text:
    Mary A. Walcott v. Theodore Hoffman.

      Husband and Wife—Family Expenses—Medical Attendance.

    Medical attendance upon the husband is a family expense within the meaning of Sec. 15, Chap. 68, R. S.
    [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the lion. Bollin S. Williamson, Judge, presiding.

      Messrs. E. H. & N. E. Gary, for appellant.
    The only question in dispute is whether or not the medical services rendered by appellee come within Sec. 15, Chap. 65 of the statute relating to husband and wife, which reads as follows: “ The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”
    The trial court held in the affirmative and rendered judgment for the plaintiff. This section of the statute has been under consideration by this court twice before. Von Platen v. Krueger, 11 Ill. App. 627; Hayden v. Rogers, 22 Ill. App. 557.
    The opinion in the latter case has no bearing upon the question involved in this case. The former opinion, we think, is decisive and in direct opposition to the decision now complained of.
    This statute was copied from the Iowa statute, and the same is also in force in Oregon. It has been before the Supreme Court of Iowa in the following cases: Rodemeyer v. Rodman, 5 Iowa, 426; Finn v. Rose, 18 Iowa, 566; Hawk v. Urban, 18 Iowa, 83; Laurence v. Sinnamon, 24 Iowa, 80; Smedley v. Felt, 41 Iowa, 588; County v. McDonald, 46 Iowa, 170; Jones v. Glass, 48 Iowa, 345; McCormick v. Murth, 49 Iowa, 536; Sherman v. King, 51 Iowa, 182; Russell v. Long, 52 Iowa, 250; Farrar v. Enery, 52 Iowa, 725; Fitzgerald v. McCarty, 25 Iowa, 702; Davis v. Ritchey, 55 Iowa, 719; Marquardt v. Maugher, 60 Iowa, 148; Frost v. Parker, 65 Iowa, 178; Waggoner v. Turner, 69 Iowa, 128.
    The same statute has been before the Supreme Court of Oregon three times. Watkins v. Mason, 11 Oregon, 72; Smith v. Sherwin, 11, 269; Phipps v. Kelley, 12, 213.
    Most of the Iowa cases were referred to by this court in the Von Platen case, and the rule for determining what are family expenses within the meaning of the statute laid down by the Iowa courts was then adopted. It is as follows: “Was the expenditure a family expenditure? Was it incurred for, on account of, and to be used in the family ? ”

      A breaking-plow and reaper, to be used by the husband alone, although for the benefit of the family, was held not to be a family expense, while a cooking stove, piano and other articles to be used by the family were held to be family expenses. Money borrowed for the use of the family, attorneys’ fees, expenses incurred in the treatment of an insane wife, were decided not to be family expenses.
    The cases of Marquardt v. Maugher, and Waggoner v. Turner, supra, are later than the case of Von Platen v. Krueger, supra.

    In the first mentioned case, all the articles purchased, except one ring, costing three dollars, were used by the family. It may fairly be presumed the ring was purchased by the wife, the appellant, and used by her. No question seems to have been made as to that. The decision in the case was based on the case of Smedley v. Felt, where the rule above quoted was established.
    In the case in the 69th Iowa the claim was for medicine and medical services for the family. In the Oregon cases the articles furnished were for use by the family.
    From all the decisions made upon the subject it seems the wife can not be made liable under this statute unless the claim is for expenditures incurred for, on account of, and to be used or kept for use in the family. It must be general and not individual; and it is not material that it directly or indirectly benefits the family; nor is it material whether it is a necessary or a luxury.
    It therefore becomes important to inquire where the doctrine announced by the trial court in this case will lead. If the wife is liable for medical services rendered to the husband alone she is liable for legal services rendered. She would be liable, for his clothing, his bill at the barber shop, at the cigar store or at the saloon. She would be liable for his theater tickets, dr, what is more expensive, if not extravagant in these days of exciting amusement, his tickets and expenses at the ball games; or his assessment at the clubs. In short, she would be liable for all his personal luxuries and extravagancies.
    Mr. James Frake, for appellee.

      This court in the case of Von Platen v. Krueger, 11 Ill. App. 627, reviewed many of the Iowa cases, and adopted the construction placed upon the statute of which ours is a copy.
    In the case of Finn v. Rose, 12 Iowa, 566, the action was for a cook stove used in the family. The court say a cook stove and fixtures, when purchased for that use and used in the house, as properly come within the meaning of the statute as clothing, food or medicine.
    In Hawk v. Urban, 18 Iowa 83, the court say this action was brought * * * to recover judgment for provisions, clothing, etc., properly included in the term “ expenses of the family.”
    In Fitzgerald v. McCarty, 55 Iowa, 706, the court, in reversing on account of faulty instruction, say : “ Under the instruction given, it is sufficient if an article was purchased for, on account of, and with the intent to be used in the family, although never used therein, or by any member of the family.”
    In Davis v. Ritchey, 55 Iowa, 720, suit for money loaned to pay for medicine for deceased husband and provisions for family, the court say: “ It may be, and in this case was, used to procure what, if obtained on credit, would have been a family expense.”
    In Waggoner v. Turner, 69 Iowa, 128, the court sustains a claim for medicine and medical services for the family. The case is silent as to whether the medicine and medical services were for more than one member of the family or not.
   Gary, J.

The only question in this case is whether medical attendance upon the husband is a family expense underi Sec. 15, Chap. 68, R. S., 1874.

This court concurs "with the Circuit, that it is. Marquardt v. Maugher 60 Iowa, 148; Hudson v. King, 23 Ill. App. 118.

Judgment affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    William Schilling v. Emil Rosenheim.

      Agency—Extent of Authority—Evidence.

    1. One who deals with an agent having no general authority is bound to ascertain the extent of his authority.
    2. In the case presented, the court below improperly instructed the jury to disregard certain evidence.
    [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Mr. Edmund Furthmann, for appellant.
    Messrs. Grant Newell and Arthur B. Camp, for appellee.
   Gary, J.

This is a very small case, but the appellant had a right to appeal, and to the judgment of this court, upon the merits.

The appellee is a tailor and employed a coat maker named Beckman, who owed the appellant. The appellant testified to an arrangement between himself and Beckman by which appellant furnished the cloth and Beckman was to make for appellant a suit of clothes. That he had no dealings with appellee; that the cutter of appellee took his measure and tried on the suit when it was partly finished. The appellee testified that Beckman asked him how much he would charge to make and trim a suit of clothes for appellant if appellant would furnish the cloth; that he, appellee, sent Beckman with samples of the trimmings, from which appellant made a selection, and then appellee sent his cutter to take the measure, and told him to tell appellant that the price would be $18. He also testified to conversations between himself and appellant. The cutter testified that he told appellant that appellee said the suit would cost appellant $18. This was all of the testimony material to the point to be decided. The court instructed the jury to disregard the evidence ot' the conversation between Béckman and appellant when the appellee was not present. It was a question for the jury upon the evidence, whether the suit was made by appellee upon the order of Beckman, or upon any bargain, express or implied, between the parties themselves.

Beckman was no general agent of either of the parties. He had no authority to pledge the credit of the appellant further than the instructions given him by appellant warranted. If the appellee dealt with Beckman as agent of the appellant, the appellee was bound to ascertain the extent of Beckman’s authority, or abide the consequence. Story on Agency, See. 126 in note. If, therefore, there was no bargain, express or implied, between the parties themselves, and the appellee made the suit upon the order of Beckman, which mutter the jury should have been left free to decide upon the evidence, then it was material for the jury to know upon what terms between appellant and Beckman, Beckman was authorized by appellant to give such order, for only by those terms was appellant bound.

Those terms could only be shown by showing what took place between themselves, and the court erred in striking out the testimony relating to them.

Reversed and remanded.


author: Garnett, JP. J.

text:
    The Widows and Orphans’ Beneficiary Association of The Ancient Order of Hibernians of the State of Illinois v. Margaret Powers.

      Practice—Bills of Exceptions—Seal.

    ’This court can not consider a bill of exceptions which was signed but not sealed by the judge of the court below.

      [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. Thomas McEnerny, for appellant.
    Messrs. William K. Lowery and Lynden Evans, for appellee.
    This appeal should be dismissed, because the bill of exceptions was not sealed by the trial judge. This omission is fatal. Starr & C. Ill. Stat., Chap. 110, § 60; Statute of Westminster, 2, 13 Edward I, Chap. 3; Miller v. Jenkins, 44 Ill. 453; Wagener v. Richard, 14 Ill. App. 389; City of Bunker Hill v. Johnson, 12 Ill. App. 255; Morse v. Williams, 4 Scam. 285; Cowhick v. Gunn, 2 Scam. 417; Day v. City of Clinton, 5 Ill. App. 605; Mason v. Gibson, 13 Ill. App. 463.
   Garnett, JP. J.

At the threshold of this case we are confronted with the point that the paper copied into the record, and described by the clerk of the court below as a bill of exceptions, is not under seal. The name of the judge before whom the case was tried is attached at the proper place for his signature, and we have no doubt his name was written there on the original document, by himself; otherwise the clerk would not have inserted a copy of the paper in the record. The four letters, “s-e-a-1,” ' with a scrawl drawn around them, were for some reason omitted, and that omission, insignificant as it seems, leaves the judgment to stand or fall upon the pleadings and the orders of the court.

Bills of exceptions were first introduced by the statute of Westminster, 2, 13 Edward I, Chap. 3, the act making a seal thereto essential. Jones v. Sprague, 2 Scam. 55.

This antique relic of forensic formality has outlived its usefulness. There is, and can be, no substantial virtue in that which is designated as a “seal” to a bill of exceptions. In the common practice the four letters and the scrawl are the work of the stenographer, or clerk, who transcribes the evidence, or the-attorney of the excepting party. They verify nothing, authenticate nothing, and serve no purpose other than that of a snare to unwary counsel. Venerable formalities die hard, but this one seems ripe for legislative surgery. Yet “the courts must carry out the legislative will. The statute requires that the bill be sealed as imperatively as the law requires a deed conveying real estate to have a seal attached.” Miller v. Jenkins, 44 Ill. 443. To this, “thus saith the law,' we yield submissive, though protesting,-obedience.

