author: Per Curiam :

text:
    The Illinois Starch Company v. The Ottawa Hydraulic Company.

      Filed at Ottawa June 16, 1888.

    1. Lease—duration of term—a lease construed, in connection with a prior lease. The trustees of the Illinois and Michigan Canal leased to a hydraulic company certain land and water power, for twenty years, with the right to renew the lease in periods of twenty years each, on the same terms, or at such higher terms as might be offered by the highest responsible bidder. The hydraulic company leased the water power and premises to a starch company for nine hundred and ninety-nine years, which latter company, in and by its lease, covenanted to pay rent quarterly, and to keep and perform all the covenants of its lessor to the canal board, and such lease contained a clause that “it is understood and agreed between the parties, that all the conditions, limitations and restrictions contained in the lease of the trustees * * * to the hydraulic company, bearing date * * * are to apply to and constitute a part of this lease, and that the starch company, its lessees and assigns, are to be governed, limited and restricted by them,” etc.: Held, that the two leases were to be taken and construed together, and that it was not intended that the leasehold interest granted by the second lease was for nine hundred and ninety-nine years absolutely, but for that term in the event the first leasehold interest was not terminated prior to the expiration of that period.
    2. Strict foreclosure—whether allowable. As a general rule, a strict foreclosure of a mortgage or other lien will not be permitted where there are other creditors, or other incumbrances upon the property, or purchasers of the equity of redemption; but there are exceptions to such rule.
    3. A starch company leased certain premises and water power at a certain rental per annum, payable quarterly, and the lease made its covenants to pay, etc., a lien on the demised premises and improvements thereon. The company allowed the improvements to run down and become almost valueless, ceased to occupy and use the premises, failed to pay any rent or interest thereon for several years, and suffered its equity of redemption to be sold; and it appeared that the property was of considerably less value than the rent due, as found in the decree, and was liable to destruction from fire: Held, that a decree of strict foreclosure, in default of payment within one hundred days, was proper, under the peculiar circumstances of the case.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of La Salle county; the Hon. Geo. W. Stipp, Judge, presiding.
    Mr. John Dean Caton, and Messrs. Bull, Strawn & Ruger, for the plaintiff in error.
    Mr. H. T. Gilbert, and Mr. Lorenzo Leland, for the defendant in error.
   Per Curiam :

This writ of error is prosecuted to the Appellate Court for the Second District, to reverse the judgment of that court affirming the decree of strict foreclosure rendered by the circuit court of La Salle county. We have carefully considered the record, and the several errors assigned thereon, and are of opinion that there was no error in rendering said decree. We concur both in the presentation of fact and the application of principles by the Appellate Court, in its opinion by Baker, J., and for the reasons there stated the judgment of the Appellate Court is affirmed." The opinion of the Appellate Court is as follows:

“The Illinois Starch Company was originally organized under the name of the Ottawa Starch Company, but afterwards its name was changed to that which it now hears. The present bill was filed by the Ottawa Hydraulic Company, against the starch company, for the purpose of foreclosing for rents due and unpaid, under the mortgage clause contained in a lease executed by it to the starch company. The lease bore date on the 1st day of March, 1856, and the demised premises were a certain water power therein particularly described, and a tract of land on the west side of La Salle street, in Ottawa, (also described,) the water leased to be drawn from the hydraulic basin and used on said land. By the terms of the lease it was to continue and be in force for the period of nine hundred and ninety-nine years, with the privilege of renewing the same, and the lessee covenanted to pay, as rent, the sum of $2500 per annum, to be paid quarterly, in advance. The lease, among many other provisions, contained the following:

“ ‘It is further understood and agreed, that in case of a failure on the part of the party of the second part, or its assigns, to pay the said rent at the time when it shall become due, time being hereby made an essential part of this contract, or in case of a failure to comply with all the covenants and conditions herein, and also with all the covenants, conditions, limitations and restrictions contained in said lease from said canal trustees to said party of the first part, for the purpose of securing to the said parties of the first part prompt payment of the said rent, and the performance of the said covenants to be kept and performed by the said party of the second part, the said party of the first part shall have the right to declare this lease absolutely null and void, and so to consider; or the said party of the first part may, at its election, enforce the payment of said rent, and also for all damages for non-payment, and may also enforce compliance with the said lease from the said canal trustees, and with all the covenants in this lease, and may also, whether this lease shall be declared void or not, recover all damages for a breach of either of said leases by said party of the second part, or its assigns. It is further understood and agreed that the rent therein covenanted to be paid by the said party of the second part, and also all of the covenants on the part of the said party of the second part herein contained, are to be a lien upon the said tract of land hereby leased, and all improvements thereon, or which may be put upon the same, which shall include machinery of every kind used upon the said premises.’

“The right of the Ottawa Hydraulic. Company to the water power and land leased to the starch company, was obtained under a lease dated the 24th day of May, 1852, from the board of trustees of the Illinois and Michigan Canal to them. By the provisions of this latter lease, this right expired at the end of twenty years from the date of such lease, with a right to renew the lease in periods of twenty years each, on the same terms, or at such higher terms as might be offered by the highest responsible bidder. In pursuance of these stipulations of the lease, it was afterward renewed for a further term of twenty years, to expire in May, 1892.

“Upon the hearing, the circuit court found the allegations of the bill of the hydraulic company to be true; that there was due for rent, and for interest on installments of rent after due, the sum of $8964.41; that it was entitled to a first lien on the premises and machinery; that the Illinois Starch Company was insolvent, and an execution would be unavailing; that it owned no property aside from its interest in the machinery and premises in question; that they were not worth over $6000, and were insufficient to satisfy the amount due the hydraulic company, and that a sale would subject the latter to unnecessary charges and expenses. A decree was thereupon rendered for $8964.41, and for a strict foreclosure, and it was ordered that in default of payment of the decree within one hundred days from the entry thereof, the hydraulic company should be let into possession of the premises and improvements thereon.

“Upon this writ of error three objections are urged against the decree. It is insisted that the lease to the starch company purported to convey an absolute, unqualified and indefeasible leasehold estate for the period of nine hundred and ninety-nine years, whereas the hydraulic company had no absolute right for any such period, but its right and interest were subject to termination- by the canal trustees if they could get better rent for the water at the end of any period of twenty years, and that as the starch company, on the strength of its lease, expended large sums of money in building and making improvements, it was error to render a decree for the rent claimed by the hydraulic company, without taking into consideration the fact that the starch company had been greatly damaged in the value of its expenditures by reason of the uncertain tenure of its water lease. There is no force in this point. The lease to the starch company expressly states that ‘it is understood and agreed between the parties that all the conditions, limitations and restrictions contained in the lease of the trustees of the Illinois and Michigan Canal to the hydraulic company, bearing date the 24th day of May, 1852, are to apply to and constitute part of this lease, and that the starch company, its lessees and assigns, are to be governed, limited and restricted by them,—the water and land hereby leased being part of the water and land leased by the trustees to the hydraulic company in and by this lease.’ This provision in the contract shows that the two leases are to be taken and construed together, and that it was the understanding and agreement between the parties that the second leasehold interest was not for nine hundred and ninety-nine years absolutely, but for that term in the event the first leasehold interest was not terminated prior to the expiration of that period. Besides this, George H. Norris, who was president of the starch company, and executed the lease on its behalf, was at the same time a stockholder and director of the hydraulic company, and as such had signed the agreement of May 24, 1852, between the canal trustees and the latter company. In fact, we find no evidence to prove the fraud that is alleged and stated in the answer of plaintiff in error.

“In the second place, it is claimed that the evidence does not show the value of the property was less than the rent due. Four witnesses were examined at the hearing, on behalf of the hydraulic company, all of whom stated that they were well acquainted with the property. Lorenzo Leland testified that all of the buildings and machinery, together, were worth less than one-half the debt. H. J. Logan testified that he was a millwright, and acquainted with buildings and machinery for manufacturing purposes, and had experience in judging of their value; that he had recently examined the buildings and machinery in question, and the whole were worth, in all, not to exceed $5000. M. A. Cushing testified that the whole thing would not be worth over $5000 for any purpose. William Thomas testified that the expense of remodeling the building so as to adapt it for any practical purpose, would be greater than to build a new building for the same purpose, and that the expense of tearing it down would be greater than the value of the materials after it was torn down.

“Three witnesses were examined for the starch company. Charles A. Caton testified that the building and machinery had last been used, for a few months, in the winter of 1881-82, and that since that time the Sanders Bros, had been employed, at an expense of $2500, to make repairs. He also made statements showing that prior to the time mentioned large sums of money had been expended upon the premises. He further said that he would not undertake to state what the building was now worth, or make any statement of its present value. William and Frank Sanders each declined to say what the building was now worth, but stated that it probably cost $50,000 or $60,000, and had depreciated at least seventy-five per cent.

“Without going further into the details of the testimony, we may observe, that it conclusively shows that both the building and the machinery originally cost a great deal of money, and that years ago considerable sums were expended in making repairs, and that now they are both in a very dilapidated condition. The statements of the witnesses Sanders, that the building had depreciated in value at least seventy-five per cent, are not equivalent to statements that in them judgment the building was now worth the twenty-five per cent of the original cost, as seems to be supposed by counsel. In fact, they refused to place a value upon it. In our opinion, the evidence would not have justified^the court in assuming a higher valuation for the property than it did.

