author: Wall, J.

text:
    Third District
    —May Term, 1887.
    The German Insurance Company of Freeport v. Charles F. Churchill.

      Fire Insurance—Mortgage Clause—Inconsistent Provisions—Foreclose ure—Change of Interest as a Defense.

    1. Where mortgaged property is insured, while involved in litigation and after the commencement of foreclosure proceedings, for the benefit of (he mortgagee and his assigns, and a loss occurs after the foreclosure sale, the insurer can not defend on the ground of change of interest or ownership of the property.
    2. Where there is a manifest inconsistency between the provisions of the policy and the mortgage clause, as applied to the situation when the policy was issued, the provisions of the mortgage clause will control.
    [Opinion filed November I8, 1887.]
    Appeal from the Circuit Court of McLean. County; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Thomas Bates and F. B. Henderson, for appellant.
    . Messrs. Herrick, Lucas & Spencer, for appellee.
   Wall, J.

This was assumpsit on a policy of insurance. On a trial by the court, a jury being waived, there was judgment for the plaintiff. In substance, the chief objection urged to the judgment is that there had been a change in the interest or ownership of the property and that the company had not waived its right to this defense.

A brief reference to the leading facts is necessary at this point. The property insured belonged at one time to John B. Snyder, who, becoming embarrassed in business, desired to raise money upon it. He conveyed it to Churchill, the appellee, who executed his note for 812,000, and to secure it a mortgage upon the property. Snyder assigned the note and mortgage to the Union National Bank of Chicago, and soon after conveyed his property in trust to pay his creditors. Litigation ensued in the McLean Circuit Court and soon became somewhat complicated. Among other suits in this connection there was a bill in chancery by some of Snyder’s creditors against the Chicago bank and others .charging that the assignment of the Churchill note and mortgage to the bank was a fraud upon the rights of the other creditors, praying for a receiver, etc., and there were such proceedings in this chancery ease that the bank transferred its claim on the note and mortgage to Jordan and Pike who were appointed receivers in the premises.

These receivers, Jordan and Pike, then filed their hill to foreclose this mortgage. It was while this foreclosure suit was pending that Churchill applied for and obtained the present policy of insurance. The local agent who lived in the town where the property was situated, knew as well as Churchill that it was involved in litigation and that it was incumbered by this mortgage which really represented its full value. They both knew that the bank held this security and that there was confusion and contention in regard to it among the creditors. They probably did not- know definitely the situation and the agent swears he was not aware that the foreclosure suit had been commenced.

Whatever they did know, or did not know, it was understood that the note and mortgage, which represented the value' of the property, was or had been in the hands of the hank and was the subject of contesting claims among the creditors.

This they actually knew. Constructively, they knew what was disclosed by the record of the Circuit Court of McLean County, which was public, and gave-notice to all concerned so far as the status and title of the property were affected.

In this condition of things it was suggested by the agent that the policy should contain this clause: “Loss, if any, pay. able to the Union Uational Bank, Chicago, 111., or its assigns, as their mortgage interest may appear. Mortgage clause attached. ”

This was written in the body of the policy. Attached to the policy was the mortgage clause referred to which began with the words: “Loss, if any, .payable to Union national Bank of Chicago, 111., or its assigns, mortgagee or trustee, as hereafter provided.” Then follow sundry conditions which need not be specially stated, beyond saying that the clear purpose was to regal'd the interest of the mortgagee as the special object of protection; providing that the mortgagee should pay for any increase of hazard that might occur, and notify the company of any change of ownership or increase of hazard that should come to his knowledge, and have permission for such change or increase duly indorsed on the policy; reserving the right to the company to cancel the policy and to cancel this mortgage clause, and providing that in case of payment of any loss the company should be subrogated to the right of the mortgagee to the extent of such payment. After this policy was issued the foreclosure suit progressed to a decree as prayed and a sale by the master. At this sale the property was bought in by J. C. Kerrick, one of the attorneys for the receivers, and, as he says, for their account and benefit.

Just before the sale, and to be considered as a part of the transaction, there was an agreement between Churchill and Kerrick that the latter would bid the full amount of the decree and costs, and in consideration thereof Churchill gave Kerrick a lease of the property during the ensuing fifteen months and paid him §500, it being further agreed that Churchill might at any time within the fifteen months acquire the certificate by paying the amount of the bid, less the sum paid by him to Kerrick and the rent received by Kerrick up to such time, and assigned all insurance policies to Kerrick.

There is evidence tending to prove that after this sale Haynes, who was interested as a creditor of Snyder, at the instance of Kerrick took the policy to the agent who issued it and, informing him of the sale by the master and the purchase by Kerrick, asked him to make any change or assignment that might be necessary; to which the agent replied that it was unnecessary, and, turning to the mortgage clause, showed it to him and explained that nothing was required; that the policy £t did not need assigning; it was good as it was.” The agent does not agree with this statement, but it is clear that Haynes reported it to Kerrick, who, believing it to he true and assuming the policy to he valid in his favor, took no further steps to protect himself. Whatever may have been the substance of this conversation between Haynes and the agent it is very clear the latter was sufficiently informed of the situation and that neither he, nor any other agent of the company, disclosed any purpose to cancel the policy, hut suffered Kerrick to rest under the impression that the insurance was unaffected by what had occurred since the policy was issued. The policy contains very stringent provisions to the effect that no assignment shall be valid until it is indorsed thereon and approved by the company, and that in case of any change of the title or of any interest therein without such consent, or if the property is in litigation or advertised for sale under any deed of trust or mortgage, or if a suit be commenced to foreclose a mortgage on the property, the policy should at once become void, and that nothing should be deemed a waiver of any printed condition or restriction short of a distinct agreement indorsed on the policy, nor should notice to, or "consent of, a local agent affect any such condition. Assuming that the conditions of the policy were violated by the facts stated, the company depends upon them for its defense. There.is a manifest inconsistency between these provisions and those of the mortgage clause as applied to the situation at the time the policy was issued. As we have shown, the mortgage clause, which is the latest expression of the contracting parties and must control if there is conflict with other provisions, made the mortgagee the beneficiary and made his interest and that of his assigns the sole object of protection. When this is considered in connection with the circumstances then existing it would be unreasonable to apply, for example, the condition that the policy should he void in case of a foreclosure suit being commenced. The very object was to protect one whose interest would probably compel him to bring such a suit, and who, as a matter of fact, as the records disclosed, was at that time prosecuting such a suit. Again, it provides for the payment of the loss, if any,, to the mortgagee or its assigns, which is inconsistent with the provisions against assignment without consent indorsed. Jordan and Pike were the assigns of the bank and Herrick was, in fact, but their agent and representative. Prom jrmdent and cautious motives Herrick caused the agent to be notified of what had occurred - so that he might have the necessary indorsements made, but the agent was, no doubt, correct in his view, as reported by Haynes, that nothing of the kind was required and that the policy was good as it was. The proceedings to foreclose and the purchase at the master’s sale were within the purview of the mortgage clause and furnish no ground of exemption from liability under the clauses forbidding an assignment of the property, etc., above referred to. Such proceedings must have been contemplated when the policy with this clause attached was issued, and if there could be any doubt as to whether they are within the scope of the contract of insurance thus made, the fact that the company, through its agent, so expressly' disclosed and, although cognizant of the situation, did not cancel the policy, but retained the unearned premium without objection, must, under numerous precedents of undoubted value and authority, estop the company from making the defense. May on Ins. Chap. 22; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Williamsburg Ins. Co. v. Cary, 83 Ill. 453; Hallis v. State Ins. Co., 65 Iowa, 454.

We are of opinion there is no merit in the objections interposed, and that the judgment of the Circuit Court should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary M. Woodbury v. Walter C. Tuttle.

      Replevin—Husband and Wife—Fraudulent Conveyance—Exemptions— Instructions—A Iternative JudgmenL

    la aa action of replevin, brought by a wife to recover property levied upon by virtue of an execution against her husband, it is held: That the jury were warranted in finding that the conveyance by the husband to the wife was fraudulent as to his creditors; that an instruction containing an imperfect statement of the husband's right of exemption, was properly refused; and that there was no substantial error’ in the failure of the court below to render an alternative judgment, especially as the plaintiff made no demand for such a judgment.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Vermillion County ¡ the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. H. 3?. Blackburn and J. B. Mann, for appellant.
    Mr. W. ¡R. Lawrence, for appellee.
   Wall, J.

This was an action of replevin by the appellant against the appellee. The appellee, as Sheriff, had levied upon the property by virtue of an execution against the husband of the appellant. The property had belonged to the husband, but was claimed by appellant under a transfer in writing acknowledged and recorded pursuant to Sec. 9, Chap. 68, R. S. The only objection taken to this transfer was that it was made in bad faith and for the fraudulent purpose of hindering and delaying the creditors of the husband. The chief circumstance to sustain this charge was the inadequacy of the consideration.

We are of opinion that the jury were warranted in their conclusion that the transaction was fraudulent. All the evidence considered, it is highly probable that the controlling purpose of the parties was to place the property beyond the reach of creditors. There is no substantial error in the instructions upon this branch of the case.

It is urged that the court should have given the following instruction "asked by appellant:

“ In this State a man who is the head of a family and residing with the same, is entitled to an exemption of four hundred dollars in personal property, and such property can not be held for the payment of any indebtedness he may owe, and he can sell it, give it away, or dispose of it as he sees fit, and no creditor has a right to question his disposal of it.”

