source: Caselaw Access Project

author: Farwell, J.;—

license: Public Domain

text:
      (Circuit Court of Cook County.)
    Anonymous.
    (1872.)
    Where a statute requires a notice to be published three weeks in a newspaper, it should be published in every issue of the paper during the three weeks; if a daily, once a day; if a weekly, once a week; and that a publication once a week in a daily paper is not a publication of three weeks, but only three days’ publication.
   Farwell, J.;—

The statute says they should be published three weeks in a newspaper, and that ought to be, according to my view, every day during that three weeks on which the paper is published. If it is a weekly paper, once a week; if it is a daily paper, once a day. It ought to be published whenever the paper is published; but once a week in a daily paper, I do not think is good. I do not know whether there are any decisions on the question or not. I asked Judge Williams about it, and he at once said he had no-doubt about the question; that once a week publication in a daily paper is not a publication of three weeks, but is only three days.

       Judge Erastus S. Williams. — Ed.


author: Turner, J.: —

text:
      (Circuit Court of Menard County.)

    In the Matter of the Location of a Road in Menard County.
    (March. Term, 1872.)
    1. Constitutional Law — Benefit of Doubt Solved in Favor of Law. Where it is not clear that a law is in conflict with the constitution the doubt should be solved in favor of the law.
    2. Roads — Establishing of as Taking of Property for Public Use. The establishment of a public road over the land of an individual, is a taking of private property for public use.
    3. Roads — Establishment of — Taking Property Without Having Compensation Determined by Jury as Provided in Constitution of 1870. Although under the road law of 1845 as amended, private property can be taken for the purpose of establishing a road and the compensation determined by three householders appointed by the county court, these proceedings are not warranted under the constitution of 1870, which provides for the ascertainment of such damages by a jury.
    4. Same — Remedy by Appeal. Nor is it material that the land owner has a remedy by appeal from the county court to the circuit court, where a jury trial could be had.
    Proceeding under the road law of 1845 for the location of a road on a petition presented to the county commissioners. Heard in the circuit court before Judge Turner on appeal. The facts are stated in the opinion.

      S. S. Knoles, of the Petersburgh bar, for certain parties.
   Turner, J.: —

This was a proceeding under the road law, R S. of 1845 and amendment of 1855, to locate a road, on a petition presented to the county commissioners, and proceedings were had and an order made pursuant to that law, locating the road and fixing the damages as assessed by the three householders appointed by the county court, and appeal taken to the circuit court, where the appellant moves to dismiss the proceedings, for the reason that they are unwarranted by the law under the constitution of 1870. The constitution provides, art. 2, sec. 13, “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury as shall be prescribed by law.”

The constitution being the supreme law of the state, the question presented is, whether this law, which was in force previous to its adoption, is not clearly in conflict with the express provisions of the constitution above quoted, for it is a well recognized principle in deciding upon the constitu tionality of a law, that where the act of the legislature is not clearly in conflict with the constitution, the benefit of any doubt should be in favor of sustaining the law. Establishing a public road over the land of an individual, is a taking of private property for public use. If the owner does not consent to such taking, and does not release any claim that he has for compensation, then it must be ascertained by a jury to meet the requirements of the constitution. Does the law in question provide any mode by which such compensation can thus be ascertained?

It appears to me clearly that it does not.

It is insisted on the argument, that after all the requirements of the law have been complied with in the county commissioners’ court, an appeal may be taken to the circuit court, where the demands of the constitution can be met by the intervention of a jury. It is also conceded that there is no other tribunal provided for in the law, where this requirement can be complied with, as the county commissioners’ court is not a judicial body before which a jury could be called for that purpose.

The constitution being clear and explicit upon that point,, it is very evident that without the intervention of a jury, the proceedings would not be such a compliance with its requirements as to justify the taking of the land for the public highway.

The law in question, makes the proceedings for the establishment of a road, complete, where the report of the viewers and commissioners appointed to assess damages, are approved and recorded in the county commissioners’ court, unless an appeal be taken to the circuit court; yet it cannot be contended, that if the proceedings were to stop in the county commissioners’ court, the road would be a legal highway, or that the owner of the land would be divested of the same. It must be admitted then, that when all the requirements of that law have been complied with, the demands of the constitution have not been satisfied, nor is it easy to conceive how they could be satisfied by following any of the provisions of that law.

The provision of the law for the assessment of damages or ascertaining compensation, by the appointment of three householders, is, under the constitution, a nullity; hence it is difficult to conceive how anything in the form of legal proceedings, which in themselves have no validity, should be considered a necessary part of the proceedings, to render any final result legal. If such a principle could be admitted, how could the final result be obtained in the circuit court ? Suppose no one proposes to take an appeal from the county commissioners’ court, the county cannot do it, and then the proceedings must necessarily fail for want of the intervention of a jury under the direction of a judicial tribunal.

The case of Rich v. Chicago is referred to as authority to sustain the law under the constitution, but as I understand the decision of the supreme court in that case, it does not meet the difficulty presented in this. In view of the public necessities, it would be desirable to sustain the validity of the law, but it cannot be done in violation of well settled principles, and the legislature alone can afford relief.

The proceedings must be dismissed.

       59 Ill. 286 — Ed.


author: Per Curiam

text:
      (Supreme Court of Illinois.)

    George W. Acres vs. David George.
    (January 22, 1872.)
    Partition Fences — Duty to Repair — Liability for Cattle Breaking Through. Where the plaintiff’s cattle were in defendant’s field with the consent of the latter and they passed upon the defendant’s premises through a breach in the partition fence made by the cattle of defendant, the defendant has no right to take úp and hold plaintiff’s cattle, than if such breach had been made by himself.
    Appeal from Lee county.

      Eustace, Barge & Dixon, for appellant.

      Jas. K. Edsall, for appellee.
   Per Curiam

There was error in sustaining the demurrer to the amended additional replication.

It shows that plaintiff’s cattle were in defendant’s field with the consent of the latter, and they passed thence upon the premises of the defendant through a breach in the partition fence, made by the cattle of the defendant. The breach thus made it was his duty to repair. Under such circumstances the defendant had no more right to take "up and hold plaintiff’s cattle, under the act of 1867, entitled “Domestic animals,” than he would have had if the breach in the fence had been made by the defendant himself instead of his -cattle.

■Reversed and remanded.


author: Brebse, J.: — -

text:
      (Supreme Court of Illinois.)

    Anna Burton vs. Martin Green.
    (September 28, 1871.)
    1. Equity Jurisdiction — Adequate Remedy at Law. Where a, complainant alleges that at the time of filing the bill, and prior thereto, the full title in fee simple to the tract of land described in the bill was vested in him, and prays for a conveyance of the land by the defendant to. him, a court of equity has no jurisdiction of the subject matter, and can grant him no relief, as he has an adequate remedy at law.
    2. Allegations of Bill — Possession—Remedy at Law. In such case, where there is no allegation in the bill that the complainant was in possession of the land, of which he seeks to compel a conveyance, at the time of filing his bill, the inference must be that he was not in possession; and not being in possession, his remedy to recover the possession was complete at law, by an action of ejectment,
    3. Lost Deed — Subsequent Conveyance — Equity Jurisdiction. The fact that a widow receives a deed of premises to herself to-supply the place of a prior deed executed to her husband in his lifetime, and alleged to be lost, constitutes no such equity as to give chancery jurisdiction to compel the widow to convey to the complainant.

      Charles J. Beattie, for plaintiff m error.

      Dickey, Rice & Lewis, for defendant.
   Brebse, J.: — -

Complainant alleges in his hill, that at the time of filing the same and prior thereto, the full title in fee simple to the piece of land described therein, was vested in him. There is no allegation in the bill that complainant was in possession, the inference, therefore, must be he was not in possession, and being so, his remedy to recover the possession was complete at law by an action of ejectment, in which he could not fail to recover, on showing a complete legal title in himself. The fact that Mrs. Burton had received of Hallam a deed to herself, to supply the place of a prior deed executed to her husband in Ms lifetime, and alleged to> he lost, constitutes no such equity as to give chancery jurisdiction. Complainant claims through Burton, and to establish Ms title at law, it would only he necessary to- prove the execution of the deed by Hallam to Burton and its subsequent loss. We fail to perceive any equity in complainant’s bill. The motion to dissolve the injunction and dismiss the hill should have been allowed. Refusing it was error, and for this the decree must he reversed and the cause remanded.


author: Blake, J.:—

text:
    (Municipal Court of Chicago.)

    Laura L. Arthur vs. John J. Doyle, Peter Doyle and William Griffin.
    (1907.)
    1. Forcible Entry and Detainer — Suit on Bond — Damages for Time Premises Unlawfully Withheld — Rental Value — ■ Value of use and Occupation. It is competent in a suit on a bond given by a defendant in an appeal in a forcible entry and detainer proceeding, to show the value of the use and occupation of the premises for the time the defendant unlawfully withheld them. “Rental value” and the “value of the use and occupation” are synonomous.
    2. Trial — Evidence Elicited on Cross-Examination — Estoppel to Complain. A party is not in a position to complain of facts brought out on cross-examination of his opponent’s witness.
    3. Former Adjudication — Splitting Causes of Action — Suits fob Damages for Unlawful Detention of Premises — When Recovery in One Suit Only Allowable. Where a plaintiff institutes two suits for damages which have accrued to him by the unlawful detention of his premises by the defendant and in one of them seeks to recover for part of the time they have been detained, and in the other for the remainder of the time, a recovery in one will preclude a recovery in the other. The law does not allow a splitting of the cause of action in such a manner.