“The third and principal ground relied upon for a reversal of the decree, is the claim that it was error to award a strict foreclosure of the mortgage clause of the lease, because it appeared, from the evidence, there was a judgment creditor of the Illinois Starch Company, who was also a purchaser, at sheriff’s sale, of its equity of redemption in the premises. We do not understand the rule in this State to be, that a strict foreclosure will in no case, and under no circumstances, be allowed where there are other creditors, or other incumbrances upon the mortgaged property, or purchasers of the equity of redemption. It is undoubtedly true that the general rule is, that a strict foreclosure will not be permitted where there is such creditor, purchaser or incumbrance; but, in our view, there are exceptions to this general rule.

“The authorities relied on by plaintiff in error are Farrell v. Parlier, 50 Ill. 275, and Boyer v. Boyer, 89 id. 447. In the first mentioned case, the Supreme Court said: ‘In our State, and in view of our statute, it is only in strong cases, which form exceptions, that there should be decreed strict foreclosure. It may be, in rare cases, where it appears the property is of less value than the debt for which it was mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of his debt, that a strict foreclosure may be allowed. But it is not, as a general rule, proper, when there are other incumbrances upon the property, or creditors, or purchasers of the equity of redemption. The statute allowing redemption, in such cases intends to make the property pay as much of the mortgagor’s debt as it is worth.’

“Why was it said by the court that in any of the cases enumerated a strict foreclosure ‘is not, as a general rule, proper ?’ Why did they not say that in such cases such foreclosure is not proper? Why did they not omit the words, ‘as a general rule ?’ We think the answer is obvious, and that it is plain they used those words as a qualifying clause, for the purpose of qualifying the inflexible rule that would have been announced by the language of the court with the words in question omitted. A statement that a thing is ‘thus, as a general rule,’ ex vi termini imports there are exceptions to the rule enunciated.

' “Boyer v. Boyer merely reiterates the doctrine announced and language employed in Farrell v. Parker, and otherwise there is nothing in the case that throws light upon the present inquiry.

“Assuming, then, that there are, or may be, exceptional cases that do not fall within the rule which prohibits a strict foreclosure where there are other incumbrances? or creditors, or purchasers of the equity of redemption, the question arises whether the suit at bar is such exceptional case. The evidence shows that John D. Caton recovered a judgment for $281,158.83, against the Illinois Starch Company, and that since this suit was begun, the property in controversy was sold on an execution issued on said judgment,' for $40,000, to Thomas D. Catlin, the business agent at Ottawa, of Judge Catón. The evidence also shows that the plaintiff in error is wholly insolvent, and has no property of any kind besides that in respect to which its equity of redemption was foreclosed by the decree herein.

“It is important to bear in mind, that by the terms of its contract, the Ottawa Hydraulic Company not only had a first lien upon the property, but a right to declare a forfeiture on the 1st day of January, 1883, and every three months thereafter, and had it chosen to execute such right, it might, time and again, have entirely extinguished all claims of the Illinois Starch Company and its creditors in or to such property. Instead of enforcing the harsh and effectual remedy it held within its own grasp, and cutting off speedily and forthwith all right and interest of both plaintiff in error and its creditors, it sought relief in the court of equity, thereby expressing its willingness to waive the numerous acts of forfeiture, to give its debtor a day in court, and further and full opportunity to settle the just debt due it, and even the extension of the time of payment for a period of one hundred days beyond the day of the entry of a decree of foreclosure. The evidence in this case shows that the property affords but scant payment to defendant in error for its debt, and that it is not reasonably possible that either the plaintiff in error or the other creditors could reap any benefit, even if the premises were sold with right of redemption. Most of the machinery has been removed, and that which is left is worth just about what old iron would sell for. The building is old, rotten and out of repair; the doors and windows are many of them gone, and the roof has in part fallen in. The witnesses state these facts, and others of like effect, in regard to the present condition of the property, and they are not contradicted. They also state that tramps and stragglers can enter and go all through it, and sleep there without molestation, and that it is in constant danger of being burned.

“It would, indeed, be fortunate if not only defendant in error but all the other creditors of the insolvent corporation could make their debts out of this property; but that can not be done. It is the intent of the law that the property of a mortgagor should pay as much of his indebtedness as it is worth, but the law does not presume it will pay more than it is worth. It would seem no good or beneficial result would be accomplished by keeping the hydraulic company out of possession fifteen months longer. The property is not worth its debts now,' and is constantly deteriorating in value.

“This is not the case of an ordinary foreclosure of mortgage, where the amount due upon the preferred lien would increase only at the rate of six per cent per annum, but here, the preferred lien, at the end of fifteen months, will have increased not only to the extent of six per cent upon $8964.41, the amount of the decree, but in the further sum of $3125 for rents accrued in the interim, unless the inequitable doctrine should be held that defendant in error should lose all benefit of its water power and land during such interim.

“The premises have been used for no beneficial purpose since the winter of 1881-82, and if sale had been decreed, with right of redemption, they would have lain idle for fifteen months longer. In- our opinion, the whole question lies in a nutshell. The court of equity will not, by a decree of strict foreclosure, sacrifice the just and equitable rights of creditors, or of those holding second liens, or the equity of redemption. Neither will the court of conscience sacrifice or endanger the rights of a complainant who comes within her portals with a just cause, and holding the oldest and preferred lien and best equity, for the bare possibility of a wholly improbable benefit to one having a second lien and subordinate equity. In this case, if sale and redemption were allowed by the decree, and no redemption made, all the loss occasioned by the further decay and destruction of the property would fall upon defendant in error. It would also lose all interest upon its decree, and $3125 in water rents, and would at the same time be compelled to pay rents upon the water power and property to the canal trustees.

“The building is exposed to great danger of destruction by fire, and in the event it were burned down during the fifteen months allowed for redemption, the loss would fall wholly upon the hydraulic company, and in that case, in addition to losing the water rents accruing after decree entered, it would lose the money adjudged to it by the decree. The rule that is intended to conserve the equities of the creditor, should not be used as a weapon to endanger or destroy the rights of the holder of the superior equity.

“We think the present case, owing to the altogether peculiar circumstances out of which it arises, and of the property, is one of the exceptional cases which the opinion in Farrell v. Parlier intimates does not fall within the rule there announced.

“The decree of strict foreclosure is affirmed.”

Decree affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Jane Hallorn et al. v. August Trum.

      Filed at Mt. Vernon June 16, 1888.

    1. Liens—judgment and execution liens—in what order and when they attach. Judgments become liens on the real estate of the debtor in the order in which they are rendered, and executions become liens on personal property from the date of their delivery to the proper officer.
    2. Same—judgment lien—after land has been fraudulently conveyed. "Where a debtor makes a conveyance of his land to defraud creditors, judgments recovered against him will not become liens on the same, for the reason that he will have no estate upon which the liens can attach.
    3. Same—lien under creditor’s bill—from what time. A creditor’s bill, with proper and distinct averments as to the property attempted to be reached, will become a lien on that property from the time of filing the bill and service of process upon those who are proper parties to the bill; but the filing of the bill and the service must concur before the lien will attach.
    4. Same—priority of right under judgments and decrees in the State and Federal courts. After a debtor had made a fraudulent conveyance of his land to a non-resident of the State, A recovered a judgment against him in the United States Circuit Court, and on execution being returned no property found, A filed his bill in the United States court to set aside the conveyance, making the grantor and grantee parties. Service was had upon the grantor only, and the cause was continued, and alias summons issued for the grantee, without service until August 20, 1872, when notice was given him by publication; and on March 3, 1873, a decree was entered setting aside the conveyance and authorizing a sale of the land, which was made by the master on September 4, 1873, and deed made February 24, 1875. Long after the commencement of this suit, B recovered a judgment against the same grantee in the State court, and who, on September 8, 1871, filed his bill in the State court to subject the land to his judgment, and, on service and publication of notice, obtained a decree on April 5, 1872, under which he sold the land July 25, 1872, and obtained his deed November 15, 1872: Held, that the title to the land passed under the last named decree, and took precedence of the sale in the first named proceeding, notwithstanding there was no act of Congress for notice by publication when the first bill was filed.
    5. Lis pendens—what constitutes. The commencement of a suit in equity, by filing a bill, does not constitute lis pendens until summons has been served upon the party in interest.
    6. Parties—decree as to one not a party. After a party had conveyed his interest in land to another, who went into possession, a proceeding was instituted in the United States Circuit Court against the first party named, but not against the grantee, though he was in possession, in which the title the grantor had before his conveyance was set aside: Held, that the grantee not being a party to the suit, the decree did not bind him or affect his interest in the land.
    Appeal from the Circuit Court of Effingham county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Wood Bros., for the appellants:
    The suit of Washburn v. Slevin, & Co. Trum and Bruggeman commenced March 8, 1881, and all decrees and proceedings thereunder, extraordinary as they seem to he, can not affect appellants’ title. At the time that suit was begun, and all the time during its progress, Bruggeman had no interest in the land in controversy. Since January 21, 1875, John F. Waschefort, the immediate grantor of appellant Hallorn, had been in possession, under warranty deed from Bruggeman, and he was not a party to the suit. The setting aside of Bruggeman’s decree could have no greater effect than its reversal, and that would not have divested Waschefort’s title. Guiteau v. Wisely, 47 Ill. 436.

