text:
    Clarence Baker v. The People of the State of Illinois.

      Filed at Ottawa September 27, 1882

      Rehearing denied March Term 1883.

    1. Exception—not necessary on overruling motion to quash indictment. An exception to the ruling of the court on a motion to quash an indictment is not necessary to be taken and preserved by bill of exceptions, in order to present the question of the sufficiency of the indictment to this court, any more than there is for an exception to the decision of the court upon a demurrer to a pleading.
    2. Same—when necessary. The rule requiring the record to show an exception to the ruling of the court, applies only where such ruling is based upon extrinsic matter which does not, without being embodied in a bill of exceptions, constitute a part of the record.
    3. Indictment—attempt to produce abortion. An indictment charged that the defendant did, on, etc., at, etc., “unlawfully, feloniously and willfully use and employ a certain instrument, the name of which is to the grand jury unknown, in and upon one O D, then and there being pregnant with child, by then and there forcing, thrusting and inserting said instrument into the private parts of the said C D, and then and there did thereby unlawfully, feloniously and willfully attempt to procure and produce the miscarriage of the said CD:” Meld, that the indictment was substantially good. It would have been more technically accurate to have given some general description of the instrument used, as, “a certain metallic instrument, whose name is unknown,” etc., and the statement of the offence would have been somewhat moré specific by adding the words, “and womb," after the words, “private parts.”
    4. Criminal law—two can not be jointly convicted of distinct offences. Under an indictment against two or more, two can not be convicted jointly for distinct offences, though of the kind charged in the indictment, when committed by them severally, and growing out of separate transactions.
    5. Same—evidence against one of two persons charged. As all crimes committed by two or more persons are several as well as joint, it follows that it is not necessary to prove all guilty in order to convict one under an indictment charging both with the commission of the offence. Hence, on a charge against two of an attempt to produce an abortion, proof of an act by one defendant done to effect such purpose is properly admissible against him before the People’s evidence is closed.
    6. Same—neglect of defendant to testify—calling attention of jury to that fact, improper. On the trial of an indictment against two, one of the defendants testified as a witness, and the other did not. The court, on the part of the People, in substance instructed the jury, that in this- State every defendant is permitted to testify in his own behalf if he desires, and that the defendant.who testified was a competent witness, but the jury were not bound to believe her evidence, and treat it the same as that of other witnesses, etc.: Held, that the first part of the instruction, while true as an abstract proposition of law, had but little, if any, appropriate connection with the succeeding part, and announced no principle calculated to aid the jury, and was well calculated to mislead. It was regarded as an adroit device to have the court, under the guise of giving the law to the jury, call their attention to the fact that one of the defendants had declined to testify, and in this respect was erroneous.
    7. Same—when prosecution must elect on what evidence to rely. On the trial of a man and a woman for an attempt to produce an abortion, the prosecutrix testified to an attempt made upon her at her father’s house by the man alone, with which, it appeared at the close of the testimony, the other defendant had no connection, and there was evidence against both as to similar attempts at the house of such other defendant: Held, that when this appeared at the close of the testimony, the People should have been put to their election whether to proceed against the man alone for his separate act, or against them both for what occurred at the house of the other defendant, and if the prosecution elected to proceed for the latter offence, all evidence of the former should have been excluded.
    8. Same—evidence of similar offences. Upon the trial of a party for one offence growing out of a specific transaction, evidence to prove a similar substantive offence founded upon another and separate transaction is not admissible, but in such case the prosecution will be put to its election. An exception to this rule is found in prosecutions for passing counterfeit money, and the like, for the purpose of showing guilty knowledge.
    Writ of Error to the Circuit Court of Whiteside county; the Hon. J. Y. Eustace, Judge, presiding.
    Messrs. C. J. & C. C. Johnson, for the plaintiff in error.
    Mr. James McCartney, Attorney General, Mr. Walter Stager, State’s Attorney, and Mr. William Barge, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the March term, 1882, of the Whiteside circuit court, Clarence B.aker and Eliza Graves'were indicted by the grand jury, tried, and convicted of the' crime of attempting to procure and produce the miscarriage of Martha Van Antwerp, an unmarried woman, then pregnant with child, of the age of about nineteen years. Motions for a new trial and in arrest of judgment having been severally overruled, they were duly sentenced by the court, in pursuance of the verdict of the jury, to the penitentiary for a period of two years. Baker alone brings the case here' on error, and assigns various reasons for a reversal of the judgment.

The indictment charges that the said Clarence Baker and Eliza Graves did, on the 17th day of December, 1881, at and within the county of Whiteside, “unlawfully, feloniously and willfully use and employ a certain instrument, the name of which is to the jury unknown, in and upon one Martha Van Antwerp, and then and there being pregnant with child, by then and there forcing, thrusting and inserting said instrument into the private parts of the said Martha Van Antwerp, and then and there did thereby unlawfully, feloniously and willfully attempt to procure and produce the miscarriage of said Martha Van Antwerp.” A motion to quash the indictment for insufficiency having been overruled by the court, the. question is directly presented whether the'indictment is legally sufficient to sustain the conviction.

It is objected by counsel for the People, that inasmuch as the record fails to show the plaintiff in error excepted to the ruling of the court in disposing of the motion to quash, the question of the sufficiency of the indictment does not arise on the record, and hénce whatever the fact may be with respect to its alleged insufficiency, we are not permitted to consider it. This is a misapprehension. The rule contended for only applies where the ruling of the court is based upon extrinsic matter, which does not, without being embodied in a bill of exceptions, constitute a part of the record. There is no more necessity for excepting to the ruling of the court upon a motion to quash an indictment, than there would be for excepting to the ruling of the court upon a demurrer to a plea or declaration, and it will not be pretended, we presume, there is any necessity, or even propriety, for . an exception in that case. Gallimore v. Dazey et al. 12 Ill. 143; Safford et al. v. Vail, 22 id. 327.

The indictment is claimed to be defective in two respects: First—It is insisted that it does not, with sufficient certainty, describe the nature or character of the instrument with which the alleged attempt to commit the offence charged . was made, and numerous authorities are cited in support of the position. We have examined all. of them, except one or two which are not within our reach, and.many others bearing on the question which are not cited, and from a very thorough consideration of the question we are satisfied the indictment in this respect is,, on general principles, substantially good. Under the circumstances of this case, as the name of the instrument was unknown, while its form and character were known, it would have been more proper, according to the highest degree of technical accuracy, to have given some general description of it, such as “a certain metallic instrument, whose name is unknown, ” etc. But this would have added but little, if anything, to the averment by way of making it more definite or perspicuous, nor would the addition have materially aided the accused in obtaining an accurate understanding of the transaction for which he was indicted.

Second—It is urged the indictment “is uncertain as to the mode or manner in which the- offence charged was attempted to have been committed.” Like the other objection, we do not think there is any substantial ground for it. While the indictment would have been somewhat more specific by adding the words, “and womb,” after the words, “private parts,” yet the omission to add them does not, in our judgment, render the indictment fatally defective.

We think the indictment is substantially good, and that consequently there was no error in overruling the motion to quash. Regina v. Ashmall, 9 C. & P. 236, (Eng. Com. L. R. 97); Commonwealth v. Snow, 116 Mass. 47; Commonwealth v. Jackson, 15 Gray, 187.

The conviction in this case rests mainly upon the testimony of the prosecuting witness, Martha Van Antwerp. It is true she is strongly corroborated in some respects by circumstances testified to by other witnesses. From her testimony it appears that about the first of September, 1881, she had sexual intercourse with, and became pregnant by, the defendant Clarence Baker, under a promise that if he got her in trouble and did not get her out, he would marry her; that on discovering that she was with child he first bought her a bottle of medicine for the purpose of producing a miscarriage; that with a like purpose, about the middle of October following, at her father’s house in Prophetstown, he inserted a wire into her body, which she produced in court, the same being, when used, some nine or ten inches long, with a hook on the end. All this evidence, which tends to establish an offence committed by him alone, was admitted by the court against the objections of the plaintiff in error, and an exception taken. There was clearly no error in receiving this testimony at, the time it was offered, even had it been known the People would, as they subsequently did, fail to connect Eliza Graves with it, for as all crimes committed by two or more persons are several as well as joint, it follows it is not necessary to prove all guilty in order to convict one under such an indictment; but under an indictment against two or more, two can not be convicted jointly for distinct offences, though of the kind charged in the indictment, committed by them''severally, and growing out of separate transactions.

The testimony of the prosecutrix 'further shows that after failing in producing a miscarriage by the means above stated, under the advice of plaintiff in error she was induced to go with him to Morrison, where his co-defendant, Eliza Graves, resided, for the purpose of being operated on by her, with the view of accomplishing' that object. On arriving there they put up at the Bevere House, .he registering under the name of C. P. Williams. About ten o’clock in the morning he conducted her to within a short distance of the house of Mrs. Graves, when he' returned, and she went in alone. On going in and making her business known, Mrs. Graves, according to the statement of the witness, introduced into the vagina a speculum, about four inches long and one and a half inches in diameter, and through it passed a metal tube, about a foot long and as large as the end of the witness’ little finger, into the womb or uterus, and by means of a rubber ball squeezed water into the tube, and thus conveyed it into the womb, after ■ which ■- she.- gave her a prescription for some medicine, and they parted. This course of treatment was repeated on two subsequent occasions, but to no effect. Mrs. Graves admits the prosecutrix called on her, and at her request she examined her, and injected some water into the vagina through the speculum, but denies that anything was done by her with the view of producing an abortion..

There was considerable evidence in the case besides this we have mentioned, but in the view we take of the matter we do not deem it important to discuss it.

Plaintiff in error did not go upon the witness stand, but his co-defendant, as we have just seen, did. Under these circumstances the court, at the instance of the People, gave the jury, among others, the following instruction:

“The jury are instructed that in this State every defendant, if he desires, is permitted to testify in his own-behalf, and in this case the defendant Eliza Graves is a competent witness, but the jury are instructed that they are not bound to believe the evidence of Eliza Graves, and treat it the same as that of other witnesses, but may take into consideration the fact that she is defendant, and give her testimony such weight only as, under all the circumstances proven in the case, they think it entitled to after a consideration of her testimony, and all other evidence and circumstances in the case.”