      ■ Motion for new trial.
    The facts are stated in the opinion of the court. Heard before Judge Freeman K. Blake.

      Steele & Thompson, attorneys for plaintiff.

      Gearon & Gearon, attorneys for defendants; Aaron Helms, of counsel.
   Blake, J.:—

Counsel for defendants urge two points as ground for a new trial, viz: first, that the court erred in the admission of evidence on the part of the plaintiff, and, second, that the court erred in the exclusion of material evidence tendered by the defendants.

Upon the first point it is insisted that it was error to admit evidence of the value of the use and occupation of the premises during the time they were withheld by the defendants. It is particularly urged that the court erred in permitting a witness for plaintiff to testify that the rental value of the box-stalls was $5 per month, and of the single stalls $2.50 per month. Our courts have held that it is competent to prove the rental value of the premises and the value of the use and occupation, and that the terms “rental value” and “the value of the use and occupation” are synonymous. Dulaney v. Payne, 101 Ill. 325; McDole v. McDole, 106 Ill. 452. It is true that on cross-examination, counsel elicited from this witness that these amounts were the amounts which could be realized for such stalls by renting them to customers in the business of conducting a livery and boarding stable on the premises. The defendants are not in a position to complain of facts brought out by them on cross-examination of plaintiff’s witness.

The next question raised is whether the court erred in excluding from, the jury.the record of the former case which was offered by defendants as a bar to the cause of action before the court in this case. It appears from the excluded evidence thus offered that on February 7, 1907, Laura L. Arthur, the plaintiff in this cause, commenced an action in this court against John J. Doyle and Peter Doyle, two of the defendants in this action, to recover damages on a certain penal bond executed on November 22, 1905, by said John J. Doyle in an appeal from a judgment in a forcible detainer case wherein said Laura L. Arthur was plaintiff and said John J. Doyle was defendant, which case was brought for the restitution of the same real estate in question in the case at bar, to wit, the first and second floors of the brick building known as No. 240 S. St. Louis avenue, and the fiat on the second floor of said premises, and which bond was conditioned “that said John J. Doyle should prosecute his appeal with effect and pay all rent then due, or that may become due before the final determination of the suit, and also all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding until the restitution of the possession thereof to the plaintiff, together with all costs that may accrue in case the judgment from which the appeal is taken is affirmed or appeal dismissed.”

The plaintiff’s bill of particulars in the former case avers that her claim is based upon an appeal bond sighed and sealed by the defendants and filed in the circuit court of Cook county, in an appeal from a judgment entered in favor of Laura L. Arthur by John K. Prindivide, justice of the peace, in an action of forcible entry and detainer in which Laura L. Arthur was plaintiff and John J. Doyle was defendant, and the items of damages alleged and set out were three and onq-quarter months’ rent at $140 per month, $455 damages to premises, $200; interest on rent to date, $22.67; court costs (circuit court) $8.50, and attorney’s fees, $50, making a total of $736.37. Upon" all the allegations of the bill of particulars issue was joined and the cause was tried to a jury and a verdict returned in favor of plaintiff upon which, after hearing and overruling a motion for a new trial, the court rendered judgment on April 20, "1907, for $289.52 damages and costs which defendant paid and the judgment was thereupon satisfied by the plaintiff.

On the 7th day of February, 1907, the plaintiff Laura L. Arthur commenced the case at bar against the defendants John J. Doyle, Peter Doyle and William II. Griffin. In her declaration the plaintiff avers in apt terms that in the same cause above referred to there was- pending on January 8, 1906, in the circuit court of Cook county, Illinois, upon appeal of said John J. Doyle, from a judgment rendered by John K. Prindiville, a justice of the peace in and for Cook county, Illinois, a certain action in forcible detainer wherein said Laura L. Arthur was plaintiff, and said John J. Doyle was defendant, and that such proceedings were had in said court; that on January 8, 1906, a judgment in forcible detainer was rendered by said court against said John J. Doyle in favor of said Laura L. Arthur; that said Laura L. Arthur do have and recover possession of the premises described as the first and second floors of the building known as number 240 South St. Louis avenue, in the city of Chicago, Cook county, Illinois, from which said judgment said John J. Doyle prayed an appeal to the appellate court of Illinois for the First district, which was allowed upon his filing an appeal bond in the sum of fifteen hundred dollars ($1,500) and that on the 9th of February, 1906, said John J. Doyle as principal and Peter Doyle and William H. Griffin as sureties, executed their certain appeal bond in that behalf in the penal sum of fifteen hundred dollars ($1,500), which was approved and filed in the office of the clerk of said circuit court in which bond a certain condition was written as follows, to-wit: “The condition of the above obligation is such That Whereas, the said Laura L. Arthur did,, on the 8th day of January, A. D. 1906, in the circuit court of Cook county, state of Illinois, and of the December term thereof, A. D. 1905, recover a judgment against the abov^ ■bounden John J. Doyle for the restitution of certain premises described in the plaint, to wit, the first and second floors of the brick building known as No. 240 South St. Louis avenue, and the flat on the second floor of said premises, and costs of suit, from which said judgment of the said circuit court of Cook county, the said John J. Doyle has prayed for and obtained an appeal to the appellate court within and for the First district of Illinois. Now, therefore, if the said John J. Doyle shall prosecute such appeal with effect and pay all rent then due, or that may become due before the final determination of the suit, and also all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy and by reason of any injury done thereto during such withholding, until the restitution of the possession thereof to the plaintiff, together with all costs that may accrue in ease the judgment from which the appeal is taken is affirmed, or appeal dismissed, then the above obligation to be void, otherwise to remain in full force and ■effect.”

It is averred that in said cause the appellate court affirmed the judgment of the court below, that the defendant Doyle unlawfully withheld the possession of the premises from October 31, 1905, until the 30th day of September, 1906, and that the value of the use and occupation thereof during said period was. $1,350, and that plaintiff sustained other damages to- the amount of $150.

The defendants pleaded the former judgment and payment and satisfaction of the same in bar. Demurrers were filed by defendants and sustained by the court and exceptions reserved by defendants. The cause was tried in its order and verdict returned by the jury for $1,200, and a motion for a new trial was made by defendants which is now before the court for decision. Upon the trial, defendants offered the record in the former case in evidence but the ■same was excluded by the court and exception taken by defendants. This presents the second question for our decision.

At the time the first suit was commenced the entire claim of the plaintiff had fully accrued.

In this last point raised by the defendants we have presented the question of former adjudication upon which we shall express our views at some length. It is contended by ■defendants that the question of plaintiff’s damages by reason ■of the unlawful withholding was in issue in the former suit, ■and that the jury assessed the amount of such damages, that judgment therefor was rendered and paid and that thereby plaintiff’s entire claim was satisfied.

In the case of Wright v. Griffey, 147 Ill. 496, the court says: “Where some controlling fact or question material to-the determination pf both causes has been adjudicated in the-former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties, its adjudication in the first suit will, if properly-presented, be conclusive of the same question in the latter suit, whether the cause of action is the same in both suits or not: The latter is in some of the cases designated as estoppel by verdict.”

The doctrine thus laid down is undoubtedly the law of this state and is in accordance with the current of decided law elsewhere.

In Boddie v. Brewer & Hoffmann Brewing Company, 107 Ill. App. 357, the court (quoting from Henderson v. Henderson, 3 Hare, 115) said: “Where a given matter becomes the subject-matter in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect to- a matter which might have been brought forward as a part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted a part of their defense. The plea of res judicata applies not only to the point upon which the court was required by the parties to-form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising a reasonable diligence, might have brought forward in time.”

Bigelow on Estoppel, 57, lays down the rule that a point once adjudicated by a court of competent jurisdiction, however erroneous the adjudication, may be relied upon as an 'estoppel in any subsequent collateral suit in the same or any other court at law, or in chancery, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it; and this too, -whether the subsequent suit is upon the same or a different cause of action. To the same effect are also Hanna v. Read, 102 Ill. 596, and Reynolds v. Mandel, 175 Ill. 615.

Upon these authorities there can be no doubt that if the damages claimed in the two actions above described are one and the same claim, the first suit and the result obtained therein would prevent a recovery in this case. The claim of the plaintiff is for damages which accrued to plaintiff by reason of the unlawful withholding of the premises in question for a period of about eleven months. In the first suit plaintiff claimed for three and one-quarter months of that time and in this suit claims for seven and three-quarters months, or the remainder of the whole time. Was plaintiff’s claim of such a character that she could bring more than one suit, or was she compelled to submit her whole claim in one action? The statutes of a tenant holding over against the landlord’s will has been adjudicated by our courts. In the case of Keegan v. Kinnare, 123 Ill. 280, which was an action on appeal bond given in a forcible detainer case, the court said:

“Counsel for appellee were permitted, over the objection of counsel for appellants, to prove the rental value of the property from May 1, 1883, to January 5, 1885 — the date of Kinnare’s death. The evidence shows that appellants went into possession- under a written lease of the property described in the bond from the 1st day of October, A. D. 1878, until the 1st day of May, A. D. 1880, at a stipulated rent of $15 per month; and the contention of counsel for appellants is, that appellants are liable for rent only at that rate. But notice was given terminating that tenancy on the 1st day of May, 1883, which was held sufficient in the suit in which the bond was given. Instead of being tenants after the first day of May, A. D. 1883, appellants were expressly adjudged to be trespassers; and the case cited by counsel for appellants (Clinton Wire Cloth Co. v. Gardner et al., 99 Ill. 151), only holds that where a tenant for a year or years, holds over after the expiration of his lease, without having made any new arrangement with his landlord, under which such holding over takes place, the landlord, at his election, may treat the tenant as trespasser, or as a tenant for another year upon the same terms as in the original lease. But this right of election does not belong to the tenant — it is the landlord alone who may thus elect. (Wood on Landlord and Tenant, page 22, and authorities cited in note 4.) Here the landlord has elected to treat the tenants as trespassers, and they must, consequently, be liable to the administratrix of the landlord for the value of the premises for the length of time they have withheld them from him — namely, from the 1st day of May, A. D. 1883, until the date of his death January 3rd, A. D 1885. 2 Waterman on Trespass, section 96.”