      We can not presume that one who does not appear to have been a party, had his day in court. Freeman on Judgments, secs. 141, 484.
    The judgments of Slevin & Co. and Bruggeman, against Anthony Veneman, were not liens on the land, it having been fraudulently conveyed by Anthony to Joseph Veneman before their recovery. Lyon v. Robbins, 46 Ill. 279; Rappelye v. International Bank, 93 id. 400.
    It is by the filing of a creditor’s bill, and the service of process upon the party holding the fee, that a lien is obtained on land which the judgment debtor has fraudulently conveyed before the recovery of the judgment. 2 Barb. Ch. Pr. 157; Ballentine v. Beall, 3 Scam. 206; Chase v. Searles, 45 N. H. 515; Boynton v. Rawson, 1 Clarke, (N. Y.) 584; Bump on Fraud. Con. 534; Miller v. Sherry, 2 Wall. 249.
    The filing of a creditor’s bill, without service of process, does not create a lien. 2 Barb. Ch. Pr. 158; Edmeston v. Lyde, 1 Paige, 639.
    Slevin & Co.’s creditor’s bill was not lis pendens until service of process had been had upon Joseph Veneman, the holder of the legal title. Anonymous, 1 Vern. 286; Preston v. Tubbin, id. 318; Miller v. Sherry, 2 Wall. 250.
    There is no lis pendens until order of publication is fully executed. Freeman on Judgments, sec. 195.
    The filing of a creditor’s bill in one court does not give that court exclusive jurisdiction. Several creditors’ bills may be filed in the same court, and upon judgment recovered in different courts. 2 Barb. Ch. Pr. 159; Boynton v. Rawson, 1 Clarke, (N. Y.) 584.
    Mr. S. F. Gilmore, for the appellee:
    The most vigilant creditor should have the priority of lien. Before Bruggeman obtained his judgment, Slevin & Co. had filed their bill and issued summons on the same day, and obtained service on one of the defendants. The filing of this bill constitutes such lis pendens as rendered it impossible for any bonafide transfer of the title.
    The principle that the purchaser of the subject matter of a suit pendente lite, acquires no interest as against the plaintiff’s title, whether legal or equitable, is too well established to be now questioned. Such sale, as against the plaintiff, is considered a nullity, and he is not bound to take notice of it. The decree of the court binds the property in the hands of such purchaser, although he is no party to the suit, and paid a full price for it, and had in fact no notice of the pendency of the suit or the claim of the plaintiff. He is chargeable with constructive notice of the pendency of such suit, so as to render his interest in the subject of it liable to the event. Ludlow v. Kidd’s Exr. 3 Ohio, 542.
    The decrees of the United States court, “extraordinary” as they may seem to appellants, and even if they were erroneous, are valid until reversed, or in some way annulled, and can not be attacked collaterally; and this court is not empowered to review them. Ritchey v. Pease, 114 Ill. 353; Bennett on Lis Pendens, 174.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by appellee, against the appellants, to recover a certain tract of land in Effingham county. Both parties claim under Anthony Veneman, as a common source of title.

It appears from the evidence, that Anthony Veneman, on the 9th day of February, 1867, conveyed the land, by deed, to Joseph Veneman, which was recorded on the 16th day of the same month. On the 24th day of July, 1867, Joseph executed a power of attorney to Anthony to sell the land. Both parties claim that the conveyance from Anthony to Joseph Veneman was fraudulent and void as against creditors, and each party claims title to the land under proceedings instituted in court to set aside the fraudulent conveyance, and subject the property to the payment of judgments recovered against the grantor, Anthony Veneman, and the real controversy between the parties is as to the priority of the respective titles.

Slevin & Co., under whom appellee claims, obtained a judgment in the Circuit Court of the United States for the Southern District of Illinois, against Anthony Veneman, for $1711.12, on the 22d day of June, 1867. On the 24th day of July following, they filed, in the same court, a creditor’s bill against Anthony and Joseph Veneman, in which they alleged that the conveyance was fraudulent and void, and asked that they be enjoined from selling the premises, and that the deed be set aside. Process was issued against both defendants, and served on Anthony Veneman, August 2, 1867, and a decree pro confesso was entered against him January 6, 1870. No service, however, was had on Joseph Veneman. Alias summons issued against him October 30, 1867, which, with five others subsequently issued, were returned without service, for the reason that the defendant was a resident of Indiana. No publication was made until August 20, 1872, when due publication of notice, as required by the act of Congress, was made, and a final decree was rendered in the United States court March 3, 1873, setting aside the deed of Anthony to Joseph Veneman, as fraudulent against Slevin & Co., and authorizing the master to sell the lands embraced therein, which the master did, September 4, 1873, to John Slevin, one of the plaintiffs, for $2172.19. The master’s deed to John Slevin, under said decree, to.the land in controversy, and other land, February 24, 1875, was duly recorded. The title thus acquired became vested in appellee before the commencement of this suit.

The appellants relied upon title derived as follows: October 8, 1867, John B. Bruggeman recovered judgment in the circuit court of Effingham county, against Anthony Veneman, for $722.18, upon which execution was issued, and returned no property found. September 8, 1871, Bruggeman filed a creditor’s bill against Anthony Veneman and Joseph Veneman, to set aside the deed of February 9, 1867; personal service on Anthony; affidavit of non-residence of the other defendant filed, and first publication of notice made the same day; decree rendered April 5, 1872, that the deed was fraudulent and void, and the land embraced therein, including the land in controversy, subject to Bruggeman’s judgment; alias execution issued on Bruggeman’s judgment June 27, 1872, and levied on the land in controversy and other lands in said deed (excepting the south-east quarter of the north-east quarter of section 4, town 7, range 6,) as the property of Anthony Veneman, all sold to John B. Bruggeman at sheriff’s sale July 25, 1872; certificate filed and recorded; sheriff’s deed to John B. Bruggeman November 15, 1873, and filed for record March 12, 1875. On the 21st of January, 1875, Bruggeman conveyed to John F. Waschefort, and deed recorded on the 23d of the same month. On April 3, 1884, the heirs of Waschefort conveyed to appellant Jane Hallorn.

No importance is to be attached to the fact that the judgment under which appellee claimed title, was rendered prior to the rendition of the judgment under which appellant claimed title. The legal title having passed from the judgment debtor before the rendition of either judgment, by a valid deed as between him and his grantee, the judgments did not become liens on the lands conveyed, in the order of their rendition. Lyon v. Robbins, 46 Ill. 277, is conclusive upon this question. The same rule, however, is laid down in Miller v. Sherry, 2 Wall. 248.

Before the judgments were rendered, the judgment debtor, Anthony Veneman, had conveyed his lands. There was therefore no estate upon which the lien of a judgment could attach. In order, therefore, to determine the priority of lien between the two contesting creditors, we must look to the proceedings in equity instituted by them to remove the fraudulent conveyance, and subject the lands to the satisfaction of their judgments.

It will be observed that Slevin & Co., from whom appellee derived title, filed their bill to set aside the fraudulent conveyance, on July 24, 1867, while Bruggeman, under whom appellants claim, did not file his bill until September 8, 1871. The latter, however, obtained the first service on Joseph Veneman, and also obtained the first decree setting aside the fraudulent deed. But it is insisted that Slevin & Co. were the most vigilant; that the filing of their bill, service on Anthony Veneman, one of the defendants, on August 2, 1867, issuing alias summons for Joseph Veneman, constituted lis pendens; that these acts gave them a prior equitable lien, and that the decree obtained by Bruggeman was subject to their prior lien on the premises. There is no difficulty in laying down a general rule in regard to the lien of judgments, executions or creditors’ bills. The rule is a familiar one, that judgments become liens in the order in which they are rendered. Executions become liens on personal property from the date of their delivery to the sheriff, while a creditor’s bill,' with proper and distinct averments as to the property attempted to be reached, will become a lien upon the filing of the bill, and service of subpoena upon those who are proper parties defendant. A junior judgment creditor may obtain a prior lien by exhausting his remedy at law, and first invoking the aid of a court of equity, by filing his bill, and service of process. The trouble, here, is not in determining the general rules of law applicable to ordinary cases where a creditor’s bill has been filed, for the general rules are well established and readily comprehended; but the only trouble we find is in adapting the well settled rules of law to the particular facts established by the record before us. The commencement of a suit by filing a bill does not constitute lis pendens until summons or subpoena has been served.

Grant v. Bennett, 96 Ill. 513, is an authority on this question, well sustained by the adjudications of other courts. In addition to the authorities cited in the Grant case, we refer to Boynton v. Rawson, Clarke’s Ch. Rep. (3d ed.) 585, and the cases therein cited. It is there said: “Upon filing a creditor’s hill, it is usual to take out both an injunction and subpoena,— an injunction to restrain the defendant from disposing of his property, a subpoena to compel him to answer the charge, and discover his concealed property. By the service of process, the defendant is notified, in an emphatic manner, of the commencement of the suit. He is able to give notice of it to others. It would be the means of great wrong and injustice, if a party could, by merely placing a bill among the mass of papers in the clerk’s office, acquire a lien in this secret way to defeat subsequent bona fide purchasers, * * * or even subsequent creditors litigating in good faith. The filing of the hill should be followed up by service of process to acquire a lien, and its prosecution should be pursued with reasonable diligence to retain it.”

Here, Slevin & Co. obtained service of process on Anthony Veneman before Bruggeman filed his bill. But Anthony had no interest whatever in the property he had conveyed to Joseph Veneman, and Joseph, the real party in interest, so far as the title to the land was concerned, was not brought into court until long after Bruggeman had filed his bill and obtained service upon both Anthony and Joseph Veneman. No decree could be rendered setting aside the sale until Joseph Veneman was brought into court. He held in his name the title to the land, and we do not think the cause of Slevin & Co. could be regarded as lis pendens until service was had upon him.

Miller v. Sherry, 2 Wall. 248, is a case in point. There, as here, in the hill first filed, the party to whom the lands had been fraudulently conveyed was not brought into court, and it was held that the cause was not lis pendens, and the decree rendered on the second bill filed, where the person to whom the land had been conveyed was brought into court, was sustained. It is there said: “There is another reason why the bill could not operate as constructive notice. Williams, who held the legal title, was not a party. We apprehend that to affect a party as a purchaser pendente lite, it is necessary to show that the holder of the legal title was impleaded before the purchase which is to be set aside. * * * The amended bill was undoubtedly sufficient, and it made Williams a party. But he was not served with process, and if he had been, this bill could have operated only from the time of service.”

