author: Upton, J.

text:
    Denison F. Holmes v. Mary E. Burwell, Executrix.

      Administration—Claims—Limitations—Pleadings—Evidence—Instructions.
    1. Upon a claim filed against thé estate of a deceased person to recover a proportionate share of the expenses of certain bankruptcy proceedings, under an agreement entered into with other creditors of a common debtor, this court, reviewing the evidence, holds that the claim is barred by the statute of limitations.
    2. The statute of limitations need not be specially pleaded in cases of this character.
    3. An agreement to bear a proportionate share of the expenses of certain proceedings will not render the promisor liable for collateral matters.
    4. The report of an assignee is not competent evidence of the commencement or termination of a suit. The records and files of the court should be resorted to for such purposes.
    [Opinion filed December 8, 1888.]

      Appeal from the Circuit Court of Carroll County; the Hon. William Bbown, Judge, presiding.
    Messrs. M. Y. Johnson and Henry Mackay, for appellant.
    Messrs. George L. Hoffman and J. M. Hunter, for appellee.
   Upton, J.

On the 5th of April, 1886, plaintiff filed in the County Court of Carroll county a claim against the defendant estate for §470. Objection being filed to the allowance thereof, a hearing was had, which resulted in a judgment against the complainant, and the case was taken by appeal to the Circuit Court of that county, tried by a jury, and a verdict rendered for the defendant estate, upon which a judgment was given, and the case is brought to this court, and the errors assigned are that the trial court erred in its instructions given to the jury as to the statute of limitations, and the exclusion of evidence on the trial of the case.

The cause of action had its inception in the following contract :

“ Whereas, Denison F. Holmes has commenced bankruptcy proceedings against John W. Asay, and has employed counsel and paid the register in bankruptcy, J. A. Cragin, §75 advance fees in that proceeding in bankruptcy, and the said Holmes became petitioner and incurred the above obligation and has been toother expenses, with an understanding with us prior thereto that the undersigned would, with said Holmes, bear a fro rata share of the expenses of bankruptcy proceedings, the undersigned therefore, hereby, each for himself, agrees that he will pay such a share of the whole expenses of the bankruptcy proceedings as the amount of his claim bears to the sum of the claims of the undersigned against said Asay, and pay the same to said Holmes; and the said Holmes on his part agrees to pay his share of the same expenses upon the basis above stated.
“ Dated April 27, 1874.
Den-ison F. Holmes,
“Attest: • “Adam MkBurwell,
“ V. Armour, as to Adam Burwell.
“ Strong & Wtldey,
“ Jesse P. Sheldon,
“ J. M. Willis,
“Thos. Deeds & Co.,
“H. B. PUTERBAUGH,
“ C. H. Heim,
“ C. Aultman & Co.,
“By W. G. & W. Barnes,
“ General Agents.”

To the execution of which no question is made. The claim itemized and attested by oath of plaintiff and filed in the county court is as follows:

State of Illinois, } In the Carroll County Court, Carroll County, f ' In Probate, April term, A. D. 1886.

Denison F. Holmes, being duly sworn, on oath says that the annexed account against the estate of Adam Burwell deceased, amounting to the sum of four hundred and seventy dollars and-cents, is just, after allowing all just credits, and is now due and unpaid.

D. F. Holmes.

Subscribed and sworn to before me this 29th day of March, 1886.

E. T. E. Becker, Clerk,

State of Illinois, 1 In the County Court, Carroll County, j * To the April term, 1886.

Estate of Adam Burwell, deceased.

To Denison F. Holmes, Dr.:

As per contract, which is hereto annexed, the pro rata share of costs and expenses for said estate to pay is as follows:

Percentage.................................$700 00

Credit by amount paid and expenses incurred by-said Burwell in his lifetime.................. 230 00

Balance...........................____$470 00

In the matter of the bankruptcy case of John W. Asay. Bill of particulars of costs and expenses paid by Denison F. Holmes in said matter, and list of unpaid claims:

1874, April. Cash paid J. A. Crain, advance fee as commissioner in bankruptcy.......'.......$ 75 00

1874, Oct. Cash paid "W. Weigiey & Son, att’y fees..................................... 55 00

1874, Dec. Gash paid J. A. Crain, com’r’s fees, etc. 150 00

“ “ Telegraphic dispatches............ 2 57

“ “ Cash paid J. A. Crain.............. 15 00

“ “ “ “ “ chancery case, going to Chicago........................... 15 00

1876, Dec. Cash paid J. A. Crain, com’r’s fees, taking testimony............................ 75 00

1876. Cash paid U. 8. Marshal fees............. 96 00

“ Cash paid Barge & Dixon at Freeport.... 15 00

“ Cash paid Y. Armour................... 5 00-

“ Cash paid W. D. Hughes................ 18 00

1878. Tenney, Flower & Abercrombie.......... 100 00

“ Expense paid witness Brown to Freeport and return................................ 2 10

1878. Expense paid witness Roscoe Johnson.... 5 00

Expense paid (my own) to Freeport and return.................................... 3 00

“ “ of 14. trips to Chicago and return.. 200 00

“ trip to Dixon to see Barge........ 2 50

“ “ of 3 trips to Freeport with Armour, $2.50, $10.50 and $5.60.................... 18'00

1878. Expenses of 2 trips to Iowa with Frank

Holmes, to get affidavits for a new trial in chancery case of Shaw vs. Asay et al......... 40 00

1884. Cash paid G. L. Hoffman, fees, second trial

Tenney & Co. cases.................. 50 00

1885. Cash paid M. T. Johnson, att’y fees, trial Tenney & Co. cases. ...................... 50 00

1885. Cash 2iaid G. L. Hoffman, att’y fees, Spealman case................................. 10 00

1885. Ex2)enses due, and unpaid bah att’y fee due Y. Armour............................ 85 00

There is something, about §5 to §10, due W, P. Eobbe for serving subpoenas, but the exact amount I do not know.

1885. Ex pense paid by A. Burwell, trip to Dixon, 5 00 “ Trip to Chicago, Ill., .................... 15 00

The total amount of claims proven against the bankrupt estate of John W. Asay was §4,749.88.

The amount due from the bankru2)t estate to Adam Bur-well (deceased) was $2,774.07.

The amount claimed for costs and expenses in the bankrupt proceeding, deducting the items withdrawn on the hearing in the court below, amounts to $825, or about that sum, as claimed by 2)laintiff on hearing, instead of §980, as claimed on the account filed, and upon this basis the %>ro rata of contribution under the contract was made as stated on the account, which, as will be seen, was incorrect.

It was conceded by plaintiff on the trial in the court below, after withdrawing claim as hereafter stated, that the estate of Adam Burwell on this fro rata would be but §554, instead of §700 as claimed in the account, and would, on that basis, bear a balance due the plaintiff, about §234, instead of §470 as claimed in the account filed.

To this claim the statute of limitations was interposed. It is not necessary in cases of this character that the statute should be especially pleaded. Thompson v. Reed, Adm’x, 48 Ill. 122; Thorp v. Goewey, 85 Ill. 611. We think the liability of the parties to the contract in question extended only to the expenses incurred in “ the bankrupt proceedings” and to that alone. The liability thereby created would not embrace the costs and expenses of other suits and proceedings instituted by the assignee or creditors of the bankriqit estate in supposed aid of such bankrupt ju’oeeeding.

