author: Beeves, J.

text:
    Fourth District
    February Term, 1888.
    The Continental Insurance Company of the City of New York v. Stephen Ruckman.

      Fire Insurance—Loss—Bill to Reform and Correct Policy—Vacancy Permit—Agreement by Agent—Changing Conditions of Policy—-Agents— C-lerks—Responsibility of Company for Act of—Foreign Companies.

    1. Under the act in relation to insurance, the clerk of. a local agent, so far as business transacted by him for any foreign company represented by his employer is concerned, is the agent of such company and binds it by his acts.
    2. Upon a bill brought to reform and correct afire insurance policy and asking for a decree ordering the payment of a loss thereunder, this court declines to interfere with the decree in behalf of the complainant.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Madison County; the Hon. William H. Suyder, Judge, presiding.
    Mr. Geo. F. McNulty, for appellant.
    Messrs. Wise & Davis, for appellee.

      Milne was permitted to solicit insurance, make contracts, fill up policies, deliver them, and collect premiums in his dealings with the public; the public had a right to presume his acts bound the company. Presumed powers are not to be narrowed by limitation not communicated to the person dealing with him. Insurance Co. v. Barrell Co., 114 Ill. 118; F. M. Ins. Co. v. Chestnut, 50 Ill. 170; Ætna Ins. Co. v. Maguire, 51 Ill. 342; Lightbody v. N. Amer. Ins. Co., 23 Wend. 18; Ins. Co. v. Wilkinson, 13 Ill. 222; Merchant Bank v. State Bank, 10 Wall. 644; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345.
    Although provision sixth in the policy provides that any person other than the duly commissioned agent of this company who may procure insurance shall be deemed the agent of the assured and not of the company, yetMilne, having acted for the company in procuring the insurance, is to be deemed the agent of the company, regardless of said provision in the policy. Commercial Ins. Co. v. Ives, 56 Ill. 402; Union Ins. Co. v. Chipp, 93 Ill. 100; Pierce v. People, 106 Ill. 22; Newark F. Ins. Co. v. Sammons, 110 Ill. 166.
   Beeves, J.

This is a bill in chancery brought by appellee to reform and correct a policy of insurance issued by appellant to him, and after such correction, asking for a decree that the appellant pay appellee the amount of the policy, alleging the destruction of the property insured by fire. Appellee was solicited by one Milne to take out a policy in the appellant company. It was agreed between the parties that Bnekman was to insure his house for $400 and his barn for $600. Milne agreed that the policy was to have in it a clause that the property could remain vacant for thirty days without notice to the company.

When the policy was delivered to appellee by Milne, he asked Milne if the policy had in it the vacancy clause as they had agreed. Milne said it had. Appellee could not read or write, and Milne knew this fact. Appellee received the policy and paid the premium to Milne and the company received the premium. As to these facts there is no dispute in the testimony.

On the first day of Hovember, 1886, while the policy of insurance was in force, the house and barn were destroyed by fire. At the time of the fire the premises had been vacant for ten days. The policy as issued, provided, “ that if the building become unoccupied without the assent of this company indorsed hereon * * then, and in any such case, this policy shall become void.”

Proofs of loss were furnished to the agents of the company, and payment was refused because the premises were unoccupied at the time of the fire.

The court below rendered a decree correcting the policy so as to read that the property insured can remain vacant and unoccupied for thirty days, but not longer, without notice to the company, and also decreed that appellant pay appellee, on account of his loss, the sum of §1,0-49.50. From this decree the appellant prayed an appeal to this court. The chief contention on the part of appellant is that ^lilne was notits agent, and that it was not bound by what he did in his negotiations with appellee, which resulted in the issuance of the policy. It appears from the evidence that Milne was a clerk in the office of Whipple & Smily, who were the agents of appellant at Alton.

Whipple testifies that Milne acted as a solicitor of insurance, but had no authority to sign policies and never did. He was the office clerk of Whipple & Smily, kept the books of the office, filled out policies, delivered policies after they were countersigned by Whipple & Smily, and collected the premiums.

He solicited insurance, but submitted the same to one of the agents, who alone countersigned the policy. Mr. Whipple was some seventy years old, and Smily was part of the time engaged in a bank; Milne did all the clerical work. We have been favored with a very exhaustive argument upon the question of the extent of the agency of Whipple & Smily, whether they were local or general agents, and if local it is urged that they could not delegate their authority as agents to Milne, so that Milne could bind the company. We shall not pursue this argument further than to say that while it is true that they were local agents in that their business was confined to a limited territory, yet, so far as the public was concerned, they were agents with full power and authority to issue policies and make contracts of insurance. For this purpose they were general agents, as contradistinguished from special agents. Lightbody v. North American Ins. Co., 23 Wend. 18; Vile v. Germania Ins. Co., 26 Iowa, 9; Ins. Co. v. McGookey, 33 Ohio St. 555; Ætna Ins. Co. v. Maguire, 51 Ill. 342.

It was said in Bodine v. Ex. Fire Insurance Company, 51 N. Y. 123, by Earle, C., in delivering the opinion of the court, “We know, according to the ordinary course of business, that insurance agents frequently have clerks to assist them and that they could not transact their business if obliged to attend to all the details in person, and these clerks can bind their principals in any of the business which they are authorized to transact. An insurance agent can authorize his clerk to contrató for risks, to deliver policies, to collect premiums and to take payment of premiums in cash or securities, and to give credit for premiums and to demand cash ; and the act of the clerk in all such cases is the act of the agent, and binds the company just as effectually as if it were done by the agent in person. The maxim of delegatus non potest delegare does not apply in such a case.” See also Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463.

But it scorns to us that our statute settles this disputed question. It provides: “Every agent of any insurance company shall, in all advertisements of such agency, publish the" location of the company, giving the name of the city, town or village in which the company is located, and the State or Government under the laws of which it is organized. The term 6 agent3 or 6 agents5 used in this section shall include an acknowledged agent, surveyor, broker or other person or persons who shall, in any manner, aid in transacting the insniance business of any insurance company not incorporated by the laws of this State. The provisions of this section shall apply to all foreign companies, partnerships, associations and individuals, whether incorporated or not.” 1 Starr & Curtis Ill. Stat., 1322. Under a similar statute in Iowa, where an agent sent his clerk to solicit a risk and take an application, and the clerk knew there was other insurance on the property, but the agent,, ignorant of such other insurance, issued a policy on the application and collected the premium, it was held that the company was bound by the knowledge of the agent’s clerk, who, for the purpose of that policy, must be regarded as the company’s soliciting agent, and that it could not defeat an action on the policy on the ground of -prior insurance, which, under the terms of the policy, would otherwise have rendered it void. Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600. We can not agree with the view taken by appellant’s counsel as to the effect to be given to this statute. As we view it, the clause declaring who are to be considered agents of an insurance company, not incorporated by the laws of this State, is to be considered as generally determining that any person who shall in any manner aid in transacting such insurance business is an agent of such foreign company.

The decree of 'the Circuit Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Gjreen, P. J,

license: Public Domain

text:
    Sarah Glaubensklee v. Lyman W. Low.

      Husband and Wife—Family Expense—Sec. 15, Chap. 68, R. S.—Physician's Services—Statute of Another State—Adoption — Construction— Evidence.

    T. A wife is liable under Sec. 15, Chap. 68, R. S., for services rendered the family by a physician, although charged on the plaintiff’s books to her deceased husband.
    2. Where a statute is copied from the statutes of another State, it is presumed to have been adopted with the construction given to it by the courts of that State.
    [Opinion filed October 19, 1888.]

      In error to the Circuit Court of Edwards County; the Hon. Carrol 0. Boggs, Judge, presiding.
    Messrs. J. M. Campbell and H. J. Straws', for plaintiff in error.
    The Supreme Court has never construed this statute, bu the Appellate Court has. In the case of Carl G. Von Patten et al. v. Ernest Krueger, 11 Ill. App., page 637, the court say that the words, expenses of the family, “mean such expenses as were incurred for, on account of and to be used in the family.55 And in the case of Fitzgerald v. McCarty, 55 Iowa, page 702, and which seems to have been adopted by the Appellate Court, the court say: “The thing for which the expenditure was incurred should have been actually used or kept for use in the family.55 In view of the fact that this statute is in derogation of the common law and must he strictly construed, the above rule is the proper one to apply to ascertain the meaning of this statute. Applying this rule, then, the thing should have been actually used or kept for use in the family. Bees professional advice of a physician come within this rule any more than that of a lawyer? And we apprehend that no one would contend for a moment that the fees of an attorney would be held to be a family expense under this statute, and yet there would seem to be about as much reason for one as the other. How can the advice of the physician or his visit be kept for use in the family? And yet the court will see from the bill that there is item after item for advice, etc.
    In the case of The County of Delaware v. McDonald, 46 Iowa, 170, it was held that the expense incurred in the treatment of an insane wife in a hospital for the insane was not a family expense within the meaning of the statute. Hpon the same points of reasoning it would seem that the expenses incurred in the treatment of the husband would not be a family expense under the law, or the treatment of or the giving oí advice to any other member of the family. If this is true, the court erred in refusing propositions of law, entering judgment and overruling motion for new trial.