This instruction is not fair to the accused, and was evidently calculated to mislead the jury. It tells the jury that in this State every defendant is permitted to testify in his own behalf if he desires. This part of the instruction, while true as an abstract proposition, yet it has little, if any, appropriate connection with the remaining portion of the instruction, and announces no principle calculated to aid the jury in the consideration of the case, and we can but regard it as an adroit device on the part of counsel to have the court, under the guise of giving the law to the jury, call their attention specifically to the fact that the plaintiff in error, although he,had an opportunity of doing so, had declined to testify in his own behalf. To permit this to be done with impunity would defeat the expressed will of the legislature, and deprive the accused of a right which the State has studiously attempted to protect. The statute has, in unmistakable terms, declared,, in effect, the omission of the accused to testify shall not be used to his prejudice or taken as an evidence of guilt, and in such case court and counsel should studiously avoid all allusions to the subject.

Other objections are- made to this and other instructions, but as the one we have just discussed is regarded as well taken, it is not necessary to consider them.

It may be observed, in conclusion, that at the close of the testimony, when' it affirmatively appeared that Eliza Graves was in no manner connected with the transaction at the residence of the prosecutrix, in which she claims a wire was used by defendant Baker alone, the People should have been put to their election whether they would proceed against Baker alone for using the wire, or against them both for what occurred at the house of defendant Graves. Assuming the evidence of the prosecutrix to be true, it established two distinct offences: one committed by Baker alone, and the other by him and Mrs. Graves jointly; and if the prosecution elected to proceed for the latter offence, all evidence of the former should have been excluded from the jury, as it is well settled that upon the trial of a party for one offence growing out of a specific transaction, you can not prove a similar substantive offence founded upon another and separate transaction, but in such ease the prosecution will be put to its election. An exception to this rule is found in prosecutions for passing counterfeit money, and the like, where previous attempts to pass counterfeit money may be proved for the purpose of showing guilty knowledge; but the principle involved in this class of cases has no application to the case in hand. These suggestions are made with a view of avoiding all misapprehension on this subject in the further prosecution "of the case.

For the error indicated the judgment of the court below as to plaintiff in error will be reversed, and the causé remanded for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Phœbe H. Brown v. Ira McCord et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

      Bill—must make a case for the relief sought. Where a bill is filed to compel a tenant to specifically perform her covenant to pay all taxes on lots held by her as tenant, a decree requiring the tenant to pay taxes not claimed in the bill to be unpaid, and a portion of which is expressly charged to have been duly paid, is erroneous, and will be reversed.

      Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Edward Roby, for the plaintiff in error.
    Messrs. Holden & Farson, for the defendant in error McCord.
    Mr. Francis Adams, for the defendant in error the City of Chicago.
   Mr. Justice Dickey

delivered the opinion of the Court:

So far as concerns the plaintiff in error, this is a bill, by McCord, seeking to compel her to specifically perform her covenant to pay all revenue taxes on certain lots held by her as tenant. The decree, in McCord’s favor, requires her to pay to the city of Chicago the taxes for the year 1869, $495; as taxes for the year 1870, $498; as taxes for the year 1871, $332; and as taxes for the year 1872, $495,—making in all $1820. To reverse this decree the record is brought here. Other taxes were involved in the bill, but they were paid before hearing by the plaintiff in error. The city was made a party defendant with the plaintiff in error. The pleadings consist of the bill, as amended, the answer of the plaintiff in error, the answer of the city, and the replications to these answers.

Counsel for the plaintiff in error says the decree is erroneous because the bill fails to charge that these city taxes for the years 1869, 1870, 1871 and 1872, or for either of them, remain unpaid. This seems to be so. The bill, as amended, says that Mrs. Brown has neglected and refused to pay a large amount of taxes which have been levied upon the premises, and became liens thereon; that tax deeds are held by the city on sales for taxes; that the city is willing to accept the taxes due, and relinquish all rights under the tax deeds; that Mrs. Brown insists that the city is not entitled to receive these taxes, and that the levy and assessment for these taxes are illegal. After setting ont the taxes for which the tax deeds were issued to the city, the bill avers the deeds are void, for the reason, among others, that the city had no authority to cause the lands to be sold for said taxes, and because, as complainant believes, the taxes were paid before the sales, averring that the city alleges there are unpaid taxes due on the land. The bill then charges there are unpaid taxes upon the land due, specifying taxes for 1873,1874 and 1877. As to the taxes for 1869 and 1870, the bill charges that if any such taxes were against the land, the same “were duly paid thereon.” The answer of Mrs. Brown, filed August 7, 1880, says she has always been willing to pay lawful taxes, 'if they could be separated from unlawful claims for taxes; that in 1871 her tax receipts were destroyed by the great fire; that a claim for delinquent taxes for the years 1869 and”1870 was, on trial in 1873, decided by the county court to be unfounded. Respondent further says there has been no place or officer, since October 8, 1871, where and to whom taxes for 1869, 1870, 1871 or 1872 could lawfully be paid. These are all the allegations ,in the pleadings forming the issue with Mrs. Brown, having any bearing upon the question of the non-payment of city taxes for the years 1869, 1870, 1871 and 1872, respectively.

It was certainly irregular to grant McCord a decree that Mrs. Brown should pay taxes which he did not claim in his bill were unpaid, and as to a part of which he expressly charged in his bill that they “were duly paid. ” After the proofs were in, the complainant, before he could ask properly foria decree such as was rendered, should have, on leave, so amended his bill as to lay a proper foundation for the decree. For the error indicated the decree is reversed.

It is also insisted by the plaintiff in error that the lapse of time is prima facie proof that the taxes of 1869 and 1870 were in fact paid. The answer sets up no such defence, and under the circumstances in proof the delay seems • fully accounted for.

The decree is therefore reversed, and the cause remanded for further proceedings not inconsistent with the views here expressed, the complainant to be allowed to amend his bill.

Decree reversed.


author: Mr. Justice Sheldon

text:
    Jacob Johnson et al. v. The Chicago and Pacific Elevator Company.

      Filed at Ottawa November 20, 1882.

    1. Special legislation—requiring affidavit of merits in cases of attachment of water craft. Section 19, chapter 12, of the Revised Statutes, entitled “Attachment of Water Graft,” which requires an affidavit of merits to be filed with the defendant’s or claimant’s exception, demurrer or answer to the petition, and authorizes a default if the same is not so filed, is not in violation of section 22, article 4, of the State constitution, prohibiting special legislation.
    2. Same—;judgment in attachment proceeding, against principal and surety in bond given for return of property. Where water craft seized under attachment has been bonded, as provided in section 15 of the act, if, upon the trial, judgment shall pass for the petitioner, and the water craft has been discharged, “said judgment or decree shall be rendered against the principal and sureties in the bond.” It is held, this provision of the statute for judgment against the principal and sureties is not open to the objection of being special legislation. It is the general law as to all bonds of that kind.
    3. Practice—leave to file affidavit of merits with pleading nunc pro tunc. Where a defendant in an' attachment of a steam tug-boat files a demurrer to the petition within the time required by statute, but without any affidavit of a meritorious defence, and no sufficient reason is shown for not so filing the affidavit, there will be no error in refusing to allow it to be filed nunc pro tunc, and entering a default in the case.
    4. Attachment bond—to item objection rendered immaterial. An attachment bond given in an attachment of a boat, was conditioned to pay a person named such costs and damages as should b.e awarded for wrongfully suing out the writ, instead of to pay the owner or other person interested in the vessel, as the statute requires; but the boat was bonded and released on the same day it was attached, so that no material damage was caused by the attachment: Held, that the defect in the bond constituted no substantial objection.
    5. Same—judgment against surety without service. Where a bond is given under a particular statute, the statute will enter into the bond and form a part of its obligation, and where the statute provides that in case of a recovery in the suit in which it is given, judgment shall be entered for the sum found against the principal and surety in the bond, it may be so entered without the service of process on the surety or his appearance in the case. The execution by him of such bond is a virtual consent that judgment may go against him, and by such consent he is bound by the judgment.
    6. Attachment of hoax—judgment when boat is bonded. Where a water craft attached has been discharged from custody on bond being given for the payment of whatever judgment the plaintiff may recover, no judgment can be rendered against the vessel. The only judgment in such case that can be rendered, is against the principal and surety in the bond.
    7. Same—allowing new party to come in and defend. After the discharge of a boat from attachment, by the giving of the bond required by the statute, so that no judgment can pass against the boat, a part owner has no right to be made a party defendant, where the cause of action is a tort, as he has no interest in the suit, and will not be affected, by any judgment against the obligors in the bond given to release the boat. There is no right of contribution between wrong-doers.
    8. Maritime law—injury to property on land. Where, through the negligence of those managing a steam tug-boat in towing a schooner in the navigable waters of the Chicago river, the schooner is run into an elevator situated on the land, breaking'the same, and causing the loss of a quantity of grain, the tort is not a maritime one, and within the exclusive jurisdiction of a court of admiralty. In such case the State courts may afford a remedy for the injury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county.
    This was a suit commenced by petition in the circuit court of Cook county, under chapter 12 of the Revised Statutes, entitled “Attachment of Water Craft, ” by the Chicago and Pacific Elevator Company, against Jacob Johnson, for damages arising from the tug-boat “Parker, ” of which Johnson was alleged to be the owner, through the negligence of the agents of Johnson then in charge of the tug-boat towing the schooner “G-. C. Trumpf, •” on the Chicago river, whereby the schooner ran into the elevator of the petitioner, breaking the same, and causing a quantity of corn to run out into the river. A writ of attachment accordingly issued, in obedience to which the sheriff attached the tug-boat, and summoned Johnson to appear. The boat was attached the same day the writ was issued, and was on the same day bonded, under -section 15 of the statute, by Johnson, Henry A. Christy becoming his surety on the bond. Upon the return day of the writ Johnson filed a special demurrer to the petition. Thereafter, a default was asked by the petitioner because no affidavit of a defence upon the merits had been filed with the demurrer, as required by section 19 of the statute. Before the default was granted Johnson presented such an affidavit, and asked leave to file the same nunc pro tune, as of date of the demurrer, five days previous, which was denied. James B. Carter then presented an affidavit showing that he was part owner, and interested in the suit, and requested that he might be made defendant, with leave to file an answer, under section 11. This the court denied. Johnson then moved to vacate the default, but the court refused to vacate the same, and Johnson then moved to dismiss the petition for want of jurisdiction, which motion the court overruled. The plaintiff’s damages were then assessed by a jury at $300, a motion for a new trial was overruled, and the court entered up judgment jointly against Johnson, and Christy, who had given the bond. Johnson, Carter and Christy appealed, and the judgment was affirmed by the Appellate Court for the First District, and an appeal taken to this court.
    Messrs. Magee & Adkinson, for the appellants:
    The requirement of an affidavit of merits with a demurrer is a special law of practice, and violates section 22, article 4, of the constitution.