It is apparent, we think, that the item of §50 paid Hoffman, fees on trial of Tenney & Co., was not paid for services in the bankrupt proceedings.

The same may be said of the next item of §50 for attorney’s fee in the same case of Tenney & Co., and of the next charge of §50 to Hoffman for fees in Spealman case. The item of §85 to V. Armour, if chargeable to the defendant estate, accrued and was settled by appellant in 1877, or, as Hr. Armour states on cross-examination, more than ten years ago.” As to the items “ which might be due Robbe” there is no evidence. The plaintiff does not know if any such there are, or if existing, in what proceeding the service was rendered. In the same condition are the last two items of trips to Dixon and Chicago.

The record discloses three suits in which, or some one of them, the moneys claimed to have been paid for services rendered are sought to be recovered in this proceeding.

The first was the bankrupt proceeding against John W. Asay,to which the contract related. The second was a suit in equity commenced by Shaw, assignee, in bankruptcy, and a third a suit of Tenney & Co. against the plaintiff. In which one of these proceedings the moneys were paid and services rendered as charged in the claim here sought to be recovered does not appear.

In the court below the plaintiff, by leave of court, withdrew the receipt for money and the items of money paid under the receipts of Weigleyand Tenney, Flower & Abercrombie,reducing the claim for expenses in bankrupt proceedings §155.

It does, however, appear that deceased, Adam Burwell, in his lifetime paid to the plaintiff the sum of §230, and was .abundantly able, financially, to respond to all claims against him. It is apparent that this payment is sufficient to cancel all the items in the claim of the plaintiff which are shown by the evidence to have accrued within ten years next prior to the filing of the plaintiff’s claim in the County Court.

But it is said the contract was a continuing . one, and the statute would not commence to run until the final termination of the bankrupt proceedings. If that be conceded, will it avail the plaintiff ? Is there any evidence in this record to show that those proceedings terminated less than ten years before the tiling of the plaintiff’s claim ? If so, we have been unable to find it.

It is true the plaintiff, on the trial below, offered the report of Mr. Shaw, assignee in bankruptcy of Asay’s estate (as his counsel stated), to show when the bankrupt proceedings terminated, and upon objection thereto, the court excluded the offered evidence. Of that ruling appellant complains and it constitutes one of the errors assigned. We think the evidence was properly excluded. The report of the assignee could in no legal sense be regarded as evidence of judicial proceedings, or as to commencement or termination of suits pending. The record and files of the court, or copies thereof, would be better evidence for that purpose.. The report was not evidence of the payment of money or services rendered by the assignee. The court below ruled correctly upon that point, as we think. On the face of the claim, as filed, prima facie, the statutory bar attached, and the plaintiffs have in no manner, by the evidence in the case, overcome it.

We have carefully examined this record as to the facts therein contained, and the instructions of the court, and we are satisfied that the jury were fully warranted, from the evidence, in finding the verdict they did, and that in the instructions given, taken as a whole, the court did not err; and finding no substantial error in the record, the judgment of the court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Lacey, P. J.

license: Public Domain

text:
    John C. Birket v. Henry W. Williams.

      Trespass—Stocic—Sec. 1, Chap. 8, It. S.—Fence—Evidence—Instructions—Damages.

      1. Under Sec. 1, Chap. 8, R. S., the owner of caftle must keep them from his neighbor’s premises, or respond for damages caused by them.
    2. In the case presented, the declaration is broad enough to cover both common law and statutory liability.
    3. The measure of damages for injury to growing trees in a nursery is the loss in the market value thereof.
    [Opinion filed December 8, 1888.]
    Appeal from the County Court of Peoria County; the Hon. Lawrence W. James, Judge, presiding.
    Messrs. Wm. S. Kellogg and James A. Cameron, for appellant.
    Our Supreme Court has decided in the case of Stoner et al. v. Shugart, 45 Ill. p. 76, that the common law concerning animals and fences has never been in force in Illinois, except where it is a partition fence undivided, owned all by one or all owned jointly. If this branch of the common law did not contemplate a dividing fence between inclosed lands, then it was a dead letter, because the Supreme Court of our State held in the cases of Oil v. Rowley, 69 Ill. Rep. 469; Stoner v. Shugart, 45 Ill. 76; Headen v. Rust, 39 Ill. 186; Chicago, etc., R. Co. v. Cauffman, 38 Ill. 424; Misner v. Lighthall, 13 Ill. 609; and Seeley v. Peters, 5 Gilm. 130, that cattle were allowed to run at large until limited by statute, and land owners must fence out in order to recover for trespass. We think, however. it will not be claimed seriously that the common law governing division fences in Illinois does now or ever did apply to a fence dividing the commons of adjacent land owners; but it does seem to be seriously contended for in this case," and the court has so instructed, that since our Legislature has, by the act concerning “animals running at large,” in force July 1,1874, said that the owner of any horse, mule, ass, cattle, sheep, goat or swine is. governed by the old common law generally and specially, “ animals that escape without the permission of the owner are not running at large contrary to law.” Kinder v. Gillespie, 63 Ill. 88; Ohio & M. R. Co. v. Jones, 63 Ill. 472; Town of Collinsville v. Scanland, 58 Ill. 221; Akers v. George, 61 Ill. 376; Case v. Hall, 21 Ill. 632, and many others which clearly and unmistakably hold that the owner of animals is not responsible for damages done by them, certainly to uninclosed premises, unless through his negligence, or his “suffering ”—as construed by the court, “permitting”—them to run at large. And this is a matter of fact the court should have permitted the jury to determine.
    Messrs. Irwin & Slemmons, for appellee.
   Lacey, P. J.

This was a suit in trespass quare clausum fregit by appellee against appellant, and the second count for trespass of defendant’s cattle pasturing on the lands of appellee and destroying his nursery trees.

There was a plea of the general issue and plea to the second count that the said close was not fenced by a good and sufficient fence, to which latter plea the court below sustained a demurrer, and appellant abided his plea.

This demurrer was properly sustained, for the reason that Sec. 1, Chap. 8, R. S. 1874, which was in force in Peoria county, practically re-enacts the common law upon the subject of permitting cattle to run at large, and now, in this State, ¿where the statute is in force, every man must keep his cattle from his neighbor’s premises or respond in damages for injuries committed by them. Lee v. Burk, 15 Ill. App. 651. The appellee’s close consisted of a piece of ground of over six acres, and he had occupied it since March, 1886, and it was leased of appellant. It was used to raise nursery stock and small fruit trees, the stock being composed of apple trees, pear trees, cherry trees, plum trees, shade trees, evergreens and small fruits. The appellant had been in possession five or six years. The fence through which appellant’s cattle escaped was a wire fence separating the appellee’s nursery from the inclosure of appellant. It was a partition fence. It is insisted on the part of appellant that Sec. 1 should bé so construed that if the cattle escape without fault of the owner and commit damages on the premises of another, the owner is not liable. We do not so construe the law. The common law always did prevail as to partition fences, and by the statute it governs as to outside fences. Lee v. Burk, above; and as to partition fences, see Seeley v. Peters, 5 Gilm. 130 ; Stoner v. Shugart, 45 Ill. 76.