      Again, this statute, as we have seen, charges the property of both the husband and wife, or either of them, with the expenses of the family; but suppose that the creditor makes the charge, as in this case, and wholly relies upon the one that he contracts with. Does lie not release the other from the liability? or can he open an account with the husband and keep it open and running for eight or more years, or until the husband dies or becomes insolvent, and then say to the wife for the first time that she must pay it because the law in the first instance perchance charged or might have charged her property with it? This construction of the statute would certainly be very harsh, unjust and unreasonable. Our view of the law is that the property of both husband and wife may be chargeable with expenses of family, or either of them, and not “ shall;” that is, the law gives him the right to charge the account to both or one of them, and that if he sees fit to charge it to one of them he releases the other. Any other rule of construction would be giving the advantage wholly to the creditor, which the law is not supposed to do, but to deal fairly and justly between them. Especially do we believe that this was the intention of the Legislature when we take into consideration the fact that this statute must be strictly construed. This construction would not permit the creditor to take all the benefits and advantages, but deal justly.
    Messrs. E. P. Hanna, ¥il F. Fosteb and L. W. Low, for defendant in error.
    This section of the statute is a literal copy of the Iowa statute, and has frequently received judicial construction in that State. And while the Supreme Court of the State has not had occasion to construe the statute in question, the Appellate Court has; and in Von Platen et al. v. Krueger, 11 Ill. App., page 627, express entire satisfaction with the effect given to the statute by the courts of Iowa.
    Both of these propositions have been so effectually settled by the decisions of the Supreme Court of Iowa that they do not now seem to be the subject of controversy.
    First. Are medical services “ family expenses?” On this point see Von Platen v. Krueger, 11 Ill. App. 627; Fitzgerald v. McCarty, 55 Iowa, 702; Finn v. Rose, 12 Iowa, 565; Hawke v. Urban, 18 Iowa, 83; Lawrence v. Linnaman, 24 Iowa, 80; Frost v. Parker, 65 Iowa, 178.
    Second. Does the fact that the items were charged originally to Henry Glaubensklee release the plaintiff in error?
    On this proposition, we contend that this is a liability created by law, and not by contract; and as soon as goods are furnished or services rendered that come within the statute, the liability of both the husband and wife attaches eoinstanti, and neither party can be released from liability except in some of the modes known to the law, such as payment, statute of limitations, etc. Smedley v. Felt, 41 Iowa, 588; Lawrence v. Linnaman, 24 Iowa, 80; Frost v. Parker, 65 Iowa, 178.
   Gjreen, P. J,

Lyman W. Low, a physician, brought suit against plaintiff in error in assumpsit, to recover the amount alleged in his declaration to be due him, u for necessaries for herself and family; medical attendance, advice and medicine furnished by him to and for herself and family.” The only plea interposed was non-assumpsit, and upon this plea issue was joined. The cause was tried by the court without a jury. The trial resulted in a finding and judgment for plaintiff for 8599.94, to reverse which judgment the defendant sued out this writ of error.

By the evidence it was shown plaintiff was a practicing physician, and as such, furnished medicine to and attended the family of defendant many times from Hay, 1878, to Hay, 1885, the family during that period consisting of the defendant, her husband and several children. The husband died in 1886. Plaintiff’s book of account contained an account against the husband for this medical bill, the charges for professional visits and medicine were shown to be reasonable, and it is not insisted the amount recovered is excessi ve.

This suit was brought and a right to recover was claimed by the plaintiff below upon the theory that the professional services of a physician and medicine furnished by him to a family, are “ expenses of the family” within the terms of Sec. 15, Chap. 68, Starr & C. Ill. Stat. p. 1279, which provides as follows: “ The expenses of the family and of the education of the children shall be charged upon the property of both husband and wife, or either of them, in favor- of creditors- therefor, and in relation thereto they maybe sued jointly or separately.”

It is urged on behalf of plaintiff in error the trial court erred in admitting under the averments in the declaration against the objection of defendant the evidence introduced on behalf of plaintiff, first, because of the failure to aver that the medical bill sued for was a family expense, and that defendant became liable to pay it by operation of law; second, because in the declaration it is' averred the defendant is indebted to plaintiff, and by the evidence admitted it appears her husband in his lifetime contracted the debt sued for, and that it was charged to his account on the book of plaintiff. Doubtless the averments in the declaration could have been so framed as to more clearly and explicitly set out a cause of action under the section quoted, and if defendant had demurred an amendment would probably have been made removing any obscurity in the declaration in that regard; but inasmuch as issue was joined, upon which a trial was had resulting in a finding and judgment, unless the declaration failed to aver a cause of action, which the evidence admitted was relevant to prove, the objection can not be sustained, and we think the declaration was not so radically defective as to preclude the plaintiff’s right to introduce the evidence objected to. It is substantially averred therein that professional services and medicine were furnished by plaintiff to and for defendant and his family; these are family expenses, within the scope and meaning of the statute, for which the defendant as a wife,became and was legally liable to plaintiff; nor was this legal liability removed by charging her husband on the boobs of plaintiff with the same medical bill. The legal liability of the husband and wife for expenses of the family is joint and several, and a suit therefor may be maintained against either, or both. Hence, the mere fact that the husband is charged with such expenses upon the book of plaintiff does not deprive him of the right to maintain a separate suit therefor against the wife.

In support of this view we find authority in Lawrence v. Linnaman, 24 Iowa, 80, and we cite this decision of the Supreme Court of Iowa because the section of our statute before mentioned is a literal coj>y of the statute in Iowa in force at the time of such decision; and the general rule is, when one State adopts a statute in force in another State, which has been construed by the courts of the latter, the act is adopted with the construction so given it. In the case cited above, the goods were sold to the husband, charged to him, and his note was given for the amount of the - account. Suit therefor was brought against the husband and wife; he defaulted and she defended, claiming that under these facts she was not liable, but the Supreme Court held she was liable, and say, in the opinion, the husband determines primarily what is needed. He buys, furnishes, contracts debts, all in his own name, for the support and welfare of the family. The wife’s name need not be known. His acts, agreements and promises are alike obligatory on both. The law does not contemplate the consent and action of both. This case is cited and the ruling approved by the Appellate Court in this State in Hudson v. King Bros., 23 Ill. App. 118, in which case the husband and wife were sued jointly for goods furnished the family and charged to the husband on the hooks of the plaintiff, and the wife was held liable therefor under the statute.

We are satisfied that notwithstanding the fact that the husband of defendant below was charged on the book of plaintiff with this medical bill, the evidence introduced on behalf of plaintiff to establish the legal liability of the wife was proper and relevant in support of the averment which properly charged her separately with owing and being indebted to plaintiff for said medical hill, and the trial court did not err in admitting such evidence over the objection of defendant

It is further insisted on behalf of plaintiff in error, that the Circuit Court erred in refusing to hold the following propositions to be the law, as requested on her behalf:

1. The court states the law to be, that if the medical services in the case were rendered in the lifetime of the husband of the defendant and charged to him, then the plaintiff can not recover.

2. That medical services rendered the family of Henry Glaubensklee, the husband of the plaintiff, and charged to him, are not such expenses of the family as will render the wife jointly or severally liable with the husband under the law.

We have already expressed views adverse to the proposition contained in the first request, rendering further comment on it unnecessary, and we will proceed to the discussion of the second, which is copied literally from the record, and the words “ husband of plaintiff” therein are evidently not those counsel intended to use, but we will treat it for the present purpose as though “ defendant ” instead of and in the place of plaintiff, appeared.

The contention of the plaintiff in error in support of the proposition contained in the second request is, that the professional advice and visits of a physician to a family are not embraced in the language, “ the expenses of the family,” used in the statute, but that those words, properly construed, mean such expenses only “as are incurred for, on account of, and to be used in the family.” “That the thing for which the expenditure is incurred should have been actually used, or kept for use in the family;” and, therefore, professional advice and services of a physician, not being a thing used or kept for use in the family, the expense incurred for such advice and services was not intended to be one of the expenses of the family, for which defendant, as a wife, became liable under the said clause of the act.” In support of this position counsel cite three cases: Van Patten v. Krueger, 11 Ill. App. 627; Fitzgerald v. McCarty, 55 Iowa, 705; County of Delaware v. McDonald, 46 Iowa, 170. We have examined the-opinion in each of these cases, and in neither of them find authoi'ity sustaining the construction here contended for. If, as must be conceded, expenditures made or. debts incurred for food, raiment, shelter, and even medicine, for the family, are for the “ expenses of the family,” as those words were intended to be understood by our Legislature, it is difficult to find any good reason why a debt incurred for professional skill and advice, employed in directing the proper use of a remedy to alleviate the suffering, cure disease, and restore the health of members of the family, would not be one of the expenses of the family within the meaning of the act; and we find Iowa cases in which a much broader application is given to these words than would he required to support the latter construction. In Fitzgerald v. McCarty, 55 Iowa, 705, the court say, “It is the expenses of the family which, under the statute, are chargeable to both husband and wife. This implies, we think, the expense which has been incurred for something used in the family, kept for use, or been beneficial thereto.” See, also, Smalley v. Felt, 41 Iowa, 588; Marquardt v. Flaugher, 60 Iowa, 148.