      An affidavit of merits is only required in answer to a sufficient affidavit of claim. Zenas v. Strasberger, 71 Ill. 372.
    A part owner ought to have been allowed .to be made a defendant, and to defend as requested, before default granted, and even after. New parties may be added when necessary. Secs. 11, 12, chap. 12, and sec. 24, chap. 110; Propeller “Hilton” v. Miller, 62 Ill. 281.
    No judgment could be rendered against Christy, because he was liable only according to the condition of the bond, and because section 21, chapter 12, is invalid, being special legislation,—making sureties on attachment bonds, in attachments against water craft, liable, as no other sureties on other bonds are liable, and contrary to the conditions of their contract and the practice in courts of justice in this State.
    The Attachment of Water Craft act is invalid in attempting to give a State court the right to enforce a lien in rem against a vessel above twenty tons burden, engaged in domestic commerce, duly enrolled and licensed by the United States. Exclusive jurisdiction for that purpose is in the District Courts of the United States, and the motion to dismiss should have been sustained. Sec. 2, art. 3, constitution of United States; secs. 8, 9, Judiciary act; The “Eagle,” 8 Wall. 20; The “Lotomana,” 21 id. 567; The “Belfast,” 7id. 646; Hine v. Turor, 4 id. 570; The “Moses Taylor, ” id. 411; Western v. Morse, 40 Wis. 459.
    Messrs. Rae & Smith, for the appellee:
    The statute requires the bond to be made payable to the owner of the boat, if known; if not known, to the “owner or other person interested. Where the owner is known, the bond is to run to him alone; but if the bond was not proper, the defect could be reached only by a motion to dismiss, thus affording an opportunity to obviate the objection by améndment.

      The requirement of an affidavit of merits with a demurrer is not special legislation, any more than an affidavit in attachment. It is-general to this class of cases.
    The part owner who is not sued, and who has not signed the bond, has no interest in the suit after the tug-boat is discharged, for' judgment could not go against him or the boat, or in any way affect his rights. The surety, in executing the bond, submitted himself to the jurisdiction of the court, the law being a part of the bond, and he is bound thereby, and estopped from denying any of its recitals.
    That a judgment may be constitutionally entered against sureties on a bond, is decided in Beall v. New Mexico, 16 Wall. 539.
    The case is not one of admiralty jurisdiction. It is a tort committed by a vessel and its officers upon a warehouse on land, and, as such, not within the admiralty jurisdiction. The “Plymouth,” 3 Wall. 20, not being so, a proceeding quasi in rem only, established by State legislation, concerning torts not cognizable within the admiralty jurisdiction, can not be said to contravene any provision of the constitution of the United States, which confers on it conclusive admiralty jurisdiction.
   Mr. Justice Sheldon

delivered the opinion of the Court:

There are various errors assigned. It is objected that the requirement of an affidavit of a defence upon the merits to be filed with a demurrer, is a special law of practice, and violates section 22, article 4, of the State constitution, respecting special legislation. We do not regard this requirement as special legislation. It is general to this class of cases.

It is alleged the petition ■ and bond were insufficient, and that no affidavit of merits could be required until a sufficient petition and bond had been filed. We do not .consider the petition defective in the particulars pointed out. The objection- to the bond is, that it"is conditioned to pay Johnson such costs and damages as shall be awarded for wrongfully suing out the attachment, instead of.to pay the owner or other person interested in the water craft, as the statute requires. As the boat was bonded on the same day it was attached, and not likely any material damage came from the attachment, we see nothing substantial in this objection.

It is urged that if an affidavit of merits was essential, the court should have allowed it to be filed at the time asked. The statute is imperative that such affidavit shall be filed with the demurrer. No sufficient reason was shown for not filing it at the time required. There was an affidavit of the matter of defence filed in support of the motion; but neither that nor anything else appearing in the case disclosed any meritorious defence, more than is here considered and passed upon by us, and we find no error in disallowing the motion. Wilder v. Arwedson, 80 Ill. 435.

It is insisted it was error to refuse the application of Carter to be made a defendant. The bond which had been given by Johnson and Christy, under section 15, bound the obligors to pay all moneys which should be adjudged to be due to the petitioner, and upon the giving of the bond, the boat, under the statute, was restored to the owner, and thenceforth discharged from the lien secured by the. bond, unless, upon motion, the court should order the same again into custody on account of the insufficiency of the surety; and where the water craft has been discharged from custody, the only judgment which is rendered is against the principal and surety in the bond. The part owner, then, (Carter,) at the time he applied to be made a defendant, had no interest in the suit, the tug-boat having been discharged, for judgment could not go against him or the boat, or in any way affect his rights. The court, at the time, had no jurisdiction of the tug-boat. It is suggested that the part owner would have an interest in the suit after the boat was bonded,—^that he would be liable to contribute to pay the judgment; but the principle is, that there is no right of contribution between wrong-doers. We find no error in denying this application of Carter.

It is urged that- the judgment against Christy, the surety, together with Johnson, the principal in the bond, is void, as Christy was never summoned or appeared in the suit. The statute provides, if, upon the trial, judgment shall pass for petitioner, and the water craft has been discharged, “said judgment or decree shall be rendered against the principal and sureties in the bond. ” The bond being, given with this statute existing, the law entered into the bond and formed a part of it, so that, from the entering into the bond, there was a virtual consent on the part of the surety that judgment might thus go against him upon the bond, and by virtue of such consent he is bound by the judgment. Whitehurst v. Coleen, 53 Ill. 247; Hennies v. The People, 70 id. 100; Beall v. New Mexico, 16 Wall. 535.

As to this provision for judgment against the principal and surety being special legislation, the same answer may be made as above in respect to the affidavit of merits,—it is the general law as to all bonds of that kind, and so not open to the objection of being special legislation.

The most important question is as to the jurisdiction of the court below. It is insisted that the cause of action here was a marine tort, which is of admiralty cognizance, over which the District Court of the United States has exclusive jurisdiction, under the act of Congress giving such court exclusive jurisdiction of all causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it; that the remedy here pursued is a statutory one, and not, a common law remedy, and that the statute of this State can confer no jurisdiction on the courts of this State to entertain the proceeding which it provides. We need not inquire how this might be if the tort complained of was a maritime tort, as we do not consider it to be one of that character. It was a tort committed by a vessel and its officers upon a warehouse on land, and so not a marine tort, and within the admiralty jurisdiction. To make it such, the locality of the injury must have been on the high seas or other navigable waters. True, the negligence from which the injury resulted occurred on the navigable water of the Chicago river, but the damage done was wholly upon the land, and in such case we do not understand that the fact that the cause of the damage originated on water subject to the admiralty jurisdiction, makes the case one for admiralty cognizance.

This would seem to be a parallel case with that of The “Plymouth,” 3 Wall. 20, where a steam propeller anchored beside a wharf in Chicago river, owing to the negligence of those in charge, took fire, the flames of which extending to the wharf and certain packing houses thereon, set the last on fire, consuming them and their contents. It was held, that a libel for the tort filed in the admiralty court was properly dismissed for want of jurisdiction. It was there said that the entire damage occurred, not. on the water, but on land; that the origin of the wrong was on the water, but the substance and consummation of the injury was on land, and so was not a case within the admiralty jurisdiction. The same remarks may be truly repeated with reference to the present case. We do not perceive that the cases are distinguishable in principle, and think they should fall within the same rule of decision.

Finding, then, that the tort here complained of was on land, and not a maritime tort, and the case not one of admiralty jurisdiction, the remedy we regard as a purely domestic affair, which it was within the competency of the legislature of the State to give. We think the motion to dismiss for want of jurisdiction was properly denied.

