Wells, Kingsbaker and Dulcer, stating that affiants, with respondent McFall and Robert H. Bennerson, composed the Board from August, 1885, to August 7, 1886, and that the facts set forth in the preceding affidavit were equally true of that year.

4. Affidavits of the several principals of all district schools, of whom all but two are women, that it has been the direction of the respondents, and especially of Superintendent McFall, that they should admit to their respective schools all children of school age residing in their districts, irrespective of their color, and that within the last twelve months no such children have been refused admission to the school of their proper district on account of their color.

That of the principal of Washington School explains the refusal to admit the children of the several persons whose affidavits in support of this petition have been mentioned, excepting Mrs. Campbell, whose application was for admission to another (the Jackson) school. She states that the Washington building contains four rooms, accommodating five grades; one, in which she teaches, being assigned for the 4th and 5th, and one for each of the others; that these refusals were but temporary, and solely for the reason that the rooms assigned for the grades to which these children belonged, respectively, were full at the time of the applications; that soon afterward room was made, and the children of affiants Parish. Bynum and Clay were admitted, and are pupils in said school; that no application has since been made for the child of Mrs. Redding, but it will he admitted when room is found; that Mrs. Scott was offered a permit for Jackson, the nearest school, but declined it, saying she preferred to wait for room in Washington School; and that the Berger children are attending the Lincoln School; that it often happens that the room for one grade is full when that of another is not; that she has frequently refused admission to white children for the same reason, and that colored children were at the time of these applications, and have ever since been, pupils of the Washington School, seventeen at present.

The affidavit of Superintendent McFall fills e’even pages of the record, and is so pertinent throughout that it has been reduced to no less than six in the abstract.

It explicitly denies the statement of Mrs. Campbell that he refused her application or told her anything whatever, and avers that though he was at the school building at the time referred to and there saw two colored women in conversation with the principal, he did not then have any conversation with them, nor hear or learn one word that passed between them and said principal; so that he was never in any way applied to for a permit to these children to attend that school It corroborates the other respondents and the principals as to instructions given to make no discrimination between children on account of race or color, and denies that any child is now, or for more than twelve months past has been, required to attend a school out of its pro per district or refused admission to any within it on that account; and avers that he has given permits to colored as well as white children of Lincoln District to attend elsewhere. It shows that the course of study in the Lincoln School is identical with that pursued in the others of the same grades; that t}ie grade of discipline and instruction is as high, and the accomplishment, ability and fitness of its principal and teachers fully equal to the average of the others; that the district as now bounded is not so large in area as some, nor appreciably larger than others; that while it was originally organized and equipped, in 1872. as a school for colored children only, to accommodate the large number of that class who during and after the civil war came from Missouri and other southern States and settled in that section of the city, it was promptly, upon the decision of the Supreme Court, in January, 1882, hereinbefore referred to, reorganized with reasonable and proper bounds, and has always since been, in good faith, conducted, like the other public schools of the city, without reference to distinctions of race or color of pupils; that the Jackson School, which is nearest, is not crowded nor is its ventilation bad, and that Washington School, the one next nearest, though at times crowded or full in some of the grades, has never suffered by reason of pupils admitted from Lincoln District, there being now there, from all the city outside of that district, only three, of whom one is colored.

Another affidavit from the principal of the Lincoln School» states that he is thirty-two years of age, a graduate of the normal department of Wilberforce University at Xenia, Ohio, of the year 1879, and has taught continuously ever since; also showing the education and experience of the teachers now under him, and that one of them succeeded Mrs. Munroe, who was discharged by the Board and is the wife of J. W. Munroe, whose affidavit is filed in verification of the petition herein.

Caroline Berger and Martha Scott, two of the ■persons whoso affidavits were filed in support of said petition, say they would not have made them if they had known the purpose for which they were obtained, confirm the statement of the principal of the Washington School in relation to her refusal to admit their children, and further say they have known white children to be so refused by her for the same reason.

They are entirely satisfied with the administration of the public school system in Quincy, and do not believe there is in it any discrimination on account of race or color.