Under the present statute the debtor may claim as exempt necessary apparel, Bibles, school books and family pictures. If he is the head of a family he may also claim $400 worth of other property to be selected by him, but, in order to avail himself of this right, he must schedule all his personal property, including money on hand and debts due him, and after the property has been duly appraised he may select articles to the value allowed him. By this process he is compelled to bring in all his cash and bills receivable, and until the schedule and valuation are made, there can be no selection. íhis instruction made no reference to money on hand and debts owing, and would probably have misled the jury. It was an imperfect statement of the right of exemption, and, for this reason, if for no other, it was properly refused.

We do not decide, for it is not before us, whether one who has not more than $400 worth of property, including money and debts due him, may sell the property clear of execution liens. There is no such case here. It is urged also that the judgment should have been in the alternative under Sec. 22, Chap. 119, R. S. In the case of Lamping v. Payne, 83 Ill. 463, the Supreme Court, in construing this provision, held that it applies only to cases where the general property is in the plaintiff, and the defendant shows a special ■ property consisting of a right to hold the property as against the plaintiff only for a certain sum of money, as where the defendant showed special property by a levy of a against the plaintiff, or where defendant holds the property of the plaintiff, but by virtue of some lien as carrier, warehouseman or otherwise.

If it be conceded that the appellant had the general property in the sense here intended, and that the court might have rendered an alternative judgment, yet, we think, there should have been some suggestion or request by the plaintiff to that effect, and the point should not- be considered here for the first time. It certainly is not such error as should reverse the judgment where the point was not made below. The issue was made there that the property was in the plaintiff, and that it was not subject to the execution. The plaintiff took no other position and was willing to accept nothing short of her entire claim. She should not be permitted to change her ground here, and thereby set aside the judgment, upon a point not presented or considered in the Circuit Court.

In any event, we should do no more than reverse with instructions to correct the judgment in this respect. This would be unnecessary, however, for the appellant can, if she sees fit, pay off the execution, and then, of course, the Sheriff will release the property.

The judgment of the Circuit Court will he affirmed.

Judgment affirmed.


text:
    James H. Barkley v. Robert J. Williams.

      Fraud—Railway Official—Special Rates—Contract to Share Profits, Void.

    An agreement between a railroad official and another to divide the profits on a contract, to be secured by the latter, to furnish materials for a public improvment, the only service rendered by the former being to allow the latter lower freight rates than he demanded of others, is void as against public policy. Such a contract will not support an action to recover a share of the profits realized.

      [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. Connolly & Matheb and Patton & Hamilton? for appellant.
    Mr. L. H. Headley, for appellee.
   Wall, J.

The appellee recovered a judgment against appellant in an action of account for $763.12, for certain profits in an alleged partnership for the sale and delivery of sand, to be used in paving the streets of Springfield. The important question in the ease is whether the contract disclosed by the evidence is impeachable, because against public policy.

Appellee was division freight agent of the Ohio & Mississippi Railway Company, and as such had power to fix the rate of freight on sand from Beardstown, where it was to be loaded, to Springfield, where it was to be used. McBean & Company, the paving contractors, had applied to him for the rate and were informed it would be $10 per car, which included $2 for loading. McBean replied, offering $1.10 per cubic yard delivered on the street, to which appellee responded that the lowest rate would be $9.25 per car.

While this correspondence was going on the parties to this suit entered into an agreement that if they could get the contract for delivering the sand, it should be in the name of appellant, who should do the hauling at twenty cents per yard and whatever profit was left should be equally divided.

They do not agree exactly as to the part to be performed by appellee, but it is sufficiently apparent he was to use his official position to make a íavorablé rate and to keep other parties out by holding the rates up until the contract was secured. This was managed so well that McBean & Company found it to their interest to make the contract with J. H. Barkley & Company (appellant and appellee), for the delivery of the sand on the streets at $1.25 per yard. Thereupon the rate of freight was fixed by the appellee at $5 per car, which, considering the cost of loading, was $2.25 per car less than his lowest offer to McBean & Company, and $3 per car less than lie had offered to one Bretz, who had also asked for a rate. •

It is averred by appellant, and there is much to corroborate him in this, that it was understood also that large, high, sideboard cars, holding an extra quantity, were to be used. Such cars were used for a few days, but the loads being too heavy, the matter attracted the attention of the division superintendent, by whose order they were taken out of the service and the ordinary twelve ton coal cars substituted and used exclusively thereafter.

Whatever may have been the form of the understanding between these parties, the real service to be performed by appellee was as already stated. He furnished no money and did nothing else. All the care and management devolved upon appellant, by whom all the money required to carry out the contract was furnished. All that was expected of appellee was to so arrange matters as to secure the contract, and then fix a rate lower than was to be offered to other persons. He says he would have given the $5 rate to any other parties. Possibly he would, and probably did so after the McBean contract was obtained, but he showed no such disposition up to that time, and we can not resist the conviction that his action in this respect was a part of the plan by which he and appellant were to manipulate the affair for their own benefit. Such a transaction is against public policy.

The appellee was clearly using his official power for his personal gain, and while it may be that the railway company received a fair compensation for transporting the sand, and while it may he no injury has been sustained by any one, yet the course of the appellee can not be approved. To quote from Bestor v. Wathen, 60 Ill. 138, “in this particular case, no wrong may have been done, yet public policy plainly forbids the sanction of such contracts, because of the great temptation they would offer to official faithlessness and corruption.” Any agreement which is calculated to induce a dereliction or laxity in the performance of public or private duty is void. Greenhood on Public Policy, 306.

Aside from the oppressive and partial features of such conduct, should he noticed the direct tendency to increase the cost of public improvements. It would be greatly to the disadvantage of the public if it were generally known that railway officials may lawfully use their authority and position as was done in this instance. The superior opportunities thus presented for controlling municipal and other contracts, would manifestly tend to corruption, extortion and extravagance, and should, therefore, be made unavailing, so far as the influence of the courts may go. In such eases the law will take no cognizance of the contract, and by declining to enforce it or grant any relief upon it, will leave the parties to make the best of the positions which they have voluntarily assumed. “ Potior est conclitio defendentis Bestor v. Wathen, 60 Ill. 138; Ray v. Mackin, 100 Ill. 246; Iscanyan v. Winchester Arms Co., 15 Bhachf. 79; Cook v. Sherman, 4 McCreary, 20.

The judgment will be reversed and cause remanded.

Reversed and remanded.


author: Congee, P. J.

text:
    Mary Tenk and John W. Lock, Impl’d, etc., v. John Lock, on Interpleader, etc.

      Administration—Dower and Homestead—Death of Widow—Partition— Bill of Interpleader by Judgment Creditor—Laches—Sufficiency of Judg~ ment. .
    Upon a bill filed by certain heirs for the partition of premises which had been held by the widow as her dower and homestead, it is held: That a judgment creditor of the ancestor may maintain a bill of interpleader in his own name to enforce his claim; that there was no laches, although the delay in enforcing the judgment was about thirteen years; and that the judgment is substantially good when attacked in a collateral proceeding.
    [Opinion filed November 18, 1887.]

      Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Cajetee & Govert, for appellant.
    Mr. Charles M. Gilmer, for appellee.
   Congee, P. J.

Jacob Lock, Jr., died intestate December 7, 1871. Administration was had upon his estate, and all his real estate, except his dwelling house and two acres of land, which was assigned to his widow as her dower, and occupied by herself and children as a homestead, was sold.

The widow continued to occupy said homestead until her death, in September, 1884, after which the heirs of Jacob Lock, Jr., by a bill in chancery, sought to partition the same. Appellee, Jacob Lock, being the owner of a claim against the estate of Jacob Lock, Jr., filed a bill of interpleader in the partition suit asking that his claim be first paid out of the proceeds of the sale. The court so decreed, and two of the heirs bring the record to this court for review.

It is first objected to the decree, that when partition is sought by bill in chancery, the proceeds of a sale, if one should be had, upon a failure to make partition, can not be decreed , to be paid on the debts of the deceased ancestor, but that this can only be done when the partition is sought by petition under the statute, and Labadie v. Hewitt, 85 Ill. 341, is cited to sustain that view. As we read that case it holds the reverse of the foregoing position, at least so far as paying to the administrator of the deceased ancestor, and that question we shall notice further on.

It is next objected that the delay of about thirteen years is not sufficiently explained to warrant the court in rendering the decree complained of. The property having been, during the whole period of delay, incumbered with the widow’s right of dower, and also the estate of homestead therein of herself and children, it is clear there was no laches, unless the value of the property so far exceeded the value of these two estates that in selling such excess there should not be a sacrifice of the creditors’ rights in the land. We think from a consideration of the evidence as to value, that the amount that could probably have been made by a sale for the benefit of creditors would have been so small as to bring the case fairly within the language of Bursen v. Goodspeed, 60 Ill. 281: “ It is quite ? evident that forcing the land to a sale at public auction, incumbered as it was with the claims of homestead and dower, would have been a-pal pable sacrifice of the creditors’ rights in the land; that they would have derived no appreciable benefit from the sale; * * * the heirs would have lost the land, and the creditors their debts.”