In the case "of Johannes v. Kielgast, 27 Ill. App. 576, the court states the facts of the case as follows: 1 ‘ The rent which appellant covenanted to pay was $35 per month, and he did pay the same to the month of August, 1878. Having made default in payment of the rent for that month, appellee about the 15th day of September, 1878, served upon him a written notice of termination of the lease in five days, if the rent was not paid within that time. The rent remaining unpaid, the appellee, at the end of the five days, commenced suit in forcible detainer against appellant which resulted in a judgment for possession in favor of appellee in February, 1879, the appellant having occupied until that date. This action of covenant was commenced March 5, 1886, and judgment was rendered by the court below for the months of August, September, October, November and December, 1878, and Janunary, 1879, which appellant now seeks to reverse on the ground that an action on his covenant cannot be maintained for any rent accruing after the termination of the lease. The right of enjoyment is the correlative of the duty to pay rent. Whenever the right of enjoyment is lawfully terminated so that it cannot be restored except by mutual consent, the covenant as to payment ceases to be an obligation as to any installment, which, by the terms of the lease, would thereafter have become due.”

The plaintiff, therefore, could not recover rent under the covenants in her lease. She could only recover from the defendant damages accruing as against a tort feasor and her claim consisted of a single item for the rental value of the premises during the whole time from September SO, 1905, to October 1, 1906, and such other damages as she may have proved. The nature of such a claim does not permit of a separation into parts comprising monthly periods, or into other periods arbitrarily fixed by either of the parties. Without quoting from the eases sustaining the proposition that plaintiff cannot split his claim and bring several suits thereon, and if he undertakes to do so, the judgment in the first suit will bar any subsequent suit, especially where the judgment has been paid and satisfied, the following cases are cited: Casselberry v. Forquer, 27 Ill. 170; Camp v. Morgan, 21 Ill. 255; Nickerson v. Rockwell, 90 Ill. 460; Mathias v. Cook, 31 Ill. 83; Lucas v. LaCompte, 42 Ill. 303; Thompson v. Sutton, 57 Ill. 213; King v. Arney, 114 Ill. App. 141.

Prom the points above presented and the authorities cited in support thereof, it will appear that plaintiff’s cause of action set up in this case is barred by the judgment and satisfaction thereof in the former ease. It follows that the court erred in the exclusion of the record from the evidence, and in sustaining the demurrer to the plea setting up said judgment. The motion for a new trial is sustained and a new trial is granted.


author: Rogers, J.:—

text:
      (Circuit Court of Cook County.)
    Abel C. Bingham vs. Ann Jackson
    (July 16, 1872.)
    1. Parent and Child — Duty of Parent to Support Infant Child. A parent is under obligation to provide for the support of an infant child. It is a principle of natural law resting upon the foundation of parental affection and moral duty, and of the common law based upon the right of the parent to the services of the minor.

      2. Same — Liability of Parent for Necessaries Furnished Child. A parent can only be held liable to third persons for necessaries furnished a minor child where a contract, either express or implied, can be shown. Very slight circumstances will, however, establish such a contract.
    3. Same — Liability for Contracts of Infant. Where an infant can make.no contracts and must be supplied or suffer, the reason for requiring a contract ceases and the parent is liable for all supplies to an infant which were so absolutely needed that the infant must have them or perish.
    4. Same — Liability of Mother. The same liability rests upon the mother after the death of the father.
    Action for value of services rendered by plaintiff to defendant’s minor son. Heard before Judge John G. Rogers The facts are stated in the opinion.

      J. C. & J. J. Knickerbocker, for plaintiff.

      Runyam, Avery, Loomis & Comstock, for defendant.
   Rogers, J.:—

B. F. Jackson, a minor and son of the defendant, Mrs. Ann Jackson-, was run over by a train of cars and so injured that both of his legs had to be amputated. At the time of the accident he lived with his mother, but was engaged in work for a railroad company. When injured he was taken into a hotel and the plaintiff, Dr. Bingham, was called in as a physician and surgeon. It was necessary to amputate his limbs to save his life. The doctor had to attend him for several weeks afterwards. The boy sued the railroad company, recovered a large judgment, which was set aside and reversed by the supreme court, and before another trial was had, the suit was compromised, and he received $3,000 in full of all claim for damages." He did not pay the plaintiff for his services, and this suit was then brought against his mother to recover for the services of the plaintiff. Upon the trial by the court, without a jury, the facts aforesaid appeared, and it was also found that the boy’s father had been dead for some years before the accident; that his mother, the defendant, had an estate worth at least $6,000, and that the greater part of the money received by her son from the railroad company had been used in paying off debts due by his mother on her homestead in this city.

It was not shown that the doctor was called to see and attend B. F. Jackson by his mother, but it did appear that she knew of his services after he was first called in. Nor did it appear clearly whether the money received by the son for his ' services to the railroad company was paid to him or to his mother. There was no controversy on the trial as to the services rendered by the plaintiff, nor of the value thereof. The only question made was as to the liability of the mother. The general principle that a parent is under an obligation to provide for the support and maintenance of his infant child is too well established to admit of doubt. It is a principle of natural law, resting upon the foundation of parental affection and moral duty. It, too, is a principle of the common law, based upon the right of the parent to the services of his minor child, so that there is both moral and legal obligation upon the father to supply his child while yet a minor with the ordinary necessaries of life.

In England- at an early day it was provided by statute that “the father and mother, grandfather and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter session shall direct.” Sharswood’s Blackstone, book 1, vol. 1, page 447.

This statute, it will be observed, did not confine the obligation to support only such children and grand-children as were minors; it included all, old or young, who were poor and impotent, and who were from the loins of parents. Without . this statute the obligation to maintain minors, in England, was recognized as a legal one, but the courts held that the parent could only be held liable to third persons for necessaries furnished a minor child where a contract could be shown, either express or implied, from particular facts. But very slight- circumstances sufficed to justify them in finding a contract on the part of the parent. And “it will be noticed that where it is most distinctly denied that 'this moral obligation of the parent constitutes a legal obligation, the denial is confined to a liability for the contracts of the child.” See Parsons on Contracts, fifth edition, vol. 1, page 303.

But “where the infant can make no contracts, and must be supplied or suffer,” then the reason for requiring a contract, which arises from the danger of permitting a father to be bound, ceases. See Parsons, supra.

The rule of law in this country generally, if not universally, “imposes a liability on the father for all supplies to an infant which were so absolutely needed that he must have them or perish.” Parsons, page 306. The ease we are considering falls under this rule, for without the services of a physician and surgeon young Jackson would have suffered greatly, and, no doubt, died.

That his father, if living, would have been liable for the services rendered his son, I have no doubt; but whether the mother is under equal obligation, the father being dead, is the question here. It is said by Parsons that the legal obligation upon the mother is very greatly qualified in important particulars, one of which is, where the son has property in his own right. To the same effect is Whipple v. Dow, 2 Mass. 415. But the obligation, if any, in the case we are considering, arose where the son had no property, and it is in that respect different from the cases cited and relied upon by defendant’s attorneys. Besides, I can see no difference whatever in the moral or legal obligation resting upon father and mother. The mother has as strong, if not stronger, natural affection for her offspring. She is entitled to the services of her minor child; the father being dead, is then the head of the family, and should assume all the parental burdens. See Schouler’s Domestic Relations, page 325. See, also, as to her right to the son’s services, Dufield v. Cross, 12 Ill. 397.

In view of the facts of this case, that B. P. Jackson, a minor child of the defendant, his father being dead, had no property at the time of the accident and the rendering of the services sued for, was living with his mother, who was entitled to his services, and would have suffered and died but for the services and attention of the plaintiff, and that she had and now has a good estate, freed from incumbrance by money furnished her by that son, which he afterwards acquired, I have no doubt of her moral and legal obligation to pay for the services sued for.