The -judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    Isaac P. Coates v. David Preston et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Set-cm?—demands must be mutual. It is a familiar rule that debts, to be the subject of set-off, must be mutual between the parties to the action. A debt due from a firm can not be set off against the claim of an individual partner of the firm.
    2. Joint obligations—statute making them several, construed. Section 3, chapter 76, of the Revised Statutes, which delares that “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants, ” has reference only to contracts, obligations or covenants made jointly by persons in their individual capacity, and not to partnership obligations or debts. The statute does not authorize suit to be brought on a partnership debt against one member of the firm.
    3. Bank check—recovery when drawer has not a sufficient deposit to pay. A bank is under no obligation to pay any sum on a check payable to the drawer’s order, and by him assigned, when the drawer has not sufficient money on deposit to his credit in the bank to pay the check in full, and no recovery in such case can be had by the assignee. The rule may be different when the drawer himself is plaintiff.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Shufeldt & Westover, for the appellant:
    A debt due by a co-partnership can not be set off in an action by a member of the firm to recover his individual demand. Debts, to be set off, must be mutual between the parties. Gregg v. James, Breese, 143; Hinkley v. West, 4 Gilm. 136; Hilliard v. Walker, 11 Ill. 644; Walker v. Chovin, 16 id. 489; Phelps v. Reeder, 39 id. 172.
    Section 3, chapter 77, of the Revised Statutes, does not cover partnership obligations. The purpose of that' section is, to make obligations joint in form, but executed by several, joint and several. Marine Bank v. Ferry's Admrs. 40 Ill. 255; Gage v. Mechanics' National Bank, 79 id. 62.
    A partnership obligation is distinct and different from a “joint obligation.” 1 Parsons on Contracts, 11, 30; Parsons on Partnership, 346.
    Partnership contracts were always considered, in one sense, joint and several; and the statute, therefore, has no reference to such contracts. The rule of law, that in an action against partners all must be joined, exists now as well as before the act. Ladd v. Griswold, 4 Gilm. 25; Mason v. Tiffany, 45 Ill. 392; Silverman v. Chase, 90 id. 37; Lindley on Partnership, 295, 298.
    Mr. Morton Culver, for the appellees:
    The note of the firm was joint and several, and being several as to Gardner, his deposit could be used, so far as applicable, toward the liquidation of the note. Rev. Stat. 1874, chap. 76, sec. 3.
    Where a note is joint and several, any one of the makers thereof may be sued separately. Moore v. Rogers, 19 Ill. 347; Powell v. Ketelle, 1 Gilm. 491; Ballance v. Samuel, S Scam. 380; Marine Bank v. Terry, 40 Ill. 255; Conover v. Hill, 76 id. 342; Gould v. Sternberg, 69 id. 531; Gage v. Mechanics’ National Bank, 79 id. 62; Coombs v. Steele, 80 id. 101; People v. Harrison, 82 id. 84.
    Where each of several defendants against whom a judgment is rendered, is liable for the payment of the entire demand, such judgment may be set off against a judgment obtained by one of the defendants against the holders of the first mentioned judgment. Waterman on Set-off, secs. 231-3; White v. Rogers, 6 Blackf. 436; Pate v. Gray, Hemp. 155; Owen v. Wilkinson, S. C. (N. S.) 526; Culver v. Barney, 14 Wend. 162; Fletcher v. Dyche, 2 T. R. 32; Dunn v. West, 5 B. Mon. 376; Branch State Bank v. Morris, 13 Iowa, 136; Stadler v. Parmlee, 10 id. 23; Lemon v. Stephenson, 36 Ill. 49; Carson v. Barnes,
      1 Ala. 193; Hurdle v. Hanner, 5 Jones, (N. C.) 360; Bean v. Cabaness, 6 Ala. 343; Hutchins v. Riddle, 12 N. H. 464.
   Mr. Chief Justice Scott

delivered the opinion of the Court :

This suit was brought by Isaac P. Coates, against the firm of Preston, Kean & Co., who are described as bankers doing a general banking business, and was brought on a check drawn by Schuyler S. Gardner on defendants, for the sum of $2190, payable to his own order, and afterwards indorsed by him in writing on the back of the check, and then delivered to plaintiff. The defence, shortly stated, is, that Gardner, the drawer of the check, was, at the time, a member of the firm of Colby, Gardner & Co., which firm was then ■ indebted to the defendant banking firm in a sum in excess of the sum specified in the check, and that at the date the check was presented to defendants for payment, had not then, and has not since had, to his credit in, their bank a sum exceeding $2111.46; that plaintiff was not, at any time prior to the commencement of this suit, a( bona fide owner or holder of the check in suit for value paid by him, and that defendants would allow, as a set-off, the_ indebtedness of Colby, Gardner & Co. to them, which was then in judgment, the full amount of $2111.46, against the claim of plaintiff. To a special plea setting up these facts with the usual formality, the couit overruled the demurrer interposed by plaintiff, and rendered judgment for defendants. That decision was affirmed in the Appellate Court, and now plaintiff brings the case to this court on appeal.

It is conceded in the argument, any defence to this action may be made that could be made had Gardner, the drawer of the check, brought the suit in bis own name to recover the amount due him from the bank. But could the defence set up in the plea be sustained against Gardner if he were suing ? It is apprehended it could not.' It is a familiar principle that debts, to be the subject of set-off, must be mutual between the parties to the action. That is not the case here. The debt offered to be set off is the debt of the firm against the claim of one of the individual partners. That can not be done, and so this court held in Hilliard v. Walker, 11 Ill. 644.

It is a misapprehension to suppose section 3, chapter 76, Revised Statutes 1874, changes the practice in this respect. Even if that section of the statute has any application to partnership contracts, which is not conceded, still, the debt or claim offered to be set off in this case would not be mutual nor between the parties to the action, and therefore, under the previous decisions of this court, it could not be the subject of set off against the claim of the individual partner. Gregg v. James et al. Breese, 143; Burgwin v. Babcock, 11 Ill. 28; Hilliard v. Walker, id. 644.

There is one ground, however, upon which the judgment must be affirmed. It is averred in the plea that Gardner did not have the amount of money on deposit in the bank of defendants that the check called for. The demurrer, of course, admits that fact. It is apprehended the bank was under no obligation to pay any sum on the check unless the drawer had sufficient money on deposit to his credit with which to pay the check in full. It seems plain the present plaintiff could not recover for a moiety of the check. That, in effect, would be the division of the claim, which the law will not allow. A very different question would be presented if Gardner were himself plaintiff in this suit. Plaintiff could only recover, if at all, on the check, and if the drawer did not have a sufficient sum on deposit in defendant’s bank with which to make full payment, so that it could take up and hold the check as a voucher, the bank was under no obligation to make a partial payment, and could rightfully refuse to pay the check, or any part of it, as it did. In re Brown, 2 Story, 502; 2 Parsons on Notes and Bills, 78.

The judgment of the Appellate Court will be affirmed.

Judgment affirxncd.


author:
Mr. Justice Sheldon
      Mr. Justice Mulkey, Mr. Justice Walker:

text:
    The People ex rel. George R. H. Hughes v. Samuel Appleton.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Attorney at law—breach of private trust as ground for striking from roll of attorneys. Where property is conveyed to an attorney in trust, without his professional advice, and he mortgages the same, for the purpose of raising a sum of money which he claims is due him from the cestui que trust, and the trustee afterwards sells the property and appropriates the proceeds of the sale to his own use, the relation of client and attorney not being created by such trust, his conduct, however censurable as an individual occupying the position of a trustee, is not such as to warrant the summary disbarring of him on motion to this court to strike his name from the roll of attorneys, but the injured party must be left to his proper remedy by suit.
    2. Although the general rule is, that an attorney at law will not be disbarred for misconduct not in his professional capacity, but as an individual, there are cases forming an exception where his misconduct in his private capacity may be of so gross a character as to require his disbarment.
    This was an information filed in this court by George R. H. Hughes, against Samuel Appleton, an attorney of this court, to have his name stricken from the roll of attorneys of this State, on the grounds which appear in the opinion of the court.
    Messrs. Hynes, English & Dunne, for the relator:
    A trustee, except by agreement, is entitled to no compensation for his services. Huggins v. Ryder, 77 Ill. 360.
    A solicitor who is a trustee is liable for all losses occurring, from a breach of trust, and his name may be stricken from the rolls of the court for a willful breach. Perry on Trusts, sec. 846; In re Chandler, 22 Beav. 253; In re Hall, 2 Jur. (N. S.) 633.
    The name of a solicitor who willfully advises a breach of trust, may be stricken from the rolls. Goodwin v. Gosnell, 2 Coll. 457.

      Even without statutory provision the right to determine who shall appear before them as attorneys is incidental to all common law courts, and is also necessary for the respectability of the. profession. Mills’ case, 1 Mich. 392; Ex parte Brown, 1 How. (Miss.) 303; Secomb’s case, 19 How. (U. S.) 9; Beem v. State, 12 Ark. 149; Randall’s case, 11 Allen, 472; Rice v. Commonwealth, 18 B. Mon. 482.
    As to other cases of disbarment for improper conduct, both professional and as a private individual, see Smith’s case, 1 Yerg. 228; Percy’s case, 26 N. Y. 651; Leigh’s case, 1 Munf. 481; Peterson’s case, 3 Paige, 510; Delano’s case, 6 L. Rep. (N. H.) 660; Sanborn v. Kimball, 64 Maine, 140; Ex parte Brownsall, Cowp. 829; Baker v. Commonwealth, 10 Bush, 592.
    Mr. Edward Body, for the respondent;
    We neither deny nor seek to abate the responsibilities of an attorney at law. They are reviewed in the following authorities: People v. Allison, 68 Ill. 152; People v. Barker, 56 id. 300; Matter of Percy, 36 N. Y. 651; In re Peterson, 3 Paige, 510; Grant v. Chester, 17 How. Pr. 260; People v. Brotherson, 36 Barb. 662; Matter of Dakin, 4 Hill, 42; 1 Tidd’s Practice, 67, 87, 88, and notes; 1 Archbold’s Practice, Q. B. 60-68; Bacon’s Abridgment, title “Attorney,” H; Pearson v. Sutton, 5 Taunt. 364; Duncan v. Richmond, 7 id. 391; Goring v. Bishop, 1 Salk. 87; Matter of Lowe, 8 East, 237; In re Fenton, 5 N. & M. 239; 1 H. & W. 310; In re Chitty, 2 Dowl. 421; Ex parte Deane, id. 533; Ex parte Cowie, 3 id. 600; Cocks v. Harman, 6 East, 404; Ex parte Schwalbanker, 1 Dowl. 182; In re Cutts, 16 L. R. (N. S.) 715; Austin v. Chambers, 6 Cl. & Fin. 37; Matter of Husson, 26 Hun, 132; Matter of Aitkin, 4 B. & A. 47; In re Cardross, 5 M. & W. 545; Matter of Hoskin, 18 Hun, 42; People v. Goodrich, 79 Ill. 148; People v. Leary, 84 id. 190; People v. Ford, 54 id. 520; People v. Lamborn, 1 Scam. 123; People
      v. Palmer, 61 Ill. 255; People v. Harvey, 41 id. 277; People v. Cole, 84 id. 327.
    The court will not interpose in this manner as to any writings or money received by an attorney on any other account except in the way of business as an attorney, but will leave the party to his ordinary action. Merrifield on Law of Attorneys; 2 Hawkins’ Pleas of the Crown, chap. 22, sec. 10; Tidd’s Practice, 478; Archbold’s K. B. Practice, 338—341.
    Appleton had a property in the land to the extent of his entire claim, and had a right, to that extent, to apply it to his own use. Livingston v. Newkirk, 3 Johns. Ch. 318; Woodward v. Chichester, 2 Dyer, 185 b; Woodward v. Lord Darcy, 1 Plowd. 184; Watts v. Watts, 2 McCord’s Ch. 82; Page v. Patton, 5 Pet. 312; Langton v. Higgs, 5 Sim. 228; Tipping v. Power, 1 Hare, 405; Chissum v. Dewes, 5 Russ. 29; Rogers v. Hosack’s Exr. 18 Wend. 319; Decker v. Miller, 2 Paige, 149; Loane v. Casey, 2 W. Black. 967; Franks v. Cooper, 12 Ves. 763; Chickering v. Failes, 26 Ill. 508; Griffin v. Marine Co. 52 id. 131.
    An executor or trustee may reimburse himself for money advanced for the benefit of the estate or the cestui que trust. Ram on Assets, 343; Shelly v. Sackville, And. 24; Perry on Trusts, sec. 485; Balsh v. Hyham, 2 P. Wms. 453; Jarvis v. Wolferston, 18 L. R. Eq. 18; Snyder's Appeal, 72 Mo. 253; Burney v. Spear, 17 Ga. 225.
    The court will not proceed summarily with an attorney when there is any fact in dispute. In re Phillips, 3 Jur. 479; 1 W. W. & H. 418, Q. B.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an information on the relation of George B. H. Hughes, filed in this court, against Samuel Appleton, asking for a rule to show cause why his name should not be stricken from the roll of attorneys of this State. The rule having been granted, cause has been shown.