Where the question of lis pendens arises upon an amended bill, it is regarded as an original bill for that purpose. The fact that no act of Congress provided for service by publication at the time the bill was filed, is of no importance. This fact was known to Slevin & Co. when they brought the bill in the Federal court, and if they desired to obtain service and a decree in apt time, they should have brought their bill in the State court, where the law did authorize service by publication of notice.

One other question remains to be considered. On the 24th day of March, 1884, a decree was rendered'in the Circuit Court of the United States for the Southern District of Illinois, in which the proceedings in the Effingham circuit court on Bruggeman’s creditor’s bill and his deed were vacated and set aside. Bruggeman was a party to this proceeding, but long before the suit was instituted resulting in the decree, he had sold and conveyed the land, and his grantee was never made a party, although in possession of the land under proper deed of conveyance when the proceedings were instituted. Waschefort, the grantor of appellant, who purchased in 1875 of Bruggeman, was not a party to the proceeding, and not being a party, the decree could not bind him, or affect his interest in the land or the title of his grantee.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    John Thompson et al. v. The People of the State of Illinois.

      Filed at Ottawa June 16, 1888.

    1. Criminal law—several counts for the same offense. The joinder of several counts in one indictment for the purpose of stating in different ways a single offense occurring in the same transaction, is allowable, and such joinder is no ground for quashing the indictment.
    2. Same—-joining counts for distinct offenses. The fact that two distinct offenses are joined in separate counts in the same indictment, or two defendants are tried for separate offenses, affords no ground for the arrest of judgment after verdict. In such case the defendants should plead in abatement, or move the court for separate trials. If this is not done, and the evidence is not preserved in the record, it will be presumed that the evidence justified the verdict.
    3. Same—verdict finding the value—in case for receiving stolen goods. On the trial of one for receiving stolen goods, in case of a conviction the jury must find in their verdict the value of the property, or the judgment will be arrested.
    4. Bill of exceptions—presumption in its absence. Where the bill of exceptions shows only the instructions given and refused, and the rulings thereon, it will be presumed that the rulings of the trial court upon every point of practice not embraced in a motion to arrest the judgment and the rulings upon the instructions, was correct.
    5. So unless the evidence is preserved in the record, this court can not pass upon the correctness or propriety of the instructions given.
    Writ of Error to the Criminal Court of Cook county; the Hon.. Rollin S. Williamson, Judge, presiding.
    Messrs. Donahoe & David, for the plaintiffs in error:
    The law is well settled, that where two or more persons are jointly indicted, one can not he convicted of one part of the offense., and the other of another part committed at a different time, and not forming part of the same transaction. Tobin v. People, 104 Ill. 565.
    In Baker v. People, 105 Ill. 456, this court say: “Under an indictment against two or more, two can not he convicted’ jointly for distinct offenses, though of the kind charged in the indictment, committed by them severally, and growing out of separate transactions.” See, also, Rex v. Hempstead, R. & R. C. C. 344; Rex v. Messengham, I. M. C. C. 257; 1 Chitty’s Crim. Law, sec. 271; Regina v. Gray, 2 Den. C. C. F. & M. 411; Wharton’s Crim. Pr. and Pl. secs. 302, 315, 755, 874; 4 Cox’s C. C. 478; Stevens v. State, 14 Ohio, 386; Farrel v. State, 3 Ind. 573; Hall v. State, 8 id. 439; United States v. Kazinski, 2 Sprague, 7; Elliott v. State, 26 Ala. 78; Howe v. State, 37 Ga. 80.
    We do not think any further discussion on this branch of the case is necessary, but might say in this connection that Thompson was sentenced for an infamous crime, whilst Showles was sentenced for a crime not infamous.
    Another reason why the judgment can not stand, is, because the verdict against Showles is clearly defective, inasmuch as it does not state the value of the property received by him. This is clear error. Tobin v. People, 104 Ill. 565; Sawyer v. People, 3 Gilm. 54.
    Mr. George Hunt, Attorney General, for the People:
    It is proper to join in one indictment counts charging a burglary and counts charging the receiving of stolen property. Bennett v. People, 96 Ill. 602; Commonwealth v. Darling, 129 Mass. 112; Lyons v. People, 68 Ill. 271; Hiner v. People, 34 id. 297; Tobin v. People, 104 id. 565.
    Different offenses may be charged in different counts of an indictment; but an improper joinder of felony and misdemeanor, like other misjoinder of counts, does not render the indictment bad in law, but is only to be corrected by an exercise of the judicial discretion. Motion in arrest of judgment does not lie for this defect. 1 Bishop on Crim. Proc. sec. 447.
    A prosecutor may be required to elect on which count he will proceed, but after verdict it is too late to raise objection. 1 Bishop on Crim. Proc. sec. 449, note 3, and cases cited, and sec. 473.
    Where an indictment charges different offenses in different counts, and of different grades of punishment upon a general verdict of guilty, judgment will not be arrested. United States v. Patterson, 1 W. & M. 305; Regina v. Jones, 8 C. & P. 776; Rex v. Galloway, 1 Moody’s C. C. 234; Burk v. State, 2 H. & J. 426; State v. Coleman, 5 Port. 32; State v. Fee, 19 Wis. 591. And especially will judgment not be arrested when the jury have specified in their verdict the count upon which defendant was found guilty. United States v. Stetson, 3 W. & M. 164.
    If one person breaks and enters a building, and steals therein, and another person takes no part in the transaction until after the breaking has been accomplished, but participates in the subsequent stealing, each may be convicted and sentenced accordingly,—the one for the breaking and entering, and the other for stealing,—under an indictment which charges both defendants with having jointly committed both offenses. (Starkie’s Crim. Pl. secs. 38-44; Rex v. Butterworth, Russ. & Ry. 520.) Or they may be separately charged in one indictment according to the actual facts in the case,—the one with breaking and entering and stealing, and the other with stealing, only, or with receiving the goods stolen. Rex v. Hartall, 7 C. & P. 475; Rex v. Austin, id. 796; Commonwealth v. Hills, 10 Cush. 530.
    Counsel for plaintiff in error also complain that the verdict is defective, inasmuch as it does not state the value of the property received. In support of this, they cite Tobin v. People, 104 Ill. 565, and Sawyer v. People, 3 Gilm. 54. The statute in force when the case of Sawyer v. People was decided, differed materially from the present statute, and that case is not necessarily decisive of the question under the statute as it now is.
    As the evidence is not preserved, the court can not determine whether there was error in the instructions, or such error as to require a reversal.
   Mr. Justice Scholfield

delivered the opinion of the Court:

An indictment was returned by the grand jury of Cook county against John Thompson, E. M. Showles and Harry Stillman. The indictment contained three counts. The first and third were for burglary and larceny, and the second was for receiving stolen goods. The defendants severally pleaded not guilty. On trial, in the Criminal Court of Cook county, the jury returned the following verdict:

“We, the jury, find the defendants John Thompson and Harry Stillman guilty of burglary, in manner and form as charged in the indictment, and fix their punishment at imprisonment in the penitentiary for the term of eight years each. We, the jury, also find the defendant E. M. Showles guilty of receiving stolen property, in manner and form as charged in the indictment, and fix his punishment at imprisonment in the penitentiary for the term of two years.”

Motion for new trial was made by the defendants, and allowed as to Stillman, but overruled as to the other defendants. They then moved in arrest of judgment, but the court overruled the motion and entered judgment upon the verdict.

The judgment as to Showles can not be sustained. Our statute provides, that “every person who, for his own gain, * * * shall buy, receive or aid in concealing stolen goods * * * or property obtained by burglary, * * * knowing the same to have been so obtained, shall be imprisoned in the penitentiary not less than one nor more than ten years; or if such goods or other property or thing does not exceed the value of $15, he shall be fined not exceeding $1000, and confined in the county jail not exceeding one year.” It is, therefore, necessary in such cases, that the jury shall find the value of the property, otherwise it can not be known that they have rendered a proper verdict. Tobin v. The People, 104 Ill. 565; Sawyer v. The People, 3 Gilm. 53.

The question next presented is, whether the judgment can be sustained as to Thompson. We are to assume, from this "verdict, that these parties were not jointly guilty under either count. Does, then, the fact that they are guilty of distinct offenses, though, it may be, arising out of substantially the same transaction, nullify each conviction? The joinder of these counts, for the purpose of stating, in different ways, a single offense occurring in the same transaction, was allowable, and the indictment could not have been quashed for that reason. (Lyons et al. v. The People, 68 Ill. 271; Tobin v. The People, supra.) The offense was several, and one might therefore have been found not guilty, and the other guilty. Baker v. The People, 105 Ill. 452.

The bill of exceptions before us shows only the instructions given and refused, and the rulings thereon. The presumption, therefore, is, that the ruling of the court upon every point of practice not embraced in the motion to arrest and the rulings upon instructions, was correct. Gill v. The People, 42 Ill. 321; Earll v. The People, 73 id. 329; Holmes v. The People, 5 Gilm. 478.

There was no plea in abatement—no motion that the parties be tried separately. We must suppose that the evidence sustained the verdict, and that no objection was urged that evidence was admitted which was applicable to the one but which was not applicable to the other defendant; for, until the contrary be shown, it will be presumed that the court decided correctly. Indianapolis and St. Louis Railroad Co. v. Miller, 62 Ill. 468.