There being no bill of exceptions that the law recognizes, and no error appearing elsewhere, the judgment is necessarily affirmed.

Judgment affirmed.


author: Garnett, P. J.

text:
    John Claflin, Executor, v. Edward F. Dunne.

      Practice—Affirmance ~by Operation of Law.

    Where a judge of this court tried, the case under consideration in the court below, and the other judges are divided in opinion, the judgment will be affirmed by operation of law.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Kraus, Mayer & Stein, for appellants.
    Messrs. Hynes & Dunne, for appellee.
   Garnett, P. J.

This case was tried and disposed of in the court below before Judge Gary. He also overruled the motion to set aside the judgment, and is prohibited by the constitution from sitting in review of such action on this appeal.

The other two judges of this court disagree in opinion on the questions involved in the case. The result is, that the order of the court below, overruling the motion of appellants to vacate and set aside the judgment rendered in said cause in favor of appellee, is affirmed by operation of law.

Judgment affirmed.


author: Moran, J.

text:
    N. B. Haynes v. Mary J. Mason.

      Statute of Frauds—Master and Servant—Guaranty.

    A contract of hiring which, by its terms, is not to be performed within one year from the making thereof, is within the statute of frauds.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This action was brought to recover against appellant for a balance of salary claimed to be due to appellee under a contract of employment for the period of one year.
    The testimony of appellee as to the terms of the hiring is as follows:
    Q. Please state to the court, Mrs. Mason, on what day of the month this contract was made ?
    A. Thursday, the 26th of March, 1885.
    Q. When did you begin work?
    A. I began work on Monday.
    It. When were you to begin by the terms of the contract? A. I was to begin the Monday following.
    Q. And how long to work?
    A. A year from my engagement.

      Q. From what day, the Monday following?
    A. No, the 26th of March; I asked Mrs. Haynes: “Will
    Monday suit you for me to come to work?” “Tes, certainly, Mrs. Mason.”
    Q. You made the contract on the 26th of March, and you were to work a year; is that right ?
    A. Yes, sir; that was the arrangement.
    Q. You were to work a year, were you?
    A. Yes, sir.
    Q. And you were to begin work on the following Monday—is that right?
    A. The following Monday.
    Q. Let me understand you, so as to have no misunderstanding about that; were you to do a year’s work for them ?
    A. A year’s work; the same as the previous year.
    Q. And to begin on Monday after the contract, which was made on Thursday?
    A. I asked Mrs. Haynes particularly about that. “ Will Monday do for me to commence work?” “Yes, Mrs. Mason.”
    The book-keeper of Haynes testified that appellee told him after she commenced work that she was to be paid at the rate of §25 per week for 44 weeks, commencing March 30th, and $20 per week for eight weeks.
    Appellee failed in business on November 7, 1885, and was unable to furnish appellee employment after that time. At the time of the failure there was owing to appellee §250 for salary up to that time, and on the trial there was some contention as to whether she was to be charged with certain accounts of customers which it was claimed by appellant she had agreed to guarantee. The court found that appellee was entitled to her full salary to the end bf the year, and rendered judgment accordingly.
    Messrs. Cratty Bros. & Ashcraft, for appellant.
    The contract Sued on was not to be performed within one year from the time it was made, and is void by the statute of frauds. Sec. 1, Chap. 59, S. & C. St. p. 1187; Wheeler v. Frankenthal & Bros., 78 Ill. 124; Butcher Steel Works v. Atkinson, 68 Ill. 421; Warner v. Hale, 65 Ill. 395; Fleming v. Carter, 70 Ill. 286.
    The agreement by which appellee should be responsible for goods sold on credit without authority of appellant is not within the statute of frauds, and' is a valid contract, and appellant’s third holding should not have been refused. King v. Edmiston, 88 Ill. 267; Hurtley v. Varner, 88 Ill. 561; Nelson v. Ravens, 3 Ill. App. 565; Watkins v. Sands, 4 Ill. App. 207; Williams v. Corbet, 28 Ill. 262; Wilson v. Bevans, 58 Ill. 232; Darst v. Bates, 95 Ill. 493.
    Mr. Elbridge Haneoy, for appellee.
   Moran, J.

From the evidence set out in the statement of facts, which is all the evidence contained in the record on the subject, we think it very clear that the contract of appellee was one entered into on March 26, 1885, to work for appellant for one year, the year to commence on Monday, March 30, 1885..

The contract, by its terms, was not to be performed within the space of one year from the making thereof, and, not being in writing, it is within the first section of the statute of frauds. Butcher Steel Works v. Atkinson, 68 Ill. 421; Curtis v. Sage, 35 Ill. 22.

We think the court was correct in refusing to charge appellee with the accounts claimed by appellant against her on the alleged guaranty, but for the error in allowing to her the salary for the balance of the' year which would have been justly hers if her contract had been one valid in law, the j udgment must be reversed and the case remanded.

Reversed and remanded.


text:
    Emma A. Doyle v. Sylvester E. Brown et al.

      Injunctions—Dissolution on Demurrer—Damages—Solicitor's Fees— Practice.

    The dissolution of an injunction on demurrer to the hill furnishes no ground for the assessment of damages for services of the solicitor.
    [Opinion filed January 16, 1889.]
    In ebbob to the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. James Fullenwider, for plaintiff in error.
    Ho appearance for defendants in error.
   Gary, J.

The defendants in error seem to have abandoned this case (as no brief has been filed by them, although by stipulation they took time to do so), and with good reason, for the dissolution of an injunction on demurrer to the bill furnishes no ground for assessing damages for the services of the attorney, as such services have no special reference to the injunction, but are in general defense of the suit. McQuown v. Law, 18 Ill. App. 34, and cases there cited. There is no decree disposing of the bill which asks general relief besides the injunction.

The order sustains the demurrer only, and then stops, except the decree of the 850 damages was afterward entered. The decree is reversed, but there is nothing to remand. The case itself is, so far as this record shows, still pending.

Whether the demurrer should have been sustained or not is not a question here until there is a final decree. Frederick v. Conn. R. S. Bk., 106 Ill. 147.

Decree reversed.


text:
    Delphia K. Brown v. Caroline Kennicott et al.

      Trust Deeds-—Foreclosure—Consolidation of Causes—Practice.

    1. Suits to foreclose trust deeds executed by the same parties may be consolidated, although they cover different premises and the trustees are different persons.
    2. After such suits have been consolidated, it is improper to consolidate the debts and direct the sale of the premises conveyed by both deeds to pay the entire amount.
    3. Where a bill to foreclose a trust deed contains no allegation of facts making the wife of the grantor personally liable for the debts secured, it is improper to render a decree against her for the deficiency, even though the evidence shows such personal liability.
    [Opinion filed January 16, 1889.]
    In error to the Circuit Court of CookjCounty; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. M. & H. N. Culver, for plaintiff in error.
    Mr. John C. Richberg, for defendants in error.
   Gary, J.

This was originally two cases in the Circuit Court, in which Mrs. Kennicott was the complainant. The hills were filed to foreclose two trust deeds, made hy Ira Brown and his wife, the plaintiff in error, each to secure the payment of a separate note of Ira Brown, and in which there were different trustees. Each bill alleged that the plaintiff in error had, or claimed some interest in the premises, but stated nothing showing any personal liability by her to pay the debts.

The court ordered “that said cause be consolidated and tried and treated hereafter as one ease.” As the trustees were only nominal parties, having no beneficial interest, the plaintiff in error had no reason to complain of this order. It did her no injury. Stearns v. Cope, 109 Ill. 340; Aulger v. Clay, 109 Ill. 487. But the decree consolidated the debts, and directs that the premises described in both deeds be sold for the payment of the whole, and that if the moneys from the sale should be insufficient to pay the amount, Ira Brown and the plaintiff in error pay Mrs. Kennicott the amount of the deficiency, and that she have execution therefor.

This decree does not give relief upon the contract of the parties, but makes a new one. The debt secured by one trust deed was no incumbrance upon the premises described in the other. It is easy to imagine that if each parcel had been subjected only to its own burden it might have been in the power of the owners of the equity to have made negotiations for their relief, which the accumulated load would prevent Blazey v. Delius, 74 Ill. 299; Griesbaum v. Baum, 18 Ill. App. 614. And as the bills contained no allegations of facts which would make the plaintiff in error personally liable for the debts, a decree against her for the deficiency was not warranted under the general prayer, even though the evidence did show such personal liability. Rowan v. Bowles, 21 Ill. 17; Kellogg v. Moore, 97 Ill. 282; Johnson v. Foreman, 16 Ill. App. 632. The decree is reversed and the cause remanded.

Reversed and remanded.

On motion of defendants in error, the opinion heretofore filed is added to as follows: The record shows that in the master’s report the amount due on each incumbrance is separately stated, so that the data is in the record upon which to base a correct decree. The case is therefore remanded, with directions to the Circuit Court to enter a decree with separate clauses for the sale of the premises included in the respective trust deeds, to satisfy the amounts due upon them respectively, and without any personal decree for the deficiency against the plaintiff in error.


text:
    James K. Fisher and A. J. Fisher v. Egbert L. Jansen.

      Personal Injuries—Apartment Mouse—Elevator—Instructions—Negligence,

    1. A person, while upon the premises of another by invitation, express or implied, is entitled to due care on the part of the owner of such premises for his protection.
    2. In an action to recover damages for personal injuries, the jury may consider the matter o£ future inability on the part of the plaintiff to labor or transact business; and it is proper so to instruct them, although there is no evidence of what the loss from that cause will be.
    3. In the case presented, the court below properly assumed that the building in which the plaintiff was injured was a modern apartment house, the owner of which owed to the defendant the duty of due care.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Flower, Remy & Holstein, for appellants.
    Mr. E. A. Otis, for appellee.
   Gary, J.

The appellee was injured by walking through the open door of the elevator-shaft in the Beaurivage flats in Chicago, while the cab was above, and thereby falling into the pit below.