By the common law every man was bound to keep his cattle on his own land or respond in damages for their trespasses. D’Arcy v. Miller, 86 Ill. 102. The appellant cites in support of his proposition that the common law is not re-enacted by said Sec. 1. Certain cases, Kinder v. Gillespie, 63 Ill. 88 ; Town of Collinsville v. Scanland, 58 Ill. 221; Wede v. Shed, 9 Ill. App. 226, and like cases, are cited. The most of the cases cited are where a penalty is sought to be recovered, and have no application. The case above cited in 9 Ill. App., arose under a special statute against bulls running at large, and has no application, and has reference to the special liability of the owner, who was not the custodian.

We see no grounds for variance between the proof and declaration, even if the point had been raised in the court below, which it was not. The declaration is sufficiently broad to cover common law liability for trespass for stock.

It is insisted that other stock committed trespasses, and the damages done by them could not be distinguished from the damages done by appellant’s stock, and therefore the evidence is not sufficient to sustain the verdict, which is $100. We have carefully examined the evidence and are satisfied ther<* was abundance of proof to sustain the verdict, and that it would have sustained a larger amount.

We do not think that the sixth and seventh instructions complained of, given for appellee, are justly liable to the criticisms made. The sixth, fairly read, does not assume that there were actual damages, and the objection to the seventh, that it does not require the damages to be proven, is not well taken. Fairly read, it does require such proof. The modification of appellee’s second instruction is not error. The measure of damages was not improperly stated. It was proper to recover for damages to the market value of the trees. The damages recovered were less than five cents per tree for the number of trees shown to have been browsed off by appellant’s sheep and cattle, and according to the evidence that was very moderate.

The judgment is therefore affirmed.

Judgment affirmed.


text:
    Philip Bischmann v. August Boehl.

      Real Property—Drainage—Damages—Circuit and Justice Courts— Jurisdiction of—Instructions.

    1. In an action to recover damages for causing water to flow on the land of the plaintiff through a tile drain, this court holds that the evidence, although conflicting, sustains the view that the land injured was not the servient heritage or estate.
    2. A justice court has original and a circuit court appellate jurisdiction in all cases of injury to real property, whether the damages are actual or merely nominal.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. George W. Stiff, Judge, presiding.
    Messrs. J. T. Donahoe and Benj. Olin, for appellant.
    Mr. C. W. Brown, for appellee.
    The provision is (R. S., Chap. 79, Sec. 13), that justices shall have jurisdiction “in actions for damages for injury to real property.” It would seem explicit enough to warrant the language used in the very case cited by appellee, C. & A. R. R. Co. v. Calkins, 17 Ill. App. 56. Say the court there, in construing this paragraph, “ The expression here used is about as comprehensive as well could be devised, and would seem to embrace all injuries,whether director consequential.”
    The principle that for a violation of every legal right, nominal damages, at least, will be allowed, applies to all actions, whether for tort or breach of contract, and whether the right is personal or relates to property. 1 Sutherland on Damages, pp. 10 and 11.
    Actual damage is not necessary to an action; a violation of a right, with the possibility of damage, is sufficient ground. Ib. p. 13.

      Our own Supreme Court say, in Piumleigh v. Dawson, 1 Gilm. 551: “There are some few cases in which the doctrine seems to be sanctioned that there must be proof of actual damage to entitle the plaintiff in this and like cases to a recovery. * * * But I think the doctrine well settled that where a party is deprived of such a right the law will imply some damage; for otherwise, before the party might be able to prove actual damage, the wrongdoer might acquire a right by prescription, or upon the presumption of a grant. Thus an injury is likely to ensue from such an invasion of his right, and which is sufficient damage to sustain this action for the recovery of nominal damages at least, and so establish his right.”
   Upton, J.

This was a suit brought before a justice of the peace for consequential damages, claimed to have been done to the land of appellee by means of a tile drain laid by the appellant on his own land or farm, some distance from the farm of the appellee, by which, as is alleged, water from a large pond on the land of appellant is carried onto the land of appellee, to which, in a state of nature, the land of appellee was not servient.

A trial was had in the justice'court and appeal taken to the Cicruit Court of Will county, where a trial was had before a jury and a verdict was found for appellee for nominal damages, and judgment being rendered upon the verdict, appellant brings the case to this court by appeal, and assigns for error:

1st. That the judgment of the court below is not sustained by the evidence; and—

2d. That the justice court had no original, and the Circuit Court no appellate jurisdiction, the verdict being for presumptive, or nominal, and not for actual damages.

The question raised under the first assignment is entirely one of fact—whether the water flowing from the pond in question, in a state of nature, flowed northerly, toward the lands of appellee, or southerly, and in another direction from appellee’s land.

It was the province of the jury to weigh and consider the evidence, and to judge from the appearance of the witnesses on the stand what weight should be given to their testimony; and unless we can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice we ought not to disturb it. We have carefully reviewed all the evidence in the record of this case, and, while it is somewhat conflicting, we think the jury were justified in finding that as to the pond in question the appellee’s land was not the servient heritage or estate; that, in a state of nature, the water from it flowed to the southland away from the lands of the appellant, as the jury by their verdict found.

As to the second point: It is admitted by appellant’s attorneys that when the damages are direct or consequential, and not merely nominal, a justice of the peace would have jurisdiction, as held in C. & A. Ry. v. Calkins, 17 Ill. App. 56. That was an action brought before a justice of the peace to recover for an alleged injury to real estate of the plaintiff by reason of an overflow of water, produced, as was alleged, by the works of the defendant, by placing a dam across a depression, which, in a state of nature, drained plaintiff’s land, which dam caused the water to setback upon the lands of plaintiff.

In that case a challenge was made to the jurisdiction of the justice, and the court, in construing the second clauseof Sec. 13, Chap. 79, being the same act under which suit is brought in the case at bar, say: “ By this clause the justice of the peace has jurisdiction in action for damages or injury to real property. * * * The terhi or expression here used, ‘injury to real property,’ is about as comprehensive as could well be desired, and would seem to embrace all injuries, whether direct or consequential.”

In Lachman v. Deiscli, 71 Ill. 59, the same principle is announced.

In Plumleigh v. Dawson, 1 Gilm. 531, it is said : “ There are some few cases in which the doctrine seems to be sanctioned that there must be proof of actual damages to entitle the plaintiff to a recovery. * * * But I think the doctrine well settled that when a party is deprived of such a right the law will imply some damage, for otherwise before the party might be able to prove actual damage the wrongdoer might acquire a right by prescription or the presumption of a grant. Thus an injury is likely to ensue from such an invasion of his right, and -which is sufficient damage to sustain this action for nominal damages, at least, and so establish his right. It is the opinion of the court that an action will lie for the violation of the right, without proof of actual damage.”

“ The plaintiff having proved very clearly a diversion, the law implies some damage,unless justified.” Pilgrim v. Mellor, 1 Ill. App. 448.

The reasoning of that case and the others cited, we think, meets the objection taken to the jurisdiction of the courts below, and fully sustains that jurisdiction.

The instructions modified by the court below, instructing the jury that the appellee was entitled to recover nominal damages if the tile were wrongfully put down, without regard to actual damages, we regard correct.

In our judgment, the justice had jurisdiction, under the statute, “in all cases of injury to real property,” whether the damages arising from such injury were actual or merely nominal damages.