It is next objected that appellee could not thus present his individual judgment and have it paid out of the proceeds of the sale; that his only remedy was to have the administrator of the estate interplead for the benefit of all the creditors. We think there is no force in this objection. There might be no administrator at the time. The other creditors mighc be unwilling to enter into the litigation, and to hold that appellee, who has a judgment lien against the land, unless he has lost it by laches, which in this case we do'not think he has,can do nothing to protect and secure his own rights until such time as he can induce some one else to assist him, would not be reasonable, nor according to the well known rule that the vigilant creditor shall be rewarded.

Lastly, it is urged there is no sufficient judgment of the County Court establishing appellee's claim against the estate. The judgment offered in evidence is a copy of the judgment docket required by Sec. 25, Chap. 25, B. S., and shows when the claim was filed, giving the name of the claimant and of the estate against which it is filed, the amount of the claim, and then follows this entry: Judgment for $222.12 in favor of Jacob Lock, Sr., rendered April 23, 1872, as of the 4th class.” This claim, having been contained in the administrator’s reports, recognized, and acted upon by the County Court as based upon a sufficient judgment, we think is substantially good, when attacked in a collateral proceeding.

We do not think any of the objections are well taken, and the decree of the Circuit Court will be affirmed.

Judgment affirmed.


author: Conger, P. J.

text:
    Chicago, Burlington & Quincy Railroad Company v. John H. Stamps.

      Railroads—Highway Crossing—Personal Injuries—Defective Seat— Evidence.

    In an action against a railroad company to recover damages for personal injuries received by the plaintiff when crossing the defendant’s track at a highway crossing, it is held: That the evidence is not sufficient to warrant the verdict for the plaintiff; and that it seems more reasonable to attribute the accident to the defective seat of the plaintiff’s wagon than to the fact that the approach was too narrow.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Jersey County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. Sweeney & Walker and "O. F. Price, for appellant.
    Messrs. Goodrich & Ferns, for appellee.
   Conger, P. J.

This is an action by appellee "against appellant to recover damages for injuries received by him when crossing appellant’s railroad track at a highway crossing.

Appellee was crossing the railway on the public highway in an open spring wagon drawn by one horse, and having passed over the track' and started down the grade of the approach, his horse became frightened at a fire on the south side of the highway, and ran a distance of about one hundred feet, when appellee was thrown out of his wagon to the ground, receiving the injuries complained of.

Appellee was alone, and his statement of the manner in which the accident occurred is, that as he was crossing the track the horse did not want to go forward on account of the fire at the side of the road, and finally stopped on the track; that he started the horse again, and just as the hind wheels of his wagon passed the railroad track, the horse became frightened and jumped to the north side of the approach across or into a hole, and after that he remembered nothing that occurred.

Mr. Harriweather passing along .shortly afterward, found appellee lying in ■ the highway in the center of the wagon track and about one hundred feet from the railroad track. He was entirely unconscious, lying upon his face, with his head to the east, or away from the railroad track. After working with appellee for a time appellee gradually regained consciousness, and by Hr. Harriweather was taken to ¡Rockbridge, a distance of one and a half to two miles.

This witness was the only one who saw appellee while lying in the road and the only one who at that time examined the track made by appellee’s wagon to determine its course from the railroad track to the place where appellee was found.

He says that he did not leave appellee, but as he stood by him he looked to see if he could see why appellee was there; that he noticed the tracks of the wagon from where he stood by appellee back to the crossing; that they continued down from the crossing to where he stood; that they remained in the line of the road, about the middle of the road, about one half way down the grade, when they took a short turn to the right, he thought about two feet, then turned back and kept a straight line down to him. The left wheel kept the line of the highway, the right over the side on,the grass a little.

Hr. Tost examined the ground in the evening after appellee had been removed and he says he saw where the wheels of some wagon had run alongside of the bank for probably fifteen or twenty feet from the railroad; the off wheel got over nearly in the center of the road, and the other wheel went over the north side and then back again.

The seat of appellee’s wagon was found in the road a few feet beyond where appellee was lying. It was not fastened to the wagon, and its construction and manner of resting on the wagon is shown by the evidence of Hr. Gunnell, who says: The buggy bed is five and a half inches deep; I measured the distance from the top of the cleat to the edge of the buggy; it was three-eighths of an inch. I examined riser; it is eight inches, less the three-eighths of an inch I spoke of; the riser on the left side was different from the riser on the right side; it (on the left side) was made out of a two-inch piece of oak plank, and being so much wider, in order to have it rest down on the cleat, it was necessary to bevel off from the outside in order to get it down on the cleat; I had a model made; (witness produces model and says) this (the long piece) is the side of the buggy bed; it is just five and a half inches in depth; the cleat is three-eighths of an inch from the top; that riser was made out of a two-inch plank; if it was left square it wouldn’t go down in, and so the outside had been beveled off so as to rest down on the cleat; the riser would be seven inches and five-eighths high; this piece (riser of the model) we never measured; don’t know just exactly how high it is; this riser is on the left side ; the other is different; seat is not fastened; the top edge of the buggy bed is worn off fully as much as this (indicating on model); there was no iron on top of buggy bed and it is worn off until it is round on top.” The evidence in reference to the width of the approach is quite conflicting, some of the witnesses making it twelve feet in the narrowest place while others place it at nine.

When it is considered that the riser or brace of the left end of the seat was beveled or roimded off to make it fit in between the sides of the wagon bed, that it rested upon a cleat-only three-eighths of an inch below the top of the bed, which itself had been worn round, with no fastenings to keep it in the wagon, it seems much more reasonable to attribute the accident to such defective seat than to the fact that the approach was too narrow.

Whether appellee was mistaken or not as to the horse jumping into or across the hole just after crossing the track, it is reasonably clear from the evidence that the wagon was not overturned at that place, nor was appellee thrown out upon that side of the road. But after the wagon had gotten back into the road and far enough away from the railroad track to be entirely off of the approach, both the seat and appellee were thrown out upon the south, or left side of the wagon. Appellee’s attention had previously been called to the condition of the seat and he had been told it was dangerous to leave it in that condition.

We think the evidence was not sufficient to warrant the verdict of the jury and that there should have been a new trial awarded. The judgment of the court below will be reversed and the cause remanded.

Reversed a/nd rema/nded.


text:
    John B. Frink. v. Pratt & Company.

      Trover—Parties—Landlord's Statutory Lien—Right of Possession.

    The landlord, merely by virtue of the statutory lien on a crop of grain produced by his tenant, has no such right of possession as is required to support an action of; trover against a purchaser.from the tenant.
    [Opinion filed November 18, 1887.]
    Appeal from the Oircnit Court of Macon County; the Hon. O. B. Smith, Judge, presiding.
    Messrs. Blades & Neville, for appellant,
    Messrs. Gutter & Tail, for appellees.
   Wall, J.

Appellant brought an action of trover against the appellee to recover the value of a quantity of corn grown on the land of appellant by his tenant, who sold it to the appellee. Appellant’s claim was based on his right to one-third of the crop for the rent of the land, and he insists that by virtue of the statutory lien in his favor he may pursue any one who acquires the corn from the tenant. ,

The case was tried by the court, a jury being waived, and there was a finding and judgment for the defendant below.

Assuming that the lien of the landlord is paramount, the question is whether he has such property in the crop or any part of it that he can maintain trover.

This action, the form of which is fictitious, is, in substance, a remedy to recover the value of personal property wrongfully converted, by another to his own use. In order to recover, the plaintiff must have property in the chattels, either general or special, and the right of immediate possession.

“Special property, in a strict sense, may be said to consist in the lawful custody of goods with a right of detention against the general owner, but a lower degree of interest will some times suffice against a stranger, for a wrongdoer is not permitted to question the title of one in actual possession and custody of the goods when he has wrongfully invaded that possession. The naked possession with claim of right is enough against one who shows no better right, hence a Sheriff who has attached goods may maintain an action against one. who takes it from his possession or that of his bailee.” 2 Gr. Ev. 637.

The right of possession is important and it must concur with property, general or special, in the plaintiff, at the time of conversion.

When a tenant is to pay a part of the crop as rent of the land, he is regarded as the owner of the whole crop until the stipulated rent is set off. There is no joint possession or ownership in such cases. The tenant is the owner and the landlord has merely his lien for the rent which he may enforce by distress. Alwood v. Ruckman, 21 Ill. 200; Dixon v. Niccolls, 39 Ill. 372.

In Powers v. Wheeler, 63 Ill. 29, it was held that case would lie against one who assisted a debtor in removing property, on which an execution had become a lien but had not been levied, beyond the reach of the officer. It was said trover would not lie in such case, for, notwithstanding the lien, there was no such right of possession as would support the action, nor was there such property, general or special, as would be necessary. In Watt v. Schofield, 76 Ill. 261, it was held, in the separate opinion of McAllister, J., in a case similar to the present, that the landlord has not, by virtue of the lien alone and without levy of a distress warrant, the right of possession. It does not appear that in this opinion a majority of the court agreed, as upon the facts in that case, for another reason—that the rent was not due—there was no right of possession. It has not, so far as we are advised, been determined whether, in this State, the landlord may maintain trover by virtue of his lien merely, but we are inclined to hold that the question must receive a negative reply. The tenant having possession of the whole, and being regarded as the owner of the whole until the rent is set apart, there seems to be no special property and no right of immediate possession in the landlord until the levy of a distress warrant. The lien of the landlord is not superior to that of an execution in the hands of an officer, and if the latter can not maintain trover until he has made a levy, it is difficult to see how the former could do so. 2 Kent, *638.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Pleasants, J.

text:
    William H. Huddleston v. George Francis and John Halpin.