The fiats belonged to the appellants, and they employed the person in charge of the elevator at the time of the accident. There was no description by any witness of the character of the flats, or how they were occupied, further than that several of the witnesses “lived” there. Appellee was “stopping” with one of them. As a result of the accident the appellee is, to a considerable extent, disabled for bodily exertion.

The appellants excepted to, and now assign as error, the giving, on behalf of the appellee, the following instructions :

If the jury believe, from the evidence, that the plaintiff, at the time of the accident, was exercising reasonable care for his safety, and that the servants of the 'defendants were-guilty of negligence, as charged in the declaration, and that such negligence caused the accident, then they will find the defendants guilty, and assess plaintiff’s damages.
“ In determining the amount of damages which the plaintiff is entitled to recover in this case, if the jury find, from the evidence, under the instructions of the court, he is entitled to recover any damages, the jury have a .right to, and should, take into consideration all the facts and circumstances in evidence before them; and they may consider the nature and extent of the plaintiff’s injuries, if any, testified about by the witnesses in this case; his pain and suffering, if any, resulting from such injuries; the permanent disability, if any, caused by said injuries; the money necessarily paid, if any, by the plaintiff in and about endeavoring to be healed or cured of said injuries; and any future pain or suffering (or future inability to labor or transact business), if any, that the jury may' believe, from the evidence, the plaintiff will sustain by reason of injuries received.”

The objections to the first instruction are that it assumes that the relation between the parties litigant, at the time of the injury, was such that a duty rested upon the appellants to the appellee, and that it assumes that the appellants were liable for simple negligence.”

“ Courts will not pretend to be more ignorant than the rest of mankind,” says Caton, J., in Munn v. Burch, 25 Ill. 35, and there is no error in assuming the existence of undisputed facts. Heartt v. Rhodes, 66 Ill. 351; Wallace v. De Young, 98 Ill. 638.

The court was, therefore, warranted in assuming (what it occurred to nobody to question) that the Beaurivage flats, occupied by several tenants, having a passenger elevator, and, as proved by the appellants, six stories high, employing an engineer and janitor as well as an elevator-boy, was one of the modern apartment houses in which many residents of large cities find their homes.

The proprietors of such houses could hardly expect to find tenants for and profit from their buildings, if they imposed unreasonable restraints upon the social life of the tenants. The proprietor invites tenants, and thereby impliedly invites the persons who are properly visitors or guests of the tenants, and they come within the protection of the principle that a person, while upon the premises of another by invitation, express or implied, is entitled to the exercise of due care on the part of the property owner for his protection. Thompson, Neg., 313; Bennett v. R. R., 102 U. S. 577; Hayward v. Merrill, 94 Ill. 349.

The other objection to that instruction is answered by N. C. C. Ry. Co. v. Gatska, 27 Ill. App. 518, and cases there cited. .The language of the instruction being, “guilty of negligence as 'charged in thé declaration.”

The objection made to the second instruction is that the jury are told that in assessing damages “ they may consider * * * future inability to labor, or transact business,” without any evidence of what the peculiar loss to the appellee from that cause would be. In the nature of things there could be no such evidence, but the jury are not precluded from taking such inability into consideration. Outside of pension laws there is no price list for personal injuries. C. B. & Q. R. R. v. Warner, 108 Ill. 538.

The question as to the negligence of either or both of the parties and the amount of damages to be awarded if the appellee recovered, were settled by the jury, not inconsistently with the evidence.

Judgment affirmed.


text:
    The People of The State of Illinois, ex rel., v. Kirk Hawes, Judge of the Superior Court of Cook County.

      Mandamus—Practice—Bill of Exceptions—Extension of Time for Filing Stipulation.

    Where this court has acquired jurisdiction of a case by writ of error, it may, by mandamus in aid of such jurisdiction, require the judge of the trial court to sign and seal a bill of exceptions on a proper showing.
    [Opinion filed January 16, 1889.]
    On petition for mandamus.

    Kraus, Mayer & Stein, for relator.
    Messrs. Moses & Newman, for respondent.
   Moran, J.

This is a proceeding by mandamus to compel the respondent to sign a bill of exceptions in a certain cause heard before him as judge of the Superior Court of Cook County.

A petition for mandarrms in the same matter was filed in this court at the October term, 1887, and, on consideration of the case as then presented, the writ was awarded. On appeal to the Supreme Court, the judgment of this court awarding the writ was reversed, for the reason that it did not appear that the case in which it was sought to have the bill of exceptions signed was pending in this court. Hawes v. People, 125 Ill. 560.

The present petition shows that the case in which it is sought to have the bill of exceptions filed, is pending in this court on a writ of error, and therefore if, in other respects, a case for the issue of a mandamuses made out, it is on this petition asked in aid or furtherance of the appellate jurisdiction of this court.

In all its other material features, the case now presented by the petition, answer and proofs, is substantially identical with the former case, in which this court awarded the writ. While the judgment in that case does not stand, the reasons and conclusions in the opinion then filed by Mr. Justice Bailey are satisfactory to the court upon the same questions now again presented, and a repetition here of the views then expressed would be a work of supererogation. The People v. Hawes, 25 Ill. App. 327.

Hpon the grounds, and for the reasons in said opinion stated, we think the petitioner is entitled to the relief sought, and the peremptory writ of mandamus will be awarded commanding the respondent to sign and seal the bill of exceptions settled by him on or about the 17th day of October, 1887, and mentioned in the petition of relator filed therein.

Mandamus cmarded.


text:
    P. J. Sexton v. The Chicago Storage Company et al.

      Landlord and Tenant—Sub-Lease or Assignment—Priority—Practice— Modification of Decree.

    1. Where a lessee conveys the whole of his unexpired term, reserving rent at a different rate, and providing for the surrender to himself at the expiration of the term, or sooner determination thereof by forfeiture or otherwise, such conveyance is a sub-lease and not an assignment.
    2. There being no privity of contract or estate between the superior landlord and an under-tenant, the former can not maintain an action against the latter to recover rent due from the original lessee.
    3. Upon appeal from a decree dismissing a bill against a corporation and its stockholders for want of equity, this court modifies the decree, ex gratia, by ordering the dismissal without prejudice, but allows costs to the appellees.
    [Opinion filed January 16, 1889.]
    In error to the Superior Court of Cook County; the Hon Egbert Jamieson, Judge, presiding.

      Mr. Alexander S. Bradley, for plaintiff in error.
    Messrs. Kenneth R. Smoot, and Monk & Elliott, for defendants in error.
    If the transfer from Frank Cole to the corporation defend" ant was a sub-lease, and not an assignment, the company is not liable to complainant in any form of action. An under-tenant is not liable to the original lessor upon the lessee’s covenant to pay rent. Quackenboss v. Clarke, 12 Wend. 555; Harvey v. McGrew, 1 Hilt. 154; Holford v. Hatch, 1 Doug. 183. Nor for use and occupation." Bancroft v. Wardwell, 13 Johns. 488; Hall v. Southmayd, 15 Barb. 32; Way v. Holton, 46 Vt. 184; Krider v. Ramsey, 79 N. C. 354; Merrill v. Bullock, 105 Mass. 486. Nor in trespass.
    The company is not liable either for rent or for use and occupation even to Frank Cole, its immediate lessor. Failing to secure to it the undisturbed possession of the premises for the whole term, he could not have compelled it to indemnify him for rents advanced by him to Sexton during its occupancy. Crouch v. Tregonning, 7 L. R. Ex. 88; Chamberlain v. Donahue, 44 Vt. 57; Greten v. Smith, 33 N. Y. 245.
    The condition in original lease forbidding assignment was never waived by Sexton, hence the company never became liable as assignee. Bliss v. Gardner, 2 Ill. App. 422; Wadham v. Marlowe, 8 East, 314.
    An examination of the authorities will show the error of complainant’s counsel in assuming that the contingent reversionary interest created by the covenants referred to is only sufficient to create a sub-lease between the immediate parties to the instrument. As between them, no reversionary interest of any kind is requisite for that purpose, and in every one of the cases above cited the controversy arose between the original lessor, on the one part, and the lessee, or alleged sub-lessee or assignee, on the other, and the question was whether, as against original lessor, the instrument operated as a sub-lease or as an assignment.
   Gary, J.

In the spring of 1885 the plaintiff demised to one Frank F. Cole certain premises, the term to expire on the 1st day of May, 1888. Cole demised to the storage company for a term expiring at the same time. The latter lease contained a covenant to surrender to Cole at the end of the term, or sooner determination thereof by forfeiture. A power of re-entry is reserved to Cole, and the rent payable to him differs from that in the lease to him. This lease did not operate asan assignment of Cole’s term, but took effect as an under lease. The reasons for thus permitting the contracts of the parties to have the effect they themselves intended are so fully stated in the cases cited below, and would till so much space if repeated, that it is enough to refer to the cases. Collins v. Hasbrouk, 56 N. Y. 157; Dunlap v. Bullard, 131 Mass. 161.

This bill, filed by the plaintiff on behalf of himself and all other creditors of the storage company against the company and the stockholders, therefore fails, upon the ground that he is not a creditor of the company, there being no privity of contract or estate" between the superior landlord and under tenant. Taylor’s Landlord and Tenant, Sec. 448. Mor can the plaintiff have any benefit from the vague and uncertain ground of equity jurisdiction stated in Story’s Eq. Jur., Sec-687, and referred to in Taylor’s Landlord and Tenant, 659. The record shows that the plaintiff had resumed possession of the premises before this bill was filed, and had suits in attachment pending against Cole for the accrued rent, in which suits the company is garnished, and the question whether the company owed Cole is pending in those suits. If it did, the plaintiff may,- in those suits, recover judgment against the company, and if, on execution, he can not collect them, he will have a standing in court against the stockholders. If the company did not owe Cole, it is not liable either in law or equity.

The bill was rightfully dismissed for want of equity, but, as the case shows that litigation in various forms is pending at law, this court will, to prevent any embarrassment to the plaintiff in other cases, modify the decree by ordering that the dismissal is without prejudice to any remedy or defense that the plaintiff may have at law.

The appellees will, however, recover their costs in this court, as this modification is ex gratia. Decree modified.


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    The Supreme Lodge of the Ancient Order of United Workmen et al. v. Florentine Zuhlke.