The rule, then, applicable here, is thus stated by Buller, J., in Young et al. v. The King, 3 T. R. 106 : “On the face of an indictment every count imports to be for a different offense, and is charged as at different times. And it does not appear on the record whether the offenses are or are not distinct. But if it appear, before the defendant has pleaded or the jury are charged, that he is to be tried for separate offenses, it has been the practice of the judges to quash the indictment. * * * But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecutor to his election on which charge he will proceed. * * * But if the case has gone to the length of a verdict, it is no objection in arrest of judgment. If it were, it would overturn every indictment which contains several counts. So where the evidence affects several prisoners differently, I have, as was done by Mr. J. Yates, at Hereford, selected the evidence as applicable to each, and left their cases separately to the jury. * * * But all these are mere matters of discretion, only, which judges exercise in order to give a prisoner a fair trial, for when a verdict is given, they are not the subject of any objection to the record.”

Objections are urged to certain instructions given in behalf of the People; but it is impossible to say, unless the evidence were before us, whether these objections are tenable. An instruction is to be determined solely with reference to the issues and the evidence before the court. It may lack in fullness and accuracy of definition, yet if the respect wherein it thus lacks is impertinent to anything before the court, it will be unimportant. An instruction may be very inaccurate as an abstract definition, yet entirely accurate in its application to the question to be passed upon by the jury; and so, on the other hand, it may be entirely accurate as an abstract definition, yet misleading, and therefore erroneous, if applied to the question to be passed upon by the jury. Moreover, a case may be so clear, under the evidence, that we can see that no other verdict could have been rendered than that which was rendered by the jury, and in such case we always refuse to reverse for mere error in. the instructions.

The judgment is affirmed as to Thompson, but as to Showles the judgment is reversed, and the cause is remanded for a new trial.

Judgment reversed in part and in part affirmed.


author: Mr. Justice Scott

text:
    Jeremiah S. Moyer et al. v. Caroline Swygart.

      Filed at Ottawa June 16, 1888.

    1. Will—whether a will was completed. A person being desirous of making a will, made a writing purporting to be his will, by which he devised a farm and a horse and buggy to a son, making no mention therein of his other heirs, from whom he was in no way estranged, and leaving the personal estate undisposed of. The scrivener, on the day he was called to write the will, only proceeded so far as to write a devise of the farm to the son. The decedent, when asked what disposition he wished to make of his personal property, said “he had not made up his mind about that,” and that he “would like to think that over,” and asked if he “could do that to-morrow or any other day.” On the next day, the scrivener asked the decedent if he wanted to go on with the will, to which he replied that he wanted “to finish it up,” and when asked what he wanted to do, said he wanted to give his son the farm,—“you have got that; I want to give him the horse and buggy.” That being written he said nothing more until again asked what disposition he wanted to make of his personal property, when he replied, as before, that he had not determined on that yet, and again inquired if he could not fix that hereafter. He was advised that it could be done by a new will or codicil. At the suggestion of the scrivener an executor was named, and the paper signed and witnessed: Held, in a suit contesting the will, that these facts were sufficient to, warrant the jury in believing that the will was never, in fact, finished.
    2. Same—contesting a will—of the burden of proof. Where a bill in chancery is filed, under the statute, to contest a will, the law in the first instance casts the burden of proving the will upon the proponents alleging its validity.
    3. Same—an instruction construed as not relating to burden of proof as to undue influence. On the trial of an issue as to the validity of an alleged will, an instruction which declares that before the jury can find the paper read in evidence is the will of the decedent, it must appear, from the evidence, he was “of sound mind, and did not execute the paper read in evidence as his will under undue influence at the time he signed the paper,” is not open to the charge that it casts on the proponents the burden of proving the will was executed without undue influence on their part.
    4. Same—testamentary capacity—evidence in respect thereto. In this case, upon the question as to the testamentary capacity of a person whose alleged will was being contested, the evidence is reviewed, and the finding that the paper presented as the will of the decedent was not his will, is sustained.
    5. Same—of the decree, setting aside a will. A decree setting aside an alleged will, which declares that the probate of such will in the county court, and the proceedings thereunder, are set aside and declared null and void, is not erroneous, as being too broad.
    6. Same—new trial—on contest of will. The finding of the jury on the contest of a will, by bill in chancery, is conclusive, unless clearly against the weight of the evidence, the same as in cases at law.
    7. Where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of a will depends, this court will not reverse the decree of the lower court, if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict.
    8. Costs—against executor—on contest of will. Where a decree is entered setting aside an alleged will, there is no error in requiring the parties defending, including the executor, to pay the costs.
    9. Same—former decision. The decree for costs against the person claiming to be the executor in the will which was set aside, is sustained by the case of Shaw v. Moderwell, 104 Ill. 64; and so far as there may appear to be a conflict in the rule stated as to costs in such cases, the decision in Pingree v. Jones, 80 Ill. 177, must be regarded as having been modified by the decision in the later case of Shaw v. Moderwell.

    10. Practice—waiver of objection to evidence—where both parties avail of it. Where both parties on the contest of a will, by bill in chancery, give in evidence the statements and conversations of the decedent made by and with him long before the making of the alleged will, neither party will be heard to insist that such statements and conversations were not competent evidence.
    Writ of Error to the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.
    Mr. Sherwood Dixon, for the plaintiffs in error:
    To vitiate a will on account of undue influence, it must appear that there was something wrongful,—a species of fraud perpetrated. Yoe v. McCord, 74 Ill. 33; Dickie v. Carter, 42 id. 376.
    Statements and declarations of a testator are not competent evidence to prove the facts stated. (Shailer v. Bumstead, 99 Mass. 100.) They are competent to show mental condition at the time the will was executed, or so near the time the same state of affairs must have existed, (Reynolds v. Adams, 90 Ill. 135,) being thus decreed a part of the res gestæ. Cockeram v. Cockeram, 17 Bradw. 604.
    Circumstances that will not warrant an inference that a will was obtained by undue influences: That the testator was in a condition susceptible to influence, and cared for by one whose interest might be to unduly influence him, as, a wife with a dissolute husband: Dickie v. Carter, 42 Ill. 388; Gardner v. Gardner, 22 Wend. 526.—That the testator gave the bulk of his property to those around him, to the exclusion of others at a distance: Remsen v. Brinckerhoff, 26 Wend. 340.—That the testator was on his death-bed, surrounded by the beneficiaries of his will: Bundy v. McKnight, 48 Ind. 502.—That the testator was dependent upon the one in whose favor the will was made, in all his domestic and pecuniary affairs: Bleecker v. Lynch, 1 Bradf. 458.—That an old, helpless man made his will in favor of a son who had for years cared for him, and attended to all his affairs: Elliott’s Will, 2 J. J. Marsh. 340. To the same effect, see Rutherford v. Morris, 77 Ill. 397.
    Kind attentions, etc., have their influence, and it must be presumed the testator, knowing and feeling their force, has acted correctly. Meeker v. Meeker, 75 Ill. 260.
    There must be proof of influence amounting to coercion, and that the will was obtained by this coercion. He must put his finger on the act, showing how it was wrought. Williams v. Goude, 1 Hagg. Eccl. 577; Gardner v. Gardner, 22 Wend. 526.
    The court erred in admitting the declarations of John Moyer, made long before the will was executed, that he should make no will, and as to alleged importunities of Jeremiah Moyer. Such testimony is only competent when so near the time of the will as to constitute a part of the res gestee. 2 Greenleaf on Evidence, sec. 690; Boylan v. Meeker, 4 Dutch. 274; Cockeram v. Cockeram, 17 Bradw. 604; Reynolds v. Adams, 90 Ill. 134.