Let judgment be entered for the plaintiff against defendant for $273.25.


author: Tree, J.:—

text:
      (Circuit Court of Cook County.)
    Jacob Meyer vs. Aurora Insurance Co.
    (July 5, 1872.)
    1. Bankruptcy — Stay of Proceedings. A stay of proceedings of a suit at law on the ground of the pendency of bankruptcy proceedings should be denied where the bankrupt cannot receive a discharge.
    Motion to stay further proceedings in action at law on account of the pendency of bankruptcy proceedings. Heard before Judge Lambert Tree.
   Tree, J.:—

This is a motion to stay further proceedings in this court on the ground that the defendant, the Aurora Fire Ins. Co., is in bankruptcy. The motion is based on the 21st section of the act of congress, known as the bankrupt law, which provides that any “suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge; provided there be no unreasonable delay on the part of the bankrupt in endeavoring to obtain discharge.” A discharge under the act may be pleaded in bar to any further maintenance of an action for prior indebtedness; but the 37th section of the same act provides, ‘‘that no allowance or discharge shall be granted to any corporation or joint stock company, or to any person or officer or member thereof. ’ ’ It will be seen that the bankrupt law establishes a distinction between corporations and individuals in this respect: but inasmuch as an individual may procure a final discharge, there is evident propriety in staying proceedings until it can be ascertained whether the court in bankruptcy shall grant him one. But even in that case, the law provides that there shall be no unreasonable delay in prosecuting the proceedings in bankruptcy to a final determination. In the case of a corporation, however, which can never receive such ,-a discharge by the terms of the act itself, it is difficult to ■see upon what grounds the creditor should be required to •stay his suit, and especially where judgment may be necessary to perfect a legal remedy against- officers or stockholders of the company. This doctrine was held by Brady, Justice (N. Y. Supreme Court), who refused to stay proceedings,, in the case of Sarah O. Allen, admiinistratrix, v. The Soldiers’ Business Messenger and Dispatch Company, 4 Bankruptcy Register, 176; and it seems to me that the doctrine is sound on principle and sustained by the language and spirit of the bankrupt act. The motion to stay the proceedings in this case is therefore denied.,


author: Dupuy, J. :—

text:
      (Superior Court of Cook County. In Chancery.)

    A. Montgomery Ward vs. Field Museum of Natural History, a corporation, and South Park Commissioners, a municipal corporation.
    1. Equity — Demurrer to Cross Bill — Examination or Other Pleadings. Upon a demurrer to a cross-bill, it is competent to refer to the answer filed with the cross-bill, where the cross-bill refers to the answer to determine what are the allegations made by the defendant upon which he bases his relief.
    2. Equity- — Demurrer to Cross-Bill to Remove Cloud on Title Consisting oe Easement Set up in Bill. A demurrer to a cross-bill will be overruled which seeks to remove a cloud on title consisting of an easement in cross-complainant’s land which complainant by his bill seeks to establish, as on demurrer to a cross-bill the facts therein stated must be taken as true.
    3. Courts — Judicial Decisions — As to What is, the Decree or the Opinion of the Court. If a point presented for decision to the supreme court is left open and undecided in and by its decree, then that point is left open notwithstanding the supreme court in its opinion made use of language which if given literal interpretation would foreclose the question.
    4. Public Parks — What are. The primary idea of a park is an ornamental and adorned tract of ground to serve as a place of free public resort.
    .5. Parks and Commons — Dedication of Land for — Inconsistency. Land cannot be dedicated and accepted as a park and at the same time be “a common to remain forever open, clear and free of any buildings or other obstructions whatever.” A park and an unoccupied common are two different and inconsistent things.
    -6. Injunctions — Basements—Issuance of in Doubtful Case— Balancín® of Conveniences. When the easement which complainant seeks to enforce is of doubtful validity and its enforcement will entail great loss to the defendant and hardship to the public and its non-enforcement will create no irreparable injury or the injury is slight to the complainant the latter should be denied the injunction and left to his remedy at law.
    7. Courts- — Jurisdiction of Superior Court to Prohibit Enforcement of Decrees Entered Previously in Superior or Circuit Court. The superior court has no jurisdiction to prohibit a complainant from moving in any way he may be advised to enforce decrees which may have been previously entered in the circuit and superior courts.
    8. Equity — Jurisdiction to Determine Validity of a Law as to Right of Party to Condemn — -How Validity to be Determined. A court of equity has no jurisdiction in the present equity proceeding to determine the validity of a law in respect to the right of one of the parties to condemn the rights of the others. The scope, effect and validity of the law will be directly involved in any condemnation proceeding that may be instituted and all matters in relation thereto must be determined by the court in the progress of such litigation if any shall be instituted.
    Demurrer to cross-bill. Heard before Judge George Dupuy. Gen. No. 259,201. The facts are stated in the opinion.
   Dupuy, J. :—

The matter to he here determined is a demurrer, general and special, to the cross-bill of complainant. .1 was somewhat in doubt whether, in undertaking to determine the matter, I should be confined solely and entirely to the allegations of the cross-bill, or whether it would be permissible to examine the other pleadings so often referred to during the course of the argument. The rule in such case is set forth in the opinion of the supreme court in the case of Thielman v. Carr, 75 Ill. 385, 389, where it is said:

“.After a defendant has fully answered the bill, no objection is perceived to his then stating new matter entitling him to such relief, as he would in the cross-bill, and ending with an appropriate prayer for relief. We can see no particular merit to be imparted to such pleadings by having them detached and on separate papera. We can see no particular objection even in form to such a course.”

I understand from this authority that, upon demurrer to a cross-bill, it is competent to refer to the answer filed with the cross-bill, where the cross-bill refers to the answer, to determine what are the allegations made by the defendant, upon which he bases his claim for relief.

The special points of demurrer, as s.et forth at considerable length in paragraphs 1 to 12 of the pleading filed, may be roughly stated as follows:

I. That the cross-bill seeks no relief that the court could not award under the original bill and answer, and hence is unnecessary (paragraphs 1 to 6 inclusive).

II. That the same matters here in dispute were judicially determined by the decree entered in the case of Ward v. City, infra (paragraphs 7 and 9).

III. That the same matters here in controversy were again judicially determined and finally adjudicated in the case of Ward v. Bliss, 198 Ill. 104 (paragraphs 8 and 9).

IV. That the court in this proceeding has no jurisdiction to enjoin cross-complainants from proceeding to have cross-defendants punished as fotf contempt for violation of the aforesaid former decrees (paragraph 10).

V. That this court has no jurisdiction to determine the effect or validity of the act of March 14th, 1903, in respect to the right of condemnation under the power of eminent domain purported to be thereby conferred upon the cross complainant (paragraph 11).

VI. That said cross-bill is not germane to the subject matter of the original bill.

VII. In the general demurrer it is of course alleged the cross-bill shows no title to any relief. * # # ;V; £; #

Point I of the special demurrer must be overruled, and for this reason: The bill asserts the existence, in favor of the complainant, of a certain easement in the real estate in question. The cross-bill denies the existence of such easement, and further charges that such assertion of the complainant is a hindrance to its beneficial enjoyment of the land so held in trust, and that such assertion by the complainant is in effect at least a cloud upon its title.

If this easement claimed by the complainant is shown to exist, then of course the cross-complainant can have no relief. If it does not exist, then it must be equally clear that its assertion by the complainant is a hindrance to the enjoyment of cross-complainant’s title.

Taking the charges contained in the cross-bill as true, as must be done for the purposes of this demurrer, I am of the opinion that this point of objection is not well founded.

I am of the opinion that Points II and III of demurrer are not well taken. These are the ones that were most strenuously insisted upon in argument and that present the greatest degree of difficulty. They present directly the question whether or not

(1) The matters here in controversy have been judicially disposed of and determined by the decrees in the two cases of Ward v. City and Ward v. Bliss, already referred to, and also

(2) Whether aside -from the decrees in those cases, the cross-complainant shows any title to relief.

Upon the argument of these demurrers, the court’s attention was called to the language of the supreme court in the case of Ward v. City, 169 Ill. 392, 403, where it is said:

“That the land was so dedicated and accepted subject to the restrictions imposed, of being forever unoccupied by buildings, and that this restriction extended to and included all the land between the west line of Michigan avenue and the shore of the lake as it was when these lands were platted, we entertain no doubt.”

The attention of the court was also directed to other similar expressions of the court in the two cases referred to, and to the holding of that court that all of the present park area is under the same restrictions as to buildings.

It was strenuously insisted upon the argument of these demurrers, that the language of the supreme court before referred to, settled the matters here involved, beyond all reasonable dispute, and that it would amount to “judicial anarchy” on the part of this court should it deny to the language of that court literal application to the matters in controversy here. And here it may be remarked, that this court has not the slightest disposition to suppose the supreme court did not understand the decision it rendered, and still less has this court any inclination to overrule or refuse to apply the law of the decisions above referred to.

It was further claimed by demurrant’s counsel that if there were any conflict between the terms of the decrees in the two cases referred to and the language of the supreme court in considering the eases, that the language of the opinion and not the language of the decree should govern this court in the matter now being considered.

That contention is not in accord with the law. On this point Mr. Chief Justice Schofield, in the case of Mayer v. Erhardt, 88 Ill. 452, at page 457, said:

“And here we may appropriately quote from the opinion of Judge Marshall, in Cohens v. Virginia, 6 Wheaton, 399: ‘It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent point when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. ’ ”

So here, “if the very point presented for decision” was not decided in and by the decree of the court in either of the former cases, then it is clear that the language of the supreme court, if any, not applicable to the points determined by the decree, “ought not to control;” and, further applying the above doctrine to the matter here presented, if that decree does not prohibit structures consistent with the use of this ground for a park, and if there are buildings that are necessary to a park, then the decree in the ease referred to left the question here presented open and undetermined, notwithstanding the supreme court in its opinion made use of language which, if given literal, application, would prohibit all buildings of every character.

That decree determined that both the city and other persons must

“Absolutely desist and refrain from placing or causing to be placed any building, material, lumber, timbers, dirt, rubbish, garbage, debris, street sweepings, or other material whatsoever, of any kind or nature, except * * * such structures * * * to be placed thereon for the purpose of making a public park of said premises.”

But it is clear that that decree, by its own terms, did not prohibit the use of said real estate for park purposes. The language is:

“And said defendants are further hereby commanded to absolutely desist and refrain from using or occupying or permitting the use and oecuption of the above described premises, for any purpose * * * not consistent with the use of said public ground, within the limits above mentioned, for a public park, solely and exclusively.”