This long statement of what appears from the evidence, is not made because deemed at all necessary to a proper discussion or fair understanding of any question of law considered by the court as arising upon the record. A large community is interested in the public school system of the City of Quincy. The value of this system depends largely upon the methods of its administration. Every system of free common schools, general or special, is, from causes that are inherent, sufficiently tender and liable to be hurt by mere suspicion. When question is seriously made touching the fairness and honesty of its administration, the community especially concerned has an interest to know, and those who are charged with maladministration a right to have made known, the actual facts in the case. We have therefore endeavored to state the proof made against and in favor of these respondents as fully, and yet as briefly, as a due regard to this interest and right, in our judgment, demands.

The charge against respondents is that they have established and are maintaining with public funds, a school in the City of Quincy, for colored children only. Divers acts and facts, such as the boundaries and area of the district and of those surrounding it, the color of teachers employed for it, the admission and exclusion of pupils to and from it and other schools, with reference to their color alone, are alleged as evidence of the charge. They fully admit and we hold it to be settled, that the establishment and maintenance of such a school would be an unlawful exercise of power by them, and that the evidentiary acts and facts alleged are equally unlawful and would be pertinent proof of that charge. But they deny both the ultimate and the evidentiary facts so alleged. In all the eontroveisy so far, then, no question of law is involved. One is suggested by appellants upon the reason claimed by appellees for the admitted exclusion from the Washington School of certain colored children residing in that district and eligible to admission to said school, viz.: that the room was already full. It is said that they have ño power to exclude for that reason, and the language of the Supreme Court in Chase v. Stevenson, 71 Ill. 385, that “if the school house was too small it would have been eminently proper for the directors to have enlarged the building,” is cited, and also the present law of compulsory attendance (R. S., Chap. 122, Secs. 119, et. sep). But the incapacity of the room could not be known, nor consequently the necessity or duty of enlargement, until it was full, and further applications for admission were made. The rule contended for would be hard upon the directors, for if they have no power to exclude temporarily for want of room, it is still further beyond their power to admit presently in such a case. Nothing short of a miracle could do it; and the idea of tlie Supreme Court has been misunderstood.

We think the only question of law involved lies hack of these of fact, and is whether, under the present statute, the court was bound by the showing of a prima facie case, ex parte, to grant the leave asked, without laying a rule nisi.

Such a rule was according to the usual course under the former statute. It is clear that under the one now in force. it is not obligatory. The People ex rel. v. The Golden Rule, 114 Ill. 42. But whether the court might not, in its discretion, in order to be satisfied upon the question of probable cause, afford to the respondents, by means of such a rule, an opportunity to be heard by counter affidavits, has not been directly decided. It is evident, however, that under the present- as under the former statute, the court has some discretion; that the filing by the Attorney General of an information in the nature of a quo wari'anto is not a matter of right; and that it is still an extraordinary remedy. If, therefore, under such a rule laid, a state of facts is developed which shows a strong improbability of cause for granting the leave, this court would not feel called upon to investigate, and be the first to commit itself upon this question of practice. Abundant time having been given to the petitioner to make his showing in support of his petition, and the presumption being that he knew, when he presented it, the sources and means of his proof to' establish it, we can not see that any inj ustice- has been done to the people whom he represents by the course that was pursued.

We are by no means satisfied—not merely from the denials by the respondents and other affiants of the allegations of the petition and proposed information, but from the independent facts apparently established—that there is any just occasion for this extraordinary proceeding. Ho one of the allegations in the petition appears to us to be sustained by anything like a preponderance of the evidence.

It is claimed that the affidavit of Superintendent McFall is evasive; and by way of example it is observed that while he states that neither the Jackson nor the Washington School was overcrowded by white children required or permitted to attend them from the Lincoln District, he does not state how it was with the schools in the other districts. But it is a fair presumption that children driven from the Lincoln District, if any there were, would seek refuge in the nearest harbors, which were the Jackson and Washington Schools, and further, he does positively state that the Washington School was the only one from which any children were excluded because of the want of room, and from that only for a time. In this statement lie is corroborated by those of the several principals of all these schools as to each respectively. It is further observed that he omits to state under what circumstances, or to what extent, or when, how or why, he began to grant permits to white children of the Lincoln District to attend other schools. But it is evident that this statement, unexplained, is against the respondents and therefore the omission of explanation is no evidence of an evasive disposition; and we think it further evident, from 1ns statement and those of others, that they were given, as in cases in other districts, before this proceeding was threatened or anticipated, and without any intention on his part to exclude white children from the Lincoln School.