Finding no error in the record of the court below, the judgment below is affirmed.

Judgment affirmed.


text:
    Elizabeth Kiehn v. H. C. Bestor.

      Assignments—Preferences—Judgment Note—Execution—Whether Dormant—Fraud—Eoidetice—Rehearing—Refusal of Certificate of Importance.

    1. The holder of a judgment note is not required to use greater diligence as to its collection than if his claim was of a different character.

      2. In the absence of fraud, a creditor may enforce his claim against a debtor, knowing him to be insolvent.
    3. The fact that the attorney who entered up judgment on a judgment note also drew the deed of assignment of its maker is not of itself evidence of fraud.
    4. To render dormant an execution in the hands of an officer, some command must be given by the execution creditor inconsistent with its mandate.
    5. A failure by the officer to make a levy within one hour of the receipt of the execution does not operate to forfeit the lien of the judgment creditor upon an assignment by the debtor thereafter made prior to a levy.
    6. The expiration of an execution during (he pendency of proceedings on petition for a preference, and under a claim of priority of lien thereunder, does not affect the rights of the execution creditor.
    7. Evidence improperly ruled out by the trial court may be considered by this court on appeal.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit. Court of Peoria County; the Hon. S. S. Page, Judge, presiding.
    Mr. William S. Kellogg, for appellant.
    Under the statute there is a lien upon the personal property of the defendant in execution, created and existing from the date of its receipt by the officer. In this case such a lien occurred an hour before the assignment was filed. This- is sufficient, we submit, on the said objection that said execution was no lien. Leach v. Pine, 41 Ill. 69; Field v. Macullar, 20 Ill. App. 395.
    But the fifth objection is that appellant lost her lien under her execution, and in support of this claim of the objectors they undertook to show that at the time the sheriff made demand under the execution, which was after the assignment had been filed and the assignee had received possession of the store and the key of the store from the insolvent, the appellant’s attorney, upon being applied to by the officer having the writ and asked what further instructions he had for him at that time, said to the officer, in substance, “ That is all at present; anything further I will give you notice of.”
    The officer had been hunted up by the attorney for appel1 ant, .and instructed by him to make a demand on the defendant in execution to turn out property. This the officer had done, after the defendant in the execution had been pointed out to him and was just leaving the clerk’s office, where the assignment had been tiled some minutes before. These facts made it impossible to take any further step under the execution. As decided by our Supreme Court in Hanchett v. Waterbury, 115 Ill. 228, the legal title to the estate of the insolvent, “from the filing of the assignment, is, by operation of law, in the assignee, but the possession of it is .in the court; and the assignee’s relations to it are, in some respects, analogous to that of a receiver.”
    A mere statement by a party delivering an execution, in reply to the question what he wanted done with it, “ nothing that I know of,” is not sufficient to warrant the sheriff in holding the execution “ and failing to make a levy according to the mandate of the writ.” Koren v. Roemheld, 6 Ill. App. 277.
    A voluntary assignment passes all property, real and personal, to assignee, which the debtor at the time owned. And the whole management of the estate is given to the jurisdiction of the County Court. Freydendall v. Baldwin, 103 Ill. 325; Myers v. Fales’ Sons & Co., 12 Ill. App. 354; Farwell v. Crandall, 120 Ill. 70, and cases there cited, especially Hanchett v. Waterbury, 115 Ill. 228.
    Execution held prior lien to assignment: Field v. Ridgley, 116 Ill. 429; and that holder of judgment notes is not required to crush a struggling debtor at first opportunity.
    Messrs. Stevens, Lee & Horton, for appellee.
   Upton, J.

On the 22d day of September, A. D. 1886, the appellant loaned to her son, Walter Hopkins, $800, and in March, A. D. 1887, she loaned him the further sum of $300. The son was then engaged in business as a retail dealer in boots and shoes in the city of Peoria. For the first loan she took the judgment note of her son of date of loan, and for the second he gave his note of date of loan without cognovit to confess judgment. On the 16th of August, A. D. 1887, the son informed appellant, who resided in the same house, in substance that “ he had bills to meet,” matured or maturing, and that “he had written to his creditors, and if they would give him time he could pusli through.”

On the 17th of August, or the next day, the son, uncertain of his ability to obtain the extension desired, and fearing he might be broken up in business, informed the appellant óf his financial condition, and she being greatly troubled about her claims and what she could do to obtain security for their payment, the son advised her to consult some attorney in the matter, giving her no advice what to do or what attorney to consult.

Appellant immediately called upon a Mr. Cameron, an attorney of Peoria, who had on a prior occasion transacted some business for her, for advice and aid.

Mr. Cameron being at the moment engaged, he introduced her to his law partner, Mr. Kellogg, to whom she stated her business, and was advised to enter a judgment on the judgment note she held against her son. Without acting upon the advice given, she returned to her home, and in the evening informed her son of the advice given her, and he again stated to her, “that if his creditors did not sue him or push him, he would come out all right.”

On the 18th of August, 1887, appellant called upon her attorney, Mr. Cameron, again, and then directed him to proceed and enter a judgment upon the said <§800 note, which she then left with him for that purpose. On the evening of that day she told her son that she had left the note with an attorney and directed judgment entered thereon, and he told her, “ if she did that, he should be compelled to make assignment.”

Appellant had no knowledge or information of the amount of her son’s liabilities, or to whom he was indebted, or that he was intending to make an assignment other than as above stated, appearing in the record before us.

On the morning of the 19th of August, A. D. 1887, appellant again called upon her attorney and then made her affidavit, in proof of the execution of the judgment note and warrant of attorney, and a judgment was rendered thereon for the sum of §943.80, the amount due thereon and costs, upon which execution was issued and placed in the sheriff’s hands for said county at ten o’clock and ten minutes in the morning of that day.

At eleven o’clock and five minutes of the same morning, or about one hour after placing the execution in the hands of sheriff’s deputy, the said Walter Hopkins executed a deed of assignment under the insolvent laws of this State, which was tiled in the County Court of said county, therein making appellee, Harry 0. Bestor, his assignee, and the estate of the insolvent was at once turned over and delivered to the assignee, before said execution was actually levied thereon.

On the 24th day of August, A. D. 1887, appellant petitioned the County Court of said county to allow her a preference in the distribution of said bankrupt estate to the extent of her judgment, and claiming a priority of lien thereon; on the 12th day of September, A. D. 1887, the County Court, on petition of the assignee, directed a sale of the insolvent estate at public auction, by the assignee, which was done as directed, and the proceeds thereof paid into said court by the assignee.

The hearing of the petition in the County Court was postponed or continued from time to time, awaiting proof of claims against the bankrupt estate, until the November term of the County Court, A. D. 1887, when the creditors of said bankrupt estate objecting to the allowance of the preference petitioned for, a hearing was had in said court, and judgment was given against appellant, from which an appeal was taken to the Circuit Court of that county and was there tried by the court, a jury being waived, and that court gave a judgment against the appellant. She brings the case to this court, and among other things assigns for error:

“ 3. The finding of the court below is contrary to the law and the evidence in the case.
“ 4. The court below erred in refusing to hold each and all of the refused propositions of law submitted to it in writing by and on the part of the appellant, Elizabeth Kiehn, as the law applicable to the issues in the case, and in refusing to so consider the same.
“5. The court below erred in holding each and all of the given propositions of law submitted to it in writing by and on the part of the appellees as the law applicable to the issues in the case.
“ 6. The court should have found for the plaintiff, Elizabeth Kielin, and that her claim should be allowed and paid by the assignee as a preferred claim.”