I am of the opinion that the respective rights of the parties hereto, in or in any wise connected with said plat of ground, grow out of the original dedication and acceptance of the same, not limited or affected by any subsequent legislation. Whatever rights the abutting owners then acquired, became and are vested rights of which they cannot be deprived by any power on earth except by the exercise of the sovereign right of eminent domain. But this conclusion does not give any aid in determining what were the rights so acquired.

This piece of ground, so far as it was not covered by the waters of the lake, was shown on the plat of the Canal Trustees as “Michigan Avenue',” and yet only a small strip of it is now or ever has been “Michigan Avenue,” or any other avenue or highway. According to all the arguments made, all the decrees rendered, and according to all the long history of the title of this piece of public ground, extending over a period of nearly sixty years, it has now and, since its acceptance always has had, the character of a public park, and I am strongly inclined to the view that the rights of the parties hereto must be tested and finally determined by considering what is comprehended in the fact that it is a public park. y

The Century Dictionary definés a park as:

“A piece of ground, usually of considerable extent, set apart and maintained for public use, and laid out in such a way as to afford pleasure to the eye as well as opportunity for open-air recreation.”

Bouvier Law Dictionary defines a park to be “A pleasure-ground, in or near a city, set apart for the recreation of the public; a piece of ground enclosed for purposes of pleasure, exercise, amusement or ornament; a place for the resort of the public for recreation, air and light; a place open for everyone.”

If the primary idea of a park is an ornamental and adorned tract of ground to serve as a place of free public resort, it cannot be denied that shelter for those who come is of primary importance; that buildings for public convenience are most essential, and that a park, both in the popular and in the legal sense of the term, cannot exist in the form of a vacant and unoccupied common devoid of all buildings of every character.

The views here expressed find support in the decision rendered by Judges Tuley, Horton and Burroughs, in the case of Daggett v. City of Chicago, 24 Legal News, 353, where the same question now before this court, was there being considered, and in which decision, in speaking of the proposed Art Institute, then about to be erected on this same park, the court, among other things, said:

“Is such a building in a public park a use of such park for public purposes or for park purposes? There can be no doubt of the power of the legislature to declare that this Lake Park should be for the education as well as for the physical enjoyment and recreation of the masses of the people. Are not such institutions as art galleries usually found in public places or public parks ? Is it reasonable to urge that it is a perversion of the uses of a public park that there should be a building upon it devoted to art purposes, filled with paintings and works of art to delight the souls of the people who visit such parks? Are parks necessarily to be confined to the works of nature? Certainly this is a contracted view •of the objects of public parks, and should not prevail.”

It is alleged in the cross-bill that certain buildings are a •necessary part of a park:

“The administration, control, care and policing of a park renders it necessary that certain buildings be maintained for shelter, to provide for the public comfort, the safe keeping of implements and machinery, to supply light, power and sprinkling for trees and shrubbery.” Also alleges that certain other buildings are convenient and usual in parks.

In these allegations the cross-bill alleges that which is common knowledge, and if the decree in the case of Ward v. City, only prohibited buildings “not consistent with the use of said public ground * ® * for a pnblic park solely and •exclusively,” then certainly the question here presented is in no wise foreclosed by that decree.

In addition to the foregoing, it should be noted that the only part of the present park to which the prohibitions of that decree relate, is the land “between the west line of Michigan avenue and the west line of the right of way and. grounds of the Illinois Central Railroad Company, ’ ’ from Park Row to Randolph street, and does not, in terms, include the lands east of the Illinois Central Railroad right of way.

The same observations apply in general to the decree in the Bliss Case. The question there was wholly a question of the diversion of said ground from park purposes. The great-Armory building proposed to be erected was to be and remain the property of the state; the use and occupation of the land to be used was to be in the state of Illinois, and to-be perpetual, and was to be for no purpose remotely consistent with purposes of a public park. I hold that neither of these cases have judicially determined the question which these demurrers now present.

The question still remains, whether the original restrictions; under which this tract was placed when the lots on Michigan avenue were sold, prohibit necessary park buildings. The-plat which was recorded only shows a part of the present park tract as Michigan avenue. The unrecorded plat, upon which it is alleged sales of lots were made, designates it as. “a common, to remain forever open, clear and free of any buildings or other -obstructions whatever. ’ ’

This piece of ground was, as already stated, according to-all the arguments that have been made, and the pleadings and decrees, accepted as a park. If it is a park, it is not; “Michigan Avenue” as shown on the recorded plat. If certain buildings are a necessary part of a park, as is alleged in the cross-bill, then a park and an unoccupied common are-two different and inconsistent things. In that case it would seem that the operation of these limitations should be restricted to the prohibiting of only such buildings as are inconsistent with the use of said real estate for park purposes; otherwise, we should have the novel spectacle of the grant of certain grounds for park purposes, and restrictions at the-same time imposed upon its use which would make it imp ossible to utilize and maintain it as a park. It would be very much, like the situation in the ease of Godfrey v. City of Alton, 12 Ill. 29, cited on the argument, where it was said: “All accretions to a public landing must necessarily attach to and form a part of it. Otherwise we should have the novel spectacle of a public landing separated from the war ter, as is in fact attempted in this case.”

So, in this case, we should have the novel spectacle of a public park, without power on the part of the city to improve and maintain it as such.

These conclusions are somewhat enforced by the fact that a vast area of land, including very much the larger part of the park, has been reclaimed by the city at great expense, and that it was commonly understood that it was to become part of a park, not part of an unoccupied common. No steps have been taken by the complainant to prohibit the making of this addition to this public park.

I am, therefore, of the opinion that the restrictions alleged to exist in regard to the use of this park tract, should be construed consistently with the use of this ground as a pub- . lie park if they can be so construed, and, if they do not admit of such construction but are to be given literal application as prohibiting all buildings, of every kind, including such as are necessary for park purposes, then they are either invalid, or at least, of such doubtful validity that the cross defendant should be left to his remedy for damages by an action at law.

“The issuing or continuing the writ of injunction is to some extent a matter of discretion of the court, and where the right infringed will create no irreparable injury or the injury is slight, that discretion is often exercised against the issuing of the writ of injunction. The court will balance the loss or inconvenience, and if the issuing of the writ will cause much loss or inconvenience to the defendants, and but slight 'to the complainant, it will refuse to use the court’s strong arm to protect the complainant, but will leave him or her to an action of law.” JJ. Tuley, Horton and Burroughs in the D.aggett case.

The cross-defendant claimed an easement perpetual in its duration, not of light or air or passageway, but of unobstructed view across this entire park area, and for that purpose that the whole must be kept free from buildings. It is obvious that any ornamentation arising from diversifying the' surface or planting trees will obstruct the view as effectually as would necessary park buildings. The claim of the cross-defendant is that the whole area of the park shall, according to the words appearing upon the original sales plat, perpetually remain “A common; to remain forever open, clear and free of any buildings or other obstructions, whatever.”

The allowance of this claim to the extent insisted upon would render it impossible to improve this park as public parks are usually and ordinarily improved; would greatly detract from its availability as a place of public resort, which is one of the primary purposes of a park; and would, in a large measure, thwart the objects for which this land was reclaimed from the lake, thereby entailing upon the public perpetually the most serious embarrassment in its use of this park.

Thus balancing the interests of the parties, the claims of the complainant do not furnish to a court of chancery a reasonable or just basis for a perpetual injunction of the character prayed in the bill of complaint.

Point IV of the demurrer is sustained. It seems quite clear to me that this court has no jurisdiction to prohibit the complainant from moving in any way he may be advised, to enforce the decrees that have heretofore been entered in the circuit court and in this court, respectively. Certainly this court has no semblance of jurisdiction' in this proceeding to review any decree of the circuit court, and has no right to interfere with the complainant’s attempting to enforce any such decree. Neither has this branch of this court any jurisdiction in this proceeding, or otherwise than by a bill of review or some other appropriate direct proceeding, to interfere with the operation of a decree heretofore entered in this court. For it to attempt to do so, it seems to me would be subversive of all orderly procedure.

Point V of the demurrer is also sustained. This court has no jurisdiction to determine the effect or validity of the act of March 14, 1903, in respect to the right of the cross-complainant to condemn, as under the power of eminent domain the rights of the complainant, if any. The scope, effect and validity of that law will be directly' involved in any condemnation proceeding that may be instituted, and all matters in relation thereto must be determined by the court in the progress of such litigation, if any shall be instituted. No doubt the cross-complainant, by allegations in the cross-bill to which this part of the demurrer relates, intended that this court should determine whether or not this act conferred upon the park commissioners the power to make the contract alleged with the Field Museum, but the cross-defendant has not demurred to it on this ground, and consequently a decision on that point is not called for at this time.

Point VI of the demurrer is overruled. The cross-bill is germane to the subject-matter of the original bill.

Point VII of the demurrer, being a general demurrer, is overruled.