The case presented before us is of this character: In March, 1870, the relator, Hughes, became the owner of a lot of ground in the city of Chicago, known as. sub-lot 3, of lot 1, block 3, original town of Chicago, on North Clark street, paying at that time at the rate of $600 a front foot for the lot, which was twenty-one feet and some inches fronting on Clark street. In April, 1870, he borrowed $5000 from the Connecticut Mutual Life Insurance Company, secured by a mortgage on this property. In April, 1874, Hughes’ equity of redemption was sold at an execution sale under a judgment in favor of Gookins & Boberts, and bought in by them for the full amount of the judgment, and the sheriff’s certificate of sale was issued to them entitling them to a sheriff’s deed, July 20, 1875. In May, 1874, after the sale of Hughes’ equity in the property, a suit was brought by the Connecticut Mutual Life Insurance Company to foreclose under their mortgage, making Hughes, and Gookins & Boberts, parties defendant, and a foreclosure sale therein took place on November 17, 1875, which was four months after Gookins & Boberts had become entitled to a sheriff’s deed under their certificate of purchase in 1874. At the instance of Hughes, Thomas B. Bryan became the purchaser of the property at this foreclosure sale, Hughes loaning him $6000, taking a mortgage, to secure $5000 of the money, on the property, and $1000 being secured by a mortgage on other property of Bryan, the latter giving his notes for the $6000. Subsequently, Bryan requested Hughes to buy the property back from him for the price which he had paid for it, and surrender his notes, which Hughes- did, and instead of taking the deed in his own name, he had Bryan, on June 16, 1878, make the conveyance of the property to Appleton, the respondent, the latter executing to Hughes a written declaration of trust, which Hughes retained without recording. Shortly after the lot was conveyed to Appleton, efforts were made by Hughes and Appleton to obtain a building loan for the purpose of improving the property, these efforts extending to October, 1878, when the project of raising a building loan was abandoned. On December 11, 1878, Appleton secured a loan of $1000 by mortgaging the lot to one Wright, which was done without any communication with Hughes on the subject. Again, on May 7, 1879, Appleton obtained a loan of $1500. on the lot, executing a trust deed to one Snowhook to secure the same, and took up the Wright mortgage,—and this, also, without any communication with Hughes. And again, on February 24, 1880, Appleton conveyed the lot to Frank H. Dickey, by warranty deed, for the expressed consideration of $4000, subject to the Snowhook incumbrance- of $1500,—and this without the direction of Hughes. On February 25, 1880, one Pease, as assignee of the Gookins & Boberts certificate of purchase, filed a bill in the Superior Court of Cook county, making Appleton and Hughes parties defendant, laying claim to the proceeds of the property, and praying the court to restrain Appleton from paying them over. To this bill Hughes demurred, which demurrer was sustained, and leave given to amend the bill. Afterward, the Pease bill was dismissed, and within a few days a new bill was filed by Pease in the circuit court of Cook county, in which Appleton and Hughes, and the Connecticut Mutual Life Insurance Company, were made parties defendant. Hughes filed his cross-bill setting forth his claim, and asking a conveyance from Dickey, or if that should not be, a decree against Appleton for the value of the property. This second suit is still pending and undetermined. It was commenced June 19,1880, and on November 22, 1880, it was dismissed as to Dickey, and a few days thereafter Dickey conveyed the lot to Eugene Pike.

The claim on the part of the relator is, that the trust with respect to the property in question was a matter of professional employment; that the acceptance of the trust, and the action under it, was in the capacity of an attorney at law; that the mortgaging of the lot, and the sale of it afterward, was all an iniquitous fraud, perpetrated for the purpose of wronging relator out of his property, and dishonestly appropriating it to the use of ■ respondent; that the Pease suit to restrain the paying over of the proceeds of the property was hut a sham and a device of respondent in his scheme of fraud to furnish a pretext for the withholding of such proceeds. The respondent insists, on the contrary, that this trust was not professional, but private business, and that all his conduct was honest and with rightful motive; that he had made disbursements, incurred liabilities, and performed services with respect to the property, to an amount exceed-, ing that of the mortgages he placed upon the lot; that relator was insolvent; that respondent made application to him for payment, but could get nothing; that he told relator if he did not pay him respondent would, secure himself on the property; that afterward he borrowed $1000, thinking that might suffice for his need, and gave the first mortgage, but finding that he needed an additional $500, he obtained a loan of $1500 on the lot, gave the second mortgage, and took up the first one; that the money thus raised was no more than the amount of what he regarded as justly his due, and he thought himself .justified in thus securing his pay; that the sale of the property was made with the approval of relator, and that he had no connection with the bringing of the Pease suit. Both the parties give testimony in support of their respective claims.

We concur in the view óf the respondent that the trust which was undertaken in this case was not under any professional employment. Relator’s own testimony would seem so to mark it. He says: “On the 6th of July, 1878, I made a purchase from Thomas B. Bryan of a lot on North Clark street, for $6000. After making my terms with Mr. Bryan at the Fidelity Safety Deposit vaults, I left Mr. Bryan and called on Mr. Appleton, at his office; mentioned to him that I had just made this purchase; that as he had been trustee in a previous transaction, and particularly as I was anxious to avoid harrassment through the old Gookins & Roberts judgments, and as I wanted to get up a building as quickly as possible, and to that end raise a loan on the lot, I called to ask him if he would receive the title in trust by conveyance from Mr. Bryan. He said that he would gladly serve me in the matter, and accept the title in trust. ” Thus it will be seen that the deed was not made under any legal advice from respondent, but relator had, of himself, determined upon it beforehand. It was a very simple matter, the having of a deed for land made in another person’s name, not giving occasion for legal advice, and relator not needing it from respondent, they both being attorneys, and the relator some fifteen years the senior in the practice of law. To hold a title in one’s own name requires no skill of an attorney. There had been no previous relation of attorney and client, and that which arose between the parties from the transaction in question we regard as not being the relation of attorney and client, but that of trustee and cestui que trust.

It is remarked upon, as showing professional employment, that respondent charged a fee of $10 to relator on the books of Rogers & Appleton, attorneys at law, for the business he did the day he accepted the trust. Without going through with it, we will say that Mr. Rogers’ explanation how this charge came to be made several months afterward, is satisfactory to us that little significance should be attached to this as evidence of the rendering of professional services. Mr. Rogers says distinctly that they never had an account with relator.

From an examination of all the testimony, we can come to no other conclusion than that respondent accepted this trust, not as an attorney at law, but simply as an individual, and that whatever of wrongful conduct there may have been, it was but that of any ordinary trustee, and not professional misconduct in the office of an attorney at law. In a similar proceeding against an attorney, in The People v. Allison, 68 Ill. 151, this court said: “If respondent has been guilty of the misconduct alleged against him, in his private character, and not in his official capacity as an attorney, relief can only be obtained by a prosecution in the proper court, at the suit of the party injured. He can not be tried, on motion, in this summary manner. ” There are many authorities for the support of the doctrine thus laid down. Among them we refer to In re Aitkin, 4 Barn. & Ald. 47; Cocks v. Harman, 6 East, 404; Matter of Dakin, 4 Hill, 42; In re Husson, 26 Hun, 130; Matter of Hoskin, 18 id. 42.

We think the present comes within the class of eases above referred to, wherein the exercise of this summary jurisdiction would not be entertained where the misconduct alleged was not in the employment as attorney. But though such be ' the general rule, it is not to be held that there are no exceptions,—that there are not cases where an attorney’s misconduct, in his private capacity merely, and not in his official capacity, may be of so gross a character that the court will exercise the power of disbarment. There is too much of authority to the contrary to say that. Is the present case one of such character?