      Negotiable Instruments—Note—Death of Maher—Action against Sureties—Release under Act of Marché, 1S69—Construction of Proviso.

    The maker of a promissory note, dated October 1, 1872, and payable in one year, died October 31, 1873. The note was never presented as a claim against the maker’s estate. Upon these facts, it is held: That no action lies against the sureties on the note; that the failure of the holder of the note to present it for allowance against the maker’s estate operates to release the sureties under the Act of March 4, 1869; and that the evidence supports the finding of the court below as to certain questions of fact.
    [Opinion filed November 18, 1887.]

      Appeal from the Circuit Court of Macoupin County; the Hon. James A. Obeightob, Judge, presiding.
    Messrs. Ribakeb & Bihakeb, for appellant.
    The sound interpretation, and meaning of the Act of 1889, on a view of the enacting clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy. Dwarris, 119; 1 Kent’s Com. 483. The Supreme Court of Illinois in the following cases hold about to the same effect: Boon v. Juliet, 1 Scam. 258; Spring v. Collector, 78 Ill. 101.
    The enacting clause of the section under consideration, says the sureties shall be released from the payment, if note is not presented for allowance. The proviso says that the act shall not be so construed as to release any surety or sureties from the payment of the whole or any part of such debt that may remain unpaid after the estate of decedent is fully administered, nor prevent the holder of such note from bringing suit against sureties before the expiration of two years, etc.
    Was it not the object of the statute to give to the sureties the benefit of what the estate of the deceased principal maker would contribute toward payment of the note, whether the holder presented the note for allowance or not? Did the General Assembly have any other object in view in its enactment? If so, what ? Was it the object of the General Assembly to bar all right of action in a case where the estate of the note was wholly insolvent ?
    Does the act do more, in case the note is not filed against the estate of the deceased principal in two years, than to throw upon the holder of the note in a suit brought against the sureties, after two years, the burden of showing that the estate was insolvent, before he can recover the whole of the note ? Or that it was partially insolvent, in order to entitle him to recover so much as may remain unpaid after the estate is administered % Does he forfeit, in the latter case, any more than he might have got from the estate had his note been probated ? Was it the purpose of the statute to give the sureties relief for more than they have lost by the neglect of the holder of the note ? Does not the proviso show it to he the legislative intention to limit the holder’s loss to that amount ? If not so, what effect is the proviso to have ? Does it mean anything on that point, if it does not mean to limit the loss of the holder for his neglect to present for allowance, his note, to so much as he might have obtained from the estate as his distributive share in due course of administration ?
    Mr. 0. A. Walker, for appellees.
   Pleasants, J.

Assumpsit, brought by appellant, on a. promissory note of John Jones and appellees, of October 1,1872, for §1,000, payable one year after date, with interest at ten per cent. Appellees were sureties. Jones died intestate, October 31, 1873. Letters of administration were granted to appellee Francis and another, November 13, 1873, and they qualified on the same day. The note in suit was never presented against the estate of the decedent for allowance to the proper court, and this action was commenced in March, 1887. Under the plea and proof of these facts tiie court below, on a trial without a jury, found the issue and rendered judgment for the defendants.

By the act in force March 4, 1869 (Public Laws of 1869, p. 305), it was declared: “ That whenever the principal maker of a joint note shall depart this life, it shall be the duty of the payee or assignee thereof, to present the same against the estate of decedent for allowance, in the proper court, within two years after the granting of letters testamentary or of administration on his estate; and if said payee or assignee shall fail or neglect so to do, the surety or sureties on such note shall be released from the payment thereof. Provided, that this act shall not be construed seas to release any surety or sureties from the payment of the whole or any part of such debt that may remain unpaid after the estate of the decedent is fully administered, nor to prevent the holder of such note from proceeding against the surety or sureties at any time before the expiration of two years after the granting of letters testamentary or of administration upon said estate.

That the enacting clause of this act unqualifiedly releases the surety, if the holder of the note fails to present it for allowance against the estate of the deceased principal within the time therein limited, would seem to be entirely clear from the language employed. And so it has been held. House v. Trustees of Schools, 83 Ill. 368; Curry v. Mack, 90 Ill. 606; Tipton, Adm., etc., v. Corrigan, 10 Ill. App. 318. But it is said that in these decisions the proviso was not alluded to and has not been specifically held to be inoperative, and counsel proceed to argue with great plausibility that the first part of it either has no meaning, or is directly contrary to the purview of the statute and must prevail, as speaking the last intention of the lawgiver, or limits the release, as in the Revising Act of July 1,1874 (R. S., Ch. 132, Sec. 3), to the amount that might have been collected of the estate, if the claim had been presented in proper time.

We do not undertake to review the arguments nor to establish any particular construction of that portion of the proviso, for the reason that, to our understanding, the decision of the Supreme Court is conclusive as to the effect of the whole act; hut suggest that, although somewhat awkwardly expressed, the intention of the Legislature was to exclude, by the language there employed, the conclusion that might otherwise be drawn from the enacting clause, that the only remedy left to the creditor, even if he filed his claim within the two years, was against the estate. It applies to a case in which a portion of the claim has been paid before the estate was fully administered, and, therefore, a case in which the entire claim was presented for allowance before that event; and two years is the time allowed to complete the administration. If construed to mean that if presented within the proper time and not paid or not fully paid, the sureties shall not be released from the payment of what so remains, it would be entirely consistent with the enacting clause and yet expressly preserve the right previously existing, to sue the sureties after the two years, as the last clause preserves another right, also previously existing, to sue them within the two years, notwithstanding the concurrent remedy against the estate.

On the questions of fact whether appellee Francis promised appellant to have the claim allowed or to notify him within the two years in ease the court should refuse to allow it without presentation of the note (which was in appellant’s possession in another State), and whether appellees made him a new promise after the expiration of the two years, the court found against the plaintiff and it is conceded there was evidence enough to support the finding. The payment of interest was made by order of the County Court, and not as a maker of the note.

Judgment affirmed.


author: Per Otcriam.

text:
    North British and Mercantile Insurance Company v. Charles F. Steiger.

      Fire Insurance—Increase of Bislc—Question for Jury—Estoppel—OverInsurance—Instructions.
    1. Where an insurance company, knowing of a change to which it might ■have objected and for which it might have canceled the policy, has remained silent and retained the premium, it is estopped from setting up the change as a defense.
    2. In the case presented, the defendant’s claim of over-insurance is not supported by the evidence.
    3. Where instructions taken together are free from substantial error, the fact that one of them is not entirely accurate is not open to complaint.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for appellant.
    Messrs. Bradley & Bradley, for appellee.
   Per Otcriam.

So far as the defense is based upon the alleged increase of risk, the case is substantially as it was when here on former occasions. 13 Ill. App. 482; 19 Ill. App. 653. See also, in this connection, Ins. Co. v. Striger, 109 Ill. 254.

The second instruction for plaintiff is made the subject of criticism, and while taken alone there may be some want of 'accuracy, yet when it is read in. connection with those given for defendant, we think there is no real ground of complaint.

The increase of risk, as alleged, depends upon and grows out of the change in the dryer. We are not impressed with the defense. It does not seem at all clear that the hazard was increased in any substantial degree by the change, and we are disposed to accept the verdict of the jury asa very satisfactory settlement of the controversy on this point.

The object of insurance is to protect the assured against loss, and the insurer should he required to live up to his contract. While he should not be required to do more, yet he should not be permitted to escape on a mere technicality. The jury were warranted in. the belief that the agents of the company knew of the change that was being made, and though they may not have known just what the change was, nor just what its effect, yet, under the circumstances disclosed, there is enough to justify the jury in applying the doctrine of estoppel. If the insurer, knowing of a change which he might object to and for which he might exercise his reserved right of cancellation, remains silent and retains the premium, he should not be heard to object when called to make good the loss.

On the other point argued, as to over-insurance, we think the present record supports the judgment. There is a conflict in the evidence, but the version of the plaintiff accords with common experience and was naturally accepted by the jury. According to Ms statement, the agent of the company called on him and solicited a renewal of a policy issued by a former agent, and the question was asked how much insurance he already had. To this plaintiff replied he did not know, but referred the solicitor to two other agencies in the city where all Ms other insurance was issued, for information. Whether this source of information was resorted to, does not appear, nor is it materia], for the way was open ; but in a few days the plaintiff found on his desk the policy in suit; and supposing it was properly drawn and binding on the company, he placed it in his safe without examination. In this he acted as would any ordinary business man under like circumstances, and to allow this defense would, in our judgment, work great injustice. The judgment is affirmed.

Judgment affirmed.


text:
    Union Mutual Accident Association v. Lewis E. Miller.

      Accident Insurance—Notice of Assessment—By-Laws—Instructions.

    In an action for indemnity under a certificate issued by an accident association, it is held: That the plaintiff was bound by the by-laws of the association; and that notice of an assessment sent by mail to the plaintiff’s last given address was sufficient under such by-laws, although it was not, in fact, received.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Ceeighton, Judge, presiding.
    Hr. John H. Hamilton, for appellant.
    Hr. William Mitchell, for appellee.
   Wall, J.