The only facts prima facie suspicious that we observe in the whole case are that only colored teachers were employed for, and only colored pupils actually attended the Lincoln School.

These facts, however, are. not conclusive of any intention by the Board or its officers to establish and maintain it as a school for colored children only. And that this condition was the product of natural causes, without such intention, we think is fairly shown. That district was avowedly established for that purpose at first, under a supposed right to do it. A larger proportion of the residents of that quarter of the city than of any other was made up of colored people. Thus the condition and character of that school, as to color, wTas fixed before the rendition of the decision of the Supreme Court iii January, 1882. It would have been a wilfully unlawful discrimination, after that decision, to refuse certificates or employment to colored teachers. The character of the population remaining unchanged, it was natural that colored teachers should apply for appointment to that school, and that -white teachers should not. It was also natural that colored children of the district should attend it; and, considering their number and the color of the teachers, it was also to be expected that white children would not, unless compelled. For this prejudice or predilection on the part of each race, the Board of Education was not responsible. If they neither coerced nor encouraged they were not responsible for its operation or result. It is not shown that they did, but it is shown that they did not. They were not bound to district the city so as to divide the colored population or compel the commingling of the races or colors in all the schools, any more than they were bound to so district it as to divide and compel the commingling of different white nationalities. The districting actually made was by a territorial division, as required by the case cited of School District v. Aldrich, 13 14. H. 139, and that was enough, provided it was not so made for the purpose of establishing a race school. There is no satisfactory evidence of the number of white children in the district as established. The petition states it as “about” one thousand, and the verification is in general terms, that the petition is true; but this is hardly more than a statement under a videlicet, and there is no other evidence as to the number. What proportion was Roman Catholic, or for other reason non-attendants upon public schools, is not stated. But if that be the number, then it is clear, considering the number of colored children stated in the petition as residing therein, that the district could not have been so bounded from a purpose to establish an exclusively colored school. According to a clear preponderance of the evidence, it has been open for admission of white children as freely as of colored, and not one who was eligible and desired to attend has been excluded, or by the Board or any of its officers sent or required to attend elsewhere. The number permitted to attend elsewhere, or some approximation to it, might have been alleged and shown by the petitioner, but no such allegation, nor any attempt at such showing, has been made. It is admitted that some were so permitted, but this admission affords no proof of a purpose or policy to prevent the attendance of white children at that school, since like permission was given to some colored children of the same district, and to both white and colored in the other districts, but in all cases upon the request of their parents and under rules of general application. And if it appeared, as it does not, that a larger proportion of such permits had been given to white children of that district than of any other, upon such requests, and without coercion or positive influence used by the Board of Education to induce them, we should not regard that fact as evidence of any abuse or usurpation of power, for we are not prepared to hold that it was their duty to make special opposition to the inclination of white parents of that district to have their children taught in other schools, under existing circumstances.

Had all the facts shown by a clear preponderance of evidence, heard under the rule nisi, appeared by the petition, the Circuit Court, in our opinion, would have been justified under the statute in refusing the leave asked; and if it erred in affording the opportunity, by means of that rule, for the presentation of the facts as shown by the respondents, which we do not decide, it was an error that worked no injustice.

The order refusing the leave asked will therefore be affirmed.

Order affirmed.


author: Wall, J.

text:
    Frances C. Sanborn v. Haynes, Gordon & Company.

      Use and Occupation—Contract—Landlord and Tenant—Notice—Question of Fact—Conflict of Evidence.

    1. The action of assumpsit for use and occupation is founded upon contract, express or implied, and the relation of landlord and tenant must exist.
    2. Where one continues to occupy premises after being notified by the owner that he will be expected to pay rent, he will be liable for use and occupation.
    3. In the case presented, the evidence being sharply conflicting, this court declines to interfere with the finding by the court below that the plaintiff did not notify the defendants that they would be expected to pay the rent.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.

      Messrs. Fifer & Phillips, for appellant.
    Messrs. Kerriok, Lucas & Spencer, for appellees.
   Wall, J.