      Appellee’s sixth instruction, considered in connection with the third, fourth and fifth, casts the burden of proof as to undue influence upon appellants, and was for that reason erroneous. Roe v. Taylor, 45 Ill. 485. See, also, similar charge held error: McMechen case, 17 W. Va. 683.
    Appellee’s seventh instruction erroneously told the jury that undue influence might be inferred from any circumstances in evidence. Many circumstances of suspicion may exist and not warrant such inference. Was there fraud? Was there terror ? Was there harassing importunity, and a compliance for sake of peace? (Gardner v. Gardner, 22 Wend. 526.) It is only inferred from such circumstances as are inconsistent with any other hypothesis. It is like fraud, and can not be inferred unless all the facts proven satisfy the jury that it existed. 1 Jarman on Wills, 134; Wood v. Bishop, 1 Demorest, 512; Dale v. Dale, 36 N. J. Eq. 269; Reed v. Noxon, 48 Ill. 323.
    Appellee’s fifteenth instruction incorrectly defines a disposing mind and memory. This court has said the form in which it can best be given to the jury is, that the testator at the time knew and understood what he was about. Yoe v. McCord, 74 Ill. 33; Trish v. Newell, 62 id. 196.
    The decree is erroneous in awarding costs against the executor, (Russell v. Hubbard, 59 Ill. 335, Pingree v. Jones, 80 id. 177,) and in setting aside all the proceedings in the county court. All proceedings had in the county court, under the will, done in good faith, are valid. 2 Kent’s Com. 413; Wight v. Wallbaum, 39 Ill. 554; Shephard v. Rhodes, 60 id. 301.
    Messrs. W. & W. D. Barge, for the defendant in error:
    The verdict of the jury in a case of this kind, stands like a verdict in a case at law. Rutherford v. Morris, 77 Ill. 402; Long v. Long, 107 id. 210; Bible Society v. Price, 115 id. 623.
    Proof of the statements of deceased was confined to those made in the last two years of his life, and was given by both parties. They would show the condition of his mind, and form part of the res gestæ. It is no objection that these statements were made months before the execution of the will. Brownfield v. Brownfield, 43 Ill. 147; Bible Society v. Price, 115 id. 623; Reynolds v. Adams, 90 id. 135.
    For the purpose of proving the effect of the influence on the testator, his declarations were clearly competent. Storey’s Will, 28 Minn. 9; Turner v. Cheeseman, 15 N. J. Eq. 243; Boylan v. Meeker, id. 343; Edge v. Edge, 38 id. 210; Dale v. Dale, id. 275; Bates v. Bates, 27 Iowa, 110; Stephenson v. Stephenson, 62 id. 163; Lewis v. Mason, 109 Mass. 169; Potter v. Baldwin, 133 id. 427.
    The burden of proving that the paper is a valid one, rests upon the proponents. Rigg v. Wilton, 13 Ill. 15; Potter v. Potter, 41 id. 80; Tate v. Tate, 89 id. 42; Delafield v. Parish, 25 N. Y. 29; Rogers v. Thomas, 1 B. Mon. 390; Haydon v. Haydon, 6 J. J. Marsh. 48; Toff v. Hosmer, 13 Mich. 309; Harris v. Vandever, 21 N. J. Eq. 561; Rolwagen v. Rolwagen, 63 N. Y. 504.
    They must, in the first instance, produce all their proof. Mueller v. Rebhan, 94 Ill. 142.
    There is no presumption that a person making a will is sane. Gerrish v. Nason, 22 Maine, 438; Cilley v. Cilley, 34 id. 163; McGinnis v. Kempsey, 27 Mich. 373; 2 Wharton on Evidence, sec. 1252.
    The proponent must show, on the whole case, that it is a valid will, and made by a person free from fraud, coercion or undue influence. Schouler on Executors, secs. 73, 79; Trish v. Newell, 62 Ill. 196; Dale v. Dale, 38 N. J. Eq. 274; Cornstock v. Hadlyme, 8 Conn. 260; Barker v. Conners, 110 Mass. 477; Taff v. Hosmer, 14 Mich. 309.
    Undue influence need not be shown by direct proof, but may be inferred from circumstances proved. 1 Jarman on Wills, 130; Brick v. Brick, 66 N. Y. 144; Seares v. Shafer, 6 N. Y. 272; Tyler v. Gardiner, 35 id. 559; McLoughlin v. McDevitt, 63 id. 213; Bigelow on Frauds, 476.
    The defendants John E. Moyer and Eva Cline, being heirs of the deceased, were necessary parties,-(Brown v. Riggin, 94 Ill. 560,) and having resisted the bill, should pay costs.
    The decree of costs against the executor was proper. Shaw v. Moderwell, 104 id. 64; Knowles v. Knowles, 86 id. 1.
   Mr. Justice Scott

delivered the opinion of the Court:

This is a bill in chancery, brought by Caroline Swygart, against. Jeremiah S. Moyer, John E. Moyer, Eva Kline and John D. Crabtree, to contest and have set aside what is alleged to be the will of John Moyer, deceased. Complainant is the only surviving daughter of decedent, and the other defendants, except Crabtree, are his only other heirs-at-law. It appears from the record, the estate of decedent was of about the value of $30,000, and consisted of a farm of about the value of $10,000 or $12,000, and the balance consisted of notes, bonds and other securities, and some few articles of personal property. The alleged will gave to Jeremiah S. Moyer the entire farm, and a horse, carriage and harness. No mention is made of the residue of his estate, and as to that, of course, decedent died iptestate. Nor is any mention made of any of his heirs other than his son Jeremiah S. Moyer, to whom he gave his farm and the articles of personal property enumerated.

It is alleged in the bill, that at the time of the making of what is claimed to be a will, decedent was not of sound mind and memory, but, on the contrary, he was in his dotage, and his mind and memory so impaired as to render him wholly incapable of making any distribution of his estate, and that the making of the will which proponents insist upon maintaining, was procured by the fraudulent practices and undue influence of defendant Jeremiah S. Moyer. - These matters are amplified, as is usually done in stating the facts upon which a party relies for equitable relief. The answer of defendants admits only the formal charges of the bill, as to which no controversy exists, but denies all improper conduct on the part of Jeremiah S. Moyer, and insists the provisions of the will were not the result of undue influence, but of the deliberate judgment of decedent, and made by him in “pursuance of a long cherished purpose.” As the statute directs shall be done, the circuit court caused an issue to be made up “whether the writing produced be the will” of John Moyer, deceased. That issue was submitted to a jury chosen under the direction of the court, who found, from the evidence adduced at the trial, “the writing read in evidence is not the will of said John Moyer, deceased.” On the coming in of the verdict, defendants made a motion for a new trial. That motion the court overruled, and entered a decree setting aside the writing purporting to be the last will and testament of John Moyer, deceased, and the probate thereof in the county court, and all proceedings had thereunder were declared null and void. The proponents of the will bring the case to this court, and have assigned a number of errors on the record, the most important of which is, “the verdict is manifestly against the evidence, ” and for that reason it is said the motion for a new trial should have been allowed.

The rule is, on questions of this kind the finding of the jury is conclusive unless clearly against the weight of the evidence, and in this respect they are put upon the same footing with cases at law. Another rule of law is equally as well settled by the previous decisions of this court. It is: where there is an irreconcilable conflict in the testimony touching the facts upon which the validity of the will depends, this court will not reverse the decree of the lower court if the evidence of the successful party, when considered alone, is clearly sufficient to sustain the verdict. The practice, in that respect, has been uniformly adhered to in this court, and no reason is perceived why it should be departed from in the case being considered. Nothing can be plainer than if the case had been submitted on the testimony introduced by the contestant alone, the jury would certainly have found that at the time of the execution of the writing purporting to be the will of decedent, he was too feeble, both in body and mind, to transact any business that required thought or the exercise of judgment, and that the making of the writing was procured by the sole devisee named in that instrument. It was shown he had personal estate, consisting of bonds and notes, and perhaps some money, as to which he made no disposition whatever. Nor did he make any reference to contestant, who was his only daughter, or to the children of his deceased son. The testimony as to his mental condition does not all come from parties in interest. Others having no interest whatever in the subject of the litigation visited decedent during his last sickness, and they state that at or about the time the alleged will was written, he was too feeble, mentally, to comprehend much, if anything, and it seems certain he had neither mental nor physical strength to withstand, for any considerable time, the importunities with which the testimony tends to show he was plied to devise the farm to his son. Whether there was any foundation for it or not, it is certain decedent, long before his last sickness, was greatly worried with what he alleged were the importunities of his son to make a will and give him the farm. _ He seems to have labored under the belief, if he did not comply with his son’s wishes in that respect he would serve some sort of papers upon him that would deprive him of the use of his property. It is possible the jury may have believed this was not a mere insane delusion. It is certain he had that belief, whether there was any ground for it or not. Many other things are proved of the same character, all tending to the conclusion decedent was importuned by his son, and perhaps others by whom he was surrounded, to give the farm to the son named in the alleged will. That there is evidence tending to show decedent frequently declared he was constantly urged by his son to make a will by which his son would get the farm, can not he doubted, and the jury may have believed that in his last sickness, when feeble in mind and body, he was induced to comply, or at least to try to comply, with the urgent wishes of his son as to the farm. This theory of the case finds some support at least in the fact, this pretended will devises no property to any one except to this son, and only the same property which decedent in his utterances, whether sane or insane, always claimed his son insisted he should have, and that he should give it to him by will. It is not practicable to restate every fact in evidence that tends in a greater or less degree to support contestant’s theory of the case. But a close study of the evidence shows, past all doubt, if the record contained no testimony other than that given by contestant, the verdict would be amply sustained, and under the previous decisions of this court, it should stand.

The only remaining inquiry on this branch of the case is, does the testimony offered by the proponents to sustain the will, so far preponderate over the testimony introduced by contestant, that the verdict, for that reason alone, should be set aside, and the cause re-submitted to another jury? It is thought it does not. On this branch of the case the testimony is so voluminous it is hardly practicable to restate it in detail, nor is it necessary to do so. The devisee was a witness in his own behalf, and denies all improper practices attributed to him to induce his father to make a will giving him the farm. He also states the condition of his father’s mind, at the time the writing was executed, to be such as would tend to show testamentary capacity. Although this witness is directly interested, in a pecuniary view, in the result of this litigation, there is no evidence that he is not a man of character, and is entitled to be treated as any other fair and candid witness. The evidence, as has been seen, is irreconcilably conflicting,— so much so that the jury had to determine, as well as could be done, which theory advanced was the better sustained. To do that, the testimony of' one party or the other had to be disregarded, for both could not stand together. In no other way could a conclusion be reached. This disposition of the evidence by no means implies any improper conduct on the part of any witness. All may be equally candid, and yet one theory of the ease may seem to he better sustained than the other.

There are many facts in the case that must have been considered by the jury in coming to a conclusion, and no doubt they were entitled to weight in weighing other testimony. One is, the decedent, at the time of executing the alleged will, was in the eighty-seventh year of his age. It is conceded by all he was exceedingly feeble at or about the time of executing the paper produced as a will,—so much so that he had just before been advised by his attending physician there was “but a step between” him “and death.” When at his best, he was a man of great physical powers,—tall and finely proportioned,—and was possessed of such will force as gave him unusual independence of character. No one dominated him in his business affairs, or perhaps otherwise. He seems to have had the "greatest affection for his family. In this entire volume of testimony there is not to be found a single harsh or unkind word towards any of his children, and the only time it appears he was ever estranged from his son, it was because he thought his son was correcting his own child with too much severity. But that was only temporary, and he was soon reconciled to him again. This kindly relationship in the family will serve to illustrate a phase of the case that will presently be stated.