      Benevolent Societies—■Expulsion—Want of Nolice—Suit on Certificate —Denial of Execution—Parties—Misjoinder—Corporations—Estoppel.

    1. In an action on a beneficiary certificate of a mutual benevolent society, such instrument being declared on ps executed by both defendants, one of the defendants can not set up a misjoinder of defendants in the absence of a plea, verified by affidavit, denying such execution.
    2. In an action against corporations, their appearance by names importing corporations is an admission of their corporate character.
    3. In the case presented, the stipulation between the parties as to the pleadings did not obviate the necessity of a denial of the execution of the instrument in question.
    4. The expulsion of a member from such a society, without notice, and in his absence, is void, although notice is not required by the rules of the society.
    [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding.
    Mr. John P. Ahrens, for appellants.
    Appellants are not jointly liable on the beneficiary certificate sued on in this case. If there he any liability, it is on the part of the Grand Lodge only, and it was error to enter a finding and judgment against the appellants jointly.
    In benevolent associations like the one in question, their by-laws and constitutions enter into and become part of the contract the same as if they were written in the certificate. Holland v. Taylor (Ind.), 12 N. E. Rep. 116; Simeral v. Dubuque, 18 Iowa, 819; Walsh v. Ætna, 30 Iowa, 133.
    Here it clearly appeared by the appellee’s own evidence that there is no cause of action made out against the Supreme Lodge, or against Wicker Park Lodge, the subordinate lodge, independently of the evidence offered by the appellants. The only evidence offered by appellee as to the liability of the appellants was the certificate, the death of Zuhlke, and the payment of assessments. Leaving the constitution of the Grand Lodge out of the question, the certificate alone certainly shows that the Grand Lodge alone is the party assuming any liability, and in such case it is not necessary to file a plea, verified by affidavit, denying joint liability. Davison v. Hill, 1 Ill. App. 70.
    Neither is such a plea necessary when it appears from the defendant’s evidence that there is no joint liability. Garland v. Peeney, 1 Ill. App. 108; Rosenberg v. Barrett, 2 Ill. App. 386.
    The ruling of the court below on this point was not consistent. It held in accordance with this view by holding the first proposition of law submitted by appellants, but on the trial, when appellants offered to show the relation existing between the Supreme Lodge, the Grand Lodge and subordinate lodge, the evidence was ruled out, on the ground of not being admissible under the pleadings, and appellants excepted. This ruling certainly was erroneous and inconsistent with the subsequent ruling of the court after the evidence was closed. The evidence admitted, however, clearly showed that there was no joint liability, and the finding of the court to the contrary was contrary to the evidence, and it was contrary to the law and the evidence to find and enter judgment against all of the appellants jointly.
    Proceedings, in orders of this kind, had in substantial accordance with their laws, and regular and in good faith, are final, and the merits of the proceedings can not be inquired into. Dolan v. Court Good Samaritan, 128 Mass. 437; Black v. Vandyke, 2 Whart. 308; Toram v. Howard Ass’n, 4 Pa. St. 519; Anacosta Tribe of Red Men v. Murbach, 13 Md. 91; White v. Brownell, 2 Daly N. Y. 329; Commonwealth ex rel., etc., v. The Pike B. Society, 8 W. & S. 247; Karcher v. Knights of Honor, 137 Mass. 368; Hall v. Knights of Honor, 24 Fed. Rep. 450; Grosvenor v. U. S. of Believers, 118 Mass. 78; Benton v. St. George’s Soc., 28 Mich. 261.

      In the case at bar, Zuhlke was notified of his right to appeal from the action of the lodge, but expressed himself as satisfied with the action of the lodge, and stated that he did not desire to appeal, and not having appealed from the action of the subordinate lodge to the Grand Lodge, which he had the right to do under the law of the order (Abst. 24), the appellee has no standing in court, because members of organizations of this kind must exhaust all remedies afforded by the society to reverse the act of expulsion before resort can bo had to the courts. Harrington v. Workmen’s Ben. Soc., 27 Albany L. J. 438; White v. Brownell, 2 Daly N. Y. 329; Karcher v. Knights of Honor, 137 Mass. 368; Hall v. Knights of Honor, 24 Fed. Rep. 450.
    Messrs. Cameron & Hughes, for appellee.
    Appellee sued four defendants jointly as corporations. Hone of them pleaded, under oath, a denial of the execution of the instrument sued on, or nul tiel corporation. Ho one of them pleaded it was not jointly liable with the others, or offered to verify such plea under oath. Revised Statutes 1874, p. 774, Secs. 33, 35.
    By virtue of those statutes, and of the common law, as to corporations sued, the plaintiff was not required to prove (1) that defendants were corporations, or (2) they were jointly liable in the suit, or (3) that they executed or authorized the execution of the instrument sued on.
    And, in the absence of and utter failure of defendants proof of each one of the negative propositions above stated, he was prima fade entitled to judgment. Ho question was made as to the power of the two signatories to bind the Supreme Lodge or the Order of Hnited Workmen, the aggregation of all the defendants. They each and all appeared by counsel, and filed several special pleas, which, on being demurred to, were withdrawn, by agreement, from the record, but were treated as notice to plaintiff of the defenses to be offered under the plea of non assumpsit.

    A note or other contract signed for a corporation by parties purporting to act for it is within Sec. 33 of the statute, and proof of the execution is not required unless denied by a verified plea. Dwight v. Newell, 15 Ill. 133.
    As a general and uniform rule, a judgment is void for all purposes unless the court had jurisdiction of the person of the defendant and of the subject-matter. White v. Jones, 38 Ill. 159.
    This rule is so elementary that we refrain from citing other authorities on that point. It is the rule which courts of law enforce when considering the adjudications of other courts equal in rank and jurisdiction. Then, if the vote of Wicker Park Lodge against Zuhlke is shown to have been given in a cause where jurisdiction was lacking, it was void.
    Remember, too, that the effect of the sentence of expulsion was as to Zuhlke to forfeit all the payments made by him into the lodge as part of the beneficiary or assurance fund of the order; and as to Mrs. Zuhlke to destroy her then existing right as his beneficiary, to the extent of two thousand dollars.
    A party can not be deprived of property or other rights except by judicial decision, after being duly notified and after reasonable time and opportunity to defend. Parke v. Lewis, 35 Ill. 421; Yates v. Milwaukee, 10 Wall. 491.
   Gary, J.

The Ancient Order of United Workmen is a mutual benevolent society, with local lodges, grand lodges for States, and a supreme lodge of the United States, and it is probably true, as appellants urge, that if appellee has any cause of action, it is solely against the Grand Lodge of the State, and there is a misjoinder of defendants.

A complete answer to this objection, however, is that the beneficiary certificate to Edward Zulhke, late husband of appellee, and at his death payable to her, is declared upon as the instrument, in writing, of all the appellants, and there was no denial of the execution of it by either of them, by plea, verified by affidavit. Sec. 33, Practice Act, 1872; Ill. Mut. Ins. Co. v. Marseilles Mfg. Co., 1 Gilm. 236; P. & O. R. R. v. Neill, 16 Ill. 269; Home Flax Co. v. Beebe, 48 Ill. 138.

These are all cases of corporation defendants, and the appearance of the appellants, by names importing corporations, are admissions by them severally that they are corporations. U. S. Ex. Co. v. Bedbury, 34 Ill. 459. Unless, therefore, as a legal proposition which the court must hold without evidence of the corporate powers of the appellants respectively, they could not be bound by the instrument as it was declared upon, they were estopped to deny its execution. It would be a violation of the rule established by the statute, and cases cited, to permit the appellants, by evidence of any kind, to deny the execution of its instrument, whether such evidence related either to their act, or their competency to act. This question is not affected by the stipulation in regard to pleadings. After a good deal of pleading (without oath) and demurring, the parties agreed that, under the general issue, all defenses that could be properly specially pleaded should be admitted. It is clear that they only intended that the general issue should be of the same benefit to the appellants as the special pleas which they had so laboriously and unnecessarily wasted time upon. The general issue was sufficient, if they did not propose to deny the execution of the instrument, to let in all their defense. 1 Ch. Pl. 492.

And if they wished so to deny, verifying the plea would have been enough for that purpose. Hinton v. Husbands, 3 Scam. 187; Vance v. Funk, 2 Scam. 263; Davis v. Scarritt, 17 Ill. 202.

The only other defense of the appellants, although by them much subdivided, grows out of the expulsion of Edward Zulilke from the order. The facts upon the matter are clear. The Wicker Park Lodge, to which he belonged, met weekly. On the 1st of August, 1884, a committee of three preferred, before a committee of five (all members of the lodge), charges against Zuhlke. The committee had several meetings, at which Zuhlke was present. The committee reported to a meeting of the lodge held on the 15th of the same month, at which Zuhlke was not, nor was he notified to be, present. Vet the lodge proceeded, upon reading the report and testimony, by ballot, to expel him. There was no provision in the rules of the order requiring notice to him to appear at the meeting, but the general rules of justice forbid that a party be condemned without opportunity for defense. See cases cited in notes to Sec. 101, Bacon Friendly Soc. & Life Ins. Nor did the rules fix the time when the committee should report, so that he could know, without notice, when the report would be presented. The rule required it to be done “at as early date as practicable.”

That he thought he ought to be expelled, and expected it— that he knew of it immediately, and of his right to appeal, and said he was satisfied, may all be true, and still the expulsion, without notice or appearance, is void.

Being void, no appeal was necessary to avoid any effect of it, for it had none. These views dispose of the case.

Judgment affii'med.


text:
    James H. Person et al. v. Eli Smith.

      Practice—Improper Dismissal for Want of Prosecution.

    Where an answer is filed in a suit to enforce a mechanic’s lien, without notice to the petitioner, the court is not authorized to dismiss for want of prosecution because not at issue, upon a general call of the docket under a published order of the court.
    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Hamline & Scott, for appellants.
    No appearance for appellees.
   Gary, J.