The appellee recovered a judgment of $83 against appellant on a claim for indemnity under a certificate of membership issued to him by appellant.

It is a condition of this certificate that the holder shall he “subject to all the requirements and entitled to all the benefits thereof as provided in the by-laws.” The by-laws provide that the secretary shall give notice of assessments and of annual dues, “ sending all such notices by mail to the last given post office address of each member, which shall be considered a legal notice.”

The application gave the “ post office address where notices are to be sent.” There was evidence tending to show that notices of assessment were sent by mail to the appellee at the address given in the application, which notices he claimed he did not receive, and of course did not respond to, and the legal question involved is whether sending the notice by mail was binding and effective, although in fact it was not received-The court gave the following instructions at the instance of appellee:

51 The court instructs the jury that if you believe from the evidence tiiat the blank marked £‘ A” is a copy of the application signed by Miller, upon which his policy or certificate was issued, then the mailing or delivering to the post office of a notice is not prima facie evidence of the receiving of such notice, and if the jury believe from the evidence in this case that tlie plaintiff (Miller), without negligence or fault on his part, failed to receive, and never did receive such notice, then he (Miller) is not bound thereby.”

“ The court instructs the jury that if they believe, from the evidence in this case, that it was the duty of this defendant to notify the plaintiff (Miller) when he was to pay an assessment, and that the defendant failed to notify him in accordance with the terms of the application signed by him, the policy or certificate, and by-laws of the Association, and that the plaintiff (Miller), without negligence or fault on his part, had no notice of any assessment upon or against him, then the plaintiff would not be in default for non-payment of such assessment.”

We are of opinion the court erred in the view it thus indicated as to the rights of the parties. It is quite clear that appellee was bound by the by-laws and that the by-laws made the sending by mail a legal and sufficient notification whether in fact the notice was ever received or not.

The conventional mode, if followed, would be just as valid and effective to fix the rights of the parties in the one event as the other. There is nothing of harshness or unfairness in these terms. The great mass of commercial and financial business of the country is done through the mail, and it is not an unreasonable condition that notice so sent should be considered duly served, and the parties having made this one of the conditions of their contract, should bo required to abide by it. May on Insurance, Sec. 562; Greely v. Iowa, etc., Co., 50 Iowa, 86; Covenant Mut. Ben. Ass’n v. Spies, 114 Ill. 463.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Charles S. Church v. The People of the State of Illinois ex rel., etc.

      Bastardy—Judgment—Defeet in Form of—Bond—Costs.

    A judgment in the Circuit Court in a bastardy proceeding affirming that of the County Court, and remitting the case to that court for execution, is erroneous in form.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Vermillion County; the Hon. J. "W. Wilkin, Judge, presiding.
    Mr. W. E. Lawrence, for appellant.
    Messrs. W. J. Calhoun and J. B. Mann, for appellee.
   Per Curiam.

This was a complaint for bastardy. The finding was against appellant in both the courts below. Questions of fact only were involved and no reason is perceived for supposing they were not rightly decided.

But the judgment here appealed from was erroneous in form, in that it affirmed that of the County Court, to which the case was remitted for execution. The trial, though on appeal, being de novo, the judgment should have been original and complete without reference to that of the County Court, hut requiring the bond of defendant to be made payable to the clerk of that court and filed in his office.

It will therefore be reversed and the cause" remanded for its correction in form. The costs made here are adjudged against the appellant.

jReversed and remanded.


author: Cower, P. J.

text:
    Benjamin Bowen, for use, etc., v. Thomas Pope et al., Partners.

      Garnishment—Attachment—Note in Another State—Jurisdiction.

    1. A garnishee proceeding being in the nature of a proceeding in rem, not only the garnishee but the res itself must be within the jurisdiction of the court.
    2. A promissory note which is in another State, hut within the control of the garnishee, who is within the jurisdiction, can not he reached by garnishee process.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Adams County; the Hon. William: Marsh, Judge, presiding.
    Mr. J. 0. Broady, for appellant.
    Mr. William MoFaddon, for appellees.
   Cower, P. J.

On the 12th of October, 1885, Simmons Hardware Company, a corporation of St. Louis, Missouri, commenced an attachment suit in the Circuit Court of Adams County, Illinois, against Benjamin Bowen, of Edina, Missouri. On the same day appellees, Pope, Lockwood & Company, who were residing and doing business in Quincy, Illinois, were served as garnishees in said suit.

Wm. B. Lockwood, a member of said firm, at the time of said service was at Edina, Missouri, in possession of notes on various parties in Missouri, holding them for his firm, though they were payable to and belonged to appellant Bowen. Lockwood was notified by a telegram of the service having been made at Quincy upon "the other members of his firm, and after such information, at Edina, Missouri, surrendered such notes to Bowen. At no time after the service of the writ of garnishment did any members of the firm of Pope, Lockwood & Company have any of said notes within the limits of the State of Illinois.

Upon these facts being set forth in the answer the court below held, appellees, as such garnishees, were not liable for the value of these notes, and the correctness of this decision is the only question presented by the record.

Our statute upon garnishment has expressly made dioses in action subject to its provisions, and provides by Sec. 20 that, when any garnishee has any goods, chattels, dioses in action or effects other than money, belonging to the defendant, or which he is bound to deliver to him, he shall deliver the same, or so much thereof as may be necessary, to the officer who shall hold the execution in favor of the plaintiff in the attachment suit, or judgment, which shall be sold by the officer, and the proceeds applied and accounted for in the same manner as other goods and chattels taken on execution.”

By this section promissory notes, or the evidences of indebtedness, are to be delivered to the officer and sold as other property, and it follows that promissory notes must have a situs of them own as much as the chattel property, and if they are not within the territorial jurisdiction of the courts of this State at the time, or after the service of the garnishee process, we do not think they can be reached by our courts.

A garnishee proceeding is in the nature of a proceeding in rem, and to the effectual creation of a lien it is not enough that the garnishee be within the jurisdiction of the court issuing the process. The res itself must also be within the jurisdiction of such court. Drake on Attachment, 472; Sutherland v. Second Nat. Bank of Peoria, 78 Ky. 253; Plimpton v. Bigelow, 93 N. Y. 596.

It is said in Waples on Attachment and Garnishment, pp. 226, 227, 249, that in a garnishee suit the garnishee, whether he be a resident or non-resident of the State in which the garnishee process has issued, is not obliged to answer except as to property actually within, or which, by contract, the garnishee is bound to deliver to the defendant in the attachment suit within, the State last named.

He can not be required to answer as to property of the attachment defendant which he has in another State, and if the garnishee should answer that he had property of said attachment defendant in another State, he could not be held chargeable upon his answer for such property. To the same effect see Bates v. C., M. & St. P. Ry., 60 Wis. 302.

The case of Childs v. Digby, 24 Pa. St. 23, holds a contrary doctrine, but if not overruled in the ease of the Pa. R. R. Co. v. Lennock, 51 Pa. St. 244, it seems to stand alone, and is opposed by the decided weight of authority.

It seems clear under our statute that a court dealing with a promissory note found in the possession of a garnishee, which is payable to and the property of the defendant in attachment, deals with the note itself. The garnishee by surrendering it to the officer discharges himself from all liability, and has done all that the court can require of him.

Hence it follows, we think, that the note itself must be within the territorial jurisdiction'of the court attempting to deal with it, for, as said in D’Arcy v. Ketchum, 11 How. 165, “ the authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond these limits would be deemed in every other forum an illegitimate assumption of power, and he resisted as mere abuse.”

It may be urged that the garnishee, being within the jurisdiction of the court and subject to its lawful orders, can be required to either bring the property, which he may have under his control in a foreign State, within the jurisdiction of the court, or otherwise dispose of it, so that the plaintiff in the attachment suit may reap a benefit therefrom, upon the same principle that a court of chancery, acting in personam, may decree the conveyance of land in any other State, and may enforce such decree by process against the defendant. But in such cases it is not the decree that operates beyond the jurisdiction of the court, but only the conveyance from the owner, which would accomplish the result of transferring the title, whether voluntarily made or in obedience to the decree of the court.

If a garnishee answers that he has property of the defendant under his control in a foreign State, and has not the means or the time to go where it is, and there sell or dispose of it, or to bring it within the jurisdiction of the court and surrender it, how can the court compel him to do so?

Under no circumstances can a garnishee, by the operation of the proceedings against him, be placed in any worse condition than he would be in if the defendant’s claim against him were enforced by the defendant himself. Drake on Attach., Sec. 462. A garnishee might have the possession and control of property at a place where there was no market for its sale, and would be compelled, if required to convert it into money, to advance his own means to transfer it to a market, taking upon himself the risk of such transportation, as well as the risk of losing money by the venture-.

If a court could not proceed in such an extreme case as that suggested, it would be powerless to do so in all cases when the property itself was beyond its jurisdiction, for unless it can compel the garnishee to bring all property, or its proceeds, within its jurisdiction, whatever the peculiar circumstances may be, it would have no power to do it in any particular case.

We think the Circuit Court decided correctly, and its judgment will be affirmed.