The present action was brought by the appellant against the appellees, assumpsit, for use and occupation of certain premises in the town of Chenoa. The case was tried by the court, a jury being waived, and resulted in a judgment for §29.29 in favor of the plaintiff, from which the plaintiff appeals, and urges upon the record as here presented, that the judgment should have been much larger.

It appears that the lot in question was formerly owned by one Hicks, who had placed a mortgage upon it in favor of Zyber, and being indebted to Haynes, Jordan & Company, gave that firm a quit-claim deed. The mortgagee pressing his claim and being about to file a bill to foreclose, took a deed from Haynes, Jordan & Company, as they say with the understanding that the frame building for the use of which this suit is brought should be reserved and that they should have the privilege of moving it off the lot, but paying as ground rent while it remained there the taxes assessed against the lot. The present firm of Haynes, Gordon & Company succeeded Haynes, Jordan & Company, and continued to occupy the building. They paid the taxes, which were accepted as the ground rent until the property was purchased by the appellant, when the point was made that, as there was found no reservation of the house in the deed, they had no right to it.

There was some discussion of the matter between the parties, both claiming the property, and finally proceedings for possession as well as this suit were instituted by appellant.

The action of assumpsit for use and occupation is founded upon contract, express or implied, and the relation of landlord and tenant must exist. Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Ill. 24.

When it does not appear that a party is an intruder or a trespasser on land or that he holds it against the will of the owner, or that he is to enjoy the land without rent, the law will raise an implied agreement to pay a reasonable rent therefor. Oakes v. Oakes, 16 Ill. 106.

If one continues to occupy property after he has been notified by the owner that if he does so he will he expected to pay rent, the occupant will thereby become liable to .the owner for use and occupation. I. C. R. R. Co. v. Thompson, 116 Ill. 159.

The discussion in this case is mainly upon mere questions of fact, as to which there is sharp conflict, and the inquiry is whether, upon the evidence under the rules of law above stated, the judgment is a proper one. It is clear there was no express agreement at any time, to pay rent for the building, the only express agreement ever made being for ground rent. This was founded upon, the understanding that the house was reserved, and was carried out for some years upon the supposition that such reservation was contained in the deed. When at length it appeared there was no such reservation, and the ownership of file building was controverted, the payment of the ground rent ceased. It is at this jioint that we find the difficult and serious question of fact—did the appellant notify the appellees that if they continued to occupy the building they would be expected to pay rent? It is so asserted on the one side, and is positively denied on the other, and upon the answer must depend the question of liability. Upon the solution of this question of fact turns the conclusion of law as to whether there is an agreement to he implied that the appellees would pay a reasonable rent for the building.

The court, sitting as a jury, found the issue for the defendants, and allowed the p'aintiff the unpaid ground rent, of which defendants made no complaint.

We are unable to say that this finding is so far opposed to the evidence as to justify interference in this court.

The judgment will be affirmed.

Judgment affirmed.


text:
    The City of Champaign v. Maria McInnis.

      Municipal Corporations—Personal Injury—Defective Sidewalk—Notice —Negligence.

    1. A municipal corporation is charged with the supervision of its streets, and must keep them in a reasonably safe condition.
    2. In an action against a municipal corporation to recover damages caused by a defective sidewalk, it is held: That the verdict for the plaintiff is sustained by the evidence; that notice to the defendant of the defective condition of the walk is to be presumed from lapse of time; and that it Is immaterial whether the walk was laid by the defendant.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Champaign County; the Hon. J. E. Hughes, Judge, presiding.
    Messrs. E. L. Sweet and H. W. Mathews, for appellant.
    Messrs. J. L. Eat and H. B. Slattsoe, for appellee.
   Wall, J.

The appellee recovered a judgment for $555 against appellant on account of injuries sustained by reason of a defective sidewalk.

We find the evidence supports the verdict. The plaintiff appears to have been exercising ordinary care, and there can be but little if any doubt the injury is directly due to the fact that the walk was badly out of repair. ■

The injury was severe, a bone being broken, and the amount allowed is moderate.

From the length of time the walk was out of order, it is to be presumed the city had notice of its condition, and therefore _ it is negligent in not having made the necessary repairs.