May 16, 1888, the chancery judges of the Superior Court of Cook County caused a rule to be spread upon the records of the Superior Court of Cook County, and caused a calendar of all cases pending in said Superior Court, in chancery, and falling within the terms of said rule, to be made up for distribution to the bar, and caused a copy of said rule to be published from time to time in the Chicago Law Bulletin, published in Chicago and circulating among the members of the Cook County Bar. Prior to June 12, Í888, said rule was as follows: “Ordered, that all chancery cases commenced previous to January 1, 1888, and now pending in the Superior Court, be put in issue on or before Monday, June 4, 1888, and in default of the same being done, such cases shall be dismissed for want of prosecution and for want of compliance with this order, at a general call to be made on the 12th day of June, unless good cause be shown by affidavit at the time of such call why this order was not complied with. And it is further ordered that at such general call all cases shall be dismissed in which no proceedings have been taken since July 1, 1887, unless like good cause be shown by affidavit. It is further ordered that a calendar of all cases to be then called be prepared by the clerk of this court, and that all cases upon such call wherein cause shall not be shown at the time of such cali, shall be dismissed in accordance with the foregoing order.”

On the 15th of June, 1888, ex mero motu, under that rule, the court dismissed this case. It was a petition under Chap. 82, R. S. 1874, to enforce a mechanic’s lien. The petition was filed July 15, 1887, and the answer Sept. 6, 1887, and no further proceedings were had in the cause until it was dismissed. Bo notice of the filing of the answer had been served upon the appellants or their attorney.

The case is governed by Linnemeyer v. Miller, 70 Ill. 244, is not affected by Hinckly v. Dean, 104 Ill. 630, and the decree must be reversed and the case remanded.

Reversed <md remcmded.


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    Josiah Baylies, Impleaded, etc., v. Josephine M. Curry.

      Civil Rights—Theatre—Discrimination because of Color—Penalty— Form of Action.

    1. One who has been refused the full and equal enjoyment of the accommodations of a theatre because of color, may maintain an action on the case to recover the penalty prescribed by the act of 1885, such penalty not being certain in amount.
    2. It is a violation of the statute in question to require colored patrons of a theatre to occupy particular rows of seats.
    [Opinion filed January 17, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba 27. Waterman, Judge, presiding.
    Messrs. McMurdy & Job, for appellant.
    Under the common law, common carriers could not separate negroes and white persons from mere caprice or race prej tidies ; but if the intention was to prevent conflicts and to preserve order and decorum, a rule by which colored persons were required to occupy seats separate from white persons, equally desirable and comfortable, has been held to be reasonable and lawful. C. & N. W. R. R. Co. v. Williams, 55 Ill. 186; W., C. & P. R. R. R. Co. v. Miles, 55 Pa. St. 211; Green v. Bridgeton, 9 Cent. L. J. 206; The Sue, 22 Fed. Rep. 843; Logwood v. Memphis, 23 Fed. Rep. 319; Murphy v. W. & A. R., 23 Fed. Rep. 637; Hall v. De Cuir, 95 U. S. 487.
    How far has the present statute changed the common law ? Appellant claims that it does not change the common law in any respect but to limit the remedy for its breach. This statute is an exact reproduction of the civil rights act of the United States, which is most easily found in Desty’s Federal Procedure (6th Ed.), 781; 18 U. S. Stats. 336; 1 Sup. Rev. Stats. 148. That act was, however, decided to be unconstitntional, and we therefore have no light from decisions under it.
    An act similar to this has been declared constitutional in Louisiana. But the decisions wherein it was so declared are otherwise consistent with appellant’s claim. In De Cuir v. Benson, 27 La. An. 5, the court says: “In truth, the right of the plaintiff to * * * damages would be the same whether [the similar] act * * * existed or not.” They held it to be declaratory of the common law. The decision of this case is rested upon an Iowa decision which turns upon the fact that in that case the negro was compelled to accept “accommodations inferior to those given to the white man.” It is not otherwise intimated in this Louisiana decision whether the court considered the accommodations offered the plaintiff in this case were “ inferior,” and it must therefore be presumed that the court so considered, and that it decided the case on that assumption. The Supreme Court of the United States, in the leading case of Hall v. De Cuir, 96 U. S., decides nothing pertinent to the case at bar except in the concurring opinion of Mr. Justice Clifford, who doubts (p. 499) “ whether the denial to a colored female of a passage in the cabin assigned to white female passengers is a denial of equal rights and privileges * * * provided the applicant was offered a passage in the lower cabin, with equally convenient accommodation,” but adopts, for that particular case only, as he says, the ruling to the contrary of the Louisiana courts. We submit'that Mr. Justice Clifford has misinterpreted the Louisiana decisions, all of which are cited at page 500, and we submit that the Louisiana courts have not in these cases decided that a person of color was discriminated against by reason of the enforcement of a rule of a steamboat company providing for the separation of the races, the accommodations afforded each race being equal.
    In the majority of the decisions bearing on the question under discussion the distinction is uniformly maintained between “equal” and “identical” rights, privileges, etc., and it is upon this distinction that appellant here rests his claim of the right to separate the white and colored patrons of his theatre; for in the offer to prove certain facts, which was overruled by the court below, it was expressly stated that the seats assigned to colored persons in appellant’s theatre were in all respects equal in desirability to those assigned to white persons, and that these seats were sold in all parts of the house, but that the negroes were excluded from sitting in the same row with white persons; and, in passing, we may say that the operation of this rule was absolutely “equal,” because, while the negroes were excluded from sitting in the same row with white persons, the white persons were thereby excluded from sitting in the same row with negroes.
    The rule in question, if properly stated, would be: “Negroes and white persons are not seated in the same row,” rather than: “ Colored people are seated in rows by themselves.” What inequality is there in this rule? It is as equal in its operation as a statute making it an offense for a negro and a white person to marry, and it has heen expressly held that such a statute does not discriminate against the negro, but operates equally upon the two races, insomuch as it punishes the negro and the white person alike for the same offense. Ex rel. Hobbs and Johnson, 1 Woods’ C. C. 537.
    The nearest approach to a decision of the question here discussed which has arisen in our State is to be found in Chose v. Stephenson, 71 Ill. 383, and in People v. Board of Education, 101 Ill. 310. These cases arose under our free school act. In the former case it appeared that a board of education had established a separate school for three or four colored children. The court held the trustees were properly enjoined from appropriating the district funds for the purpose of maintaining the same, but says: “ Had the district contained colored children sufficient for one school, and white children for another, and had the directors, in good faith, provided a separate room for each, where the facilities for instruction were entirely equal, that would have presented a question not raised by this record and upon which we express no opinion.” Thus it appears that the case was decided upon an economic basis solely. In the latter case a single school was provided for colored children, and one in each of the eight school districts of Quincy for white children. Colored children of school age resided in each of the districts. The result was that colored children, in most cases, had to travel a greater distance to school than white children, and it was on this point that the case was decided. Of course no decision was rendered as to whether colored and white children might not be separated in the same district sclioolhouse. It has elsewhere been decided that separate schools can lawfully be provided for the two races. People v. Gallagher, 93 N. Y. 441; Bertonneau v. Directors, 3 Woods’ C. C. 179; State v. Duffy, 7 Nev. 345.
    This statute is penal. St. Louis v. Hill, 11 Ill. App. 248.
    Debt will lie on a penal statute, where the form of action is not therein specified. Vaughan v. Thompson, 15 Ill. 41 Kerr v. Davis, 38 Tenn. 73; Blackburn v. Baker, 7 Porter (Ala.) 290.
    “ In the case of the party grieved, where a statute prohibits the doing of anything under a penalty to be paid to the party grieved, and does not prescribe the mode of recovery, it shall be recovered in an action of debt.” Espinasse’s Penal Actions, 57. Case will not lie on such a statute. Mount v. Hunter, 58 Ill. 247.
    Mr. Edward H. Morris, for appellee.
    Providing accommodations equally as good is not a compliance with a statute which provides that there shall be no discrimination or exclusion on account of color. It is merely “an ingenious attempt to evade a compliance with the obvious meaning of the requirements” of the law. Washington, Alex. & G. R. R. Co. v. Brown, 17 Wall. 445; Board of Education v. Tinnon, 13 Cent. L. J. 274.
    Such was the construction placed upon an act of Louisiana which provided that proprietors of street cars, stage coaches, etc., should make no discrimination on account of race or color. De Cuir v. Benson, 27 La. Ann. 1; Sauvinet v. Walker, 27 La. Ann. 14; Hart v. Hoss, 22 La. Ann. 517.
    The case of Chase v. Stephenson, 71 Ill. 383, did not arise under the act of 1874, which takes away the power, if any a school board had, to provide separate schools for colored children, but the case in The People v. Board of Education, 101 Ill. 310, did; and there our Supreme Court expressly declares—not upon “ an economic basis solely,” as suggested by counsel for appellant, but in beeping with the language of the act of 1874—that school boards can not deprive colored children of the right to attend the public schools.
   Gary, J.

This is an action on the case under the act of June 10, 1885, Civil Bights,” by the appellee, a colored woman, for being refused, for the reason that she is a colored woman, the full and equal enjoyment of the accommodations, etc., of a theatre conducted by appellant. A motion in arrest of judgment on the ground that the action ought to have been debt and not case being denied, that denial is now assigned as error.

The form of the action is right. The case cited by appellant, Mount v. Hunter, 58 Ill. 246, is an authority against him. “ One of the divisions of statutes is remedial and penal. A remedial statute has for its object either to redress some existing grievance, or to introduce some regulation or proceeding conducive to the' public good. The remedy for the breach of a remedial statute is by an action for damages sustained from such a breach, at the suit of the party injured. A penal statute imposes a penalty upon the commission of the prohibited offense, which is recovered by an action of debt, in the name of the informer, for his own use, or qui tarn. The statute fixes the amount of the penalty, and hence the action of debt is appropriate, while, in actions under remedial statutes, the party injured recovers the amount of injury he has sustained by a breach of the statute, and case is generally the appropriate remedy.” P. 247 of case cited.

The statute under which this action is brought declares the right to “ full and equal enjoyment of the accommodations,” etc., and enacts that for denying them the person so doing “ shall, for every such offense, forfeit and pay a sum not less than twenty-five dollars nor more than five hundred dollars, to the person aggrieved thereby, to be recovered in any court of competent jurisdiction,” without prescribing the form of action.