That the debt incurred for the professional services of plaintiff below was one of the expenses 'of the family for which defendant -was legally liable, we have no doubt; hence the proposition contained in said second request was incorrect, and the trial court did not err in refusing to hold the tame to be the law; and having thus disposed of all the questions submitted to ns for determination, we need only add that no error appears in this record requiring the reversal of the judgment below, and the same is affirmed.

Judgment affirmed.


author: Phillips, J,

text:
    Maria Gallagher et al. v. Mary Kilkeary et al.

      Wills—Attestation—Secs. 2 and 7, Chap. 148, Starr <& C. III. Sfaf. —Undue Influence—Instructions—Province of Jury—Writ of Error.

    1. It is sufficient under Sec. 7, Chap. 148, R. S., i£ the witnesses to a will sign in such a relative position to the testator that he can see them do so, even though they be in an adjoining room.
    2. Upon a bill to test the validity of a will, an instruction directing the jury to find the instrument in question to he a valid will, where there is testimony going to show that the testator was not of sound mind when the same was executed, is erroneous.

      [Opinion filed October 19, 1888.]
    In ebbob to the Circuit Court of St. Clair County; the Lion. Geo. W. Wall, Judge, presiding.
    Plaintiffs in error filed their bill in chancery to contest the will of John Kilkeary, who, it appears, was the owner of certain lots in fee simple and a certain leasehold estate in other lots in East St. Louis. The bill charges that on about the 1st April, A. D. 1885, the said John Kilkeary was taken sick with typhoid pneumonia, and that he became delirious from time to time during his illness; that he died about April 21, A. D. 1885; that on the 5th day of April, A. D. 1885, John made a will by which he devised one half of his estate to his wife, Mary Kilkeary, and the other half to his only child, Maria Gallagher; that on the 6th day of April, A. D. 1885, through the undue influence of his wife, Mary Kilkeary, and while in a delirious condition owing to disease, he executed what purports to be a last will and testament, by which he bequeathed to his wife the valuable part of his estate, the lots owned in fee simple, and the least valuable part of his estate, the lots on which he had a leasehold interest, was bequeathed to his daughter. The prayer asks that the instrument and probate thereof be set aside and declared not the last will and testament of J ohn Kilkeary.
    The answer denies the material allegations of the bill as to undue influence, as to disease contracted, and as to John Kilkeary being delirious at the time of its execution. Eeplication and issue to a jury.
    Evidence was introduced by defendants tending to show execution and attéstation of the instrument, and, under the bill and answer, evidence was introduced by complainants and defendants. Whereupon the court instructed the jury on motion of defendants in error: “The court instructs the jury that they will find from the evidence in this case that the writing produced by the defendants as the will of John Kilkeary is the will of J ohn Kilkeary, and the form of your verdict will be: ‘ We, the jury, find the writing produced by the defendants as the will of John Kilkeary, is the will of said John Kilkeary.’ ” A verdict was had accordingly and decree entered thereon. Complainants sue out this writ of error and assign as error the giving of the foregoing instruction and verdict and decree thereon.
    Mr. F. C. Cocxbell, for plaintiff in error.
    That the court invaded the province of the jury in this cause there can be no doubt. The court passed upon the weight of the evidence, which the jury only were authorized to do. In Chicago West Division Ry. Co. v. Mills, 105 Ill. 63, the Supreme Court says: “ Where there is evidence tending to prove a cause of action it is an invasion of the province of the jury to instruct them that the plaintiff can not recover.” See, also, Guerdon v. Corbett, 87 Ill. 272; Hubner v. Feige, 90 Ill. 208; Peoria Ins. Co. v. Frost, 37 Ill. 833; Frazier v. Howe et al., 106 Ill. 563.
    Again, the court says in Pennsylvania Co. v. Conlan, 101 Ill. 93:
    “ Motions to exclude evidence, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, and hence they admit not only all that the testimony proves, but all that it tends to prove. If there is no evidence before the jury on a material issue in favor of the party holding the affirmative of that issue on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence or direct the jury to find against the party so holding the affirmative; but where there is such evidence before the jury it must be left to them to determine its weight and effect.”
    See Frazier v. Howe et al., 106 Ill. 563, stating the rule at length. Perhaps the strongest case in support of the position taken by the instruction in this case will be found in Bartelott v. International Bank, 119 Ill. 259.
    But it will be seen from that case that the court is not authorized to invade the province of a jury and determine the weight of evidence. It is only where there is no evidence tending to prove a material issue that the court can so instruct the jury.
    Another thing which seems to be fatal to the position taken in this case is that the statute provides that an issue shall be made up whether a will in question is the will of a deceased person, and that this issue shall be tried by a jury. In cases of this character it does not appear that the practice has obtained of instructing juries as in the case at bar. It has been generally understood that juries only were authorized to pass upon an issue of this character except, perhaps, in cases whore parties agree to try the issue by the court. It has never been understood that a court could impanel a jury to try an issue of this character, and after hearing the evidence withdraw the case from the jury and decide as to the validity of a will.
    Messrs. Turner & Holder and B. H. Canby, for defendant in error.
    The practice pursued in this case is recommended and approved by our own Supreme Court in Simmons v. Chicago and Tomah Railroad Co., 110 Ill. 340. See, also, City of Mattoon v. Fallin, 113 Ill. 249; L. S. & M. S. Ry. Co. v. O’Conner, 115 Ill. 261; Bartelott v. International Bank, 119 Ill. 259.
   Phillips, J,

This bill is filed under Section 7, Chapter 148, Starr & C. Ill. Stat, the proviso to which authorizes this procedure, and is as follows:

Provided, however, that if any person interested shall, within three years after the probate of any such will, testament or codicil in the County Court as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court of the county wherein such will,'testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants, femes covert, persons absent from tlm State, or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury as aforesaid, the certificate of the oath of the witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.”

The probate of the will was, on the trial, produced and read. The witnesses to the instrument were Thomas L. Fekete and John Friess. The original instrument was then offered, and the defendants then called as witness Alexander Flannigan, an attorney, who testified he was called to the house of John Kilkeary to write the will, and took with him Thomas L. Fekete; that he made memoranda dictated by John Kilkeary, and then went into an adjoining room and dictated the will produced to Thomas L. Fekete, who wrote at his dictation; that the will so written was read to Kilkeary, who said it was all right. He further states that “ the witnesses were in his (Kilkeary’s) presence when they signed it, and in the presence of each other and in my presence.”

Thomas L. Fekete, one of attesting witnesses, testified that he signed the will as such witness in the presence of the testator. John Friess testifies “that he signed the will as a witness; Fekete and Flannigan were present; John Kilkeary, the man who made the will, was not present; he was in a different room.” This is substantially all the testimony as to the attestation of the will.

Under Sec. 2, Chap. 148, R. S., “All wills, testaments and codicils by which any lands * * * are devised, shall be reduced to writing and signed by the testator, or testatrix, or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator, or testatrix, by two or more credible witnesses.”

Under this provision, where an issue is made under See. 7 of that chapter, it was held by the Supreme Court of this State that, “ The party who relies on the will is called upon to prove anew its execution and validity. And what he is required to prove to sustain the instrument, the other party is permitted to disprove in order to defeat it. There are some indispensable requisites to the due execution of a will. It must be signed by the testator, or by some one in his presence and by his direction, and attested in his presence by two or more witnesses.

“A paper that has not thus been subscribed and witnessed has no force or effect as a will under our statute.” Rigg v. Wilton, 13 Ill. 15.

In Potter v. Potter, 41 Ill. 80, the court holds: “ The ninth (instruction),in specifying the statutory requirements necessary to a valid execution of a will, omits to inform the jury that it was requisite that the witnesses should attest the will in the presence of the testator. To render this instruction precisely accurate this should have been stated.”

In Ambre v. Weishaar, 74 Ill. 109, a case where the attestation of the will by subscribing witnesses was in a different room from where the testatrix was, the only question presented by the record was whether the will was attested in the presence of the testatrix; and on the facts the court holds: “We regard it as sufficiently established by the authorities that if witnesses to a will, while signing their names thereto as such witnesses, are in such a place that the testator can see them if he chooses, they are to be regarded as within his ¡wesence within the meaning of the statute; that it is not necessary that they should be in the same room with the testator, or that he should actually see them sign.” But in that case the court further holds: “Without further dwelling upon this conflicting testimony, we will say that, after a consideration of the entire testimony and the surrounding circumstances, we can come to no other conclusion than that the testatrix was in such a situation that she might have seen the attestation.”