It is urged the walk was not laid by the city, and hence there is no liability. The evidence tends to show it was laid by the city many years ago; hut if this were not so, the city would not be exempt. Even if laid by a private person, the corporation should have used reasonable care to prevent it from becoming dangerous to pedestrians, and failing in this, would be responsible for the consequences. The city can not permit a sidewalk to become unsafe, and as such a nuisance, and then escape liability on the ground it did not build the walk in the first place.

It is charged with the supervision of the streets, must keep them in reasonably safe condition, and by taxation, is provided with the means of doing so. City of Bloomington v. Bay, 42 Ill. 503 ; Dillon on Hun. Corp., 789 et seg.

There is no error in the instructions given for the plaintiff, nor in refusing a new trial. The judgment will be affirmed.

Judgment affirmed*


text:
    Benjamin Heckle v. William Grewe.

      Exemptions—Sale under Execution—Double Damages—Interest of Tenant in Common.
    The statute providing for double damages for levying upon and selling, under execution, personal property claimed to be exempt, applies to the interest of a tenant in common of indivisible chattels.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. Wm. Harsh, Judge, presiding.
    Mr. George W. Fogg, for appellant.
    Messrs. Carter & Govert, for appellee.
   Pleasants, J.

In an action of trespass nnder the statute appellee recovered judgment below for double damages against appellant, the Sheriff, for levying upon and selling under execution personal property claimed to be exempt.

The question arising upon this record is whether the statute applies as well to the interest of a tenant in common of indivisible chattels as to other kinds of personal property. We think it does.

It requires the debtor desiring to avail himself of its benefits to make out nnder oath and deliver to the officer a “schedule of all of his personal property of every kind and character, including money on hand and debts due and owing to him,” and allows him, after its appraisement as directed, to “select from such schedule the articles he may desire to retain, the aggregate value of which shall not exceed the amount exempted to which he may be entitled.” The schedule is to embrace all of his property “of every kind and character,” and his right of selection therefrom is limited only in reference to “value.” That a half interest as tenant in common of a horse is personal property of one kind or character, need not be argued. Counsel contend, however, that it is not an “article,” because it is not tangible. Nor is a “debt due and owing.” Every item of property that may be scheduled and is his property is an “article” that he may retain, unless its value forbids.

Many of the authorities distinguish between the interest of a co-partner and that of a tenant in common, and hold that the former is not within the exempting acts. The ground of distinction seems to he in the nature of the title. The co-partner has no interest in any article of firm property that is either absolute in character or certain in quantity, until after a settlement "of the partnership affairs. In other words, lie has none at all except for partnership purposes. He can not withdraw it from the uses and liabilities to which it is subject as firm property and appropriate it or any undivided interest therein to his oavh individual use exclusively. As he can not lawfully do so by personal use or any mode of assignment to another, so he can not by claim of exemption under the statute. In an important practical sense it is not in the language of the act, “his property.” See Thompson on Homestead and Exemptions, Sec. 194 et seq. Trowbridge v. Cross, 117 Ill. 109.

The interest of a tenant in common may he certain. He may avail himself of it exclusively by any manner of appropriation of which it is in its nature susceptible, by personal use of the chattel, several or joint, or by sale, exchange or assignment for any lawful purpose, and without consent of his co-tenant. Why, then, should he not be allowed to claim it as exempt, that he may so use it? Thompson on Homestead and Exemptions, Sec. 192; Radcliffe v. Wood, 25 Barb. 52; Servanti v. Lusk, 43 Cal. 238.

We are not aware of any decision of this question by our own Supreme Court. The ease of McMasters v. Alsop, 85 Ill. 157, involved partnership property and was disposed of on other grounds. Upon the terms and reason of the statute we hold that the interest of appellee here in question was exempt, and the judgment will therefore be affirmed.

Jxidgment affirmed.


author: Pleasahts,

text:
    Mary A. Marmon v. Thomas F. Harwood et al.

      Creditors’ Bill—Voluntary Conveyance—Fraud—Ignorance of Grantee —Property Retained,—Subsequent Loss—Delay—Trust—Form of Decree —Subrogation.
    1. Where a conveyancers sought to be set aside as fraudulent because voluntary, it is not necessary to show that the grantee knowingly participated in the fraud, or had notice of the indebtedness of the grantor, or of the insufficiency or mis application of the property retained.
    2. The question whether a voluntary conveyance is fraudulent in law as to creditors of the grantor, depends upon what he retains with which to meet his indebtedness. It is only when the debtor has retained property clearly ample and available that its subsequent loss by means that were not to be anticipated can be considered.