       Reported in this volume — Ed.


author: McCulloch, J.:—

text:
      (Circuit Court of Peoria County.)
    Mark M. Bassett vs. Thomas Fahey.
    (1879.)
    1. Assignments fob Benefit of Cbeditobs — Validity—Effect of Possession. " A voluntary assignment for the benefit of creditors is not in itself void and where possession accompanies the deed, it will prevail over executions subsequently issued in the absence of legislation to the contrary.
    2. Assignments fob Benefit of Cbeditobs — Law of 1877 — InVENTOBY OF ASSETS AND LIST OF CBEDITOBS-OMISSION OF-— Effect. The omission to make an inventory of assets and a list of creditors and attach the same to an assignment for the benefit of creditors, as provided in the law of 1877, does not make the assignment void.
    '3. Same — Bond oe Assignee — Executions Before Bond Given. A voluntary conveyance for the benefit of creditors is not void as to an execution served after the deed has been delivered but before the assignee has entered into the bond provided in the law of 1877.
    •4. Same — Where Title Passes to Assignee — When to Make In- ■ VENTORY AND VALUATION AND ENTER INTO BOND. For the purpose of taking possession of the estate of the debtor the title of the assignee vests from the time of the delivery of the deed of assignment and he has a reasonable time thereafter to see that an inventory and valuation is made and in which to enter into his bond. These acts, when performed relate back to the time of the delivery of the deed of assignment. Sections 3 and 12 of the act lead to this conclusion.
    5. Same — Notice—Failure to Acknowledge or Record Deed Where Possession of Property Taken. Where possession is taken of the debtor’s property under a voluntary assignment for the benefit of creditors, a failure to record or acknowledge the deed does not render it fraudulent as to a subsequent execution creditor. Possession is sufficient notice to the latter.
    Action of replevin. Heard before Judge McCulloch. The facts are stated in the opinion of the court. . !
   McCulloch, J.:—

This is an action of replevin brought to recover certain articles of jewelry claimed by plaintiff under a deed of assignment dated July 2d, 1877, made by James A. Hutchinson for the benefit of bis creditors, which the defendant, as constable of Peoria county, levied upon by virtue of an execution, dated.on the same day as the assignment.

No question is made as to the validity of the execution, nor that it became a lien upon the property of Hutchinson from the time it came into the hands of defendant, as con-7 stable, which time the proof shows to have been at 9 o’clock a. m. of the day of its date.

Nor isi any question made as to the good faith of the assignment, any further than that both plaintiff and Hutchinson at the time of the execution of the deed of assignment knew of the pendency of the suit and that judgment was about to be rendered in the case wherein said execution was issued. This fact alone does not prove the assignment to have been fraudulent as to creditors..

It appears from the evidence that Hutchinson had been contemplating the making of an assignment for several days previous to the second day of July, and possibly the papers were prepared before that date, but its actual execution and delivery took place early in the morning of that day. The day preceding this transaction, the act of May 22, 1877, concerning voluntary assignments came in force, but it appears in proof, that the attention of. the assignee was not called to the same until some time during the same day, but after the execution came into the hands of defendant. It was therefore not in the mind of either Hutchinson or the plaintiff at the time to follow the provisions of that statute.

It is in proof that plaintiff took possession of the property in question, claiming title under said assignment, at the hour of 8 o’clock a. m. on the second day of July, so that if his title under said deed is a good one, it takes precedence of defendant’s title by about an hour.

The act of May 22 came in force July 1, 1877. At the time plaintiff took possession of the property in question, several plain provisions of this act had not been complied with.

The debtor had not verified by his oath the schedules of creditors and assets attached to the deed; he had not acknowledged the execution of the deed, nor had it been recorded ; the assignee had not filed in the' office of the county clerk any inventory and valuation of the property coming into his hands by virtue of said assignment, nor had he entered into any bonds for the faithful performance of his duties as such assignee: Session Laws 1877, p. 116.

Both plaintiff and Hutchinson rested in the belief that they had done all that the law .required them to do. It cannot, therefore, be charged upon them that they, or either of them, intentionally omitted any duty imposed on them by the law.

It is now contended, on the part of the defendant, that, notwithstanding plaintiff’s possession, these omissions render the deed of assignment void as to defendant, and that having acquired a valid lien before the statute had been fully complied with, in the foregoing particulars, he has a right to retain the same, by virtue of his levy.

The proof further shows, that on the same day of the assignment, plaintiff’s attention was called to the provisions of the act of May 22nd, and that thereupon, he immediately set about complying with its terms. He procured the affidavit of Hutchinson to be annexed to the schedules! already 'attached to the deed of assignment. He also procured the acknowledgment of Hutchinson to the execution of the deed, to be duly certified thereon by a notary public. No objection has been urged to these instruments for deficiency in form or substance. Plaintiff also prepared an inventory and valuation of the estate, so far as the same had come to his knowledge, which, having been duly verified by his own oath, he filed in the office of the clerk of the county court, and then and there executed a bond as required by the statute, and took the receipt of the clerk therefor. No objection is taken to these papers for defect, either in form or substance. These documents were all executed and (so far as necessary, to be filed in the clerk’s office), were filed on the 3d day of July. The deed also bears the file mark of the county clerk, dated July 3d, but it was not filed for record in the recorder’s office until the 6th day of August.

It is now too late to say, nor is it claimed, that a voluntary assignment by a debtor for the benefit of his creditors is, in itself, void. It is also settled that where such an assignment is fairly made, and possession accompanies the deed, it will prevail over executions subsequently issued, unless.there be something in recent legislation to render it void. This point is decided by the supreme court in a case very similar to the one at bar: Wilson v. Pearson, 20 Ill. 81, followed and approved in Myers v. Kinzie, 26 Ill. 36.

It is now claimed that under the act of May 22nd, 1877 (Laws of 1877, p. 116), no deed of assignment, whether accompanied with possession or not, can take effect as against creditors until the provisions of that act have been fully complied with, up to and including the filing of the bond by the assignee.

The point thus raised is one of very grave importance requiring for its; solution a close examination of the statute in question, and a careful comparison thereof with other statutes in force.

By the first section it is provided:

‘ ‘ That in all cases of voluntary assignments hereafter made for the benefit of creditor or creditors, the debtor or debtors shall annex to such assignment an inventory, under oath or affirmation, of his, her or their estate, real and personal, according to the best of his, her or their knowledge; and also a list of his, her or their creditors, their residence and place of business, if lmown, and the amount of their respective demands; but such inventory shall not be conclusive as to the amount of the debtor’s estate, but such assignment shall vest in the assignee or assignees the title to any other property not exempt by law, belonging to the debtor or debtors at the time of making the assignment, and comprehended within the general terms of the same.”

It is very evident that the making of the inventory of assets and the list of creditors and annexing the same to the deed, are not conditions precedent to the taking effect of the deed, so as to pass title to the assignee, nor are they necessary parts of the deed; for it is provided in the eighth section:

“That no assignment shall be declared fraudulent or void for want of any list or inventory, as provided in the first section of this act.”

The same section then goes on to provide for a compulsory disclosure on the part of the debtor, of the condition of his estate, the names of his creditors and the amounts due to each, with their places of residence.

It is objected that the deed of assignment is void because the assignee had not, at the time the execution came to defendant's hands, entered into bonds as provided by law for the faithful execution of his duties as such assignee.

By section 3 of said act it is provided:

“That the assignee or assignees shall also forthwith file with the clerk of the county court, where such assignment shall be recorded, a true and full inventory and valuation of said estate, under oath or affirmation, so far as the same has come to his or their knowledge, and shall then and there enter into bonds to the people of the state of Illinois; for the use of the creditors in double the amount of the inventory and valuation, with one or more sufficient sureties to be approved by said clerk, and the said clerk shall give a receipt "therefor,- and the assignee or assignees may thereupon proceed to perform any duty necessary to carry into effect the • intention of said assignment as respects the collection of debts and the sale of real and personal estate.”

By section 12, it is provided that:

“In case any assignee shall fail or neglect, for a period of twenty days after the making of any assignment, to file an inventory and valuation, and give bonds as required by this act, it shall be the duty of the county judge of the county where such assignment may be recorded, on the application of any person interested as creditor or otherwise, to appoint some one or more discreet and qualified person or persons to execute the trust embraced in such assignment; and such person or persons, on giving bond with sureties, as required above, of the assignee or assignees named in such assignment, shall possess all the powers thereby, and by this act conferred upon such assignee or assignees, and shall be subject to all the duties hereby imposed, as fully as though he or they are named in the assignment,” etc.

By reading these two sections in connection, it will be perceived that certain acts are to be performed by the assignee under the deed of assignment before he is required to file his bond. He must make an inventory and a sworn valuation of the estate, so far as it has come to his Imowledge. Upon this valuation the amount of the penalty of his bond is fixed. The making of the inventory and valuation necessarily presupposes an acceptance of the trust. A deed of assignment, like every other deed, in order to pass title to the assignee, requires a delivery by the grantor and an acceptance by the grantee. In this instance, the assignee accepted the trust in writing by uniting with the debtor in the signing of the deed. A delivery of the deed to him after such signing imposed upon him the duty to proceed with the execution of the trust. The deed cannot be recorded as an executed deed until its delivery, either actually or constructively. But the taking possession of the deed by the assignee, and assuming to act under it, amounts to an actual acceptance of the trust. The making of an inventory and valuation necessarily precede the execution of the bond. An acceptance of the trust therefore necessarily precedes the ■filing of the bond by the assignee.

The first point to be determined is at what time the title •as between the parties to the deed passes to the assignee. A reading of the third section alone would seem to indicate that, for the purpose of taking possession of the estate, preliminary to the making of the inventory and valuation, the title passes to the assignee; and that he be allowed a reasonable 'time thereafter within which to perfect the title, so as to enable him to collect debts and sell the property of the •debtor. We might well stop here in the discussion of this point, for it appears from the evidence that the assignee used all reasonable diligence, after acceptance of the deed in making and filing this inventory and valuation, and in executing his bond as required by law. His acts in this respect being .within a reasonable time, must be held to relate back to the ■execution of the deed.