We can not hold that by the language just above quoted from Ambre v. Weishaar it was intended by the Supreme Court to reverse what was said in Rigg v. Wilton, or in Potter v. Potter, that it must, on the trial of the issue where a bill is filed under Sec. 7 of the statute, be shown that the instrument produced as the last will of a testator was attested in his presence by the subscribing witnesses, but that, as applicable to the state of facts shown by the evidence in Ambre v. Weishaar, if the testator and the witnesses were at the time of the attestat’on in such relative positions that the testator could see the attesting witnesses sign, it is sufficient.

In this case the two attesting witnesses and the attorney who was called to write the will are sworn in behalf of proponents. One attesting witness and the attorney testify that the will "was, by the attesting witnesses, signed in the presence of the testator. The other attesting witness testifies it was signed by him as attesting witness in another room than the one in which the testator was, and there is no testimony in the record to show the relative positions of the attesting witness and testator, or whether the testator could have seen the signing by the attesting witness. There was this conflict in the evidence, and the proponents were called upon anew to prove its execution and validity; and of the indispensable requisites to the due execution of a will, it must be signed by the testator or by some one for him in his presence and by his direction and attested in his presence by two or more witnesses. But notwithstanding this conflict in the evidence and this absence of evidence the court assumed to determine the question of fact, although the jury were required to determine other questions of fact.

On the allegation of undue influence of Mary Kilkeary exercised over the testator, and the delirious condition of John Kilkeary at the time of the execution of the will, there was the evidence of Flannigan, Freels, Fekete, and four other witnesses called by the proponents, most of whom substantially testified that his mental condition was such that he was conscious of the effect of his acts and was in his right mind, and several of these witnesses state acts done and directions given by Kilkeary with reference to the execution of the instrument. There was also the evidence of Flannigan and Freels that the day before the instrument was executed Flannigan was called to Kilkeary’s house to write a will for him and did so, and that will divided the property equally between wife and daughter, and this instrument executed the next day by which the most valuable property held in fee simple was conveyed to -the wife and the leasehold, the least valuable, to the daughter.

When the complainants, plaintiffs in error, called Mrs. Robert Gray, she testified that on the day of the execution of the first will she was at the house, saw -Mr. Flannigan, Mr. Freels and Mr. Sullivan leave the house—those were the attorney who wrote the will and the witnesses thereto—was then told by Mrs. Mary Kilkeary, the proponent (the defendant in error), that the will had been made, the property divided equally, share and share alike; that the will was not satisfactory; that it was going to be changed anyhow; that Mary, Patrick Kilkeary’s wife, was going to speak.to Patrick, to see what he could do to have his brother change the will; that witness then went into the room and saw testator; that he could not recognize her, or even recognize his wife; that he had a high fever and was delirious; that the evening of the next day, the day after the day on which the proposed instrument was executed, she called at Kilkeary’s house and saw him again, and he was then delirious.

This evidence was pertinent to the issue. Testator’s condition of mind was shown by this witness prior to and shortly after the execution of the instrument. The weight of the evidence and its effect is for the jury. This evidence must have been admitted as relative, material testimony; as tending to sustain the allegations of the bill; if it' did so its weight was to be determined by the jury.

Here the jury must find a verdict as to whether the instrument offered in evidence was the last will of testator, and were by the court instructed to find certain facts, and wore not permitted to determine the effect and weight of testimony where that testimony was relevant to the -finding. „ By the instruction the jury were directed to find the instrument the last will and testament of John Kilkeary, but must not, in arriving at their verdict, give any weight to certain relative testimony tending to show the condition of the mind of testator.

The case relied upon most strongly by counsel for defendant in error, Simmons v. C. & T. R. R. Co., 110 Ill. 340, states the rule to be, that “ when the evidence given at the trial, with all inferences that the jury could draw from it, is so insufficient to support a verdict for plaintiff that such a verdict if returned must be set aside * * * the court may direct a verdict for defendant.”

But that is a very different case from the one now under consideration, and we apprehend no case can be found which goes so far in its application to our practice that the court may direct the jury that, even though evidence is offered tending to sustain the plaintiff, and there is evidence pertinent to the issue offered by the defense, still you must find for the plaintiff and can not weigh the evidence introduced in behalf of defendant. To so hold would be destructive of the right of ti-ial by jury. We think the court erred in giving this instruction and the cause will be reversed and remanded. -

lieversed and remanded.


author: Reeves, J.

text:
    William D. Griswold et al. v. Mary Jane Brock et al.

      Pleadin g—Practice—A newer—Default.

    It is improper to default a defendant where there is an undisposed of answer on file.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Mr. William C. Kueffner, for appellants.
    Messrs. Koerner & Horner, for appellees.
    What purported to be an answer was invisible, it being indorsed on J. B. Bowman’s answer, and so folded up that nobody could see it. But we insist that this was no answer at all. The answer being a separate one, and put in long after Bowman’s answer, ought to have been a separate sheet of paper, ought to have been independent of the other answer, ought to have answered the allegations of the bill severally and especially, as prescribed by the statutes, Sec. 23, Chap. 22, R. S., Chancery.
    Now, a paper which merely states that some defendants adopt an answer heretofore made, is not an answer, and need not be noticed at all. The default was only taken at the hearing when the papers were examined, and no answer of Bowman’s legal representatives was visible. The case had been set for hearing, and the legal representatives, if they considered they had answered, ought to have been present (in fact, Frank B. Bowman, the administrator and one of the heirs and their attorney, was present on the first day of the trial, and also participated in the argument when the case was argued, without any objection, on the part of the complainants), and they had the whole balance of the term to set aside the default if they had chosen to do so. But no suggestion was made by either counsel that they had put in an answer.
    But suppose the indorsement of John B. Bowman’s answer could be considered as an answer, then his answer was theirs, and the case was tried on his and on Griswold’s answer, so that they could have suffered no ..injury whatever. They had set up nothing different from J. B. Bowman’s ansrver. We had to prove everything, just the same as if they had filed a separate answer, Adopting the answer of John B. Bowman, their interest was amply protected. Objection was made to the testimony of witnesses because they testified to facts occurring before the death of John B. Bowman, which, of course, was made in their interest, because that did not concern the co-defendant, Griswold. As the default was taken on the hearing only, they could have had whatever witnesses they wanted present; but none were there. They considered, and very properly so, that the counsel who did appear was fully able to do them justice; they did not need to employ additional counsel.
   Reeves, J.

The appellees filed a bill in chancery against the appellants. The case proceeded to a hearing, and a decree for appellees.

The bill was originally filed against William D. Griswold and John B. Bowman. John B. Bowman died, and his administrator, heirs and widow were made parties to the bill and brought into court. On the 29th day of November, 1886, the administrator, heirs and widow of JohnB. Bowman, deceased, filed their answer to the bill of appellees.

On the 30th day of November, 1887, the administrator, heirs and widow of JohnB. Bowman, deceased, were severally by name defaulted, and the bill taken pro confesso against them, and the decree entered in the cause so recites.

This was manifestly error, and for this error the decree is reversed and the cause is remanded.

Reversed and remanded.


author: Gbeen, P. J.

text:
    Ella Gain v. Butler & McCracken.

      Mechanic's Lien—Claim of Sub-Contractors—Secs. 30, 31 and 35, Act of 1887—Sworn Statement—Notice—Demurrer.
    1. Upon petition by sub-contractors for a lien for material furnished, this court holds that the petition must be dismissed for want of notice to the owner, under Secs. 30 and 81, act of 1887.
    2. Although notice is not necessary when the sworn statement of the contractor, provided for in Sec. 35, gives the owner true notice of the amount due and to whom due, in the absence of such statement the notice is required.
    3. The statute in question being in derogation of the common law. one who claims under it must strictly perform and comply with its conditions and requirements.
    [Opinion filed October 19, 1888.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.

      Mr. L. H. Hite, for appellant.
    Mr. J. J. Bafteb, for appellees.
   Gbeen, P. J.

Butler & McCracken, claiming to be subcontractors under Benjamin Summers, filed their petition for mechanic’s lien, making Ella Gain, Summers and Wiegrifie (another sub-contractor) defendants.

Appellant filed a general demurrer to this petition which the court overruled, and appellant electing to abide by her demurrer, a decree was entered as prayed for, to reverse which she took this appeal. It is alleged in the petition that Summers, on August 27, 1887, made a written contract with Ella Gain to build a house for her for $685, to be completed in forty-five days from date of contract, payments to the amount of $500 to be made as work progressed, balance, $185, when work was completed; that on October 11, 1887, work %vas finished and accepted; that Gain paid Summers the $500 as agreed, “but did not require of him or receive from him a statement, under oath, of the number, name of every sub-contractor, mechanic or workman in his employ, or person furnishing materials, giving their names and the rate of wages, or the terms of contract, and how much, if anything, is due or to become due, for work and materials furnished, and without retaining out of the money due said Summers on account of said contract an amount sufficient to pay the demands of petitioners and other sub-contractors and workmen and mechanics, furnishing materials and labor under said contract; ” that there is still due and in her hands $185 on said contract; that after Summers made the contract with her he contracted with petitioners for lumber for said house and which he put in said house, amounting to $286.42, and which he. was to pay for at times mentioned for payments to Summers by Gain in original contract; that Summers paid petitioners $85 and owes them the balance of $201.42; that petitioners on November 2,1887, filed their statement for a lien as required by the act, with the .clerk of the Circuit Court of St. Clair County; that on the 20th day of December, 1887, they caused to be served on said Ella Gain a copy of notice required by section 30 of the act, and prays that petitioners be allowed a lien; that the amount due them be decreed to be paid by Summers and Gain, and in default of such payment the premises may be sold to satisfy debt and costs.