Whenever a statute prohibits an injury to an individual, or enacts that he shall recover a penalty or damages for such injury, though the statute be silent as to the form of the remedy, this action (case) may be supported.” 1 Ch. Pl. 161. And debt is not sustainable unless the demand be for a sum certain, or which can readily be reduced to a certainty. Ib. 127.

Here the forfeiture to the person aggrieved is not certain in amount, and the range of limits prescribed as the measure of recovery give a minimum below which the caprice, and beyond which the passion, of a jury shall not fix damages, in their nature not susceptible of mathematical adjustment.

By the evidence, the complaint of the appellee that the appellant refused her the full and equal enjoyment of the accommodations of his theatre, solely because of her color, is fully sustained, and the only questions remaining for this court to pass upon arise upon the refusal of the court to admit evidence offered as to the reasons of the policy of the house to keep colored people separate from the white people, set off by themselves, and upon instructions refused, presenting the same question in part.

The fact that such was the policy had been proved by the appellee, and the appellant offered, but was not permitted to show, that it was a rule of the house that colored people should have one row of seats to themselves in each part of the house, or as many rows as the tickets which they bought would call for, because the house was in a hard quarter ” of the city, and therefore it was necessary for the theatre to make stringent rules, and be extremely cautious and careful, not only with reference to the colored, but with reference to the white people, both as to who got into the theatre, and as to where they sat, and next to whom they sat, to avoid collisions, both on account of race prejudice, if it existed, and on account of other more substantial reasons. That in the immediate neighborhood were quartered some of the worst characters of the city, some of whom were colored. That there had been disturbances in the theatre, some of which were caused by colored people. That the appellant was not actuated by any question of color of skin. That colored persons were given the same advantages for the same price in all parts of the theatre that white persons had, with the exception only that the colored persons were assigned to a particular row of seats. This exception is contrary to the statute. In Railroad Co. v. Brown, 17 Wall, 445 (a colored woman being the plaintiff), the charter by Congress of the company provided “ that no person shall be excluded from the cars on account of color.” She bought a ticket from Alexandria, in Virginia, to the city of Washington. The distance is only seven miles. There were two cars, alike comfortable; one was set apart for colored persons and the other for “ white ladies and gentlemen accompanying them.” The case is ambiguous as to where colored gentlemen accompanying white ladies, or gentlemen of no color with no ladies would be permitted to ride.

In going either way the colored car was in front, so that “colored” going south, was “white” coming north, as the cars themselves were not, but only the use of them, reversed. Here was certainly a case of “equal” accommodations.

It was only necessary for a colored person who wished to ride in the “white” car to imagine himself or herself going the other way from that he or she intended, and the car would then be “white.” The plaintiff, against the direction of the servant of the company, who told her to get into the front car, persisted in going into the other, and he put her out. She recovered $1,500, and Judge Davis, for the Supreme Court, said that the regulation of the company assigning colored persons to one, and excluding them from another car, was “an ingenious attempt to evade a compliance with the obvious meaning of the requirement. It is true that the words, taken literally, might bear the interpretation put upon them by the plaintiff in error, but evidently Congress did not use them in any such limited sense. * * * It told this company, in substance, that it could extend its road within the district, as desired, but that this discrimination must cease, and the colored and white race, in the use of the cars, be placed on an equality.”

The argument of appellant that the operation of the rule of this theatre “was absolutely equal’ because while the negroes were excluded from sitting in the same row with white persons, the white persons were thereby excluded from sitting in the same row with negroes, would not, perhaps, have been applicable in the construction of the charter of the road in that case, but if it is a good one, it affords an easy method of evading the law in many of the-cases provided for by it. It is the custom, so general that the court can not affect ignorance of it, that one buying tickets, with seats reserved, to any public amusement, has his choice of any unsold for which he is willing to pay the price. Ho white man is ever denied that choice because he is white. If so denied because he is colored, “full and equal enjoyment” is denied. And it is not for the residents of any part of the city, however disreputable they may be, to nullify the law. If the appellant caters for such a class, he must abide the consequences of such lawlessness as lie can not, with or without police assistance, restrain.

These views dispose of all the justificationsor excuses urged by appellant for taking any notice of the complexion of the appellee, and the judgment is affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    William Zibell v. George D. Barrett.

      Injunctions—Dissolution—Damages—Solicitor's Fees.

    1. Upon the dissolution of an injunction, a decree for damages to cover solicitor’s fees can not be sustained, in the absence of evidence of the value of the services having distinct reference to such dissolution.
    2. In such cases evidence to the effect that a sum named is a reasonable and small fee for the services rendered, is insuficient. It should appear what the defendant had paid or become liable to pay, and that it is the usual and customary fee paid for such services.

      [Opinion filed January 18, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, J udge, presiding.
    Mr. Felix J. Griffen, for appellant.
    Messrs. Whitehead & Pickard, for appellee.
   Per Curiam.

This is an appeal from a decree assessing damages on the dissolution of an injunction. The assessment was $100, intended to indemnify appellee against his solicitor’s fees. The evidence shows that the solicitor who appeared in the suit for Barrett, prepared his answer; that he afterward had the answer sworn to for the purpose of using it as an affidavit, spent a day examining the law, and attending court on several occasions for the purpose of the motion. For all these services the solicitor made a charge of $100 and presented a bill for that amount, though the evidence shows that the bill has not been paid.

There are fatal objections to the decree.

1. The answer was evidently prepared and filed for the purpose of the final hearing, and there was no evidence of the value of the services having distinct reference to the dissolution of the injunction. Blair v. Reading, 99 Ill. 615; Elder v. Sabin, 66 Ill. 126; McQuown v. Law, 18 Ill. App. 34.

2. The witnesses testified that $100 would be a reasonable and a small fee for the services rendered. That is not sufficient. It should appear from the evidence what the defendant had paid or become liable to jay, and that it was the usual and customary fee paid for such services. Jevne v. Osgood, 57 Ill. 347; Stinnett v. Wilson, 19 Ill. App. 38.

The decree of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


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    International Press Association v. Shepherd Brooks.

      Landlord and Tenant—Evidence—Confession of Judgment—Bond for Costs—Error without Prejudice.

    1. Some acts of interference by the landlord with the tenant’s possession are acts of trespass or eviction according to the intention with which they are done. Under a lease authorizing free access to the premises by the landlord to make repairs, he may clean and calcimine the same, such acts not amounting to an eviction.
    2. An error without prejudice to the appellant, is not sufficient ground for reversal.
    3. Even if the statute requiring a bond for costs, where the plaintiff is a non-resident, applies to a confession of judgment, a failure to take such bond is an error without prejudice to the defendant.
    [Opinion filed January 16, 1889.]
    In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Meech & Asay, for plaintiff in error.
    ’ Messrs. Paddock, Aldis & Wright, for defendant in error.
   Moran, J.

A judgment was entered by confession against plaintiff in error and in favor of defendant in error, by authority of a warrant of attorney contained in alease for rent which came due under the terms of the lease. Plaintiff in error moved the court at the same term to set aside the judgment and to dismiss the cause, or in lieu of dismissing the cause to allow defendant to plead. As grounds for' opening the judgment, plaintiff in error contended that it had been evicted from the premises described in the lease by the defendant in error before the rent for which the judgment was entered had accrued. The facts on which the alleged eviction is based are that some men who were employed by the agent of defendant in error to clean and calcimine the walls and ceilings of the premises, were let into the rooms of plaintiff in error by the janitor of the building, when the agent of plaintiff in error was temporarily absent; that said calciminers removed some cards from the wall and tore off some of the wall-paper, and covered up the desk and furniture of pUintiff in error, so as to keep them from being soiled, and then calcimined the walls and ceilings of one of the two rooms, and was proceeding to do the like work in the other rooms when the agents of plaintiff in error came on the premises and protested against the work, and thereupon the said calciminers, by direction of the agent of defendant in error, stopped work and removed their materials and tools, leaving the rooms clean and in good order. It is very clear that the acts done, when considered in the light of the circumstances shown, did not amount to an eviction. What kind of acts of the landlord done upon the premises rented will amount to an eviction, was considered by the Supreme Court in Hayner v. Smith, 63 Ill. 430. The language of the chief justice in Upton v. Townsend, 849, C. L. 30, defining an eviction, is quoted with approval. Jervis, C. J., there said: I think it may now be taken to mean, this is not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord, with the intention of depriving, the tenant of the enjoyment of the demised premises;” and Williams, J., said, “ There clearly are some acts of interference by the landlord with the tenant’s enjoyment of the premises which do not amount to an eviction but which may be either acts of trespass or eviction, according to the intention with which they are done. If those acts amount to a clear indication of intention on the landlord’s part that the tenant should np longer continue to hold the premises, they would constitute an eviction.” See also, Walker v. Tucker, 70 Ill. 528; Morris v. Tillson, 81 Ill. 607; Smith v. McLean, 22 Ill. App. 451.

The lease provided for free access to the premises by the landlord to make needful repairs, and the cleaning and ealcimining of rooms are certainly in the nature of repairs. If the acts done, however, constituted a trespass, this shows rather an intention on the part of the landlord to enhance the comfort of the tenant in the rooms than to evict him.

Plaintiff in error tiled an affidavit showing that defendant in error was a non-resident at the time of the entry of the said judgment by confession, and that no bond for costs was filed at the time said judgment was entered, aiid now insists that it was the duty of the court below to set aside the judgment and dismiss the suit for that reason. Whether the ■ statute with reference to bonds for costs by non-resident plaintiffs, applies to confessions of judgment, seems to us at least doubtful, but we are not called upon to determine that question in this case. Even if it be conceded that the court erred in not requiring a bond for costs, how is plaintiff in error injured? The judgment is right on the merits and no costs have been or can be awarded against the plaintiff in the judgment. Errors which do not injure will not avail. The point is purely technical and in no manner affects the substantial rights of plaintiff in error, and we are not willing to reverse a just judgment on such a ground.

The judgment of the Superior Court will therefore be affirmed.