As the case is presented on the part of the relator it is quite an aggravated one, but there are favoring circumstances for respondent which mitigate the case as thus presented. The misconduct alleged is in the mortgaging of the property, the making sale of it, and withholding the proceeds upon the pretext of the Pease suit, fraudulently got up, as alleged, by the respondent himself, for that purpose. There is no question that respondent made disbursements and incurred liabilities in respect of the property. Plans and specifications for building were made and changed, and different architects engaged in the matter. Successive loans for building were negotiated for by different brokers. Liabilities were thus incurred by respondent, he being the ostensible owner. One architect was threatening him with a suit for $100. Some $164 of taxes were paid by respondent. Very much of respondent’s time during some five months was occupied by relator in relation to the matter,—so much of it, Mr. Rogers testifies, that he required that respondent should allow the firm $500 for the amount of time which had thus been taken from the firm’s business; that this was done, and respondent was charged for that amount on the books,—not as being the amount which relator should pay, but as the sum which, as between themselves, should be charged against respondent. There was evidence, coming from the relator himself, that he agreed to pay'respondent for his services, and some evidence tending to show that it should be suitable compensation for a lawyer’s time thus occupied. Upon the hypothesis of such an agreement, and the amount of time spent, which there was disinterested evidence tending to show was spent, respectable witnesses testified that the compensation should be $1000 or more. As to such compensation, if any were due, there might honestly be quite a difference of opinion. It can not be said that the claim of respondent was wholly baseless. It was a just one for some amount, and if nothing could be obtained from relator upon it, and respondent stood in need of the money, and informed relator that he would secure himself on the property, the resort afterward to a mortgage upon the property of $1500, for the purpose of securing his pay, however unjustifiable it might have been, can not be pronounced to be a transaction of such-moral turpitude as to demand respondent’s expulsion from the bar, as being unfit to practice his profession. Wrong conduct there may have been, and not the corrupt intent charged.

As to the sale of the lot, independent of Respondent’s testimony that it was with the approval of relator, there is evidence that respondent was making efforts to sell the lot with relator’s concurrence. There is in the case a letter from respondent to relator, of date December 13, 1879, saying: “Your price for selling I find too high for the market. Shall I reduce it to $4500? Why don’t you come in?” Respondent’s excuse for selling the lot as he did, was, that he had just before received a letter from Mr. Wakeman, the solicitor for complainant in the Pease cause, threatening suit on the Roberts claim; that he made an ineffectual effort to see relator, and thought it best for the protection of the property to make sale of it, as he did, without any delay. Wakeman was a witness, and he is not inquired of as to the sending of such a letter, so we think it may be taken that such a letter was sent. As to the lot being sold at a greatly inadequate price, as claimed, several witnesses testify that it was sold for its market value. We can hardly say there was corrupt conduct in making this sale.

As to respondent having caused the Pease suit to be brought for the fraudulent purpose alleged, all the evidence thereof seems to be the quickness with which the bill was filed after the sale, being on the next day, and its being drawn by Mr. Burrows, and then brought to Mr. Wakeman, who signed it as solicitor; and the latter would seem to have had no other connection with the bringing of the suit than thus signing the bill. From bringing the suit so soon after the sale, it requiring considerable time to prepare. such a bill, it might be a just inference that Burrows or Pease had notice that the sale was to be made, some time beforehand, but there would be no proper inference of anything further. Mr. Burrows had some relation of intimacy with respondent, having had employment in the office of Rogers & Appleton for some of the time during the summer and fall of 1879. These were suspicious circumstances, but they do not amount to the satisfactory evidence which is required in such case of the charge alleged,:—that this Pease suit was all a sham and fraudulent contrivance on the part of respondent to enable him to keep in his hands the proceeds of the sale of the lot.

As to the Roberts claim, and the Pease suit brought upon it, being so utterly groundless, as claimed, that they should have been no obstacle" to' paying over this money, it is to be remarked that relator had been told by a lawyer of eminence that if he bought the lot at the insurance company’s foreclosure sale, the title might inure to Gookins & Roberts, under their judgment against relator and purchase at execution sale of the equity of redemption. It was on account of this that relator had the Bryan deed made to respondent, instead of to himself. "When one of the building loans had been arranged for; it was found that in order to its completion the abstract of title would have to go into the hands of the attorneys who obtained the Gookins & Roberts judgment. Relator for that reason dropped the loan. Relator himself thus entertaining real apprehension in regard to the Gookins & Roberts claim, it would not seem to be for him to say that respondent's apprehension concerning it is but a mere pretense, and impute it as dishonest and corrupt conduct in him to be unwilling to pay over the proceeds of the sale of the lot whilst that Pease suit was pending against him. Efforts were made for settlement. The ultimatum which relator announced to respondent was, that the latter should pay $8000, with nothing for his disbursements or services.' The controversy was the proper subject matter of a bill in equity. It may, and should, be settled in the pending Pease suit.

We have not attempted to enter into a detail of the evidence with any fullness, and have but adverted to some favorable circumstances to show that the present is not a case of such gross misconduct of an attorney in his private capacity as to call for the proceeding against him for disbarment.

We are of opinion the rule ought to be discharged.

Buie discharged.

Mr. Justice Mulkey,

dissenting:

I regret that I am unable to concur in the conclusion reached in this case by a majority of the court. If I were to consult my feelings alone, I would most certainly suffer the case to pass in silence, without even noting my dissent upon the record; but a sense of official duty will not permit this course. I therefore deem it proper to state, in as few words as I conveniently can, the general view I have of the case as it appears, from the evidence, to me.

Taking the most favorable view of the case, after giving Appleton the benefit of all doubts, the simple, unvarnished facts are, in substance, these: The relator, an attorney of the Chicago bar, -for his own convenience, and to accomplish certain purposes of his own, conveyed to Appleton, a brother attorney of the same place, in trust, certain real estate in Chicago, where both parties then lived, and still live, by means of which conveyance the relation of trustee and cestui que trust was established between them. The declaration of trust executed by Appleton to Hughes was not recorded, but the conveyance was, so that the record showed the absolute title to be in Appleton. Some time after the transfer, Appleton, claiming to have incurred some expenses on account of the trust property, mortgaged the same, to secure a loan to himself of $1000, and aiiproqtriated the money to his own use. Not satisfied with the fruits of this flagrant breach of duty, which was largely in excess of any claim, or pretended claim, he then had against Hughes on account of the property, he subsequently took up this mortgage, and at the same time executed another, to secure an additional loan to himself of $1500. His rapacity being still unsatisfied, he finally sold and conveyed the property out and out, for $6000, no part of which has ever been paid to Hughes. All this W'as done without the knowledge or consent of Hughes, and in palpable violation of his rights. If the trust property had been converted into money, and placed by Hughes into Appleton’s hands, and the latter had appropriated the proceeds in the same manner he did the land itself, Appleton would, under our statutes, clearly have been guilty of larceny, and, so far as the moral turpitude of the two acts is concerned, it is manifest there is no difference between them.

To the case thus clearly made out against the respondent, he interposes the technical defence that in appropriating the relator’s property to his own use in the manner we have seen, he was acting merely as trustee, and not as an attorney, and upon this ground alone the majority of the court have mercifully permitted him to escape. This defence so forcibly reminds me of the old story of the profane bishop, who had the good fortune to be a duke also, I can not refrain from telling it. An acquaintance, who happened to overhear him using profane language, asked him how it was that he, being a bishop, could be guilty of swearing. “Ah, my friend, ” replied his reverence, “I swear as a duke, and not as a bishop. ” “But, ” retorts the other, “when the devil comes to get the duke, what will become of the bishop?” So in this case, -when his satanic majesty calls for Appleton, the trustee, I should like to know what will become of Appleton, the lawyer.

Under our statute no one can legally procure a license to practice law in this State without first procuring a certificate of good moral character from some court of record. By this requirement it is evident the legislature intended that no one should be admitted to the bar who was not, in truth and in fact, a good, moral man; and if this be an essential condition, as it certainly is, to one’s admission to the bar in the first instance, it is certainly equally essential that he should maintain this character after he has been once admitted, and I maintain that whenever his conduct is such, whether he is acting professionally or otherwise, as to demonstrate that he is not an honest man, he should be disbarred, for by becoming or being dishonest he violates the essential condition upon which he was admitted, and forfeits all claims to recognition among his professional brethren or by the courts of the State. But, outside of this statutory requirement, it is manifest a man who is not honest and honorable in all his business relations, whatever may be his qualifications otherwise, is clearly unfit for the discharge of the grave, and often delicate, responsibilities which the practicing attorney is, from day to day, required to assume. The highest conceivable interests are intrusted to his care. Fortune, reputation, liberty, and even life itself, are placed in his hands. This being so, it is manifest no one should be permitted to practice law who is not strictly honest. To permit it to be done is not only unjust to the community at large, but it is especially unjust to the profession itself, as the reputation of all must suffer more or less from it. It gives color to the popular idea that obtains in the minds of many, that lawyers, as a class, are a set of mere sharpers and tricksters. The better class of the bar of this State occupy a high moral plane, and as an humble member of this court I feel it my duty to lend them all the encouragement and aid within my power to maintain the high standard of professional ethics which they have established, and which has cast so much lustre on the Illinois bar; and this can only be done by holding all, from the highest to the lowest, without' regard to their social connections, to a strict accountability for every substantial breach of moral duty which shows a disregard for common honesty.