The error assigned is overruling appellant’s demurrer and rendering decree in favor of appellees. It is alleged in the petition that all the money to be paid Summers was due when he completed his contract, and petitioners were to be paid by that time all that was due them from Summers.

The contract and sub-contract were finished October 11, 1887, and the statutory notice was served on appellant December 20, 1887, sixty-nine days afterward. Said section 30 provides for the giving of notice, and the kind of notice to be given the owner by the sub-contractor or person furnishing material for contractor. And section 31 provides such notice shall be served within forty days from the completion of the sub-contract, or "within forty days after payment should have been made to the person furnishing such material. It thus appears, and is not disputed by appellees, that the notice required by Sec. 30 was not served on the owner within the period required by Sec. 31, nor until twenty-nine days thereafter. This statute, under which petitioners invoked the aid of the court, has been always held by our Supreme Court to be in derogation of the common law, and before a person can become entitled to the remedy afforded by the statute he must strictly perform and comply with its conditions and- requirements. And among these imperative conditions is the service of said notice upon the owner within forty days, as required by Sec. 31, unless in a ease excepted by the proviso attached thereto. And on behalf of appellees it is contended that by reason of this proviso added to said section in the act of 1887 providing such notice shall not be necessary where the sworn statements of the contractor, provided for in Sec. 3o of this act, shall serve to give 'the owner true notice of the amount due and to whom due,” and because appellee made payments to Summers without requiring him to make such sworn statement, they are entitled to the lien without complying with such condition.

This theory is based upon the assumption that the owner must require the contractor to make this sworn statement, and thus take steps to inform herself of the amount due or to become due to the petitioners, and, having failed to perform this duty, “ can not be heard to charge the sub-contractor with neglect of duty in not giving the statutory notice.” We do not so understand the provisions of this act. The original contractor must make the sworn statement “ whenever any payment shall become due from the owner, or whenever he desires to draw any money from the owner on such contract.” If he fails to do this, the statutory notice must be given to the owner by the sub-contractor or person furnishing material. Appellant did not receive the sworn statement provided for in See. 35, nor the statutory notice from the petitioners as required by Secs. 30 and 31; hence, appellees were not entitled to a lien, and the demurrer should have been sustained and the petition dismissed. Be’ange v. Hersey, 90 Ill. 70; St. L. Nat. Stock Yards v. O’Reiley, 85 Ill. 546.

Kelly v. Kellogg, 79 Ill. 477 and Legrand v. Armstrong, 18 Ill. App. 549, -cited in appellant’s brief, support the views expressed upon this question of notice. The decree of the City Court is reversed and cause remanded, with directions to the court below to dismiss the petition of appellees.

Reversed and remanded.


text:
    The Mobile & Ohio Railroad Company v. The People of the State of Illinois.

      Railroads—Stoppage of Trains at Crossings—Secs. 75 and 76, Chap. 114, Starr & C. Ill. Stat.—Sec. 12, Act of June 19, 1885.

    This court reverses the judgment-in a suit brought for violating Secs. 75 and 76, Chap. 114, Starr & C. Ill. Stat., in regard to the stopping of trains at railway crossings, as the declaration is based on the statute as it stood before the amendment of 1885.

      [Opinion filed October 1, 1888.]
    Appeal from the Circuit Court of Jackson County; the Hon. W. W. Baer, Judge, presiding.
    Messrs. Pollard & Werner, for appellant.
    Mr. E. J. McElvain, State’s Attorney, for appellee.
   Reeves, J.

This action was brought under Secs. 75 and 76, Chap. 114, Starr & C. Ill. Stat., p. 1938, being Secs. 12 and 13 of the act of 1874. It was commenced in September, 1887. These sections, 12 and 13 (75 and 76 of Starr & 0. Revision), were amended by an act approved June 19, 1885. Sec. 12 of act of 1874 required every train to be brought to a full stop at a distance not less than 200 feet, nor more than 800 feet from the crossing. As amended by act of June 19, 1885, every train is required to be brought to a full stop before reaching a crossing and within 800 feet therefrom. It will be seen that under the statute before amended, the stop was required to be made not less than 200 feet before the crossing was reached. Under the amendment, the stop can be made at any point before reaching the crossing, not more than 800 feet away; that is to say, the stop may be made two feet from the crossing instead of 200 feet, as before required.

Upon examination of the declaration we find that each count is based upon the statute as it stood before the amendment above set forth. It does not require any argument to show that a cause of action can not be maintained upon the statute as it stood prior to the amendatory statute of June 19, 1885, which latter was the statute in force when the grievance complained of in the declaration took place.

The case is reversed, and as, under the limitation clause of the statute of 1885, no recovery could be had for the cause of action set up in the declaration, the cause will not be remanded.

Judgment reversed.


author: Phillips, J.

text:
    Urban B. Harris v. Martha M. McCasland.

      Replevin—Remand,—Gift by Parent to Minor Child—Instructions— Evidence.

    1. Property in lawful possession can not be replevied in the absence of a demand and refusal.
    2. In an action of replevin brought to gain possession of a piano purchased by a father for his minor daughter, to comply with an agreement with his wife to do so upon her joining with him in the conveyance of real estate, the father, after said child became of age, having given a bill of sale thereof to the plaintiff, evidence of such agreement is admissible.
    3. In the case presented, this court declines to interfere with the verdict for the defendant, although in form it is defective.
    4. The appellant can not complain of a modification of an instruction which, as given, is too favorable to him.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Bond County; the Hon. B. H. Canby, Judge, presiding
    Mr. W. A. Horthoott, for appellant.
    There are more ways than one of proving the detention of property. A demand and refusal is one way; but any circumstances which go to satisfy the jury that a demand would have been unavailing, would be sufficient. Cranz v. Kroger, 22 Ill. 74; Johnson v. Howe, 2 Gilm. 342.
    The verdict of not guilty being responsive to the issue of non oejoit and non detinet, both admitting property in the plaintiff in error, it was erroneous for the court to award a writ of retorno habendo. Vose v. Hart, 12 Ill. 378; Hanford v. Obrecht, 38 Ill. 320.
    A parent may give an article of personal property to his infant child, and resume and sell the gift without the consent of the child. Cranz v. Kroger, 22 Ill. 74.

      Mr. Solon A. Enloe, for appellee.
   Phillips, J.

This is an action of replevin commenced before a justice of the peace by appellant against appellee, to recover the possession of one piano. Trial and judgment and appeal to Circuit Court of Bond county. In that court a trial by jury and judgment and order for writ hdbendo retorno.

The evidence shows that John McOasland owned a certain farm, and desiring to sell and convey the same, sought to have a release of dower by his wife, the appellee. She promised to sign the deed if her husband would buy a house and lot in Greenville and have same conveyed to her, and would also buy her daughter Cora a piano. This the husband and father promised to do. The farm was sold, deed executed in 1881, and shortly thereafter the father bought for Cora this jiiano.

It was in the house occupied by John McOasland with his family, and was claimed by Cora, to whom the father stated he gave the same: she exercised exclusive acts of ownership over it, locking it up to keep it from being used by other members of the family, and thus continued to do until she became of age, on the 9th of February, A. D. 1887. John M. McOasland became indebted to the plaintiff in the sum of S292.69 by reason of plaintiff having paid a sum as security for him, and McOasland executed his note to appellant for that sum and subsequently proposed to let appellant have this piano on that indebtedness.

Appellant wrote McOasland in reference to this proposition and that letter was answered by Cora McOasland, who informed him the piano was her property and he could not have it. On the 24th of February,.and after appellant had received that letter from Cora McOasland, John M. McOasland made a bill of sale to appellant of this piano, but requested appellant not to take the piano until he was absent, as he wanted to avoid any difficulty with his family.

At that time McOasland was insolvent and in poor health., and left the State, leaving his family in their home.

Appellant sued out this writ of replevin without making any demand for the property, making Martha McCasland, the mother of Cora McCasland, party defendant. She claimed the piano was her daughter’s, and if not the daughter’s, was hers, as it was the consideration of her release of dower in the farm sold.

The appellant assigns as error the giving of instructions for defendant which are based on the theory—first, of the necessity for a demand and refusal to deliver before replevin could be maintained in this case; and secondly, that if the father, in consideration of the execution of a deed reléasing her right of dower by the wife, promised her he would buy a piano for the daughter Cora, and if the deed was executed in consideration of that promise, and the piano bought and delivered for that consideration, then the father could not revoke the gift and resume and sell the property and deprive the daughter of the same. Here the appellant had notice of the claim of property in Cora McCasland, as he testifies; .she was residing with her father and mother, the piano was in the house, the possession of Cora was not other or different from what it had been from the time of the purchase of the piano. At the time of suing out the writ of replevin the father was absent from the State. So far as the possession of the daughter Cora was concerned, that possession was rightful, and its being allowed to remain in the house was lawful, and the mother was not guilty of a wrongful act in so allowing it to remain. Then, so far as the mother and daughter were concerned, the possession was lawful, and replevin could not be maintained to recover the piano until a demand had been made and possession refused. O. & M. Ry. Co. v. Noe, 77 Ill. 513; Clark v. Lewis, 35 Ill. 417.