The fatal sickness commenced on the 28th of February, 1884. Prior to that time he had shown very marked indications of failing health. His first attack seems to have been accompanied with a chill, was very severe, and when he was first discovered, he was, perhaps, hardly conscious of anything. Towards night of the same day he improved some. On the 22d or 23d of March, of the same year, he suffered a relapse, and from that time on it was apparent his sickness would soon terminate fatally. It was probably on the 24th day of that month his attending physician had a conversation with him concerning the time he might live, and he told him “the chances were decidedly against him,” and “if he had any business matters he wanted to settle, he had better do it.” His reply seems more like the delirious utterances of a disordered brain than that of one who understood his critical condition, or, indeed, anything else in regard to his surroundings. Certainly a man that had sense enough to make a will, or to transact any business, would know that a-man eighty-seven years old, when advised his sickness was mortal, and that he could live but a brief time, could not “live to bury” his physician, who was a young man. This conversation would indicate, unmistakably, the decedent did not have the slightest understanding of his situation, or what the conversation concerned. “After a day or two,” his physician again asked him “if he had his affairs settled.” That could not have been earlier than the 25th of March, and the scrivener was sent for and began to draft the will on the 26th of the same month. On that day he wrote to and down to the devise of the farm to defendant Jeremiah S. Moyer. When asked by the scrivener what “disposition he wanted to make of his personal property,” decedent replied, “he had not made up his mind about that,” and that he “would like to think that over.” He inquired of the scrivener if he could do “that to-morrow or any other day,” and on being assured he could, that ended the interview that day. It is singular decedent did nothing in regard to making a will, or any disposition of his property, except as his attention was directed to it by the scrivener. On his return on the next day, (the 27th,) he asked decedent if he wanted to go on with his will, and he replied he wanted “to finish it up.” Still decedent said nothing further until he was asked what he wanted to do. He then said he “wanted to give Jerry the farm,—you have got that. I want to give him the horse and buggy.” The scrivener wrote that clause in. Decedent said nothing more until he was again inquired of, “what disposition do you wish to make of your personal property ?” He replied, as before, he “had not determined on that yet,” and again inquired if he could not “fix that hereafter as well as now,” and was told by his legal adviser it could be done “either by a new will or codicil.” Nothing more was done or said as to the personal estate, nor did decedent express any wish or desire to have anything more written. But his attention was again awakened by the scrivener as to the propriety of naming an executor, and that clause was written. Then came the signing and witnessing what had been written, by the persons called in for that purpose.

It would be difficult to read the account of what was done, as given by defendant’s own witnesses, without being impressed with the belief decedent knew but little, if anything, about what was being done about the execution of the paper proponents now produce as his will. It is as certain as anything can be, he did nothing until his attention was first called to what was to be done, and when that was finished he relapsed into silence. His near neighbor, Howell, visited decedent on the 26th of March, and his testimony is to the effect he was feeble,—that his “mind was rather light.” He also says Jerry said to him, “you see, he is off his head.” Another neighbor, Mr. Crawford, was there about the time the alleged will was written, and found him very feeble, and he states his son said, he “didn’t wish any body to speak to his father; the only reason was, he was very weak.” There is other testimony to the same effect, but this is sufficient to show the extremely feeble condition of decedent at the time, both, physically and mentally.

There is some evidence in this record that would warrant the belief, and the jury may have so found, that the will, which was commenced on the 26th of March, was never in fact finished. After the clause devising the farm was written, on the 26th of March, the scrivener says the further writing was postponed, because decedent had not made up his mind as to what disposition he wished to make of his personal property. But other reasons are stated by the witness Crawford. As before stated, he says he visited decedent a short time before his death, and on that occasion he testifies defendant Jerry Moyer said, “there was an effort to make a will, and the old gentleman was along so far and could not go farther—was struck by weakness.” On the next day, when the scrivener returned, decedent still refused, although his attention was directed to it, to make any disposition of his personal property, for the reason he had not made up his mind as to what disposition he would make of it, and all that was done the second day was to write the clauses in regard to the horse and carriage and harness, and naming the executor, and the latter was not done until after the scrivener first suggested it was usual to name the executor. He still persisted he would bequeath or devise the residue of his property at another time, as he was told by his adviser he could do, but he died without ever having finished his will in that respect, and so the jury might well say the paper presented was not his will. This fact is to be considered with other facts in the case. As has been seen, decedent was fond of all his children, and was heard to say “one child was as good as another,” and that he would make no will—he would let the law divide his property. It is said decedent always intended that his son Jerry should have the farm. That may be so, and had he made a will, or finished the one that was commenced for him, he could have given the farm to his son, and made his surviving daughter, and the children of his deceased son, equal with his other son out of his personal estate. But be that as it may, it is idle to claim that a man that had sense enough to make a will at all would make a will simply to dispose of one-third of his estate, without the slightest reference to the residue of his estate, or his children, to whom it would go. No doubt the jury believed, as Mr. Crawford said, decedent “got excited, or was overcome by something or other, and could not go through with it,” and never, in fact, did complete the will commenced, either understandingly or otherwise. It is not possible for this court to say the verdict is against the weight of the evidence, and that being so, the rule of law is; it ’must stand.

It is said the sixth instruction given for contestant, considered in connection with the third, fourth and fifth of the series, •cast the burden of proof, as to “undue influence,” upon the proponents of the will. This is an incorrect reading of that instruction. Undoubtedly the rule is, where a bill is filed in chancery, under the statute, to contest a will, the law, in the first instance, casts the burden of proving the will upon the proponents alleging its validity. The third, fourth and fifth charges given for the contestant simply express the general doctrine on this subject as it is declared in the previous decisions of this court, and in that respect they are unobjectionable. The sixth instruction of the series is in no direct way made to be read in connection with the preceding charges, any more than any other of the subsequent charges. It is a distinct charge by itself, as much as any other of the series. Of course, all the charges, both for the contestant and the proponents, should be read together,—this sixth one as well as all others; and when that is done, it is not perceived it is obnoxious to the criticisms made upon it. It simply declares that before the jury can find the paper read in evidence is the will of decedent, it must appear from the evidence he was “of sound mind and memory, and did not execute the paper read in evidence as his will, under undue influence, at the time he signed said paper.” That is undoubtedly the law. Nothing is said, however, in that charge, as upon whom the burden of proving “undue influence” rests. Nor were the jury, by any other charge, told, the law cast the burden of proving a will was executed without “undue influence” upon the part of proponents of such will. It will be seen that on this branch of the case, the court, at the instance of contestant, gave the following instruction, and to its being given proponents consented:

“If the jury believe, from the evidence, that John Moyer told the witness Crabtree, and did in his presence all said witness has testified to, yet if the jury further believe, from the evidence, that Jeremiah S. Moyer, or any person for him, had previously exercised undue influence upon said John Moyer, and that by reason of such undue influence, and as a result thereof, said John Moyer said and did, in the presence of said witness, what said witness has testified, and was, by reason of such undue influence, induced to sign said paper, then the jury would have the right to find that said paper is not the will of said John Moyer.”

On a close reading, it will be observed the charge given by consent of both parties contains everything that is embraced within the sixth instruction, and there can be no just ground for complaint it was given as written.

Without remarking separately upon all the objections taken to the other instructions, it is sufficient to say the points made have been carefully considered, and it is thought none of them are well taken. It seems certain the charges given contained nothing seriously hurtful to the cause of proponents. It is seldom, if ever, that a record is found to be absolutely free from error, but where no hurtful error has intervened, the rule is, and ought to be, the judgment or decree will be permitted to stand.

The point made, it was error to render a decree for costs against the party claiming to be the executor in the will that was set aside, is disposed of by the decision of this court in Shaw v. Moderwell, 104 Ill. 64. So far as there may appear to be a conflict in the rule stated as to costs in such cases, the •decision in Pingree v. Jones, 80 Ill. 177, must be regarded as having been modified by the decision in the later case of Shaw v. Moderwell, supra. (See Andrews' Exrs. v. His Administrators, 7 Ohio St. 143.) The other defendants, John E. Moyer .and Eva Kline, came in and answered, and thereby undertook to sustain the will as against contestant, and as they were unsuccessful, there is no reason why they should not pay costs, as well as the other defendants. Both parties gave in evidence the statements and conversations of decedent made by and had with him long before the making of the alleged will, and neither party will now be heard to insist such statements and conversations were not competent evidence.

It is said the decree is broader than the law will warrant, in this: that it declares the “probate of said will in the county court, * * * and the proceedings thereunder, be and the same are hereby set aside, and the same are hereby declared null and void.” The decree in Calvert v. Carpenter, 96 Ill. 63, seems to have been to the same extent, but although the point was made in the Appellate Court the decree in that respect was erroneous, it was not discussed in the opinion rendered in either court. The decree in this respect, it will he perceived, does nothing more than to declare the results that will necessarily follow from setting aside the alleged will. Of course, all proceedings had under it in the county court, or elsewhere, would be without authority of law, and there would therefore be no error in declaring the effect that would follow from the decree finding the alleged will was no will at all.

Every phase of this case, and every point insisted upon for a reversal, has been carefully and patiently considered, and no reason is perceived for departing from the rule so long and so uniformly observed, that where, as was said by this court in. Calvert v. Carpenter, 96 Ill. 67, “there is an irreconcilable conflict in the testimony, this court will not reverse the judgment of the trial court when the evidence of the successful party, when considered hy itself, is clearly sufficient to sustain the verdict.” That is precisely the case here, and the decree of the circuit court must stand.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    C. D. Cook v. The People of the State of Illinois.

      Filed at Mt. Vernon June 16, 1888.