Judgment affirmed.


author: Per Ottriam.

text:
    Mattie A. Harris v. Oscar Rose.

      Practice—Instructions—Objections—Abstract—Continuance—Discretion —Master and Servant—Wrongful Discharge—Agency.

    1. This court will not consider objections to instructions where they are not set out in the abstract.
    2. Whether a continuance should be granted because of the absence of one of the parties, is so largely a matter of discretion that its refusal is not sufficient ground for reversal, unless it is manifest that such discretion has been abused and injustice has resulted.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Moultrie County; the Hon. J. F, Hughes, Judge, presiding.
    Messrs. Meekeb & Jeh'mtn'gs and B; M. Peadeo, for appellant.
    Mr. ¥h. H. Shkihe, for appellee.
   Per Ottriam.

This was a suit to recover damages brought by Bose against Harris, for being wrongfully discharged from employment. In the court below appellee recovered a judgment for §85.40,

We shall not notice the alleged error in the instructions (if there be any), for the reason that the instructions are not set forth in the abstract.

A continuance was asked upon the ground that appellant was sick and unable to be present at the trial, and that she would swear, if present at the trial, that she never employed Bose for any fixed period, nor authorized any one to employ him for her for any fixed period, and that her presence was necessary to a full defense.

The granting of a continuance on the ground of the absence of' one of the parties, being a matter largely of discretion with the trial judge, the refusal to grant the continuance should never work a reversal, except when it is manifest that such discretion has been abused and injustice has resulted therefrom.

We can not see that appellant has been injured by the refusal of the court to grant a continuance. The whole question was not as to the authority of her husband to make a contract for her, hut the true character of the contract he made. It would be preposterous to say that the husband of appellant, having the charge of the store and exercising the authority shown by the evidence, would not have the implied authority to hire clerks upon any reasonable and usual terms.

Upon the question of what contract her husband really did make, appellant does not profess to have any personal knowledge, such as would enable her to testify.

We think the jury were warranted in finding the verdict they did, and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Jacob A. Houk v. Samuel S. Newman.

      Replevin—Husband and Wife—Bill of Sale—Defective Achnoioleigmen t—Levy—Exempt ion.

    ' A judgment creditor who has levied on property as belonging to the judgment debtor, a bill of sale from the latter to his wife being defective, must continue to treat it as the property of such debtor, although the latter seeks to release it from the execution as exempt under the statute,
    [Opinion filed November, 18, 1887.]
    Appeal from the Circuit Court of Ford County; the Hon. A. Sample, Judge, presiding.

      Messrs. Thomas F. Tipton and Hugh P. Beach, for appellant.
    Messrs. Cook & Moffit, for appellee.
   Conger, P. J.

Appellant had sold to his wife a certain mare and colt by a bill of sale which was attempted to be acknowledged by appellant, but the Justice of the Peace, before whom the acknowledgment was attempted to be made, failed to sign the certificate of acknowledgment, and in this condition the bill of sale was recorded.

An execution against appellant was levied upon the mare and colt as the property of appellant, whereupon the latter made and delivered to the officer holding such execution, a schedule showing property to the value of §636, and including the mare and colt in question, to which schedule was added the following flote s

“Please note: The above property was, on the eleventh day of June, 1886, duly sold and conveyed by me by bill of sale for a bona fide consideration to my wife, Hattie M. Houk, and said bill of sale was duly acknowledged by me before Lewis E. Bressie, Justice of the Peace of Lyman Township? wherein I resided at the time and still do reside; and that said bill of sale was duly filed and recorded in the ^Recorder’s office of Ford County, aforesaid; and that said property belongs, in fact, to my wife; but being informed that by virtue of some informality in the bill of sale said property remains, so far as third parties are concerned, in me, I schedule the same accordingly.”

Appraisers valued his property, and he selected the mare and colt as a part of the four hundred dollars worth exempt by law.

The officer refusing to surrender the prtiperty, appellant brought replevin for it, and on the trial below was unsuccessful, and he thereupon brings the record to this court for review.

We can see no good reason why appellant should not, under the foregoing circumstances, recover. True, he had attempted to convey the property to his wife, and, as between themselves, it may be said the title had passed to her. But this is not a contest between the husband and wife, but between the husband and third persons; and as against the rights and interests of such third persons, the law declares such attempted conveyance shall not be valid. See Sec. 9, Chap. 68, R. S. In other words, as to third persons, the right, title and interest of appellant in the property remains precisely as it would have been had no attempt at a transfer been made.

The creditors of appellant have the right to treat the attempted conveyance as wholly void, and insist, as they did in the present case by levying an execution upon the property, that it belongs to appellant, and, in so doing, they must be consistent and recognize it as his for all purposes. They ought not to urge that for the purpose of subjecting it to this execution it is appellant’s, but when appellant seeks to release it from the execution on the ground of it being exempt, that it is his wife’s.

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

Reversed and remanded.


text:
    Lewis W. Green v. Joseph Buckingham.

      Trespass—Evidence—Error ivithout Prejudice.

    • In an action of trespass, it is held: That upon the evidence properly admitted the verdict for the defendant was clearly right; and that (he errors, if any, in the rulings of the court below, worked no injustice to the appellant.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Vermillion County; the Hon. J. W. Wilkin, Judge, presiding.

      Mr. J. B. Mann, for appellant.
    Messrs. F. Boqkw altee and E. B. E. Kdibeough, -for appellee.
   Per Curiam.

This was an action of trespass against appellee for breaking and entering what was alleged to be appellant’s close and cutting down some willow trees therein. Fleas of not guilty, liberum tenementum and the Statute of Limitations were filed, and the verdict and judgment were for the defendant.

Some technical questions upon the pleadings and evidence are discussed in the briefs, but we do not consider them, for the reason that in our opinion the errors, if any there were, worked no injustice to the appellant, and the verdict, upon all the evidence properly admitted, was clearly right.

The loom in quo was the property of appellee, who had licensed appellant to inclose it with his land to enable him to make a firmer fence, but expressly reserved the right to the willows and to take them as he did. TTnder'no proper rulings in the case upon the pleadings could appellant have rightfully recovered more than nominal damages.

Judgment affirmed.


text:
    William P. Randolph, Administrator, v. Trustees of Schools.

      Administration—Order of Distribution—Sow Enforced, -Second Order —Secs. 114 and 115, Chap. 3, B. S.

    1. Where the County Court, in the administration of an estate, has entered an order of distribution, it has no authority, even after many years, to make another order adding interest to a claim included in the original order.
    2. Proceedings for the enforcement of an order of distribution should be made under Sec. 115, Chap. 3, R. S. The term “ settlement,1 2'as used in Sec. 114, refers to an accounting to ascertain the condition of the estate that the order for distribution may follow.
    [Opinion filed November 18, 1887.]
    Appeal from the Circuit Court of Logan County; the Hon G. W. Heedman, Judge, presiding.
    Mr. William B. Jokes, for appellant.
    Messrs. Beach & Hodkett, for appellee.
   Wall, J.

On the 23d of April, 1862, the Trustees of Schools, Township 19 N., R. 2, W. 3d P. M., recovered a judgment in the Circuit Court of Logan County against Wm. H. Young for the sum of $921.22.

The said Young afterward died intestate and at the May term, 1863, of the ‘Logan County Court the appellant was appointed his administrator and having qualified as such he assumed the duties thus devolved upon him.

At the August term, 1863, of said County Court, the judgment referred to was probated against the estate as of the first class.

On the 23d of July, 1868, said County Court made an order requiring the administrator to pay out the money in his hands, after paying an item of $72.45 in full, at the rate of 85§ per cent, on all first class claims, and that he file vouchers for such payments.

Nothing further- appears to have been - done so far as this claim is concerned until the 9th of August, 1886, when, upon the petition of the Trustees of Schools of said township representing that the order of July 23, 1868, had never been complied with, the County Court cited the appellant to show cause why he should not pay said sum with interest.

Hpon a hearing in the County Court at the September term, 1886, it was found that there was due said Trustees from the appellant upon the order of July 23, 1868, the sum of $812.10, which with interest at six per cent, then amounted to $1,697.28, and it was therefore ordered that the appellant pay said last named amount to said Trustees and that he file a voucher therefor. From this order appellant prosecuted an appeal to the Circuit Court where a judgment was rendered against him in favor of the Trustees for $2,185.83 and costs, and it was ordered that execution issue thereon. From the latter judgment an appeal is prosecuted to this court. The order of July 23, 1868, was an adjudication of the rights of those parties. By that order the amount which the appellant was required to pay on the claim of appellees was definitely fixed and settled at $812.10. Nothing more was needed in this respect. We are unable to perceive any reason why there should he a repetition of this order and we find nothing in the statute authorizing it.

The order entered in the County Court upon the citation at the September term, 1883, was merely such a repetition, adding interest at six per cent, from the date of the original order. The judgment of the Circuit Court found that appellant was chargeable with six per cent, up to July 1, 1872, and with ten per cent, thereafter, and awarded execution for the whole sum so found due.