It is conceded that the note upon which judgment was rendered in appellant’s favor was made in good faith and for an actual loan of money, and no pretense is made that it was not executed at the time it bears date and that the money for which it was given in fact went into the business in which the son was engaged, yet it is said in argument by the appellees, and is the first point made to sustain the judgment below, that retaining this note, as the appellant did, until she learned from her son that he was embarrassed in his financial affairs, was not such diligence as entitles her to the protection of this court.

Judgment notes, so called, in this State, are, and for many years have been, in general use among the business public, upheld by our courts, and judgments entered in pursuance thereof regarded as binding and obligatory. The holders thereof are not required to use more diligence in time or manner of collection than in that of other indebtedness, nor are the reasons which induce proceedings to enforce their collection other or different than those which apply to indebtedness evidenced by other commercial obligations.

It is believed that a creditor has the right to enforce his demands after due- against his debtor, even though he may have serious doubts of such debtor’s solvency, and even though he may obtain the information creating such doubt from the word or conduct of his debtor, if in so doing the creditor does not, by concerted action with such debtor, or with intent to defraud, hinder or delay other creditors of his debtor. In re Geohegan, 24 Ill. App. 157; Field v. Geohegan, 125 Ill. 168.

We believe it true in fact that the motives which usually move men to enforce collection of their demands against their debtors, is .a want of the money due, or the doubtful solvency of their debtor, and we are not aware, as a proposition of law, that such motives are to be regarded as illegal or invalid; and if we are correct in this, it must follow that appellant’s judgment was not invalid by reason of any want of diligence on her part in the obtaining of it. There is no evidence in this record, apparent to us, indicating fraud on the part of appellant in the retention of the note thirteen months without attempt -of collection, or in the entering up of judgment upon the note. In re Greohegan, supra. It is said, however, that because the same attorneys who drew the deed of assignment of the insolvent Hopkins also entered up the appellant’s judgment on her judgment note, therefore the judgment is fraudulent.

The record discloses the fact that appellant knew but one attorney in the city of Peoria, one IVIr. Cameron, who had before transacted some business for her, and, without suggestion from any one, to him she applied for aid in her time of trouble, and being engaged himself, he introduced her to his partner to whom she made known her wants and with whom she transacted her business.

This record shows that she did not know that her son was intending then to make an assignment, much less that the attorneys, or either of them, with whom she had intrusted her note for collection, were employed to make her son’s assignment. ' Fraud is not to be presumed, but must be proven, is the rule of law. To invalidate this judgment for the cause alleged, would not only reverse, the rule of law, but enforce the presumption against the evidence.

In our judgment, it can not be of importance to the rights of parties to this record who drew the deed of assignment and the papers to obtain the judgment on the note, whether members of the same or of different firms of attorneys, if, in point of fact, there was no fraud or collusion in obtaining the judgment, and none is shown in this record; and hence, in the obtaining of the judgment there was no fraud upon the creditors for those reasons, nor want of diligence on the part of ■appellant in enforcing the collection of the claim.

Secondly, it is said as a reason that the prayer of appellant’s petition for preference' should not be granted, that there was no lien under the execution upon the goods of the bankrupt, because, first, the direction given amounted to a stay of the execution and destroyed the lien as against the creditors; second, allowing the execution to be returned without any levy, or attempt to gain any preference by it, was a loss of all the benefit that appellant might have acquired by the confession of judgment. In other words, appellees now insist, admitting the confession of the judgment to have been proper, and the lien of the judgment valid as soon as the execution was placed in the officer’s hands, that the lien was lost by the laches of Mrs. Kiehn or her attorney, by the specific directions given by one of her attorneys to the officers having the execution.

It is a well settled rule of law that the office of an execution is, not to secure, but to enforce payment of a debt, and as a consequence an attempt to make use of it for purposes of security merely is a perversion of the writ, and postpones it and the lien thereof to other liens or executions subsequently issued or accruing. It is an especially well settled rule of law that it is the duty of the sheriff to obey the mandate of his writ, viz: to collect the amount of the judgment therein named, unless he receives express directions from the plaintiff or some one acting for him to the contrary. A mere failure, neglect or refusal on the part of the plaintiff to give directions as to the manner or time of executing the writ does not constitute such interference with its execution as will have tlie effect of rendering it dormant. To produce that result the plaintiff must give some direction or command which is inconsistent with the mandate of the writ, and which it would be a breach of duty on the part of the sheriff to obey. The plaintiff in execution is not obliged or required, in order to preserve the lien of his execution, to advise or direct the sheriff or his deputies what to do, when or how to proceed, even though applied to for that purpose by the sheriff. He is only required to avoid such interference with the officer holding the execution as would render it improper for the latter to enforce payment according to the mandate of the writ. Koren v. Roembold, 6 Ill. App. 276, and cases cited. Do the facts in this record bring the case at bar within the rule stated? What are the facts? The execution when issued was delivered at the office of the sheriff to one of his deputies, James E. Kearney, who had charge of the books and papers of this character, who noted thereon the time of its receipt, and subsequently handed the same to Robert McConnell, another deputy, to execute, who immediately called upon appellant’s attorney to learn of the identity and locality of defendant in execution, Hopkins, and being so informed, and after making a demand for property wherewith to satisfy the execution, as by law required, made inquiry of appellant’s attorney what further he wanted, who replied : “ That was all that was required of me just at present and if anything further would be required he would let me know,” and this is all the direction claimed to have been given the officer holding the execution by appellant’s attorney. The above, both in act and conversation, took place in the court house on the morning of the day of the assignment, but not until after the deed of assignment was executed and delivered, and the key of the defendant’s store had been delivered to Bestor, the assignee.

So far as shown in the record, appellant’s execution, after delivery at the sheriff’s office, for some reason was there held without directions from any one, until after the estate of the insolvent debtor had, by the deed of assignment, passed into the constructive, if not the actual possession of the assignee and the insolvent court. The property of the debtor was then beyond the reach of the officers holding the execution. A levy made then would have been unavailing.

It can not in fairness be supposed that this delay of less than an hour could have been caused by the act or desire of the appellant, or that of her attorney, acting in good faith in her behalf. Nor can it be believed, in view of the facts in this record, that the appellant or her attorney desired or intended to make use of this execution for the purpose of security merely.

Nor do we think the statement of the attorney to the officer holding the execution was, under the circumstances of this case, such an interference with its collection or enforcement as would render it dormant or postpone the lien thereof to the subsequent liens of creditors under the assignment.