Judgment affirmed.


author: Gary, J. Gary, J.

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    John Fortune et al. v. Owen T. Jones.

      Master and Servant — Assault and Battery—Defense of Servant — Instructions—Cross-examination—Special Findings—Pleading.

    1. The right oE a master to defend bis servant does not extend to a case where the servant is the aggressor, nor to a case of mutual assault.
    2. In the case presented, an instruction given for the plaintiff was defective in' ignoring the question as to whether the servant was first assaulted and in assuming that an employe, without regard to the terms of his employment, is in law a servant.
    3. An instruction assuming the existence of material facts which are in dispute, is improper.

      4. In an action of trespass for assault and battery when the defendants have pleaded non assault dómense, and the plaintiff has replied de injuria, without a special replication justifying such prior assault, he can not, either by evidence or instruction, justify it.
    5. Where a witness has denied that, at a former trial, he testified to a conversation of a particular character, not denying the fact of a conversation, it is improper, on cross-examination, to require the defendant to testify that the witness had had a conversation.
    6. The only request for special findings that are material under the statute are such as, if answered as desired by the party offering them, will make a verdict for the other party inconsistent.
    [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba H. "Waterman, Judge, presiding.
    Messrs. Haynes & Dunne, for appellants.
    Messrs. H. T. Helm & Lynn Helm, for appellee.
   Gary, J.

This is an action of trespass for an assault and battery. The testimony is very voluminous and contradictory. It is quite impossible to go over the whole case and discuss all the errors assigned within any reasonable compass. Fortune had a brewery and Jones a blacksinith-shop, quite near each other on the same side of the same street. There were two conflicts which were the subjects of investigation on the trial; the first in the -blacksmith-shop in the afternoon and the other later on the same day on the sidewalk and street in front of the space between the shop and brewery. The appellee makes his principal claim for injuries that he alleges were inflicted upon him in the second affray. The appellant O’Grady worked for Fortune and a witness named Trainor for Jones. In the shop, in the afternoon, Q’Grady had knocked Trainor down.|j There is a substantial agreement between the principal witnesses to the origin of the second affray, as to how it begun.

O’Grady was on the sidewalk, when Trainor, being there also, said to Brady, another witness, speaking of O’Grady, “ There is a son of a bitch.”

Trainor says: “I knew there was going to be a fight when I said that to him ; ” but he also says that he did not throw ap his own hands for a fight; did not have time; O’Grady got in the first blow. Brady says he saw they were going to fight •and put up' his hands between them. McKean says that they both got their hands up as though they were going to fight, and Brady came to step in between them. O’Grady says: “ So he put up his hands and I put up mine ; Brady jumped between us.”

One of the matters in dispute was what part, if any, the, appellee took in the affray, and how he got into it. Some saying that he came up and struck O’Grady, and others that he did not. The fourth instruction given on behalf of the appellee is as follows:

‘‘The jury are instructed that if they should find, from the evidence, that the defendants, or some of them, were in the act of assaulting Trainor, lie being at the time an employe of the plaintiff, and that the plaintiff seeing such assault being committed by the defendants, or some one of them, upon the person of said Trainor, went to the rescue of and assistance of said Trainor—that in so doing the plaintiff had the lawful right to use such force as was necessary for the purpose of preventing the assault upon his said employe, Trainor; and if you belie ve; from the evidence, that the plaintiff, while trying to rescue said Trainor, and using no more force than was reasonably necessary for such purpose, was by the defendants, or either of them, thrown to the ground or kicked, then such act of the defendants, or defendant, as the case may be, was an assault, and wasnot justified by such action of the plaintiff in so defending his said employe, even though the said plaintiff had first struck one of the defendants, if such striking of the defendant by the plaintiff was while rescuing the said Trainor from an assault by the defendants, or either of them, if the plaintiff used no more force than was necessary for such purpose.”

However doubtful may be the application .of the principles of the old law relating to master and servant, in a state of society where no one accepts the name of a servant, except in legal proceedings or a public office, even under them the right of a master to come to the defense of his servant does'jj not extend to a case where the servant is the aggressor, or toil a case of mutual assault.

If a master is sued and defends on the ground of defense of his servant, he must allege that the plaintiff first assaulted his servant. 2 Ch. Pl. 697.

The testimony of Trainor shows that he intended a case of™ mutual assault. “I knew there was going to he a fight,” J which takes two to make; and though he excuses his taking second place for want of time, other witnesses give him greater credit for promptness.

Though Trainor was a horse-shoer and had worked for appellee for a month before the affray, the terms upon which he worked do not appear—whether by piece-work or by the day; whether his term was ended or not. This instruction was, therefore, wrong in principle, in conferring upon appellee the right of defense of Trainor—-whether he was first assaulted or not, and in assuming that the employe, without regard to the terms of his employment, is in law a servant. The words are not synonymous.

There is another fault, both in this and the sixth instruction, which may not .be grave enough to work a reversal of the judgment, but which ought to be avoided. This says “ being at the time an employe of the plaintiff.” In the sixth is the phrase, “ thereby putting his life in danger.” In the connection in which the phrases were used they came dangerously near assuming facts to exist, material, and only to be found from the evidence by the jury.

Several other parts of different instructions might be criticised, some for apparent assumptions of facts, and others for leaving matters of law to the jury, but it is enough to suggest that on another trial care should be taken in these respects.

The irregularity in cross-examining Fortune as to Deveraux testimony on a foriher trial, was a hardship on him, and well calculated to mislead the jury. Deveraux had, upon this trial, denied that upon a former trial he had testified that he had been at the house of the appellee, and had, with him and his wife, a conversation of a particular character. He denied only the character, not the fact of the conversation. On the cross-examination of Fortune, over the objections of his counsel, he was compelled to state that Deveraux did testify on that former trial that he had been at the house of appellee and had a conversation with him and his wife.

[Opinion filed February 13, 1889.]

This was not only a violation of the rule established in this State, that the cross-examination can not be extended to subjects not within the examination-in-chief (Bell v. Prewitt, 62 Ill. 361), but tended also to lead the jury mistakenly to believe that Fortune had discredited his own witness, than which scarcely any step in a trial can be more disastrous to the party taking it.

There was no error in the action of the court upon the questions offered for the jury to answer. The only questions material under the statute are such as, if answered as the party offering them desires, will make a verdict for the other party inconsistent. C. & N. W. Ry. v. Dunleavy, this term. The judgment is reversed and the case remanded.

Reversed and remanded.

On Petition for Rehearing.

Gary, J.

On a petition for rehearing, the appellee seeks to construe the instruction quoted in the opinion heretofore filed as only declaring the law that a bystander may lawfully interfere in any affray for the preservation of the peace.

It is perfectly apparent that the drawer of the instruction had no such thought in his mind. If the instruction is with reference to that aspect reduced to its elements, it is, that if some of the appellants were assailing Trainor (no matter how the affray begun), and the appellee seeing that, went to the rescue and assistance of Trainor, then he had the right to use such force as was necessary to prevent the assault upon Trainor (even if the assault upon him was in repelling his own prior assault), and if, while he was trying to rescue Trainor, using no more force than was necessary, the appellants assaulted the appellee, they were not justified, even if he struck first, if that striking was while rescuing Trainor, with no more force than was necessary.,

There is no law for such a proposition. Hot a word is in the instruction about the purpose of the appellee to preserve the peace, or attempting to quell the affray to which he was an impartial spectator. This court neither expresses or intimates any opinion as to the facts, but this instruction is not inconsistent with a hypothesis that the appellants might argue that the appellee tabes sides with Trainor, right or wrong, goes to his rescue and assistance even if he was the aggressor, and if his efforts were directed toward the preservation of the peace, it was the peace of Warsaw.

There is a technical ground, upon which a correctly drawn instruction upon the theory of defending a servant or preserving the peace, had no place in this case. The appellants had jointly and separately pleaded son assault demesne.

To those pleas appellee had replied de injuria. Under that replication he had the right to insist that excessive force was used by the appellants in repelling his own prior assault, but without a special replication justifying such prior assault, he had no right, either by evidence or instruction, to justify it. Ayers v. Kelley, 11 Ill. 17; 1 Ch. Pl. 619; 1 Smith L. C. 216.

Perhaps, however, a correct instruction upon either theory would not have been cause for reversal for being outside of the issue, as each side put in all the evidence they had as to the whole transaction, and so the instruction, though erroneous, would have done no harm as to the real merits.

Rehearing denied.


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    Elizabeth Durham et al. v. Anna Ward Field.

      Administration—Bill to Set Aside Judgment of Probate Court— Adequate JRemedg at Law—Jurisdiction.

      1. A bill will not lie to set aside a judgment of the Probate Court allowing a claim against an estate, on the ground that the claimants suppressed the fact that the claim was barred by the statute of limitations and released by a discharge in bankruptcy.
    2. A legatee can acquire no title to any part of the personal estate except through legal proceedings, or the voluntary assent of the executor.
    3. In the case presented, even if the Probate Court proceeded without jurisdiction, which will not be presumed, the executrix has an adequate remedy at law by writ of certiorari.

    [Opinion filed January 16, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. E&bert Jamieson, Judge, presiding.
    Messrs. Blanke & Chytraus, for appellants.
    Messrs. Joseph A. Sleeper and Frederic Ullmann, for appellee.
   Gary, J.

This was a bill filed by appellee, residuary legatee under the will of her father, Lucius C. Fisher, to set aside the judgment of the Probate Court of Cook County allowing against the estate of said Fisher a claim of Mrs. Durham.

It is apparent that there were valid legal defenses to the claim, but not equitable, except that as Fisher was a surety only, there is no equity binding him or his estate further than the legal obligation extends. There is no fraud charged upon the executrix, and the only allegation of fraud against the appellants is that they knowingly suppressed the fact that the claim was barred by the statute of limitations and released by a discharge of Fisher in bankruptcy. ' Gold v. Bailey, 44 Ill. 491, is conclusive that equity will not relieve upon any such grounds, but that legatees are left to their remedy against the executrix, if she has neglected her duty.