Mr. Justice Walker:

I fully concur in the views expressed by my brother Mulkey in this dissenting opinion.


text:
    Hiram Gould et al. v. Mary E. Sternburg.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Chancery jurisdiction—to remove cloud from title. There are only two cases, under the laws of this State, in which a party may file a bill to quiet title or remove a cloud from the title to real- property: First, when he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied.
    2. Where the defendants are in the actual possession of land, though acquired by force and violence, a court of equity will not undertake to determine the validity of the respective titles of the parties, but will leave the complainant to his remedy at law. The rule is of general application, that where there is a plain and adequate remedy at law a court of equity will not interfere.
    Appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.
    Messrs. Haley & O’Donnell, for the appellants:
    A party not in possession of land occupied by another, can not maintain a bill to remove a cloud from his title. Alton Mutual Fire Ins. Co. v. Buckmaster, 13 Ill. 204; Smith v. McConnel et al. 17 id. 135; Comstock v. Henneberry, 66 id. 212; Reed v. Tyler, 56 id. 288; Burton v. Gleason, id. 25; Hardin v. Jones, 86 id. 315; Ryan v. Duncan, 88 id. 145; Oakley v. Hurlbut, 100 id. 204.
    In a bill, under the statute, for quieting possession, complainant must set forth and prove actual possession. Hubbard v. Clark, 8 Ohio, 382; Van Phul v. Penn, 31 Mo. 334; Rutherford v. Ullman, 42 id. 216; O’Brien v. Kreitz, 10 Kan. 203.
    Mr. R. E, Barber, and Mr. B. M. Munn, for the appellee:
    The court has jurisdiction in this ease, as the defendants’ possession was obtained by force, violence and fraud. Such possession will be treated as no possession. Baker v. Hayes, 28 Ill. 387; Hardin v. Jones, 86 id. 313; Comstock v. Henneberry, 66 id. 212; Fargo v. Goodspeed, 87 id. 290; Kennedy v. Northop, 15 id. 152; Massie v. Watts, 6 Cranch, 158.
    Our position as to jurisdiction is sustained by abundant authorities, like the following: Boyce, Exr. v. Grundy, 3 Pet. 215; O’Halloran v. Fitzgerald, 71 Ill. 53; Brooks v. Kerns, 86 id. 547; Pool v. Docker, 92 id. 501; Mix v. King, 55 id. 434; Smith v. Hollenbeck, 51 id. 223; Nelson v. Rockwell, 14 id. 375; Lewis v. Lanphere, 79 id. 187.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

There are only two cases, under the laws of this State, in which a party may file a bill in a court of chancery to quiet title, or to remove a cloud from the title to real property: First, when he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied. (Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Oakley v. Hurlbut, 100 id. 204.) This case does not come within the rule on this subject so frequently declared. The object of the bill is to have certain deeds and a mortgage cancelled, as a cloud upon the title to the lands of complainant, and for a decree against defendants for the rents and profits of the same since the time she alleges she acquired the title. The jurisdiction of the court to hear the bill is called in question by a distinct and affirmative allegation in. the answer of defendants, that complainant was not in possession of the property at the time she exhibited her bill, and that defendants were in the actual possession, claiming the same under a legal title, and on that account her remedy, if any, was at law,—not in chancery. It will be seen, on examination, the bill contains no allegation complainant was in possession of the lands involved in this litigation. It would be idle to claim a decree for rents .and profits against defendants unless they were in possession of such lands, either by themselves or by their tenants. The pleadings, as well as the evidence, disclose the.fact complainant was not, but that defendants were, in the actual possession of the lands when this suit was commenced.

It is suggested the jurisdiction of the court may be maintained on the ground defendants were guilty of wrongful conduct in driving off complainant’s agents or tenants after the sheriff had formally delivered possession of the premises to them, for her, under a writ of assistance. The position taken is not sustained by the doctrine of Hardin v. Jones, cited by counsel with so much seeming confidence. It is said in that case, and so the law is, that possession which gives the court jurisdiction in cases like the one being considered, must be such as was acquired in a lawful way, for it can not be that equity will lend its aid to protect a possession wrested from another by violence, or obtained by the use of any unfair or corrupt means. The principle of that case can have no application to the facts of this case. Here it is defendants who are said to have obtained and retain possession by actual violence and wrongful conduct. But they are not asking the equitable interference of a court of chancery in then behalf. The rule is, that when a complainant has obtained possession of premises by violence, he will not be permitted to make his wrongful conduct a foundation for equitable jurisdiction and relief. That is all that Hardin v. Jones, and other cases in this court, hold on this subject, and the principle asserted will not enable complainant to maintain her bill in this case.

As defendants are in the actual possession of the lands in dispute, ejectment is the proper remedy, and the court will not undertake to determine the validity of their respective titles on a bill in chancery. The rule is of general application, that where there is a plain and adequate remedy at law a court of equity will not interfere. The practice in this regard is so well settled it is not necessary to do more than to cite a few of the most recent cases in this court: Burton v. Gleason, 56 Ill. 25; Gage v. Abbott, 99 id. 366.

The decree of the circuit court will be reversed, and the bill dismissed.

Decree reversed.


author: Mr. Justice Walker

text:
    The International Bank v. George S. Poppers.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Contract—extinguishment by taking new obligation. As a general rule, when one person holds an obligation on another, and the obligor gives a new obligation for the same subject matter of as high or a higher dignity, such new obligation, independently of any.express agreement, will operate as a satisfaction or extinguishment of the first obligation. This is the legal presumption, which is liable to be rebutted, however, and this presumption is strengthened when there is a further and different security on the new obligation.
    2. Same—effect of giving a new appeal bond upon liability on a former bond. So where a defendant in an action of forcible entry and detainer, on an appeal from a judgment of a justice of the peace, gave an appeal bond in the penal sum of §500, and afterward, by an order of the court, gave another bond in the sum of §1200, and again, under an order of the court to “file a good and sufficient new appeal bond” by a day named, gave a new bond in the penalty of §2000, with other and different sureties, it was held, in an action on the second of these bonds, that the giving and approval of the last bond in the case operated as a discharge and extinguishment of the prior bonds, and that such last bond embraced and covered all the appellant’s liabilities growing out of the appeal, and that no recovery could be had on the second bond.
    3. Same—construction of the statute—as to effect of new appeal bond in forcible entry. Under a proper construction of section 19 of the Forcible Entry and Detainer act, authorizing the court to require the defendant appealing to give a new appeal bond in a larger amount, if necessary to secure the rights of the plaintiff, such new bond, when required and given and approved, covers all proceedings had in the case, and relates back and embraces all acts named therein from the time of the taking of the appeal. It stands as a substitute for all prior bonds given in the case.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Coók county; the Hon. Elliott Anthony, Judge,, presiding.
    Messrs. Bisbee, Ahrens & Hawley, for the appellant:
    The giving of a new bond before a continuance in a forcible detainer suit, under the statute, does not operate as a satisfaction or extinguishment of a bond previously given. Rev. Stat. 1874, chap. 57, sec. 19; Walter v. McSherry, 21 Mo. 76. See, also, People v. Curry, 59 Ill. 35.
    Poppers could only be released from liability by the execution of the $2000 bond, by its having been taken with the intention, on the part of the bank,-to discharge him. Oxley v. Storer, 54 Ill. 161; Sterling v. S. M. and S. Trading Co. 11 Serg. & R. 179; Firemens' Ins. Co. v. Wilkinson, 35 N. J. Eq. 160.
    Mr. Thomas Shirley, for the appellee:
    The Missouri case, and the case of the administrator’s bond, are not in point. The statute declares that the court in which the appeal is pending may require a new bond in a larger amount, if necessary to secure the rights of the parties, and in case of a continuance, may require another bond to be given to further secure the same.
   Mr. Justice Walker

delivered the opinion of the Court:

The International Bank brought an action of forcible entry and detainer, against Catharine Walsh, to recover possession of premises claimed to have been wrongfully detained by her. The proceeding was before a justice of the peace of Cook county, and the bank recovered a judgment that it was entitled to possession of the premises. Mrs. Walsh appealed from the judgment of the justice to the circuit court, and filed an appeal bond with the clerk of that court, in the penal sum of $500. Subsequently, on the motion of the bank, the court ordered that she file “a good and sufficient new appeal bond in said cause” on a day named, and this she did at a day named in an order extending the time. Afterwards, she was ruled to file an “increased appeal bond in the said cause, in the penal sum of $2000, with good and sufficient security thereto, or show cause to the contrary. ” This rule was afterwards made absolute, and she subsequently filed such increased bond, which was approved by 'the court. After-wards, the bank recovered a judgment on the trial of the appeal, thereby affirming the decision of the justice of the peace. On the 12th of July, 1878, this suit was commenced by the bank on the second bond, for $1200. The action was debt, and Mrs. Walsh was defaulted for want of a plea to the action. Defendant; Poppers, pleaded several pleas, in one of which he averred that the execution of the $2000 bond was accepted by plaintiff in satisfaction and discharge of the bond sued on; and in another, that when the court approved the $2000 bond, with Bice as surety, that operated to release and discharge the bond sued upon. These pleas present the questions in controversy in the case. Issues were joined on these pleas. A trial was had before the court and a jury, and a verdict rendered for $1200 debt and $1000 damages. A motion for a new trial was entered and overruled, and a judgment rendered on the verdict. An appeal was prayed, and perfected, to the Appellate Court. On a trial in that court the judgment of the circuit court was reversed, and the cause not being remanded, the ease is brought by appeal to this court, and a reversal is asked.

The question turns on whether the execution, approval and filing of the $2000 bond, with Bice as surety, operated as a discharge or release of the bond sued on in the case. The 19th section of the Forcible Entry and Detainer act requires the defendant, if he appeals, to execute an appeal bond in an amount sufficient to cover all rents that may accrue until • the 'termination of the suit, and to cover all damages and loss or injury sustained by, the property, and costs. It also contains this provision: “And the court in which' the appeal may be pending may require a new bond in a larger amount, if necessary to secure the rights of the parties; and in case of continuance, may require another bond to be given to further secure the same.” The statute is entirely silent as to the effect the giving of new bonds shall have upon those already given,—that must be determined by construction of this provision of the statute. The construction of similar statutory provisions may be referred to, to enable us to arrive at the true meaning of this statute.

In the case of Lott v. The People, 27 Ill. 215, it was held, that where an administrator, on the petition of his sureties, gave a new bond authorized by the statute, the sureties on the first bond were thereby released, and discharged from their obligation on that bond. It is true that was in a case of an administrator’s bond; but that, as in this case, was a statutory bond, and there, as here, the statute made no provision as to the effect the execution of the new bond should have on the one previously given. It is true the second bond, under the provisions of the statute, rendered the sureties liable for all, past as well as future, acts of the administrators. But the decision was not placed on that ground. We regard that case, in principle, precisely the same as this. The fact that the bonds were under statutes on different subjects, does not matter. That does not affect the general rule. Here, the last bond, under a proper construction of the statute, covers all proceedings had in the case from the time the justice of the peace granted the appeal. It does not so provide in terms, perhaps, but such is the obvious effect of the statute. It can not be held that the last bond only covered acts occurring or costs accruing after the bond sued on was given. It relates back and covers all acts named in the bond from the time the appeal was taken. It is, in principle, like the section under consideration in Lott v. The People, supra, and can not be distinguished from that case.