But there is another view, perhaps more conclusive than the one already stated. The evidence wholly fails to show that the appellant fraudulently colluded with the debtor in order to obtain any preference as against the creditors of the debtor in the assignment, or that any fraud of the law was intended. The execution became a lien, under the statute, on all the personal estate of the debtor from the time it was placed in the hands of the sheriff, which in this case was before the assignment was made. The appellant did not forfeit her lien as against the assignee of her debtor by the officer’s neglect to make the levy within the hour after its delivery to him. The law allows a reasonable time in which to make the levy. The assignee under the law is but a mere volunteer, having no greater rights than the judgment debtor, the assignor, whom he succeeds. He takes the property subject to all liens to which it is liable at the time of making the assignment, and in this case all agree at that time the lien of appellant’s execution was perfect and paramount to the assignment.' And we think that the doctrine of postponement as to the rights of creditors and purchasers does not apply to the case at bar, even though it should be conceded that the sheriff was directed not to levy the execution; but from the evidence in this case we think he was not so directed. O’Hara v. Jones, 46 Ill. 288; Gates v. Dodge, 123 Ill. 50.

This record, in our opinion, shows that the claim of the appellant in this case was bona fide due her for money loaned on the judgment note a year or more before the assignment; that she had the legal right to enter up the judgment thereon; that the judgment and execution were regularly entered, and without fraud on.part of appellant; that the execution was a valid lien prior to the assignment; that after the assignment a levy of the execution would have been unavailing; that during the life of the execution appellant petitioned the insolvent court for a preference under her priority of lien claimed under the execution; that the creditors, objecting to such preference, had proved their claims in the insolvent court, and submitted to its jurisdiction; that while the petition of appellant was pending, and her execution was in the hands of the sheriff and was a lien on the estate of said bankrupt (which consisted entirely of personalty), said court ordered the assignee to sell the entire effects of the insolvent (except exemptions); that pending the determination of the matters in said petition in said insolvent court, the life of appellant’s execution expired; that the appellant’s rights to a priority of lien and a preference of payment of her said judgment was not, and should not have been held to be, prejudiced by the expiration of her execution by limitation, or the return thereof nulla io?ia, and that the County Court, sitting as an insolvent court, had ample power to, and should have, by its order and action, protected the rights of appellant in her claim of priority and preference in the payment of her said judgment, and should have decreed the judgment thereof as such preferred claim so far and to the extent of the assets of bankrupt in the hands of that court.

For these reasons the judgment of the court below is reversed and remanded. Reversed and remanded.

On Petition for a Rehearing.

On a petition filed 'in this cause by the appellee for a rehearing we have again carefully examined this record, in view of the points made in the petition for rehearing and the arguments filed in support thereof, and we feel compelled to adhere to the opinion filed heretofore herein. It is true that the language used in that opinion as the testimony of Mrs. Khein was ruled out by the trial court, as stated in the petition for rehearing, but we were of the opinion that the trial court erred in excluding it, and we treated and regarded it as proper evidence in the case, as we have no doubt it was. It would have been, perhaps, more strictly accurate to have so expressed that fact in the opinion, but it was not deemed necessary, and was therefore omitted. We are, upon further reflection and examination of cases cited, confirmed in the views expressed in our former opinion, and the motion for a rehearing is denied, and the certificate of importance asked for is refused. The determination of the case involves no new principle of law, but one of fact only.

Reheari/ng denied and certificate of importance refused.


author:
Upton, J.
     C. B. Smith, J.,

text:
    John G. Feldes v. James P. Duncan.

      Homestead — Abandonment — A ttaohment — Trespass — Damages —Instructions—Error without Injury.

    1. The holder of any possessory interest in lands, without regard to the extent of such title, is entitled to an estate of homestead therein.
    2. The appellant can not complain of an error which worked him no injury.
    3. In an action of trespass brought to recover damages for the tearing down and conversion of a dwelling-house claimed as a homestead, this court holds: That the question of abandonment was for the jury, the evidence being conflicting; that the verdict is not excessive; and that there is no error in the instructions.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Hall & Haskins and Duncan, O’Connor & Gilbert, for appellant.
    We insist that the evidence shows a complete abandonment at the time of levy and sale; and if that be so, then no matter what he now claims to have been his intention, our levy and sale were valid, and no recovery can be had. In order to entitle appellee to recover, it must appear that the removal was temporary in its nature, made for a specific purpose, with the intention of re-occupying the premises. Thompson on Homesteads and Exemptions, Sec. 284.
    The intention of re-occupying the premises must be shown to have existed at the time of the levy and sale. The levy was made in October, 1885, and if such intention did not then exist, although before that time it did exist, no recovery can be had. By the language of the statute, three things must concur in the creation of a homestead estate: First, the householder; second, he must have a family; and, third, the premises must be occupied as a residence.
    If either of these requisites is wanting, the law will not create the estate of homestead.
    A person owning a dwelling-house that is capable of being occupied for that purpose is, in the sense of the statute, a householder.
    The section of the homestead act in question is Section 1, Chapter 52, R. S. Illinois, which provides that “ every householder having a family shall be entitled to an estate of homestead in the farm or lot of lands and buildings thereon, owned or lawfully possessed, by lease or otherwise, and occupied by him or her as a homestead,” etc.
    The manifest intention of this section is that the householder must not only own the building, but must have some interest in possession, by lease or otherwise, in the farm or lot of land on which the building is situated, or else the homestead estate can not obtain. The simple fact that appellee left a few pieces of old furniture in the house was not. a retention of the premises as a homestead, and gave him no right to return and occupy it as such. Especially is this true when, as in this case, the priests of the congregation of the mission had entered upon and talcenpossession of the premises from appellee and other sub-lessees of the Caledonia Coal Co., and re-rented said premises to other parties. The testimony of Rev. Felix Guedry, president of the priests of the congregation of the mission, who were the owners of this tract of land, is not denied by appellee Duncan or by any witness in the case, and must be taken as true. He testifies]: “ We, the priests of the mission, were exercising acts of ownership and acts of possession over the property upon which that house was located in September and October, 1885; we had perfect control of the property. We rented the land for the purpose of pasturing-”
    It was during this time that appellant levied upon and sold the house, and during the time appellee Duncan himself makes no claim of an interest in possession to any portion of this tract of land. On page 16 of record he admits that he does not know who was in possession of this tract of land in 1885. This is entirely inconsistent with any claim of possession in himself.
    Whatever right appellee had to the possession of the premises on which this house was situated, either by lease or otherwise, from 1881 to 1884, he lost when he moved out of the possession thereof in December, 1884.
    How could he have any possessory right or interest therein, by lease or otherwise, on which to base a claim of homestead, when the owners of the fee had taken possession of the premises from the Caledonia Coal Company, to whom they had leased it, and its sub-lessees, among which was himself, and had rented it out to other parties, who were in the actual possession of this very tract of land when the writ of attachment in this case was levied upon this house? If appellee had remained in the actual occupancy of this house with his family, and the possession of the premises on which the same was situated had remained in him, another question would be presented. But here as complete an eviction as could be made at law had been made by the landlord, and all possessory interest appellee had ever acquired to the premises, by lease or otherwise, had been terminated.
    Messrs. R. D. McDonald, for appellee.
    It is provided by the Revised Statutes of Illinois, Sec. 101, Chap. 52, that every householder having a family shall be entitled to an estate of homestead in the farm or lot of land and buildings thereon owned, or lawfully possessed, by lease or otherwise, and occupied by him or her as a homestead. This clause of the statute is designed for the benefit of the debtor, and should be liberally construed so as to effectuate, and not thwart, its object and policy. Being remedial, it must be liberally construed to meet the benevolent end in view. Deere v. Chapman, 25 Ill. 610.
    Keeping in view the trend of all the decisions upon the Subject, Justice Craig, in Watson v. Saxer, 102 Ill. 585, well says of the scope of this statute: “Under the statute a tenant holding a leasehold interest in premises may claim the benefit of the statute as well as the owner of the fee. Indeed, the holder of any possessory interest in lands, without regard to the extent of title, may evoke the aid of the statute.” A licensee or a tenant at will have a possessory interest, and would therefore be entitled to an estate of homestead. The homestead can only be lost by abandonment, animus revertendi. Shepherd v. Brewer, 65 Ill. 383.
    In Cobb v. Smith, 88 Ill. 199, it is held that the intention is important in determining as to abandonment, and it seems to be held the important factor running through the undercurrent of all the decisions. In McMillan v. Walker, 38 Tex., 40, it is laid down very emphatically that “ to abandon a homestead, a party must forsake- and leave it with the intent never to return to it as a homestead; ” and again, “ the question of abandonment is almost exclusively a question of intent, since no legal abandonment can occur without a fixed intent to renounce and forsake, or to leave never to return.”
    Where a person leaves a place which is occupied as a homestead for a temporary purpose, intending to return, it can not be held an abandonment of the homestead. Kenley v. Hudelson et al., 99 Ill. 493; Potts v. Davenport, 79 Ill. 455; Wilkins v. Marshall, 80 Ill. 74.
   Upton, J.