The instructions for the defendant as to the necessity for a demand, and the instructions with reference to the contract between the father and mother as to the consideration for the purchase and delivery of the piano to the daughter, were, with reference to the facts before the jury, properly given.

The error assigned for modification of plaintiff’s second instruction is not well taken; as given, the instruction was:

“ The court instructs the jury that the omission to make the demand when necessary, does not prevent the plaintiff from recovering the property if he shows title in himself, and the right of immediate possession at the time of commencement of suit.”

This instruction ought to have been refused, and was equally objectionable without the modification. So given it was much more favorable to appellant than he was entitled to have given, and it is an error of which he can not be heard to complain.

The further error assigned is, that the court erred in instructing the jury as to the form of the verdict and in entering judgment on the verdict and awarding writ retorno habendo.

The verdict of the jury was, “ We, the jury, find the defendant not guilty,” as returned into court; but it further appears from the record, that on the announcement of the verdict, and before the jury were discharged, at the request of plaintiff, the court asked the jury if they found tlieir verdict upon a want of demand, or upon the right of property; and the jury answered, upon the right of property.” The instructions as to the form of the verdict were not correct, and the verdict was informal. Yet with reference to this verdict and judgment, the opinion of the Supreme Court in Jarrard v. Harper, 42 Ill. 457, is applicable. “The evidence sustains the verdict; we can not reverse the judgment. The form of the verdict is not precisely right, but the proceedings were ore tenus and the finding was equivalent to a finding of property in the plaintiff.” In this case the form of verdict was not precisely right. As announced by the jury it was a finding of property in the defendant; as entered by the court it was as not guilty. But the proceeding was ore terms, and the verdict was equivalent to finding property in defendant, and such finding would authorize a judgment and writ retorno habendo.

The judgment is affirmed.

Judgment affirmed.


text:
    Wendele Huschle v. Harry Morris et al.

      Replevin—Chattel Mortgage—Void in Part—Attachment—Instructions.

    1. A chattel mortgage may be void as to a part of the mortgaged property, and valid as to the residue.
    2. A mortgage on chattels, including a stock of goods from which the mortgagor continues to sell, is void as to such stock.
    [Opinion filed October 19, 1888.]
    Appeal from the City Court of East St. Louis; the Hon. B. H. Caney, Judge, presiding.
    George H. Ricker purchased a stock of goods on credit and executed notes therefor, on which notes appellant became surety. Ricker also became indebted to appellant for .merchandise and cash loaned. One of the notes on which appellant was surety became due and was paid by appellant. Ricker executed his note to appellant, due two years after date, for' the sum of $1,000. That note covered not only cash advanced, merchandise furnished and money paid, but was intended to cover the liability of appellant on notes not yet due. To secure that note Ricker executed a chattel mortgage on the stock of goods, and on one bay and one black horse, one top-buggy and one delivery wagon. By the terms of the mortgage the mortgagor was to remain in possession of the mortgaged property. While so in possession he continued to sell goods at retail, and replenish the stock from time to time.
    Certain parties obtained judgments by attachments against Ricker, and the property in the mortgage described attached, and judgments with order for special executions, which went into the hands of defendant, as constable, prior to the suing out of this writ of replevin. Huschle, mortgagee, sued out this writ of replevin after demand made, and on trial of that case the foregoing facts were ghown by plaintiff, appellant, whereupon the court gave the following instruction :
    16 The court instructs the jury to find the property in controversy to have been the property of George H. Ricker at the time of the levy of the writs of attachment, and find the issues for defendant.” Verdict and judgment accordingly. The error assigned is the giving of this instruction.
    Mr. William P. Launtz, for appellant.
    There can be no question but that the court erred in taking the case from the jury by an instruction. Appellant believed the evidence sufficient to establish his right of recovery. If he was mistaken, can there be any question but that the evidence at least tended to prove the issue? I think not. If it did, the demurrer, or the instruction, which is in effect the same, should have been refused, and this case will, for that reason, I believe, have to be reversed and remanded. The rule is settled in this State that a court is not justified in instructing the jury that any alleged fact has not been proved, when there is any evidence, however slight, tending to establish it. Stevens v. Snyder, 8 Ill. App. 362; C. B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Protection Life Ins. Co. v. Dill, 91 Ill. 174. Counsel on the other side may say plaintiff’s case, as sought to be made out, estops a recovery by him, as his mortgage is prima facie a fraud on creditors audits introduction establishes affirmatively such fact. I can not agree with him for the reasons already given, and further, that fraud against creditors in a conveyance of the debtor’s property can not be presumed, but must be proved. Hatch v. Jordan, 74 Ill. 414.
    Messrs. Robert A. Halbert, and Fl aurigas- & Rafter for appellees.
    The mortgage in this case was fraudulent and void as a matter of law. And where there is license to sell, whether such provision is disclosed by the mortgage or outside of it, as a matter of law the mortgage is void. Davis v. Ransom, 18 Ill. 396; Greenbaum v. Wheeler, 90 Ill. 296; Dunning v. Mead, 90 Ill. 376; Robinson v. Elliott, 22 Wall, 513; Place v. Langworthy, 13 Wis. 629; Steinart v. Denster, 23 Wis. 136; Blakeslee v. Rossman, 43 Wis. 116; Horton v. Williams, 21 Minn. 187; Mann v. Flower, 25 Minn. 500; Collins v. Myers, 16 Ohio, 547; Putnam v. Osgood, 51 N. H. 192; S. C., 52 N. H. 148; Wood v. Lowry, 3 Wend. 348; Edgell v. Hart, 9 N. Y. 123; Southard v. Benner, 72 N. Y. 424; National Bank v. Ebbert, 9 Heisk. 155; McCrossly v. Hasslock, 4 Baxter, 735; Phelps v. Murray, 2 Tenn. Ch. 746; Harman v. Hoskins, 56 Miss. 152; Bank v. Goodrich 3 Colo. 139; Orton v. Orton, 7 Oregon, 478; Bremer v. Fleckenstein, 9 Oregon, 52; Kuhn v. Mack, 4 W. Va. 186; Gardner v. Johnson, 9 W. Va. 403; Mobley v. Letts, 61 Ind. 11; White v. Graves, 68 Mo. 218; Lang v. Lee, 3 Rand. 410; Addington v. Etheridge, 12 Gratt. 436.
    It has been held by very high authority that a mortgage of chattels which is void as to part of the chattels covered by it, as being given to hinder, delay and defraud creditors, is void as to the whole, and that a fraudulent intent as to a part of the instrument vitiates the whole. Russell v. Winne, 37 N. Y. 591. The same rule is laid down in Harman v. Hoskins, 56 Miss. 142; Horton v. Williams, 21 Minn. 187.
    A mortgage which contravenes the insolxrentlaws as to some portion of the debt secured is wholly void. Denny v. Gray, 2 Cush. 160.
    And a mortgage made to secure promissory notes, a part of the consideration of which is spirituous liquors sold in violation of law, is wholly void. Brigham v. Potter, 14 Gray, 522.
   Phillips, J.

In this mortgage was included a stock of goods which the mortgagor continued to sell at retail. There was also included in the mortgage two horses, one buggy and one wagon. It does not follow that the mortgage became fraudulent and void as to the horses and wagon because it may have become so as to the stock of goods, by reason of the mortgagor being permitted to sell that stock of goods at retail.

The opinion of the Supreme Court in Barnet v. Fergus et al., 51 Ill. 352, is conclusive of this ease. The court erred in giving the instruction, and the judgment must be reversed and cause remanded.

Reversed and remanded.


text:
    The New Home Life Association of Illinois v. Emma Hagler et al.

      Lfe Insurance—Benevolent Association—Conditions in Policy—Self-Destruction—Insanity—Evidence.

    L -The terms suicide and self-destruction are synonymous, and inlaw imply that the act was deliberately done by a person capable of forming a legal intention.
    2. Where a person kills himself while insane, even though he intends that the result of the act shall be fatal, but through the impairment of the reasoning faculties is not able to understand the moral character, nature, consequences and effect of such act, or is impelled by an irresistible impulse which lie can not withstand, such act is not self-destruction within the legal sense of the term.
    3. To determine whether one came to his death by reason of self-destruction, it is proper and necessary to hear evidence as to his mental condition.
    4. In. an action upon a policy of life insurance, there being a sharp con-" diet of evidence, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Franklin County; the Hon. David J. Baker, Judge, presiding.
    Messrs. W. S. Foreman and J. A. Watts, for appellant.
    Messrs. W. H. Williams and D. M. Browning, for appellees.
   Beeves, J.