      3. Upon a creditors' bill to set aside certain conveyances and subject the property conveyed to the payment of a judgment, it - is held: That it was unnecessary to charge or prove actual fraud; that the debtor had no more right to delay the collection of the debt in question than to prevent its collection altogether; that no trust was created for the payment of the complainant’s debt; and that the decree sufficiently protects the rights of the appellant.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs.. James S. Ewing and Hamilton Spencer, for appellant.
    The decree appealed from is erroneous, because it directs the property conveyed to Mrs. Marmon to be sold on the Harwood judgment, and is not in the alternative that, if the judgment is not paid by Mrs. Marmon, then the property shall be sold. Patterson et al. v. McKinney, 97 Ill. 41.
    The conveyance of Mrs. Paist to Mrs. Marmon was not fraudulent as against creditors. She retained property abundantly sufficient to pay all her debts. There is nowhere in the record, neither in the bill nor in the proofs, any suggestion even, that Mrs. Marmon was party to any alleged fraud. She had no knowledge of any debt owing by her mother, Mrs. Paist.
    To subject lands to the payment of debt because of a fraudulent conveyance, it must appear that the grantee had notice of the fraud. Kyzer v. Hull Skirt Co., 34 Ind. 249. A voluntary deed made by a parent to a child without valuable consideration will be upheld, if at the time of the conveyance the grantor retains property reasonably sufficient to pay his debts. Durand v. Weightman, 108 Ill. 489; Woolbridge v. Gay, 68 Ill. 157; Bridgeford v. Riddell, 55 Ill. 261; Moritz v. Hoffman, 35 Ill. 553; Ward v. Enders, 29 Ill. 519; Tunison v. Chamblin, 88 Ill. 378; Pratt v. Myres, 56 Ill. 23; Jackson v. Miner, 101 Ill. 550. These cases refer mainly to the rights of subsequent creditors as against a voluntary conveyance.

      As to the validity of a voluntary conveyance as to prior creditors, it must he affirmatively shown that the grantor was insolvent, or at least, deeply indebted, at the time of making such conveyance. Cudgel v. Kitterman, 108 Ill. 50; Moritz v. Hoffman, 35 Ill. 553; Patrick v. Patrick, 77 Ill. 555; Bridgeford v. Riddell, 55 Ill. 261; Gridley v. Watson, 53 Ill. 186; Tunison v. Chamblin, 88 Ill. 378; Pratt v. Myres, 56 Ill. 23; Emmerson v. Benis, 69 Ill. 537; Crawford v. Logan, 97 Ill. 386; Kehr v. Smith, 20 Wall. 31; Story’s Eq. Jur., Sec. 1041; Bump on Fraud. Gonv., 282, 287.
    Messrs. Kebbick, Lucas & Speetoeb, for appellees.
   Pleasahts,

J. This was a creditor’s bill by appellees, filed August 11, 1886, against appellant, Win. W. Marmon, her husband, Maria Paist, Owen L. Cheney, Mary L., his wife, and James S. Neville, to set aside certain conveyances by Mrs. Paist to appellant and Mrs. Cheney respectively, and subject the property therein described to the payment of their judgment against the grantor.

Upon final hearing on the pleadings and proofs a decree was entered substantially according to the prayer of the bill, from which Mrs. Marmon alone appealed.

There is no disagreement as to the main facts, which are as follows: In April, 1884, Mrs. Paist, who was a widow, and the mother of Mrs. Marmon and Owen L. Cheney, made a promissory note, with the latter as surety, for §3,556, due in two years, with interest at seven per cent. In April, 1886, only a few days after its maturity, appellees, as assignees of said note, recovered judgment thereon against the makers for §4,053.84 and costs, on which execution was duly issued and returned “no property found.” Therefore this bill was filed.

When said note was made Mrs. Paist had title in fee to the following described parcels of real estate, viz.: Lot sixteen (16) and the east half of lot seventeen (17) in White’s Addition to Bloomington, known as the homestead; the south half of lot nineteen (19) in the same addition, known as the Cheney homestead; lot six (6) oE the Assessor’s Subdivision of lots 50, 51, 52, 53 and 54, of the original town of Bloomington, known as the Hammerslaugh property; and the east half of lot four (4) in block (1) of the Third Addition to Normal, and a strip of land adjoining.