But a much more potent reason is found in section twelve. Irrespective of the statute, by an acceptance of the deed the assignee becomes the trustee of all the creditors, and any •subsequent renunciation on his part does not affect the validity of the conveyance. Burrill on Assignments, Ch. 24. Now if it be the intention of this statute to postpone the taking effect of the deed until a bond is filed, no trust is created until that has been done, and ho rights become vested in the creditors. The deed may therefore be revoked by the debtor, for it is in the nature of a deed of assignment, that it may be revoked at any time before rights have become vested in it. Burrill on Assignments, Ch. 34.

But in section 12 it is provided, that if the assignee shall fail or neglect, for a.period of twenty days after the making of the assignment, to• file <m inventory <md valuation, and give bond as required by law, it shall be the duty of the county judge to appoint a proper person to execute the trust, who shall likewise file an inventory and give bonds in like manner as the grantee in the deed. Now if the title does not pass out of the debtor until the inventory and bond are filed, then the debtor has it in his power, in case the assignee appointed by the county judge is not acceptable to him, to defeat the operation of section twelve in toto, by a revocation before the new trustee has filed his bond.

The evident intent of section twelve is to preserve the trust for the benefit of the creditors, and for this purpose the assignee has twenty days in which to file his inventory, valuation and bond. If at the end of that time he has failed to comply with the law in this respect, the county judge may appoint some one to execute the trust. The statute therefore preserves the trust for the benefit of creditors, although no inventory, valuation or bond be filed by the first assignee.

The deed is therefore valid and binding between the parties, from the time of its execution and delivery, although no bond be given, and must be held good as against execution creditors, unless some other fact intervenes, sufficient to render it fraudulent and void as to them. In Missouri, where a statute very similar to this one is in force, the law is so held: Hardcastle v. Fisher, 24 Mo. 70.

It is further objected that this deed is void as to defendant, because at the time the execution came into his hands as constable, it was neither acknowledged nor recorded- By section one of the act in question it is further provided that:

“Every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, or where the business in respect of which the same is made has been carried on; and in case said assignment shall embrace lands or any interest therein, then the same shall also be recorded in the county or counties in which said land may be situated.”

If this provision were to be interpreted without reference to any other legislative enactments, it would be somewhat difficult to determine the exact meaning of the language employed. What is an acknowledgment? Before what officer must it be taken? How shall it be certified? Is the acknowledgment an essential part of the deed? What is the purpose of recording the deed? What effect is the recording of the deed intended to have by way of notice to third parties? Does the recording of the deed dispense with the necessity of taking possession of personal property, and so vest title thereto wherever situated in the assignee? Does the deed by being recorded in the county of the debtor become effectual to pass the title to personal property, wherever situated, while as to real estate the title becomes vested in the assignee only when recorded in the county where the land lies?

These questions and many others that might be suggested this statute leaves unanswered. We must therefore look elsewhere for its true interpretation.

Section 28, ch. 30, R. S. 1874, on conveyances, requires all deeds concerning real estate to be recorded in the county where the land is situated. Section 31, provides that deeds relating to realty, recorded, although not acknowledged according to law, shall be notice to subsequent purchasers and creditors. Several other sections of the same statute provide the manner and form of acknowledgments to which special reference need not be made. Applying the foreging provisions to the deed in question it would take effect as to lands so as to be good as against creditors only when recorded in the county where such lands are situated, but although not acknowledged according to law, it would be notice from the time of its being recorded. There appears to be no good reason why these provisions should • not apply to' the deed in question. It is however the uniform ruling of the supreme-court that if possession be taken under a deed to real estate, it need not be either acknowledged or recorded.

There appears, however, to be this difference between deeds of real estate and those relating to personal property. While a deed of real estate, although not acknowledged according to law, may be recorded, and so become notice to creditors, there appears to be no statute authorizing the recording of a deed relating to personalty without its being duly acknowledged.

As already seen, a deed of personalty made in good faith, accompanied with possession is good against creditors not having a lien, but it is also true that unless possession accompanies the deed it is prima facie at least void as to creditors. The object of recording deeds of personalty is therefore to provide, in certain instances, for the vesting of an interest in the grantee although he may not acquire the immediate possession.

■Does the acknowledgment then become an essential part of the deed? As already observed, there is no statute authorizing the recording of a deed of personalty unless it be duly acknowledged. So far, therefore, as the efficacy of a deed as to personal property depends upon its being recorded, it must also be acknowledged; for by sec. 30, eh. 30 R. S. 1874, it is provided that:

“All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, .as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without, notice, until the same shall be filed for record.”

The deed in question being one authorized by law to be recorded, it must, as to the personalty, be adjudged void as to creditors and subsequent purchasers without notice, until it shall be duly acknowledged and recorded. This is the plain import of the language of the statute. But the acknowledgment of the deed is only a pre-requisite to its being recorded. That ceremony does not add to the force of the instrument as a common law deed, nor does the want of it detract anything from its efficacy as such. In the case of a married woman’s deed, the acknowledgment under the old laws was held to be an essential part of the deed. The reason was that she being by common law disabled from making a deed, derived her power to do so wholly from the statute and by 'that statute, she was required to acknowledge her deed. It was therefore held that without her acknowledgment her deed was void. In this case the grantor is by common law capable of making a deed without an acknowledgment, and therefore if there be no statute rendering his deed invalid unless acknowledged, the courts cannot hold his deed to be void.

It is, however, insisted that this, being a voluntary conveyance for the benefit of creditors, and without consideration, is fraudulent and void as to creditors unless the deed is recorded. The ground of objection seems to be that the legislature having undertaken to legislate upon a subject of such vital interest, it must be presumed they intended to cover the whole ground, and that therefore when the statute says that such deeds must be recorded, it follows by necessary implication that unless recorded they are void. It might be a sufficient answer to this position to say the statute has not so declared, and we have no right to add to the statute.

But as already observed, this statute evidently had reference to the existing laws upon the subject of acknowledging and recording deeds. If this is a voluntary conveyance without valuable consideration, what says the law as to the necessity of its being recorded? (On the subject of voluntary conveyances being subject to existing liens, see Willis v. Henderson, 4 Scam. 13; Goodwin v. Mix, 38 Ill. 115; Dole v. Olmstead, 41 Ill. 344; O’Hara v. Jones, 46 Ill. 228.) Sec-lion 6 of the Statute of Frauds (Rev. Stat. 1874, p. 541), provides that: 1

“Every conveyance of goods ahd chattels, on consideration not deemed valuable in the law, shall be taken to be fraudulent, unless the same be by will duly proved and recorded, or by deed in writing duly acknowledged or proved and recorded, as in- the case of deeds of real estate, or unless possession shall really ahd bona fide remain with the donee.' ’

What the effect of the statutes in question may be upon personal property not actually reduced to possession, it is not necessary for us now to decide. In this ease the possession having accompanied the deed, it is very evident, it is not rendered void by the Statute of Frauds. Chap. 95, Rev. Stat., relative to chattel mortgages, provides that no chattel mortgage not accompanied with possession of the property, shall be valid as against third persons, unless acknowledged and recorded as therein provided. The statutes now quoted, seem to be the only ones bearing upon the question at issue. Not one of them in terms renders this deed void if the creditor had notice thereof. The uniform course of decisions in this state, is that possession under a deed is notice of the possessor’s title, whether the property be real or personal.

In the absence of any statute to the contrary, I am bound to hold the decisions in Wilson v. Pearson, 20 Ill. 81, and Myers v. Kinzie, 26 Ill. 36, conclusive of this question.

The finding of the court will therefore be for plaintiff upon the issues joined.


text:
      (Circuit Court of Cook County.)

    In the Matter of Amanda B. Thompson.
    (January 4, 1872.)
    1. .Officers — De Facto — -Acts of — Coeeaterae Attack. Where a person exercises the duties of an officer performing the functions by color of office, he is an officer de facto and his right to office cannot be collaterally attacked.

      - 2. Same — Commitment by De Facto Justice of Peace — Habeas Corpus. The act of a justice of the peace de facto in committing a person to jail cannot be attacked on habeas corpus, where, if he had been an officer de jure the committment would have been proper.
    Petition for habeas corpus. The facts are stated in the opinion of the court. Heard before Judge John G-. Rogers.
   Rogers, J.:—

It appears by the petition for the writ of habeas corpus filed by Amanda B. Thompson, the return of sheriff to said writ, and the copy of the mittimus under which she was committed, that said petitioner was examined before John Summer-field, acting as police magistrate, upon a charge of larceny; that she was found guilty of the charge and held to answer in the criminal court, and, failing to give bail, was committed to the custody of the sheriff, by whom she is detained in jail. Her discharge is sought upon the alleged ground that Summerfield, at the time he examined the charge and issued the mittimus, was not a justice of the peace of Coolc county. It was agreed upon the hearing that Summerfield was regularly elected and commissioned police magistrate of the city ■of Chicago some years ago ; that he was not appointed a justice of the peace by the governor, under the constitution, and that at the general election, duly called and held in November, 1871, he was elected a police magistrate for the city -of Chicago, took the oath of office and gave bonds as such, but that the governor of the state has failed to issue a commission to him as such police magistrate, and that the common council of the city has designated him to act as police magistrate for the south division of the city.

It also appeared that he was acting in that capacity at the time he issued the mittimus, under which the petitioner is held, although he signed it as “John Summerfield, Justice of the Peace.”