    Pharmacy act—making complaint—whether a prerequisite to bringing suit for penalty. The making of complaint is not a prerequisite to the bringing of a suit before a justice of the peace for the penalty prescribed for a violation of any of the provisions of the Pharmacy act. It is only mandatory on the State’s attorney to prosecute upon proper complaint being made.
    Appeal from the Circuit Court of Jefferson county; the Hon. Carroll C. Boggs, Judge, presiding.
    Mr. C. H. Burton, for the appellant.
    Mr. W. H. Green, State’s Attorney, for the People.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought before a justice of the peace, under section 12 of “An act to regulate the practice of pharmacy in the State of Illinois,” (Laws of 1881, p. 120,) for the recovery of the penalty of $50 prescribed for a violation of the provisions of said section. There was judgment in favor of the defendant before the justice of the peace, but on appeal to the circuit court the defendant was found guilty, and the penalty of $50 recovered, and the defendant appealed to this court.

It is objected that there was no complaint made before the prosecution was begun. This objection is founded on section 15 of the act, which provides that “all suits for the recovery of the several penalties prescribed in this act, shall be prosecuted in the name of the ‘People of the State of Illinois,’ in any court having jurisdiction; and it shall be the duty of the State’s attorney of the county where such offence is committed, to prosecute all persons violating the provisions of this act, upon proper complaint being made.” This making of complaint is not a prerequisite to the bringing of suit, but a mandatory provision with respect to the State’s attorney, making it his duty to prosecute upon proper complaint being made. Section 12 gives the penalty. Section 15, in its first clause, provides that all suits for the recovery of the penalties prescribed shall be prosecuted in the name of the People, etc., in any court having jurisdiction,—and then follows the clause as to the State’s attorney’s duty. The penalty being $50, a justice of the peace had jurisdiction, and as there are no written pleadings before a justice of the peace, it is not a sufficient objection that it does not appear that a formal complaint was made.

It is insisted' the evidence does not sustain the verdict, in that the article sold here,—for the selling of which, as being in violation of the provisions of the statute, the suit is brought,— was quinine, and that that is one of the usual domestic remedies, which, by the proviso to said section 12, are withdrawn from the application of the act. The proviso is as follows: “Provided, that nothing in this act shall apply to nor in any manner interfere with the business of any physician, or prevent him from supplying to his patients such articles as may seem to him proper, nor with the making or vending of patent or proprietary medicines, or medicines placed in sealed packages, with the name of the contents and of the pharmacist or physician by whom prepared or compounded, nor with the sale of the usual domestic remedies by retail dealers, nor with the exclusively wholesale business of any dealers, except as hereinafter provided.” We think the jury were fully warranted in finding, from the evidence, that quinine was not one of the usual domestic remedies referred to in said proviso.

We find no error in the giving of instructions.

The judgment must be affirmed.

Judgment affirmed.


text:
    James K. Fisher v. Lillie G. Cook.

      Filed at Ottawa June 16, 1888.

    1. Plea in abatement—time of filing. Four terms after an amendment of the declaration in an action at law, by adding two new counts, the defendant, without withdrawing his plea of the general issue to the original declaration, and without leave of court, filed a plea in abatement, setting up the non-joinder of another party defendant, which was stricken from the files on plaintiff’s motion: Held, that the plea was properly stricken from the files, for the reason it was not filed at the earliest practicable time.
    2. Parties—several liability of tort feasors. In an action on the case to recover for a personal injury resulting from the negligent conduct of the defendant’s servant in the management of an elevator, the defendant pleaded in abatement that the building and property mentioned in the declaration is not, and never was, the property nor in the possession of the defendant, but is, was, and always has been, the joint property of the defendant and another person named, who is still living; and also that the servant mentioned in the declaration is not, and never was, in the employ of the defendant, but is, and was at the time mentioned, etc., in the joint employ of the defendant and such other person: Held, that the plea presented an immaterial issue. If the two were liable, each was, and the action was maintainable against either wrongdoer.
    Appeal from the Appellate Court for the First District;— heard in that court on. appeal from the Circuit Court of Cook county; the Hon. Carroll C. Boggs, Judge, presiding.
    Mr. W. C. Asay, for the appellant:
    The plaintiff having presented a new and different cause of action by amendment of the declaration, the defendant had the right to plead de novo to the amended declaration. Nelson v. Akeson, 1 Bradw. 169; Sullivan v. Dee, 8 id. 263; McCarthy v. Neu, 91 Ill. 127; Railroad Co. v. Boggs, 85 id. 82; Mitchell v. Tarbutt, 5 Durnf. & E. 649; Sumner v. Tileson, 4 Pick. 307; 1 Chitty’s Pl. 95, 96, 100; Home v. Mandelbaum, 13 Bradw. 607.

      Mr. J. A. Sleeper, for the appellee:
    It is an elementary rule that dilatory pleas must be filed at the first opportunity.
    If, as claimed, Archibald Fisher ought, in law, to have been joined as a party, the defendant knew that fact,—knew that Archibald was joint owner of the Beaurivage, and joint employer with him of the elevator boy there,—when he pleaded to the original declaration. He knew that the charge was that the plaintiff had been injured by neglect connected with the elevator. The law then required, if he would insist upon having Archibald joined, that he should then have pleaded the non-joinder, and then, before the Statute of Limitations had run against plaintiff’s action as against Archibald, have given us a better writ,—have given her an opportunity to maintain her action against him and Archibald jointly. 1 Chitty’s Pl. (6th Am. from 5th London ed.) 471, 489: Holloway v. Freeman, 22 Ill. 197; Gilmore v. Nowland, 26 id. 200; Union Nat. Bank v. First Nat. Bank, 90 id. 56; Sibert v. Thorp, 77 id. 43; Buddle v. Wilson, 6 T. R. 373.
    The plea was entitled of September term, 1883, when the additional counts were entitled of April term, 1883, and the plea ought to have been entitled of the same term. 1 Chitty’s Pl. 489.
    Allowing four terms to elapse, after the additional counts were filed, before the plea in abatement was filed, without obtaining a general-special imparlance, amounted to a general imparlance, and precluded the filing of a plea in abatement. 1 Chitty’s Pl. 471, 489; Buddle v. Wilson, 6 T. R. 373.
    The plea was a sham, and frivolous, in that it does not appear from the additional counts that the cause of action arose out of the ownership of the land, but it did appear from those counts that the action arose out of the personal neglect and gross carelessness of the servants of the defendant. The plea contained no matter, fact or allegation tending to show that the action did not arise out of such personal neglect and carelessness, nor that it in any way arose out of the land or the ownership of the land, nor that Archibald Fisher ought to have been joined as a party defendant,—that is to say, that the plaintiff could not recover for the injury she had sustained, against one, without joining the other. Sumner v. Tillotson, 4 Pick. 307; Comyn’s Dig. title “Abatement,” 6; Mitchell v. Tarbutt, 5 T. R. 649.
   Mr. Justice Scott

delivered the opinion of the Court:

This action was brought in the circuit court of Cook county, by Lillie Gr. Cook, against James K. Fisher, and was to recover for personal injuries occasioned by the alleged negligent conduct of defendant’s servant in the management of an elevator. On the trial in the circuit court, plaintiff recovered a judgment against defendant for the sum of $3000. That judgment was afterwards affirmed in the Appellate Court for the First District, and defendant brings the ease to this court on his further appeal.

There was evidence tending to sustain plaintiff’s cause of action, and as all controverted questions of fact have been settled by the findings as to them by the courts through which the cause has come to this court, no discussion in relation to the facts will be had in this court.

It is said in argument it was error in the trial court to strike defendant’s plea in abatement from the files, as was done. It seems that to the original declaration defendant pleaded the general issue. Afterwards, at the April term, 1883, plaintiff, by leave of court, amended her declaration by adding two counts. No new rule was then laid on defendant to plead again to the declaration as amended, but so far as the record shows, the original plea of not guilty stood as to the amended declaration.' At the September term, 1883, of the court, while the record was in this condition, and without withdrawing the plea of not guilty that had been filed, and without leave of court obtained for that purpose, defendant filed a plea in abatement, in which it was averred, “the building and property mentioned in the declaration is not, and never was, the property nor in the possession of James K. Fisher, but is, was and always has been the joint property and in the joint possession of James K. Fisher and one Archibald Fisher, who is still living; and also that the servant mentioned in the declaration is not, and never was, in the employ of said James Ii. Fisher, but is and was, at the time mentioned in the said declaration, in the joint employ of said James K. Fisher and said Archibald Fisher.” This plea was not sworn to by defendant, but by one George B. Fleisheim, who says he is the agent of defendant, who has been absent from this country, in Europe, for more than a year past, and now permanently resides there. On motion of plaintiff, the plea in abatement was by the court stricken from the files in the cause, to which decision defendant excepted. Thereupon, perhaps on the same day, defendant again filed a plea of not guilty, upon which the trial was had. There was no error in the action of the court in striking the plea in abatement from the files. In the first place, it was not filed in apt time. After the declaration was amended, four terms of court intervened before the plea was filed. Being a dilatory plea, it should have been filed at the earliest practicable time. That was not done. But if it had been, a satisfactory reason for the decision of the court is, that it presented an immaterial issue. The action was for a tort, and if two were liable then each was liable, and the action could properly be brought against either wrongdoer.

More instructions were given on behalf of defendant than the nature of the ease required. Every principle of law that was thought to have any application to the facts, was fully stated in the numerous instructions given at the instance of defendant. But complaint is made that the court refused to give other charges asked. It is seen, on examination, that the substance of all the refused instructions that it was proper to give to the jury, was contained in some of the instructions given for defendant, and the court was under no duty to repeat the same thing a second time.

No serious error is perceived in the action of the court in giving instructions for plaintiff, especially when they are considered in connection with the facts of the case to which they were applicable.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.