On the 5th day of November, 1884, she executed to appellant a conveyance in fee of the homestead, without consideration, and on the same day to Mrs. Cheney, also without consideration, alike conveyance of the Cheney homestead and the Hammerslaugh property, and on the 10th of December following, the half lot and strip adjoining in Normal.

The homestead was unincumbered, and of the value of about §7,000; the Cheney homestead was worth about §2,500, but incumbered for §1,000; the Hammerslaugh property was subject to a mortgage on which, with accrued interest, there was owing about §8,000, and was sold by Mrs. Cheney, subject to the mortgage, for §4,438; and the Normal lots were worth §300.

Thus, by these conveyances, executed after the making of the note mentioned and before it became due, Mrs. Paist attempted to divest herself, without consideration, of all the property she had that could be reached by execution, and which amounted in value to over §13,000. Besides that note, she was liable as surety for her son on another for §1,000, to these appellees.

All the property that she retained consisted of notes of her son-in-law, Mr. Marmon, for §2,800, and a mortgage on the fair grounds at Bloomington for §6,000, subject to a prior incumbrance of about §12,000.

Before the note first above mentioned matured, the Marmon notes belonging to her were reduced to one for §1,300 (§1,000 having been used to pay the smaller note to appellees, and §500 given to another party), and this did not mature until 1890 or 1891.

The fair grounds were sold under the prior mortgage or trust deed, and Mrs. Paist became the purchaser for the amount due thereon, securing to the creditors §7,000 of the purchase money by her mortgage on the property and paying 85,000 in cash.- Of this $5,000 she got $4,000 of the proceeds of the sale by Mrs. Cheney of the Hammerslaugh building and borrowed §1,000. She then sold the property to the McLean County Coal Company, for which it assumed the $7,000 mortgage and paid her $2,000 in cash, $3,000 in notes and 82,500 in two houses and lots in Normal. Out of the cash she repaid the §1,000 borrowed to pay for the property, and the residence, with the notes and real estate, was put under control of Owen L. Cheney, who sold the realty for $1,900, converted the notes, and lost the whole in deals on the Chicago Board of Trade. He is insolvent.

The $1,300 note of Marmon, all that remained to Mrs. Paist, was delivered by her to her solicitors to secure their fees for services in this and other litigation.

It appears that when Mrs. Paist conveyed the Hammers'1 augh building to Mrs. Cheney, it was intended by both parties that it should be sold again, and the proceeds in excess of the mortgage upon it, applied to pay the note held by appellees, and that the change of purpose, by which it was applied to pay for the fair grounds, was not known to Mrs. Marmon until after it had been so applied.

And it further appears that when the proceeds of the sale of the fair grounds by Mrs. Paist were placed under the control of Owen L. Cheney, he was expressly charged by her and expressly agreed to apply so much as should be required therefor to pay off that note, and his conversion of them, as stated, was without the consent of his mother, or the knowledge of her or of Mrs. Marmon, until after its conversion and loss, all of which occurred before appellees5 note became due. She also proposed to appellee Thomas F. Harwood, to take the fair grounds for $16,000, including in that price the mortgage and the amount of appellees’ note, which he declined to do. •

The arrangements so made and proposed for the payment of this note may be accepted as proof that Mrs. Paist did not intend, by the conveyances in question, to hinder, delay or defraud appellees, nor apprehend from then any such effect.

But it was unnecessary to charge or prove actual fraud. The contention of appellees is that in view of the amount of her indebtedness, about §5,000, and the character of the property she retained, being §2,300 in unsecured notes not due until 1891, and a mortgage for §6,000 against an insolvent corporation upon property of uncertain value and under a prior incumbrance of §12,000, Mrs. Paist had no right as against her creditors, however innocent of actual fraud, to donate to her daughter real estate of the value of §7,000.