This action of trespass was commenced in the Circuit Court of La Salle county by appellee against the appellant for the tearing down and conversion of appellee’s dwelling-house, claimed by him to have been at the time his homestead.

This dwelling-house was erected by the plaintiff on lands, the title to which was in the La Salle priests of the congregation of the mission, and about one hundred rods from a coal-shaft, then being worked by the Caledonia Coal Company, and being under a contract or lease with the priests of the congregation of the mission in whom was the fee of the land. The appellee was a coal miner, and had been such all his business life, and had a family consisting of wife and children residing with him.

John Duncan, a brother of the plaintiff, and one William Lumsden, constituted the Caledonia Coal Company, and bv some agreement or contract with that company, and with the full knowledge of the priests of the congregation of the mission, the plaintiff, in the early part of the year 1881, erected the house in question, moved into and occupied the same as a homestead until some time in December, 1884, when, soon after the death of his wife, he removed with his children and a portion of his household effects to La Salle, to the house of his married daughter, so that she could take care of his children. When he thus removed from his home, he left in the house in question “a stove, cooking utensils and two beds, a sewing-machine, a bed and bedding for a man that was looking after the house. The house foundations were posts imbedded in the ground about two and one-half feet, and it was worth, according to the testimony, from §125 to §500.

It was levied on by virtue of a special execution issued upon a judgment in attachment against appellee; sold at execution sale, bid off by and sold to appellant at that sale, and by him the main portion of the house was torn down and removed to La Salle, and converted to the use of appellant in 1885, in the fall or winter of that year.

It seems that the Caledonia Coal Company operated the coal mine until some time in the year 1883, when the company suspended, and the mine was worked by the Co-operative Coal Company, which failed in the fall of 1883, and from that time until the spring of 1884 it was operated by the priests of the congregation of the mission.

In the spring of 1884 the machinery was all taken away from the coal-sliaft, coal-mining ceased, and the shaft filled with water, and so remained at time of hearing below. On the hearing in the court below, evidence was introduced on the part of the appellant tending to show that upon the removal of the machinery from the coal shaft-all business was suspended at those mines, and as a consequence, there was no emploj-ment for the miners there, and perhaps would never be again, and that appellee had so stated, and had offered to dispose of the house in question for that reason; and stating, as claimed in the testimony, that he should never return to reside in said house again, as there was nothing for him there to do and never would be again, all of which was denied by the appellee, and it was insisted in the court below, and is now claimed, that the appellee had abandoned that house as his homestead, if indeed he ever had one therein.

In the court below the issues joined presented the question of the right of homestead in and abandonment of the house in question by the appellee as such homestead, and was submitted to a jury, who found a verdict for appellee and assessed his damages at §250, and judgment having been rendered on that verdict, the case is here by appeal.

Two questions are presented on the facts in this record : First. Had appellee a right of homestead to the house in question of such a nature as could be set up by him, under the homestead laws of this State, to exempt it from attachment, judgment, levy or execution sale, for the payment of his debts. Second. If such exemption ever existed, was it abandoned or waived by the appellee.

First. Sec. 1, Chap. 52, R. S., provides that every householder having a family shall be entitled to an estate of homestead in the farm or lot of land and buildings thereon owned or lawfully possessed,* by lease or otherwise, and occupied by him or her as a homestead, etc.

This statute was designed for the benefit of the debtor, and should be liberally construed, so as to effect and not thwart its object and policy, and, being remedial in its nature and effect, must be so construed.

Under the homestead act of 1851, which provided that the lot of ground and the buildings thereon occupied as a residence and owned by the debtor should be ex.empt, etc., although the language of the act seemed to require the debtor to be the owner of the property, it was held that the debtor \vas not required to own an estate in fee in the property in order to claim the protection of the statute. Deere v. Chapman, 25 Ill. 610. It was then said: “The object of the law clearly was to secure the head of the family in the possession and enjoyment of the lot and buildings for the maintenance and shelter of himself and family as a home, without any special regard to the extent of the estate or title by which he owned it.”

The first section of the present homestead act is far more liberal as to the ownership of the land, or the right or interest of the person claiming such homestead, than was the old statute under which the decision cited was rendered. The language of the present statute is that “every householder having a family shall be entitled to an estate of homestead to the extent in value of one thousand dollars in the farm or lot of land and buildings thereon, owned or rightfully possessed, by lease or otherwise, by him as a residence,” etc.

Under the present act of homestead it has been held, and as we think rightfully, that the holder of any possessory interest in lands, without regard to the extent of such title, may invoke the aid of the statute. Watson v. Saxer, 102 Ill. 585.

That the appellee in the case at bar was a householder having a family occupying and owning a house or building not exceeding in value 81,000, situate upon a lot of land rightfully possessed by him, by lease or otherwise, and occupied by them as a residence prior to December, 1884, we think is made' manifest by the evidence upon this record. Tested by the adjudications and principles to which we have referred, he had the legal right at that time to claim the protection of the statute to the property so occupied by him, which is the property now in question.

Second. Was it abandoned or waived by the appellee? In the case of Potts v. Davenport, 79 Ill. 454, it was held-that the term “ occupied as a residence ” in the statute exempting homesteads, means that the premises shall be the home of the party claiming a homestead right, and that temporary absence by the party and his family, without acquiring another home, is not an abandonment of the right. Whether premises occupied by a debtor and his family when he has removed from them, and after the recovery of a judgment against him returned thereto, was his home during his absence was a question of fact to be determined by the jury from all the circumstances in the case.

It is needless to restate the facts in this case as to the question of abandonment, having already stated the same in substance. The question, in view of all the facts and circumstances in this record, is not free from difficulty, we confess, but it was one peculiarly within the province of the jury to determine, as we have seen; and after a careful inspection of this record we can not say they were not justified in finding there was no abandonment of the homestead right of appellee to the property in question.

It is insisted also that the verdict is excessive. It is true the damages awarded were somewhat large, but in view of all the evidence we think the jury were justified in the amount of the verdict rendered.