We are, however, referred to The People v. Curry, 59 Ill. 35, as having a bearing on this case. The decision in that case was under the 78th section of the act of 1845, but the case of Lott v. The People, supra, was under the 79th section of that act, and a distinction was taken between the operation of the two sections. The former of these sections requires “other and sufficient security,” whilst the 79th section requires that a “new bond” shall be given. The bond required by the 19th section of the Forcible Entry and Detainer act, like the 79th section, requires a new bond in a larger amount. In this respect the two sections are alike, and require the same construction.

We are also referred to the case of Walter v. McSherry, 21 Mo. 75, which involved a construction of a statute similar to ours. The court there held that the giving of the new bond did not discharge the first. In view of our decision in the case of Lott v. The People, supra, we incline to adhere to our construction rather than yield to that given by that court.

The language of the .statute is, a new bond—a separate, independent bond. It is not something additional to, or to become auxiliary to or connected with, the prior bond,—and not only so, but it is required to be for a larger amount, if necessary. Then, if it is a new bond, and for a larger amount, it is to have the same effect as though it was the first and only bond in the case. The statute must have intended it as a substitution for all other bonds in the case, and to operate to discharge all others; and in case of a continuance, the court is authorized to require another bond to be given to further secure the payment of rents, etc. It will be observed that .this law does not provide for further security or additional bonds, but for a new bond or another bond,—and that, too, 'in a larger sum. We therefore, from the language of the statute, hold that it was intended the execution of the new bond should release the sureties on the prior bond.

We therefore conclude that the Appellate Court did not err in reversing the judgment of the circuit court, and its judgment must be affirmed.

Judgment affirmed.


text:
    Lavina J. Whitesides v. Douglas S. Taylor et al.

      Filed at Ottawa September 27, 1882

      Rehearing denied March Term, 1883.

    1. Rescission of contract—setting aside sale procured by misrepresentation. A party selling his interest in premises supposed he was selling to a person interested in the same, but in fact conveyed to another party, who held the legal title for the entire property in trust for himself and the other two: Held, that this misapprehension on the part of the grantor afforded no reason for setting aside the conveyance, as it could not have prejudiced his rights,—but if it were otherwise, the fact that he conveyed to the trustee was enough to put him on inquiry, if material to know with which party he was dealing.
    2. Fraud—suppressio veri—confidential relation. One occupying a confidential relation to the owner of an interest in land as his trustee, in dealing with such owner for a purchase of his interest is not bound to disclose to him the sale of a half interest in the property previously made -by such trustee, when the deed evidencing such sale has been recorded, and such owner, before that time, had learned of such sale by the trustee, and filed a bill to set it aside.
    3. Same—when duty to disclose facts ceases. After the filing of a bill by a cestui que trust against the trustee and others to avoid a sale made by the trustee, placing the parties in direct antagonism in any dealings thereafter between them for the purchase of the interest of the cestui que trust by the trustee, if the former desires further information from the latter respecting the property and its condition, it is as much the duty of the party desiring the information to make inquiry of the trustee, as it is his duty to give information.
    4. Same—when party is responsible for representations of another. The purchaser of an interest in land will not be held responsible for the representations of a mere go-between, not strictly the agent of either party, made to the vendor to induce the sale, and communicating to each matters coming from the other, especially when the representations seem to have been made on his own account, and from his own promptings, to sustain his own interests.
    Appeal from the Circuit Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. C. A. Gregory, and Mr. C. B. Lawrence, for the appellant:
    In equity the • law is, that where a trustee takes a profit under his own abuse of the trust, a fraudulent purpose will be presumed. Harrison v. Smith, 2 Heisk. 230; Bigelow on Fraud, 237.
    One can not take any benefit under false and fraudulent representations made by his agent. Kerr on Mistake and Fraud, 111, 132.
    Although an attorney or trustee can show that he is entitled to purchase, yet if, instead of openly purchasing, he purchases in the name of a trustee or agent without disclosing the fact, the purchase can not stand. Lewis v. Killman, 3 H. L. Cases, 630; Popham v. Exham, 10 Irish Ch. 440; 2 Sugden on Vendors, 690; Eldridge v. Walker, 60 Ill. 230.
    There is no evidence that Mrs. Whitesides knew that there was an agreement between Taylor, Nix and Krimball that the latter should get her interest as a condition of his selling to Willoughby at the price of $300 per acre. It was a fraud on her to withhold this information. Baugh v. Price, 1 Wils. 320; Negley v. Lindsay, 67 Pa. St. 217; DeMontmorency v. Deveraux, 7 Cl. & Fin. 225; Eldridge v. Walker, 60 Ill. 230.
    The burden of proof of knowledge lies on him who alleges acquiescence, and sets it up as a defence. Bennett v. Colby, 2 M. & K. 225; Burroughs v. Walls, 5 De G. M. & G. 233; Life Association v. Siddall, 3 DeG. F. & J. 58; Wall v. Cockerell, 10 H. L. Cases, 229; Spackman's case, 34 L. J. Ch. 329.

      • In cases of fraudulent concealment and representation, it is no answer that the truth might have been learned on inquiry. Central Railroad v. Kirsh, L. R. 3 H. R. 99; Davis v. Park, 103 Mass. 501; Story’s Eq. sec. 400. On concealment and confidential relations, see 1 Perry on Trusts, 179, 210, 251. On misrepresentation, see same, p. 193, sec. 171. Arms’ length reliance on misrepresentation, see Kerr on Mistake and Fraud, 77-81. Agent’s misrepresentation, see same, 111, 112; Perry on Trusts, sec. 172.
    Messrs. Booth & Booth, for the appellees:
    Whitesides gave nothing, originally,—not even the weight of his name,—for the equity now claimed for his wife. He paid nothing for the interest. He who seeks equity must do equity.
    By filing her bill December 12, 1879, complainant distinctly, placed Krimball in an antagonistical position, and all confidential and fiduciary relations ceased. They dealt thereafter as strangers,—at arms’ length.
    Krimball was not only a trustee, but also an owner, and in dealing with the property was necessarily influenced more or less by his own individual interest, and the other parties must be presumed to know this in dealing with him.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a suit in chancery, brought in the circuit court by appellant, as complainant, against Taylor, Krimball and Nix, seeking to set aside a deed made by her.to Andrew Krimball, January 5, 1880, conveying to him all her interest in a tract of land mentioned in the deed, and for other incidental relief. This relief is sought upon the allegation that the deed was procured from her by fraudulent representations made by Krimball, and by'fraudulent suppression of facts which he ought to have made known to her. The circuit court, at a hearing upon bill, answers, replications and proofs, dismissed the bill for want of equity, and complainant appeals to this court.

After a careful consideration of all the evidence, and of the forcible suggestions of counsel for appellant, we think the decree of the circuit court was right. If the testimony of Krimball, Taylor and Mix be worthy of credence, clearly appellant has no just cause of complaint. And-even if the testimony of the complainant and that of her -husband be regarded as the more reliable, the right of complainant to the relief sought remains very questionable. When the sale of January 5, 1880, was made by complainant, there was a lawsuit pending, in which she and Krimball and Taylor were antagonists. She sold, as she supposed, to Taylor, but made the deed to Krimball. It is not perceived wherein she was prejudiced by that misapprehension. If it were otherwise, when she made the deed to Krimball she had in that fact enough to put her on inquiry, if she regarded it material for her to know whether she was dealing w'ith Taylor or Krimball.

It is contended that Krimball occupying the position of trustee for appellant as cestui que trust, it thereby became his duty to disclose to her the fact that a sale of one-half the trust property had been made to Willoughby, and that money had been realized upon that sale sufficient to pay so much of the mortgage debt as was then due, and thus relieve the residue of the property from the danger of an immediate foreclosure. But it appears, from the evidence, that the deed from Krimball to Willoughby had been placed upon record; that from this deed it was apparent that $6000 had been received upon that sale. It also appears that the complainant had knowledge of the contents of this deed, and had idled her bill against Taylor,, Krimball, and others, complaining that this had been done. Krimball had no reason to suppose that she was ignorant of the true state of the case. The filing of her bill had placed them in an antagonistical position. If she desired further information from Krimball, it was as much her duty to make inquiry of him as it was his duty to give information.

It is insisted, however, that Nix was the agent of Krimball, and in the negotiation for the purchase of complainant’s interest he assured her that no money had been realized from that sale; that Krimball is responsible for the representations alleged to have been made by Nix. Taking the whole of the testimony in consideration, we can not regard Nix as any more the agent for Krimball than he was the agent in behalf of complainant. Taylor and Nix had assured Krimball that the interest of complainant could be bought for him at $500, and upon that assurance he had consented to make the sale to Willoughby, to consummate the purchase. He afterwards learned that it could not be accomplished for less than $600. Nix and Taylor were both interested in accomplishing this negotiation. Nix was requested by complainant’s husband, who acted for her, to consummate the settlement. He was authorized by Krimball to pay the $600 for complainant’s interest. He occupied to these parties the position of a go-between, not being strictly the agent of either, and yet communicating to each matters as coming from the other. The representations that he made seem to have been made on his own account, and from his own promptings, to subserve his own interests; and under all the circumstances we do not think that Krimball should be held responsible for them.

It is not shown that the price paid at the time was not a reasonably adequate price for the interest of complainant as it then stood. Upon the whole, we think the proof fails entirely to charge Krimball with the fraud alleged in the bill.

The decree of the circuit court.is therefore affirmed.

Decree affirmed.