There is no authority for the distinction the appellee attempts to make between legatees and distributees. The whole personal estate devolved upon the executrix, and the appellee could get no title to any part of it but through the assent of the executrix, voluntarily given or enforced by legal proceedings. Sec. 116, Chap. 3, R. S. 1872; Williams on Ex’rs, 1372, et seq.

When, indeed, the personal representative applies to the court for leave to sell real estate for the payment of debts, on account of deficiency of the personal, then the heirs or devisees may question the validity of such debts, although allowed in the Probate Court against the estate. Stone v. Wood, 16 Ill. 177: Hawkins v. McCann, 19 Ill. 113; Moline v. Webster, 26 Ill. 233; Higgins v. Curtis, 82 Ill. 28. And this is analogous to the rule in equity that “ although where a decree is capable of being executed by the ordinary process and forms of the court, whatever the iniquity of the decree may be,yet, till it is reversed, the court is bound to assist.it with the utmost process the course of the court will bear. But where the common process of the court will not serve, and things come to be in such a state and condition after a decree is made that it requires an original bill and a second decree upon that before the first decree can be executed—if the first decree is unjust—then this court desires to be excused in making its own act and to build upon such foundations, and charging its own conscience with promoting an apparent injustice; and that obliges the court to examine the grounds of the first decree before it makes the same decree again.” Quoted from 2 Dan. Ch. P. 1614, and approved in Wadhams v. Gay, 73 Ill. 415.

With regard to this case of Wadhams v. Gay, I wish to say, for my own sake, that there were several of these “Gay” eases pending in the Superior Court at the time of the Chicago fire in 1871, of which the one cited had then been heard by the then chancellor of the court and an opinion given, but no decree entered when the fire came and destroyed the records of the court. There was considerable delay in restoring them, but in 1872 another of those cases came to hearing before me, and I decided against Mrs. Gay upon the same grounds that the Supreme Court did in the case cited, excepting only what there specially relates to Engle and Day. In deference, however, to my predecessor, I entered the decree in the case cited in accordance with his decision of it, but my own adverse opinion went to the Supreme Court with the record, so that while the report credits me with the error, in fact I applied in terms the rule quoted from Daniels for the first time in America.

It is not easy to frame an excuse for thus interpolating matter personal to myself, but the Supreme Court, through more than sixty volumes of the Illinois Beports, have been correcting my errors of the last twenty-five years, and the account of those properly chargeable to me is large enough. '

The principle of the quotation seems not to apply on the law side of the court, for an erroneous and unjust judgment against a municipal corporation may be enforced by a mandamus. Town of Lyons v. Cooledge, 89 Ill. 529.

If, as appellee argues, the Probate Court proceeded without jurisdiction, there is, notwithstanding the lapse of time, an adequate remedy at law, by the common law writ of certiorari, if not by a writ of error. Bowers v. Green, 1 Scam. 42; Sloo v. State Bank, 1 Scam. 428; Holden v. Herkimer, 53 Ill. 258; Hobson v. Paine, 40 Ill. 25; People v. Wilkinson, 13 Ill. 660; Doolittle v. G. & C. U. R. R. Co., 14 Ill. 381. C. & R. I. R. R. Co. v. Whipple, 22 Ill. 105. The remedy at law being complete, equity will not interfere. Palmer v. Gardiner, 77 Ill. 143; Lang v. Barker, 85 Ill. 431.

These views make it unnecessary to examine whether the Probate Court had jurisdiction, but all intendments are in favor of its proceedings. Housh v. People, 66 Ill. 178; Propst v. Meadows, 13 Ill. 157.

If the question of jurisdiction could be raised here, it would therefore first be necessary that the allegations of the bill should negative every mode by which it could exist. Many modes may be imagined not inconsistent with the allegations of the bill, by which the Probate Court may have retained the jurisdiction that it acquired by the filing of the claim with the clerk. McCall v. Lee, 120 Ill. 261; Wallace v. Gatchell, 106 Ill. 315; Housh v. People, 66 Ill. 178; Barbero v. Thurman, 49 Ill. 283; Phoenix Ins. Co. v. Guderyahn, 20 Ill. App. 161.

The demurrer to the bill of the appellee should have been sustained, and therefore the decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

.Reversed and remanded.


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    Henry Harms et al. v. William G. McCormick et al.

      Landlord and Tenant—Action to Recover Rent—Parties—Surrender— Statute of Frauds—Variance—Practice.

    1. It seems that an action lies by all the lessors on a lease by indenture executed by one of them “ for himself and as .agent ” of the others.
    2. The rule that where one person makes an agreement with another for the benefit of a third person such third person may maintain an action thereon in his own name, extends to cases wherein the undertaking is under seal.
    3. The surrender of a lease is not required to be in writing.
    4. This court will not reverse for an error which has worked no injury to the appellant.
    [Opinion filed January 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    Mr. Millard F. Riggle, for appellants.
    Mr. S. P. McConnell, for appellees.
    As a seal is not necessary to the validity of the lease, no question can arise as to whether it is properly sealed or not. A leasing such as in this case is a mere act in jjais, its validity not even demanding that the agreement should be in writing. When an instrument would be valid without a seal, it is to be treated, though in fact under seal, as mere evidence of a simple contract. Stowell v. Eldrid, 39 Wis. 614; Evans v. Wells, 22 Wend. 341; New E. Marine Ins. Co. v. De Wolf, 8 Pick. 56.

      This action is neither upon a covenant nor is it the form of action known as covenant. Therefore, certain technical objections, applying either to the matter of the suit or the particular form of the action, do not apply.
    Chancellor Walworth, in deciding one of these cases, says: “But the point presented for our consideration upon this writ of error is a dry question of law, whether the agreement set out in the declaration was executed in such a manner as to authorize the plaintiff to recover thereon against the defendants in this form of action (covenant) as upon an agreement under seal.” Townsend v. Hubbard, 4 Hill, 358.
    There is no question involved as to McCormick’s authority to make the lease for himself and his co-tenants. There is no question as to his intention to act for and bind them. He distinctly declares that he is making the lease for himself and as agent for the others. This was sufficient. Evans v. Wells, 22 Wend. 324; New England Marine Ins. Co. v. De Wolf, 8 Pick. 56.
   Gary, J.

In its departure from all technicalities of proceeding, this is a very singular case, and the judgment is one that a few years ago no court sitting for the correction of errors, and acting under the common law, could have affirmed. And yet the real issue between the parties, and the merits of the appellants’ defense, have been as clearly presented and as fairly tried as they could have been under the most approved forms.

First, the action is for rent claimed to be due from appellants to appellees upon a lease by indenture between William G. McCormick “for himself and as agent” of the other appellees, executed only by him and the appellants, so that the other appellees are no parties to the instrument which is at the foundation of the action.

Second, the form of the declaration is a count in assumpsit, modeled from a count in a debt on a demise.

Debt on a demise was at common law the single instance in which, where a specialty was the foundation of the action, it need not be declared upon. 1 Ch. Pl. 364; Atty v. Parish, 1 New R. (B. & P.) 104.

And this upon some fanciful reason that rent, issuing out of the realty, was a debt of as high a nature as a specialty claim; and for that reason assumpsit could not be supported, unless an express promise to pay could be proved. 1 Ch. Pl. 105. And then it was necessary expressly to state in the count, not only the consideration for, but also the promise itself. 1 Ch. Pl. 292, 301.

To obviate some difficulties ” the statute of 11 Geo. 2 was passed, giving the action for use and occupation, where the agreement is not by deed, but the statute of this State, so far as relates to the present case, only gives that action where there is no special agreement for the rent.” But the declaration is not in form a count for use and occupation, and the question whether a count for use and occupation may be adopted where there is a special agreement, does not arise.

Whether all the appellees may join in recovering the rent that belongs to all of them, but which appellants have covenanted to pay to one of them only, is an important question.

By Sec. 19, Ch. 110, “ Practice.” Stat. 1872, every instrument under seal, except penal bonds, maybe sued and declared upon as if it were unsealed. Adam v. Arnold, 86 Ill. 185; and in Dean v. Walker, 107 Ill. 540, though the question did not there arise, it is assumed that the rule that where one person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon it, is by the statute extended to cases where the undertaking is under seal, and that, therefore, the case of Moore v. House, 64 Ill. 162, is no longer law in this State.

Then, if the effect of the statute is, so far as relates to the form of the action and who may have the benefit of the appellants’ covenants, to take the seals off the lease, the rule stated in Story on Agency, Sec. 160, applies, that whether the agent describes himself as agent or not, or whether the principal be known or unknown, the agent may sue and be sued, and the principal may sue and be sued, on contracts made by the agent in his own name. Ho case is found in which the agent was a principal as to part, and an agent as to the residue of the subject-matter of the contract, but the principle is, and the rule should be the same, if the defective or irregular execution extends only to part, as if extended to the whole of the contract. In Kerfoot v. Cromwell, 115 Ill. 502, several land owners acting through a committee, one of the principals put the name of one of the committee to a contract, and was held thereby to bind himself.

If McCormick had been altogether an agent withobt interest, and had omitted the words “for himself and,” the case of Nicoll v. Burke, 78 N. Y. 580, is authority for the right of the other appellees to recover; and see Avery v. Dougherty, 102 Ind. 443, to the same effect.

The defense on the facts was an alleged surrender. Whether there had been an agreement for a surrender or not, the jury were to decide upon parol evidence. There is no statute of frauds in this State requiring surrenders to be in writing. It was for the jury to determine, upon the conflicting testimony, what was the fact, and that is an end of the controversy.

Mo objections were'made in the Circuit Court to the form of the declaration, but the lease was objected to as void (upon which point enough has been said), and as variant from the declaration. If the lease was, by construction, from all the appellees, there was no variance, as the declaration was on a demise from all. It should have been on the lease, but the want of art may be overlooked. Read v. Walker, 52 Ill. 333.

If, indeed, the appellants could sustain their position that the lease is void, so that neither the appellee jointly nor McCormick alone could sue upon it, they would have reason to complain of the judgment; but that position not being sustained, it is immaterial to them whether the action is in the name of four or one, as the defense and the recovery are exactly the same, and if there is any error they are not harmed by it.

Judgment affirmed.