This suit was brought upon a certificate of membership issued by the appellant to one Abram Hagler. Appellant was organized under the laws of this State, for the purpose of providing mortuary benefits to the widows and children of deceased members, or to such other persons as the certificate of membership might provide. The certificate issued in this case specifically designates Emma Hagler, wife of Abram Hagler, and his children as the persons who in case of his death should receive the benefits to be paid by appellant.

The certificate was issued by appellant and accepted by said Hagler upon the express conditions and agreements set forth upon the back of same, which were by agreement made apart of the contract between the parties. Among these conditions and agreements is the following: “If the holder of this certificate shall die by reason of any act of self-destruction whatever this certificate shall become null and void and of no effect, except that the aggregate amount of money which shall have been paid the association on this certificate, and no more, shall, on delivery of this certificate properly receipted, be paid to the beneficiaries, as hereinbefore provided, within ninety days after receipt of proofs of death.” Among other pleas filed by appellant was the following, which is called in the record the third amended plea: “And for further plea in this behalf the defendant, by its attorneys, comes and defends the wrong and injury complained of, as to all the supposed promises in plaintiff’s declaration mentioned, except the sum of $16.57, part of the sum of money in said declaration named, and says it did not promise in any manner and form as the plaintiffs have complained against it, and of this it puts itself upon the country. And as to the said sum of $16.57, part of the sum in plaintiff’s declaration named, the defendant says, that the plaintiffs ought not to have their aforesaid action against it to recover any greater sum, because it says that it was and is provided in and by the certificate of membership sued upon, as follows: ‘If the holder of this certificate shall die by reason of any act of self-destruction whatever, this certificate shall become null and void and of no effect, except that the aggregate amount of money which shall have been paid the association on this certificate, and no more, shall, on the delivery of this certificate, properly receipted, be paid to the beneficiaries, as hereinbefore provided, within ninety days after receipt of proof of death.5 And defendant avers that said Abram Hagler, the holder of said certificate, came to his death by reason of an act of self-destrnction. ' And before the commencement of this suit the defendant was ready and willing and then and there tendered and offered to pay to the plaintiffs the said sum of §16.57, which was the aggregate amount of money which said Abram Hagler had paid- to the defendant association upon the certificate sued upon; to receive which from the defendant the plaintiffs then and there refused.

“And defendant says that ever since the death of the said Abram Hagler, as to the said sum of §16.57, it has been and still is ready to pay to the plaintiffs, and now brings the money into court, ready to pay to plaintiffs if they will accept the same, and this defendant is ready to verify.35

To this plea the appellees filed this replication: “And for replication to the defendant’s amended third plea herein, plaintiffs say preclude non, because they say that said Abram Hagler did not come to his death by an act of self-destruction. And of this they put themselves upon the country.53

The case was tried upon issue joined upon this replication. It is contended by appellant that the only question raised by this issue was, did Abram Hagler take his own life? The case was, in fact, tried upon the question, did Abram Hagler commit suicide ? In this the appellant insists there was error under the pleadings in the case. The consideration of this point involves the determination of the legal effect of the averment in the plea that “Abram Hagler came to his death by reason of an act of self-destruction.” Self-destruction, suicide, death by his own hands, are synonymous terms, and are defined to be “the voluntary destruction of one’s self.35 The involuntary destruction of one’s self, is not self-destrnetion. “ Self-destruction by a fellow being, bereft of reason, can with no more propriety be ascribed to his own hand than to the deadly instrument that -may have been used for the purpose. And whether it was by drowning, poisoning or hanging, or in any other manner, was no more his act, in the sense of the law, than if lie had been impelled by irresistible physical power.” Life Ins. Co. v. Broughton, 109 U. S. Supreme Court Reports, page 121.

Suicide, or self-destruction, as these terms áre to be understood in law, imply that the act was deliberately done by a person capable, in law, of forming a legal intention to do the act. If Hagler was insane at the time he took his life, and even though he intended that the result of his act should be his death, yet i-f his reasoning faculties were so far impaired that he was not able to understand the moral character,, the general nature, consequence and effect of the act he was about to commit, or if he was impelled thereto by an irresistible impulse which he had not the power to resist, then his act was not an act of self-destruction in the legal sense of that term. Mutual Life Insurance Co. v. Terry, 15 Wall. 580.

To determine, then, whether Abram Hagler came to his death by reason of an act of self-destruction,” it was proper and necessary to hear evidence as to his mental condition, and the objection to the introduction of such evidence was not well taken.

In this view of the law applicable to the question under consideration, the Circuit Court properly modified the instructions asked by appellant upon special findings by the jury.

We 'have carefully examined the testimony found in the bill of exceptions upon the question of Hagler’s mental condition. The testimony is conflicting and sharply so, and yet there is sufficient in the evidence to support the verdict. Following the well established rule in such cases of conflict in the testimony, we do not feel disposed to disturb the finding of the jury. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    The People, use, etc., v. William Stewart.

      Guardian and Ward—Surety on Bond—Suit Against—Statute of Limitations—Citation to Appear and Explain Account.

    1. A citation to require a guardian to account is not an action either at law or equity within the meaning of the statute of limitations.

      2. The citation of the surety upon a guardian’s bond, twenty-one years after the ward became of age, to state his knowledge of the guardianship account, the guardian having died, does not revive a right to recover from such surety any balance unpaid.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Richland County; the Hon. William C. Jones, Judge, presiding.
    Mr. John Lynch, Jr., for appellant.
    Mr. Robert B. Witcher, for appellee.
   Reeves, J.

The single question that arises upon this record is, was the claim of appellant barred by the statute of limitations.

In 1857 James C. Stewart was appointed by the County Court of Richland county, guardian of Thomas M. Shields, and executed his bond as such guardian, with appellee as -security. In May, 1866, the County Court, upon a final accounting of such guardian, made an order “ that the said James 0. Stewart, guardian, etc., aforesaid, pay to Thomas M. Shields, he being now of lawful age, the aforesaid sum of $324.97.”

It must be conceded that after this order Thomas M. Shields could have instituted a suit against his guardian, individually or on his bond, to recover this sum so found due him by the County Court upon a final accounting, if the guardian failed to comply with the order by making payment as he was directed. Tliis being true, the statute then began to run, and the full limit of the statute had expired before the suit was brought.

James 0. Stewart, the guardian, died in 1875, and his estate was finally settled in 1878. It is, however, contended that because appellee, surety on guardian’s bond, came into court in 1887, upon a citation so to appear, and made a statement of the condition of the guardian's account as nearly as he could, and because upon that statement- the County Court found that a part of the amount found due from the guardian to Thomas M. Shields, by the order of the County Court in May, 1866, and which the guardian -was then ordered to pay said Shields, had not been paid, and was still due and owing by said guardian to said Shields, the cause of action as against the appellee, surety on the bond, revived. We fail to see the force of this position. A citation to require a guardian to account is not an action, either of law or in equity, within the meaning of the statute of limitations. Appellee could not have invoked the statute in answer to the citation to appear and render account for his principal. Bruce v. Doolittle et al., 81 Ill. 103. If appellee could not interpose the statute when cited to appear and render account, it would be unreasonable to hold that because he obeyed the order of the court and rendered such account it would have the effect to revive a cause of action that was barred by the statute. If he refused to obey the citation he would be liable to attachment for contempt. If he appeared, he could not at such appearance invoke the statute; and yet it is urged because he appeared and rendered an account under these conditions, he waived the statute and revived the cause of action against him. The mere statement of this contention is sufficient to overthrow it. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


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    Rezin Kennedy v. Abram Bruner, Executor, etc.

      Fraudulent Conveyances—Mortgages—Foreclosure—Evidence.
    Upon a bill seeking to subject real estate, alleged to have been conveyed in fraud of creditors, to the payment of a judgment against a former owner, this court declines to interfere with a decree of dismissal, on the ground that the evidence does not show actual fraud on the part of the defendant.
    [Opinion filed October 19, 1888.]
    In error to the Circuit Court of Massac County; the Hon. Geo. W. Wall, Judge, presiding.
    Mr. James 0. Courtney, for plaintiff in error.
    Messrs. Green & Gilbert, for defendant in error.
   Beeves, J.

The appellant having recovered a judgment against one Bansom Bever in April, 1874, which he was unable to collect by execution, filed his bill in the Circuit Court of Massac County, asking to subject certain real estate in said county to the payment of his judgment. This real estate formerly belonged to said Bever, and he was the owner of it when appellant’s judgment was obtained, subject to a mortgage for $500, executed by said Bever in 1870, and held by appellee, Lucy Ward. Sometime prior to the rendition of appellant’s judgment, said Bever executed two mortgages on the land in controversy, and some town lots, to secure the several sums of $600 and $700. In these mortgages Lucy Ward’s name appears as mortgagee. It is conceded that these latter mortgages were given without consideration, and were given by Bever for the purpose of hindering, delaying and defrauding his creditors.