The question as to his right to the office, whether he held .an office de jure, was the only one discussed by the learned gentlemen, appearing for and against the petitioner, and. seemed to be the only one upon which a decision by the court-was desired. But in the view of the case taken by me, I' do not feel that it is either right or proper that I should undertake to decide that question. It is not necessary to the disposition of the ease, and, as such a decision would not settle the disputed right to the office, I do not feel inclined to investigate it fully or declare my opinion upon it.

There is more than one legal proceeding by which it can be finally and fully determined whether Summerfield is by legal right a police magistrate or justice of the peace. This-proceeding is not one of them. ,

John Summerfield, as it appeared by the agreed statement of the facts, down to the election held last November, a police magistrate of this city, duly elected and commissioned, was, at that election, voted for and declared elected for anotner term, executed bond as such, took the oath of office, and was subsequently designated by the common council of the city to act as police magistrate. He acted in that capacity, professing to be such officer.

It has often been held by the courts of last resort, in several of the states, and expressly so by the supreme court of this state, that when a person exercises the duties of an officer, performing the functions by color of office, he is an officer de facto, and his right to the office cannot be questioned collaterally. See Town of Lewiston v. Proctor, 23 Ill. 533.

Also, the People on the relation of People ex rel. Ballou v. Bangs, 24 Ill. 184, in which it was decided that, although Judge Bangs was not judge of the circuit court, de jure— his election not being authorized by the constitution, and therefore void — yet he had color of office, and, acting as he did, under that color, his acts were valid.

The court, however, decided that he did not hold the office of judge de jure, and ousted him. This was a proceeding to determine who was really and legally the judge, and if it is desired to test the same question so far as John Summer-field is concerned, the way is open and clear.

In People ex rel. v. Maynard, 14 Ill. 419, the supreme court decided that holding office under an old law, which did not make him a justice of the peace, could not be such justice under the then new constitution. That was a direct proceeding to test the question of right, and the court held that he was not a justice of the peace de jure. “But,” says the court, in referring to this Maynard ease, when deciding the Proctor case, supra, “had he assumed to act under his commission as a justice of the peace, it by no means follows that we should have held his acts void.”

These authorities are conclusive of the question presented here. I am bound by them, and whatever opinion I may entertain upon the right of Summerfield to the office, I am decidedly of opinion that his act under color of office in committing the petitioner was not void. Let the petitioner be remanded to the sheriff, to be held in custody under the mittimus issued by Summerfield.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County.)

    The People ex rel. John Mullin and Peter McHugh vs. Seth F. Hanchett, Sheriff.
    (1886.)
    1. Habeas Corpus — Practice on Return. By the American prac tice on the return to a habeas corpus writ the relator may demur, or move his discharge, which operates as a demurrer, may plead as for example by way of confession and avoidance or may by replication reply to the facts contained in the return.
    2. Habeas Corpus — Demurrer to Return — Effect. By a demurrer to a return to a writ of habeas corpus, the facts set forth in the return are admitted but are, however, alleged to be • insufficient in law to justify the detention.
    3. Executions Against the Body — Civil Proceedings — When Authorized. An execution against the body of the defendant in Illinois is only authorized in a civil suit in the eases mentioned in the statute namely: Where there is a tort judgment against the defendant or where he has been held to bail upon a writ of capias ad respondendum provided by law or where he has refused to deliver up his estate for the benefit of his creditors.
    4. Abeest in Civil Case — When Wbit Insufficient. Where the relator in a habeas corpus case is held upon a writ issued in a civil proceeding which shows that it was issued without any order of court and also fails to show on its face that it was issued in a case where judgment was obtained, for a tort committed by the defendant or a case in which he had been held to bail upon a writ of capias ad respondendum or that he has refused to surrender his estate for the benefit of creditors; no presumption arises that its issuance was proper and the writ is void.
    5. Abeest in Civil Case — When Writ Presumed Peores. When writ upon which relator is held purports to be issued in one of the three cases mentioned in the statute it is presumed to be a proper writ.
    6. Arrest in Civil Case — Tort Action, — What Shows. A writ reciting that the amount recovered by the plaintiff was “by said court adjudged to the said plaintiff for his damages in his action of trespass” shows upon its face that it was issued in a tort action and justifies the detention.
    'Petition for habeas corpus. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.

      H. O. Daid & C. A. Knight, for relators.

      Brandt & Hoffmam, for respondent.

       See In re John Mullen, et al., 112 Ill. 551. — Ed.

   Tuley, J.:—

The sheriff makes return to the writ of habeas corpus that he holds relators by virtue of a certain writ called a capias ad satisfaciendum, a copy of which he attaches; also that the first arrest was made June 30th, 1886, when the relators were taken to the county court upon their petition to be discharged under the Insolvent Debtors’ Act; that their petition was denied and that relators having unsuccessfully prosecuted their appeal to the circuit court, thence to' the appelpellate and thence to the supreme courts, he, upon the proper order of affirmance being filed in the county court, again on the 26th of November, 1886, took the relators into custody under said writ. To this return the relators demurred as insufficient in law to authorize the detention.

Formerly by the common law practice the return had to be taken as true, and could not be traversed, but by the American practice the relator may demur, or move for his discharge, which operates as a demurrer; may plead, as for example, by way of confession and avoidance, or may by replication reply to the facts contained in the return.

By the demurrer the facts set forth in the return are admitted, but are alleged to be insufficient in law to justify the detention.

The sheriff here returns that he detains the prisoners by virtue of a certain writ of capias ad satisfaciendum, and the issue made is whether or not that writ is sufficient in law, or, in other words, — is the writ a valid and legal writ ?

Sec. 4 of chap. 77 on Judgments and Executions provides, that all executions shall run “against the lands, tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law.”

When is an execution against the body “authorized by law?” The answer is found in the next section, sec. 5:

“No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad respondendum, as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.”

In the interest of the liberty of the citizen, the construction of this clause must be that the expression of the cases in which the writ may issue precludes the idea that it may be issued in any other case. There is no form of this writ prescribed by statute in this state.

The writ of capias ad satisfaciendum, according to the common law practice, contained recitals showing, among other -details, the kind of action and the nature of the judgment upon which it was issued.

In this state, or at least in this county, the form that has been used has omitted the details of the proceedings in the -case, but I find no decision adjudicating upon its sufficiency. If the form in use by the common law had been followed in our practice, there would be no difficulty in determining whether or not the writ was issued in any of the cases authorized by section 5.

When the writ shows that it was issued without any order of the court, and it also fails to show on its face that it was issued in a case where judgment was obtained for a tort committed by the defendant, or in a case in which the defendant had been held to bail upon a writ of capias ad respondendum, or that the defendant had refused to deliver up his estate for the benefit of the creditors, — no presumption arises that its issuance was authorized by law. That was the kind of a writ issued in the Lambert case and which I held, upon the issue joined in that case, to be a void writ. If the writ purports to have issued in one of the three cases mentioned, in the statute, then the presumption arises that it was properly issued, but when it does not purport to be so issued, no such presumption arises. It seems to me that upon the issue made by the demurrer to a return of this kind, the spirit of our supreme court decisions, which have been so broadly in favor of liberty, demand this construction, to-wit, that the writ show upon its face that it was issued in one of the three cases mentioned in section 5 of chapter 77 on Judgments, or that it was issued upon the order of the judge.

The writ in this case differs widely from the writ in the Lambert case. In that case the writ recited neither the kind of action, nor the character of the judgment. The recital was of the recovery, i. e. a judgment against the defendant for $5,000, which “by said court was adjudged to the plaintiff for his damages.” In the ease at bar the writ recites that the amount recovered by the plaintiff was “by the said court adjudged to the said plaintiff for his damages in his action of trespass.” All trespasses are torts, and it therefore appears upon the face of the writ that it was issued on a judgment in an action of trespass, i. e. for a tort committed by the defendant, and was therefore authorized by law, it being in one of the three eases in which such writs are authorized by said section 5. It also appears by the return in this case that the relators by all the courts from the county court to the supreme court, have been denied a discharge under the Insolvent Debtors’ Act; and by the opinion of the supreme court it appears that it was upon the ground that malice was the gist of the action upon which this writ issued, and, therefore, necessarily, that it was for a tort. See People ex rel. Robinson v. Sanchett, 111 Ill. 90.

Some other points are made by counsel for relators, based, largely, upon my opinion in the Lambert case. It is apparent from that opinion that it is based upon two main points. 1st: that upon the issue joined, the return was insufficient, because the writ did not show that it was issued for a tort or in any of the eases mentioned in section 5; and, 2nd, because a board payment was made, as shown by the return, upon a Sunday a dies non.

Upon the hearing of this case a provision of the' statute was cited which was not cited in the Lambert case, and which escaped the notice of the court. It is sec. 65, ch. 77. It provides that a debtor, when arrested upon an execution against the body, “shall be conveyed to the county jail * * * and kept in safe custody until he shall satisfy the execution or be discharged according to law.”

This statute incorporates itself into the .commitment and is a command to the sheriff which in and of itself fixes a limit to the term of imprisonment, and is of itself an answer to all the other points made by relators, except that in regard to the payments of the board money. As to that, the presumption is that the first week’s board was refunded, as it was not needed, and as to the last payment, I am of opinion that the sheriff had a right to demand it before mating the rearrest.

In this ease the return of the sheriff to the writ of habeas corpus will be adjudged sufficient and the relators will be remanded to the sheriff’s custody.