We assume the latter part of this order was inadvertently entered. We have been referred to no provision of the statute under which such a judgment could be entered. The real question, however, must be whether the facts set up in the petition furnish the necessary ground for relief. Counsel for appellee argue that the proceeding is justified under Sec. 114, Chap. 3, which provides that the County Court shall enforce settlements of estates, etc. We understand the term settlement as here used refers to an accounting and the provision here made is to enable the court to ascertain the condition of the estate so that the necessary orders for distribution may follow. It seems hardly possible that this section was intended to authorize a mere repetition of a former order of distribution. While there is some obscurity in the various provisions of the statute, yet we are cleárly of opinion that when there has been an order of distribution the court is not required to make another to the same effect, and that, if it is desired to enforce the order by subsequent proceedings in that court, it should be under Sec. 115, which provides that, if the administrator fails to pay over the dividend within thirty days after demand made, the court may, upon application, attach and imprison him until he shall comply with the order or be discharged in due course of law. It is not contended there was any such demand. Indeed it is admitted there was none, and there is no pretense that the proceeding is under See. 115. On the contrary, as distinctly put by counsel, it is under Sec. lié. It is a logical conclusion from the position assumed that though there has been an order of distribution the court may, and if moved, must, at a succeeding term, make another like the first, adding interest. If this be so, at a later term another similar order may be made, again adding interest, and so on ad infinitum. Thus interest may be compounded and new bills of cost incurred at every citation and yet nothing is done to enforce payment. Such proceedings are not to be sanctioned unless within the clear import of the statute.

We consider it not important whether the order of distribution be termed “casual” or “final.” It was an adjudication upon the point involved. The fro rata of distribution was binding on the parties thereto, and nothing further is required in that behalf.

The judgment of the Circuit Court will be reversed and, as by our construction of the act the citation is without proper foundation, the cause will not be remanded.

Judgment reversed.


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    Bessie W. Ives, Executrix, v. Matthew Ashelby.

      Partnership—Bights and Liabilities of Surviving Partner—Bill by Executrix for Settlement of Accounts—Submission to Arbitrators—Award as Basis of Decree—Whether within the Submission—Motion by Complainant to Dismiss. Bill.
    I. Upon appeal from a decree based on an award by arbitrators, under a stipulation submitting - to them, for an accounting, certain partnership dealings and transactions, it is held; That the award was within the submission; that it was proper to ascertain the extent of the firm’s indebtedness, and whether the deceased partner bad paid certain notes which he assumed upon entering the firm; that it was also proper to require the complainant to pay certain debts of the firm, applying the amount due from her to the defendant thereon; and that the court properly overruled the complainant's motion to dismiss her bill after overruling her motion to set aside the award.
    2. Upon the death or one of two partners the survivor is liable for the firm debts, and has the right to appropriate the firm assets in the payment of its debts, and to call on the estate of the deceased partner for any bal" anee due him on account of the partnership.
    3. Where the parties to a bill for the settlement of a partnership business have submitted the matters involved to arbitrators for an accounting, and stipulated that their award shall be entered as the finding of the court, and be the basis for its decree, the complainant can not dismiss the bill after the court has overruled a motion to set aside the award.
    [Opinion filed November 28, 1887.]
    1st error to the Circuit Court of Morgan County; the Hon. Cyrus Euler, Judge, presiding.
    The plaintiff in error filed her bill in the Circuit Court of Morgan County against the defendant in error, seeking a settlement of the partnership accounts of the firm of Ashelby & Company, a firm composed of defendant in error and Charles L. Ives, the deceased husband of plaintiff in error
    The firm was formed in November, 1875, and continued till the death of Mr. Ives in March, 1879.
    The defendant in error, by his answer, admitted the fact of partnership; denied that the profits were to be equally divided, but alleged that he was to have the general management of the business, and was to receive two-thirds of the net profits; charged that he had advanced large sums of money to keep the business in operation; that the assets of the firm had deteriorated, and that the whole amount thereof, which, by the bill, was charged to be in his possession, would not more than reimburse his outlays; that the deceased, Ives, had, when the firm was formed, agreed to pay certain indebtedness, which was a part of the consideration upon which he was aecopied as a partner; that he had not paid said indebtedness? which was still outstanding, amounting to @3,000; denied that lie, defendant, had received more than his share, and charged that the deceased and the complainant had received more than defendant had of the net profits.
    It appears that Ives died in the State of Connecticut, and that the complainant was granted letters testamentary in the Probate Court of New Haven in that State. The business of the firm was conducted, and its assets, real and persona], were situate, in Morgan County.
    At the November term, 1884, the parties complainant and defendant entered into a written stipulation in which, after reciting the filing of the bill for a settlement of the matters growing Out of the partnership and that the parties were desirous of submitting the question of the accounts between ihem involved in said suit to arbitrators, they agreed that the matters involved in the above entitled cause “shall be submitted to the above named Oscar D. Fitzsimmons, William Brown and William J. Bryan, who, after being first sworn according to law, shall proceed to take and state an account of all the co-partnership dealings and transactions between the said partners, and of all moneys received arid paid out by either of them on account of the partnership property of said firm, and fix and determine what sum, if any, shall he paid by the said Matthew Aslielby to the said Bessie W. Ives, executrix, or by the said Bessie W. Ives to the said Matthew Ashelhy, as the case may be, on account of said partnership property, or on account of the use of said partnership property, or on account of the expenditures thereon, and the award of said arbitrators, or a majority of them, signed by them, shall he binding upon both parties hereto, and shall be accepted as the true and correct statement of the account between the said parties, and shall be entered in said suit as the finding of said court, as to said accounts, and to become the basis of a decree in said cause, by the said Circuit Court, for the disposition of all the partnership property of said firm.”
    It was further stipulated that the partnership between the said Matthew Ashelhy and Charles L. Ives was formed November 4, 1875, and that on the said date the said partners became equal owners of the real estate (describing the same), and also of all the personal property which before that time had belonged to the firm of Ashelby & Iinboden, consisting of horses, wagons, tools, ice, feed, etc., which said personal property constituted the capital of said partnership; that said Ashelby and Ives were to be equal partners and share equally the profits and losses of said business; that said Ives died, testate, on or about March 15, 1879; that- Bessie W. Ives is the duly appointed executrix of his will and has the right to institute and maintain and carry on this suit; that the said arbitrators shall receive for their fees the sum of five dollars per day for each day actually employed, to be taxed as costs in this case. ”
    The arbitrators afterward made report that having heard all the evidence and fairly considered the same they found as follows:
    1. That two notes for $1,000 each, with interest from March 1, 1884, at the rate of eight per cent, per annum, now held, one by Mrs. Mary J. Adams and the other by William Bussell, and secured by a vendor’s lien on the real estate of the partnership of Ashelby & Company, were assumed by Charles L. Ives when he entered into the partnership, and should be paid by his executrix.
    2. That the firm of Ashelby & Company is indebted to the Jacksonville National Bank in the sum of $6,058.20, of which one-half should be paid by Bessie W. Ives, executrix, and one-half should be paid by Matthew Ashelby.
    3. That the firm of Ashelby & Company is indebted to Matthew Ashelby in the sum of $5,243.80, after turning over to said Ashelby all the personal property of the firm and charging him with one-half the value of the same, of which said sum of $5,243.80, one-half should be paid by Bessie W. Ives, executrix, and one-half by Matthew Ashelby.
    The said arbitrators therefore make the following award:
    1st. That Bessie W. Ives, executrix, pay to ,Mrs. Mary J. Adams and William Bussell the said notes above mentioned, together with the interest therein as aforesaid, and also all costs that have been incurred in the foreclosure of said ven dor’s lien, and thus relieve the partnership property from said incumbrance.
    2d. That said Bessie W. Ives, executrix, pay to the Jacksonville National Bank the sum of §5,650, that being the sum of amounts due from said Bessie W. Ives, executrix, to the Jacksonville National Bank and Matthew Ashelby, and that the payment of said sum of §5,650 to the Jacksonville National Bank by the said Bessie W. Ive's, executrix, shall be a settlement in full of the partnership account between said Bessie W. Ives, executrix, and said Matthew Ashelby.
    3d. That said Matthew Ashelby pay to the Jacksonville National Bank the sum of §408.20.
    The said arbitrators hereby certify that they have been employed for twenty days each in hearing and examining the evidence in the above entitled cause, and in making the above award.
    The plaintiff in error excepted to the report and assigned the following reasons:
    1st. That the said arbitrators have exceeded the authority conferred upon them, in that they have taken into consideration and made an award as to an amount found due from the said Charles L. Ives to Mary J. Adams and William Bussell, which was in no sense a partnership transaction between the said Matthew Ashelby and Charles L. Ives, deceased, and directs that the same be paid by Bessie W. Ives, executrix.
    2d. They have exceeded the authority conferred upon them in that they have taken into consideration and made an award as to an amount due from the said firm of Ashelby & Company to the said Jacksonville National Bank, which was not a partnership transaction between the said Ashelby and Ives, deceased.
    3d. That, after finding that the said firm of Ashelby & Company are indebted to M. Ashelby in the sum of $5,243.80, they award and direct that the complainant, Bessie W. Ives, executrix, pay to the Jacksonville National Bank the sum of 85,650, when, according to their finding, there is only due from the estate of Charles L. Ives, on account of the partnersliip transactions between said parties, one-half of the aforesaid sum of §5,243.80, to-wit, the sum of §2,621.90.
    The court disallowed the exceptions to said report, and the plaintiff in error excepted to this ruling of the court.
    Complainant moved the court for leave to dismiss her bill of complaint in this cause. The court overruled the said motion, and complainant excepted to this ruling of the court.
    Hr. Edward P. Kirby, for plaintiff in error.
    Arbitrators or referees constitute a special tribunal for the determination only of the special matters submitted to them. Their authority is derived wholly from the submission. Tidd’s Practice, 822; Malcolm v. Fullarton, 2 T. R. 645; Reeves v. Eldredge, 20 Ill. 383.
    An award of arbitrators must follow the submission, and any'excess of authority exercised by the arbitrators invalidates it. Fisher v. Pimbley, 11 East, 193; Peters v. Pierce, 8 Mass. 398; Richards v. Todd, 127 Mass. 167; Sherfy v. Graham, 72 Ill. 158; Alfred v. Kankakee & Southwestern R. R. Co., 92 Ill. 609; McCormick v. Gray, 13 How. 26; N. Y. & C. R. R. Co. v. Myers, 18 How. 246; DeGroot v. United States, 5 Wall. 419.
    A complainant may dismiss his suit at any time before decree actually rendered. Smith’s Ch. Pr. (2d Am. Ed.) p. 312; 2 Dan. Ch. Pr. (Perkins’ Ed.).p. 929; Haddock’s Ch. Pr. Vol. 2, p. 389; Dixon v. Parks, 1 Ves., Jr., 402; Curtice v. Lloyd, 4 Mylne & C. 194.
    This rule is recognized in our statute regulating the practice in chancery which forbids a complainant to dismiss his bill only when a cross-bill has been filed. Sec. 36, Chap. 22, R. S. 1874. It is affirmed by the Supreme Court in Mohler v. Wiltberger, 74 Ill. 163.
    The complainant may even dismiss his bill after the chancellor has orally announced his conclusions adverse to complainant. Purdy v. Henslee, 97 Ill. 389.
    Even when one defendant has filed a cross-bill, complainant may dismiss his bill as to the other defendants. Blair v. Reading, 99 Ill. 600.