It was clear that the Marmon note was not available for immediate application to their payment when their debt became due, at their option, through any process of law or equity. A delay of nearly five years was inevitable in the natural course of events. Possibly with her consent it might have been at once converted into money by submitting to a considerate rebate or discount. But the fact that the creditors could not compel its conversion or application for so long a time makes it of little if any account in the view of the equity rule here invoiced; for she had no more right to delay them in the collection of their debt than to prevent them altogether. And that her mortgage upon the fair grounds was, at the date of the conveyance to appellant, sufficient to pay them, is by no means clear. The prior incumbrance then amounted to about §12,000, and the property was eventually sold to the parties to whom it was most valuable for less than the aggregate amount of that incumbrance and appellees’ debt.

It is true that in the interval of time between the clate°of that conveyance and the maturity of appellees’ debt, she acquired a larger interest in it, but the question of her right to convey without consideration is to be determined by what she then retained. If she could take the chance of increasing her property after that time she must also take the risk of its decrease. By her management she did increase it during that time, hut by her management also, though well intended, she afterward, during the same period, lost it all; and when the creditors’ debt became due they found remaining in her hands nothing of the property she had when the credit was given, which, if retained, could have been made to respond to their claim. She had voluntarily conveyed every item of it. If it be said that the means by which she lost the proceeds of her estate in the fair grounds were not to be anticipated, it may be also said that the means by which shr added to it and the fact of such addition were not to be ¡.micipated; in other words, that the question goes back of huh the gain and the loss, to the time of the voluntary conveyance, The inquiry is, what did she then retain; and it is only when the debtor has retained what is clearly ample and available to the creditor, that its subsequent loss by means that were not to be anticipated is considered.

The claim that when the deed was made to appellant a trust was created for the payment of appellees out of the proceeds of the Haminerslaugh building which was at the same time conveyed to Mrs. Cheney, is not sustained by the evidence. The deed to her was absolute, and whatever may have been the intention, no valid enforceable trust for that purpose was ever created unless it was by her agreement on receipt of those proceeds, which of course was" some time afterward.

Without extending the argument to all the suggestions of counsel, the foregoing is submitted as a sufficient indication of the views on which the court reached the conclusion that the conveyance to appellant was within the rule declared in Patterson v. McKinney, 97 Ill. 41, fraudulent in law as against appellees, upon the assumption that it was voluntary, which we further think is fairly warranted by the evidence. The testimony does not show any such definite parol agreement with appellant, nor any sucli apparent change of possession or improvement of the premises on the faith of it, as would establish the equity claimed for her on that ground.

Where a conveyance is sought to be set aside as fraudulent because voluntary, it is not necessary to show that the grantee knowingly participated in the fraud, or had notice of the indebtedness of the grantor or of the insufficiency or misappli. cation of what was retained. In the single case cited from 34 Ind. 249, the conveyance was made for a valuable consideration, and we understand the rule of notice here contended for applies only to grantees for value. Appellant, then, is not protected by her ignorance.

We are also of opinion that the contingent provisions of the decree sufficiently obviate the objection taken to its form. They give her the right to pay the amount found due, and in case she pays it or any part of it, or in case the lot conveyed to her or any part of it shall be sold to satisfy it, she is subrogated to complainant’s rights against Owen L. Cheney, who is held primarily liable.

Perceiving no material error in the record the decree will be affirmed.

Decree affirmed.


author: Per Ov/riam.

text:
    Ohio & Mississippi Ry. Co. v. John J. O’Donnell.

      Railroads—Damages for Killing Cow—Ordinance.

    In an action against, a railroad company for killing a cow this court cV'cbnes to interfere, the verdict for the plaintiff being sustained by the evidence.
    [Opinion tiled November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hón. J. A. Creighton, Judge, presiding.
    Messrs. Pollard & Werner and Matheny & Matheny, for appellants.
    Messrs. Orendobee & Patton, for appellee.
   Per Ov/riam.

Action on the case against the railway company for negligence in running its train, whereby plaintiff’s cow was billed; for which he recovered judgment below on a verdict for $55 damages.

There seems to be nothing here for our consideration but a question of fact, whether the negligence charged was sufficiently proved. Enough appeared to warrant a finding that at the time of the accident the train, was running backward, on a considerable curve, in a city, and at a rate of speed forbidden by its ordinance. These facts would make a prima facie case under the statute. The jury believed it was not: overcome. All the instructions asked on behalf of the defendant were given, and we see no reason to expect a different result from another trial.

Judgment affirmed.