The refusal to admit the lease by the trial court, if the ruling was not correct, was not hurtful to appellant, and the error complained of as to the admisssion of other evidence was not sufficient to authorize us to set aside the verdict.

It is also insisted by the appellant that the trial court erred in refusing to give to the jury the second instruction asked for by the defendant below; and that the court also erred in modifying the third instruction asked for by the defendant, and in refusing the fifth and ninth instructions.

We have carefully examined these instructions and the objections made thereto, and are of the opinion that there is no error in the ruling of the court below in that regard, and finding no substantial error in this record, the judgment of the court below must be affirmed. Judgvnent affirmed.

C. B. Smith, J.,

dissenting. I do not agree with either the reasoning or conclusion of the majority of the court in this case. I think the proof clear that appellee had abandoned his homestead, and that that fact is shown by his own admissions and conduct-in relation to the property. I think also the damages are grossly excessive, far exceeding in value the property taken. I also hold that the objections urged by appellant against the instructions given for appellee and refused for appellant are well made, and that the court erred in that respect. I think the judgment does injustice to the appellant, who seems to have been guilty of no offense except an effort to collect an honest debt.


text:
    John Fay et al. v. Charles Richards, Administrator.

      Administration — Suit on Note — Set-off—■Instructions—-New Trial— Newly-Discovered Evidence.

    1. In a suit brought by an administrator to recover upon a promissory note payable to his intestate, upon review of the evidence, which is conflicting, this court declines to interfere with judgment for plaintiff.
    2. It is proper to refuse a new trial on the ground of newly-discovered evidence when the same is simply cumulative and insufficient to alter the verdict.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Sheen & Lovett, I. C. Edwards and F. W. Voight, for appellant.
    Messrs. Wm. S. Kellogg and James A. Cameron, for appellee.
   Upton, J.

This suit was brought by the administrator of the estate of Henry W. Burk, deceased, against the defendants, John and Juliana Fay (husband and wife), to recover upon a promissory note signed by the defendants, payable to said Burk, and dated April 28, 1885, for the sum of 8700, due in one year, with interest at seven per cent.

The defendants in the court below pleaded the general issue and several special pleas, basing their defense to the note upon want of consideration; that it was accommodation paper, and set-offs in notes and accounts to the amount due upon the note declared upon. The case was submitted to a jury, and resulted in a judgment for the plaintiff below for the f ull amount of the note, and is brought here by appeal, seeking to set aside that judgment upon the ground, claimed by appellant, that the indebtedness was not proved, and that the set-ofis were proved but were disallowed ; in other words, that the evidence does not support the verdict. It appears that on the 5th of July, 1884, Henry W. Burk, appellee’s intestate, purchased of John Fay, one of the appellants, for §12,000, an undivided one-half interest in a malt-house property, machinery and implements, in the city of Peoria, paying therefor $1,200 in cash, and giving, to secure the balance of the purchase money, his. three promissory notes, payable to the order of John Fay, each for the principal sum of §3,600, and due in one, two and three years respectively, after date. The payment of these notes was secured hy a mortgage on the undivided half purchased by H. W. Burk of John Fay, which was duly executed, acknowledged and recorded. On the 29th of October, 1884, Burk sold his interest in said property back to Fay, receiving therefor Fay’s two notes, one for §500 and the other for §700 respectively, and appellee’s testimony tended strongly to show that Fay whs to return to Burk the three notes for §3,600 each, secured by the mortgage, to be canceled, and it is conceded that by the agreement Burk was to convey by deed his undivided half interest to Juliana Fay, wife of John Fay.

This conveyance was executed hy Burk to Juliana Fay October 29, 1884, for the expressed consideration of §12,000, and was in said deed stated to have been made subject to the mortgage above referred to, securing said three notes for §3,600 each, and recites, “which said three notes the said Juliana Fay agrees to pay.” This deed was filed for record and recorded in Peoria county November 8, 1884. These three notes were, at the time of the conveyance by Burk to Mrs. Fay, in the First National Bank of Peoria, where Fay had deposited them for some purpose, and were not delivered to Burk in his lifetime, nor to his administrator since his death.

On the 14th of November, 1884, John Fay released the said mortgage, given him to secure the three §3,600-notes given by Burk, which Fay’s wife had agreed to pay, as part of the purchase money, for Burk’s interest in the malt-house and by him conveyed to her, by writing a release thereof under his hand of that date on the margin of the record of the said mortgage.

The first notes of $500 and $700, given by John Fay to Henry W. Burk on the re-purchase of the malt-lrouse, bore date October 29, 1884, no doubt, but when the same became due does not definitely appear. Some time after the last two notes were given, in the latter part of April, 1885, Burk, the payee thereof, left them with his attorney, Mr. Uiehaus, of Peoria, to collect of John Fay the notes, or one of them, being then about to become due. The attorney wrote Fay a notice of that fact, and about ten days after, Burk went to the office of his attorney, took the two notes into his possession, got some advice from his attorney, went away, and shortly after returned with two other notes for the same amount—$500 and $700—with interest at seven per cent, and with time of payment extended; said last two notes being signed by John Fay and Juliana Fay, his wife; and Burk left these notes with his attorneys, the $500-note having since been paid and the $700-note being the note now in suit.

It further appears that Jolm Fay personally wrote and sent to Burk, on the day of date thereof, the following letter :

“Peoria, III., April 30, 1885.
“ Mr. Burk: Tou can come to me this evening and bring your note with you, and I will pay you the interest thereon; with the other you must wait a few weeks. I will speak with you this evening.
“ Truly your friend,
“John Fay.”

Hpon the note now in suit is indorsed, in the handwriting of Burk:

“Peoria, III., April 28, 1886.
“ Received interest in full to date.
“ Henry W. Burk.”

One of the matters of set-off offered under that plea is one of these $3,600-notes which Juliana Fay agreed to pay as part consideration for the conveyance of the malt-house to her by Burk. The other evidence offered under that plea was a claim amounting to $764.05, for moneys claimed to have been drawn out by Burk while a member of said firm, and for taxes on partnership property during the four months of its existence, for items of interest claimed on the $12,000 mortgage notes, and some other items, to support which claims considerable testimony was heard on the part of the defendant, and which was sharply controverted by the plaintiff, which it is not necessary for us to review at greater length.

We have alluded to certain uncontroverted facts in connection with the plaintiff’s evidence in the court below, contained in this record, to show the conflicting nature of the evidence, and that in cases of this character, with the evidence in this record, if the testimony and admitted facts offered by the plaintiff below would be sufficient, if standing by itself, to warrant a verdict, we ought not to disturb it.

The presentation of the note sued on under the pleadings in this case was sufficient prvrrt,a facie "to entitle plaintiff to judgment,and we think the jury were fully justified in finding that the note was given for a good consideration, and was not accommodation paper; and in finding also that the claims offered by the defendant as counter claims were not proper-existing claims to offset the amount due upon this note.

The ninth and twelfth instructions complained of, we think, were not erroneous, and are not obnoxious to the criticism made. We also think the court below did not err in refusing to grant a new trial for newly-discovered evidence. It was, at most, cumulative, and not sufficient to change the verdict. After a careful examination of this record, we fail to find any substantial error therein, and the same must be affirmed.

Judgment affirmed.