      Messrs. Morrison & Whitlock, for defendant in error.
    The arbitrators in this case did not exceed their jurisdiction. In order to have rendered a complete award and to decide all the questions involved, it was indispensable they should determine the question, the decision of which, it is claimed, vitiated their finding in this case. The first objection made was that the arbitrators “exceeded their authority” in finding the sum due to Mary <J. Adams and William Bussell. The award found as a fact that Ives assumed the payment of those notes, which were liens on the partnership real estate, when he entered the firm, in November, 1875. They award his estate should pay these notes, with interest from March 1, 1881, “ and thus relieve the partnership property from said incumbrance.” How could the partnership transactions be properly closed or settled without adjusting this lien? Manifestly this debt assumed by Mr. Ives was a part of the capital he was to put in. If the firm had paid it,.the effect would have been to bring him in debt to the firm that much more.
    The finding of the fact that Mr. Ives assumed and agreed to pay off this incumbrance when he became a member of the firm, is conclusive upon the plaintiff in error. Sherfy v. Graham, 72 Ill. 158.
    The award would not have been complete unless it had taken into consideration the question of this incumbrance, and for that omission would have been defective. Alfred v. The Kan. & S. R. R. Co., 92 Ill. 609.
    Again, it was objected that the award exceeded the authority conferred, in taking into consideration and finding the sum the firm was indebted to the Jacksonville National Bank. The plaintiff in error asserts this debt “was not a partnership transaction between Ashelby and Ives.” But the arbitrators, by their award, found said firm was indebted to said bank in the sum of $6,058.20, and we take it the finding of the fact is conclusive. Even a mistake in both law and fact by the board can not be changed or corrected by the courts, unless it could be made to appear the arbitrators acted, in that respect, fraudulently. Alfred v. The Kan. & S. R. R. Co., 92 Ill. 609.
    No basis for an adjustment of the rights of the parties to this suit could be arrived at so long as the firm had outstanding and unliquidated obligations. The bank is not a party to this suit. It is not bound by the decree in this suit. That creditor has the right to pursue Ashelby, the surviving partner, for the whole sum due from the firm. At the same time the bank has the right to proceed against the estate of Ives. It could have but one satisfaction.
    The stipulation in the case provided, in terms, that the statement of the partnership account should be the basis of the decree. This court has ever held parties to the performance of their stipulations of record. In Coultas v. Green, 43 Ill. 277, the Circuit Court permitted the complainant Green to dismiss his hill after a stipulation in writing had been filed in the case.
    The only difference between that case and this is, in Green’s case the facts were made to appear from the pleadings; in this case the facts were to be found by the arbitrators.
    In the Green case the Supreme Court say: “We think there can he no doubt as to the meaning of the stipulation filed. It is for a decree in the cause pending. On making this agreement and filing it, and making it a part of the record, the appellee yielded all power over the case. The agreement was mutual, also, and prevented appellant from taking any further steps in the case.” See, also, Toupin v. Gargnier, 12 Ill. 79.
   Wall, J.

The decree was based upon the award, and the objection is that the award should have been set aside because the arbitrators exceeded the authority conferred upon them by the submission.

It was not urged in the court below, nor is it here, that there was any impropriety in submitting the controversy to arbitration, and the only point we are to consider in this connection is whether the award is within the terms of the submission.

The bill was filed three years or more after the death of Ives, and prayed for a settlement of all matters growing out of the business during the existence of the firm, and for profits alleged to have been realized by defendant by reason of his management since the dissolution, and the cause, when at issue, involved a complete and final adjustment of the whole subject.

The stipulation and the order appointing the arbitrators should be read in the light of the issues thus made up.

It is not controverted that the arbitrators are a special tribunal for the determination of the matters submitted to them, and that their action in excess of authority so conferred would be void and should be set aside.

Was the authority exceeded in this instance ? The plaintiff in error insists that the sole power conferred was to state an account between the partners, and determine what amount, if any, should be paid by one to the other, and urges that nothing was said about the debts of the firm, or of either party, to third parties. This point, in other words, implies that the only final conclusion to be reached by the award was how much should be paid by complainant to defendant, or by defendant to complainant.

We think this view too narrow. The stipulation, which was incorporated in the order of submission, expressly dec’ared that the arbitrators should take and state an account of all the co-partnership dealings and transactions between the said partners, and of all moneys received and paid out by either of them on account of the partnership property of said firm, and fix and determine what sum, if any, shall be paid by said Matthew Ashelby to said Bessie W. Ives, executrix, or by said Bessie W. Ives to said. Matthew Ashelby, * * * and the award shall be accepted as a true statement of the account between the parties, and shall be entered as the finding of the court as to said accounts, and to become the basis of the decree * * * for the disposition of all the property of the firm.”

The first inquiry, and, indeed, the whole inquiry, is as to the accounts between the parties. To this end it was proper to ascertain whether Ives had failed to pay the notes held by Adams and Bussell, which he had assumed as a part of the consideration when he entered the firm. If he had not so paid, he or his estate would be liable to do so, and it is immaterial whether the money he paid directly by the complainant to the holders of the notes, or to the defendant, and by him paid over. So, also, it was important to know how much the firm was indebted, either to third parties or to the individual members of the firm. Manifestly there could be no statement of account without this, nor would it be proper to order any money paid by one of the parties to the other until the claims of the firm creditors were discharged. It was ascertained that the firm owed the bank §6,058.20, one-half of which should be paid by each party, and that the firm owed the defendant §5,243.80 after turning over to him all the personal property of the firm and charging him one-half of its value, of which last sum one-half should be paid by each party. It was therefore proper to require the complainant to pay one-half of the debt to the bank, and to apply what was due from her to defendant upon his half of the bank debt, leaving him to meet the balance of §408.20, which would then be due the hank.

The same result was reached by this process that would have been if the defendant had first paid the firm debts and then received the amount for which the estate was liable from complainant. The defendant, as surviving partner, was bound to the firm creditor, and had the right to appropriate the firm assets upon such indebtedness, and could call on the estate for any balance due him on this account or on account of anything due him from the firm.

There is no excess of authority in this award. It is within both the letter and the spirit of the submission. It is not urged that the decree is erroneous if the award is good and it is unnecessary to further consider this branch of the case.

The remaining point is as to the action of the court in refusing to allow complainant to dismiss her bill after the motion to set aside the award had been overruled.

The stipulation of the parties expressly provided that the award should be the basis of a decree in said cause by said court and should be entered as the finding of the court as to said accounts. This was in effect the same as an agreement to enter a decree upon certain facts set out or in a particular form.

In Coultas v. Green, 43 Ill. 277, the parties had stipulated that a certain decree should be entered in the causo and afterward the complainant was by the Circuit Court permitted, in violation of the stipulation, to dismiss his bill. The Supreme Court held this to be erroneous and said that by making the agreement a part of the record the complainant bad yielded all power over the case and that it was just and equitable that lie should comply with his agreement, citing Toupin v. Gargnier, 12 Ill. 79, where, in an action at law, the parties were compelled to abide by a verbal agreement to dismiss the suit. This is decisive and settles the point against plaintiff in error.

The authorities cited in support of the general right to dismiss are not applicable when by a positive agreement the right has been waived.

Ho complaint is made as to the justice of the award on the proof nor are any circumstances urged which would render it inequitable to require the complainant to abide by the agreement. Ho other objections being presented the decree will be affirmed.

Decree affirmed.