All the mortgages were foreclosed together, and the land in controversy, as well as the town lots, sold under foreclosure for the full amount of all the mortgages and costs. After the sale the land was sold to one Stewart, and he received the certificate of sale, and subsequently a deed from the master in chancery.

Then, to secure a balance due Mrs. Ward on her original debt, Stewart executed to her a mortgage on the land in controversy, which she subsequently foreclosed, and under this foreclosure acquired the title to the land.

This brief statement of facts is intended only as an outline for the purpose of tracing the.title to the land in controversy, and not made even as a condensed statement of all the facts of the case. The position of appellant is, that on account of the conceded fraud in the two bogus mortgages, and the further fact that they, with the bona fide mortgage of $500, were foreclosed together and in the name of Mrs. Ward and under her decree, the land and the town lots sold for the full amount of the three mortgages, interest and costs, that such a fraud was committed upon the rights of appellant as a judgment creditor of Dever as entitles him to subject the land, the title to which is now in Mrs. Ward, to the payment of his judgment. Wo have read all the evidence contained in the record, and carefully considered the arguments of counsel upon all phases of 'the case. The conclusion we have reached is this: To enable appellant to maintain his bill as against Mrs. Ward, it is necessary for him to show that she actively participated in the fraud concocted by Dover, either in the execution or foreclosure of the bogus mortgages. In other words, the proof must establish actual fraud on her part in connection with the giving of these bogus mortgages, or their tore-closure. Without going over the evidence in detail, which would extend this opinion to a great length and answer no good purpose, we shall content ourselves with saying that, after a careful examination of all the evidence in the case, it fails, in our judgment, to establish any actual fraud on the part of Mrs. Ward in connection either with the giving or the foreclosure of these bogus mortgages. Conceding that she had constructive notice of what was being done as to their foreclosure, this would not, in our view of the law, affect her title derived from Stewart, who is not shown to have had any notice whatever of the fraud sought to he practiced by Dover. The decree of the Circuit Court is affirmed.

Decree affirmed.


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    Bryce Crawford v. J. R. Munford.

      Peal Property—Mortgages—Misdescription—Correction—Foreclosure— Parties.

    1, In proceedings to foreclose a second mortgage, I he prior mortgagee is not a necessary party.
    2. Upon a bill to correct and foreclose a mortgage, the property in question being misdescribed therein, this court holds that the mortgagee in possession, with notice of such error, under the foreclosure of a second mortgage, who was also the owner by purchase of judgments obtained against the mortgagor subsequent to the execution of the first mortgage, can not complain of a decree charging him with rent for the property while in his possession, and crediting him only with the sum paid for the judgments.
    [Opinion filed October 19, 1888.]
    Appeal from the Circuit Court of Randolph County; the Hon. George W. Wall, Judge, presiding.
    Mr. H. Clay Hornee, for appellant.
    Mr. A. Russell, for appellee.
   Reeves, J.

D. McIntyre, on the 13th of March, 1874, made a mortgage to Elizabeth Miller, to secure a note for $700, which was intended to convey, the southwest quarter of the southeast quarter of section 12, township 4 south, of range 5, west of the third principal meridian, but by the mistake of the scrivener who drew the mortgage the section was described as 13 instead of 12.

On the 20th day of March, 1877, McIntyre mortgaged said land by a correct description to appellant, to secure a note of that date for $1,000. It is conceded that appellant had notice of Mrs. Miller’s mortgage, and of the mistake in the description of the land. Appellant’s mortgage was filed for record the day it was made. On the day appellant’s mortgage was filed for record, March 20, 1877, the Broadway Savings Bank and William Hetherington obtained judgments in the Ban. dolph Circuit Court against McIntyre for the sums respect, ively of $861.60 and $1,029.48; executions were issued on said judgments and levied on the land, and the land advertised for sale. Thereupon appellant filed a bill to foreclose his mortgage, making McIntyre," the Broadway Savings Bank and William Hetherington parties defendant, and secured an injunction restraining the sale of the land on the executions of the bank and Hetherington. On the hearing of appellant’s foreclosure suit, a decree was entered finding appellant’s mortgage and the two judgments concurrent liens on the land, and a sale of the land was ordered, the proceeds of the sale to be divided pro rata between the appellant, the bank and Hetherington. A sale was made under this decree May 31,1879, and the sum of $1,200 realized. After the costs were deducted the remainder was distributed, as follows: on the bank judgment, $329; on the Hetherington judgment, $390, and to appellant, $417. At the master’s sale J. S. Foster bid in the land for appellant, and after receiving the master’s deed conveyed the land to appellant. Before the sale appellant had bought both judgments, paying $150 for each of them. He paid nothing to the master except the costs, receipting for his share under his mortgage and fo_r the amounts distributed on the judgments, as assignee of the judgments. Mrs. Miller was not made a party to this foreclosure suit. Appellant went into possession of the land in 1879, and has since continued in possession.

In 1881 appellee filed -his bill to correct and foreclose the Miller mortgage, alleging all the foregoing facts, and showing the assignment of the Miller note to him, and that appellant, the bank and Hetherington had notice of the Miller mortgage, and that the Miller mortgage was given by McIntyre to secure a part of the purchase money for the land described in the mortgage. The case went to a hearing on bill, amended bill and answers of appellant, the bank and Hetherington, and the Circuit Court decreed the correction of the Miller mortgage and a foreclosure of same; charged appellant with the rents of the land while he had possession, and credited him with the §300 paid on the judgments and interest thereon, leaving a balance due appellant of §225; directed a sale of the land, and out of the proceeds of the sale appellant be first paid the sum of §225, and the residue to be paid complainant. From this decree appellant appealed the case to this court. Both the form and substance of the decree are attached.

It is said that the decree should simply have opened up the decree in appellant’s foreclosure suit, and let appellee in to make his defense in that suit, and then have adjusted conflicting rights on the basis of that decree and the facts then existing. Mrs. Miller was not a party to that proceeding, neither was she a necessary party. Hers was the prior mortgage, and the rule is too well settled to require the citation of authorities, that in a proceeding to foreclose a junior mortgage, the senior or prior mortgagee is not a necessary party. Mot being a necessary party, and not having been made a party, Mrs. Miller and her assignee were in no way bound by the decree in appellant’s foreclosure suit. The decree in no way affected her rights, and it was not necessary for her or her assignee to have said decree impeached for any reason. Appellee had the right to have his claim under the Miller mortgage considered and decided without regard to any finding or order contained in the decree in appellant’s foreclosure proceeding.

The only remaining question is, whether the rights of appellant were in any way invaded, or injuriously affected by the decree in this case. The serious contention of appellant is, that he was not allowed a greater sum on account of his ownership of the judgments of the bank and Hetherington. Waiving the question whether under all the evidence in the case the judgment creditors were not chargeable with notice of the Miller mortgage, it does not seem under all the facts disclosed by the evidence that appellant had any just reason to complain, in view of the fact that he was given a prior lien upon the premises in question for the full amounts he paid for the judgments and interest on the same. It is conceded that he had full notice of the Miller mortgage, and with this knowledge he bought the judgments for the express purpose of supplanting the Miller mortgage. We are unable to see that any injustice is done appellant in limiting his priority under the judgments to the amount he actually paid and interest; nor do we see that appellant has any reason to complain of the amount he is charged with as to rents. Appellant also complains that he was not allowed the costs paid by himin his foreclosure suit. It does not appear upon what principle appellee should be responsible for costs made in that case, when, at least so far as appellant is concerned, that proceeding was in fraud of the equities of the Miller mortgage under which appellee claims.

The decree of the Circuit Court is affirmed.

Decree affirmed.


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    Henry Kluthe et al. v. The People of the State of Illinois.

      Criminal Laws—Malicious Mischief—Injury to Fence.

    Upon an information charging defendants with injury to a fence, this court reverses the judgment against the defendants as not sustained by the evidence.
    [Opinion filed October 19, 1888.]
    Appeal from the County Court of Clay County; the Hon. B. D. Morbos, Judge, presiding.
    Messrs. S. F. Gilmobe and W. H. Chessly, for appellants.
    Mr. D. C. Hague, State’s Attorney, for appellees.
   Reeves, J.

The appellants were tried in the County Court of Clay, upon an information charging them with unlawfully, willfully and maliciously breaking and defacing a certain fence, the property of Lewis Feith, and situate on his land.

Appellants were found guilty and fined, and they bring the case to this court by appeal. It is urged that the evidence fails to sustain the charge. We have examined the testimony, and our conclusion is that the evidence does not sustain the charge made against the appellants. It will be observed that they are charged with breaking and defacing the fence in controversy. The testimony shows that Avns was seen kicking the fence, and Kluthe was seen pulling the wire on the fence, but fails to show that either broke or defaced the fence. The evidence discloses that the fence was broken, hut does not, except by mere inference, connect these boys with the breaking.

It appears that the fence was situated in the line of what was claimed to be a highway, and this affords a sufficient motive in some one to break and injure the fence; but we do not think the testimony sufficient to fasten the breaking of the fence upon the appellants. The judgment of the Circuit Court is reversed and cause remanded.

Heversed and remanded.