author: Mr. Justice Craig

text:
    Don Onstott v. The People ex rel. Thomas Penwarden, Collector.

      Filed at Mt. Vernon January 20, 1888.

    1. Municipal subscbiptions and bonds—in aid of railroads—since the adoption of the constitution of 1870—or upon a vote prior thereto. Since the adoption of the constitution of 1870, a county has no power to become a stockholder in any railroad corporation, or to make donation to or loan its credit in aid of any such corporation, except when subscriptions have been authorized, under existing laws, by a vote of the people of such county, prior to the adoption of the constitution.
    2. Same—of conditions to the subscription—os controlling the effect of the vote. A corporate subscription had been voted by the voters of a county prior to the adoption of the constitution, upon the express condition in the order calling the election, that no bonds should be issued or stock subscribed unless the railroad company should, within a certain time, locate its machine shops at a certain place in such county, which was never complied with: Held, that by reason of a non-compliance with the condition, the county court had no authority to make the subscription and issue the bonds of the county, and if issued, they were void, and also that a tax levied to pay the interest thereon was illegal, and could not be collected.
    3. A county or other municipal corporation has no right to take stock in a railway company and issue its bonds in payment thereof, except when the same has been voted for, in pursuance of law, before the adoption of the constitution of 1870, and not then, except upon the terms and conditions specified in the vote of the people.

      4. Same—a majority vote—upon what basis to be ascertained—as, upon the vote cast at the last preceding general election. Under section 4 of the Bailroad law of 1849, county authorities are not empowered to subscribe to the capital stock of a railway corporation, or to issue the bonds of the county in aid of such corporation, unless a majority of the qualified voters of the county shall have voted in favor of the same, taking as a standard the number of votes cast at the last general election held in the county next before the vote was had.
    5. On the 18th of January, 1870, the county court of Perry county submitted a proposition to the voters of the county to subscribe $100,000 to the capital stock of a railway company, to be voted on under the act of 1849, on February 19, 1870. Under this order the election was had, resulting in 986 votes in favor of the proposition, and 91 votes against it. At the last preceding general election for county officers there were cast 2024 votes. Under this vote the bonds of the county were afterward issued: Held, that the bonds were issued without authority of law, and were void.
    Appeal from the County Court of Perry county;- the Hon. S. Gr. Pabks, Judge, presiding.
    Mr. Thomas J. Layman, for the appellant:
    Municipal corporations have no power to issue bonds in aid of railroads, except as is clearly given by the legislature, and all persons dealing with such paper must see that the power exists. Gaddis v. Richland County, 92 Ill. 126; Lippincott v. Town of Pana, id. 34; McClure v. Town of Oxford, 4 Otto, 429; Harding v. Railroad Co. 65 Ill. 90; Hewitt v. Normal School District, 94 id. 532; Supervisors v. Farwell, 25 id. 181; Clark v. Hancock County, 27 id. 305; Marshall County v. Cook, 38 id. 44; Wiley v. Silliman, 62 id. 170; McWhorter v. People, 65 id. 290; People v. Johnson, 100 id. 544; Welch v. Post, 99 id. 475; Police Jury v. Brittin, 15 Wall. 566.
    When a municipal subscription is authorized upon conditions, the conditions must be performed, and bonds issued contrary thereto are void. Middleport v. Life Ins. Co. 82 Ill. 562; Richeson v. People, 115 id. 450; Town of Eagle v. Kohn, 84 id. 292.
    The terms and conditions on which the voters voted were shown by the public records, of which all- persons must take notice. Jackson County v. Brush, 77 Ill. 59; People v. Jackson County, 92 id. 451; People v. Town of Waynesville, 88 id. 469; Wright v. Bishop, id. 302; Buchanan v. Litchfield, 12 Otto, 29.
    Poll-books are evidence of the number of votes cast at an election. Piatt v. People, 29 Ill. 67; Chestnutwood v. Hood, 68 id. 138; People v. Ruyle, 91 id. 528; People v. Hilliard, 29 id. 425.
    These bonds having been issued without authority of law, are void, and the levy of taxes and payment of interest would not render them valid. Schuyler County v. Farwell, 25 Ill. 181; Marshall County v. Cook, 38 id. 48; Lippincott v. Town of Pana, 92 id. 34; Trustees v. People, 63 id. 301.
   Mr. Justice Craig

delivered the opinion of the Court :•

This was an application by the collector of Perry county, at the May term, 1887, of the county court, for judgment against lands and town lots for delinquent taxes. Don Onstott, the owner of certain lots described in the record, appeared and filed objections to the application for judgment for taxes levied to pay interest on ninety-seven bonds, of $1000 each, which had been issued by Perry county to the Belleville and Southern Illinois Railroad Company. Onstott also filed objections to the rendition of judgment against his lots for taxes levied to pay interest on one hundred bonds, of $1000 each, issued by Perry county to the Chester and Tamaroa Coal and Railroad Company. On the hearing, the court overruled the objections, and rendered judgment against the lands and lots for the taxes remaining due and unpaid. To reverse the judgment Onstott appealed.

We will first consider the objections to the taxes levied to pay the interest on the ninety-seven bonds, of $1000 each, issued to the Belleville and Southern Hlinois Railroad Company. .

It appears from the evidence introduced on the trial, that on the 24th day of May, 1869, the county court of Perry county entered of record an order providing for an election to be held in the various voting places in the county on the 3d day of July, 1869, to ascertain whether the county court should subscribe $150,000 of stock to the Belleville and Southern Illinois Bailroad Company. The order for an election contained the following conditions: “And be it further ordered, that no bonds be issued or stock subscribed by said court to the Belleville and Southern Illinois Bailroad Company, unless twelve hundred and thirty legal voters of said county shall have voted in favor of the same at said election, nor until said company shall have built railroad, and put the same in operation, from Belleville to Du Quoin, through the town of Pinckneyville, with depot and depot buildings at said town, nor unless said road shall be in operation from Belleville to Du Quoin on or before the 1st day of January, A. D. 1871, and shall locate their machine shops at said Du Quoin.” It also appeared from the evidence, that the railroad company never located its machine shops at Du Quoin, but on the other hand, it erected its machine shops at Bast St. Louis; that the cost of the shops so erected amounted to the sum of from $100,000 to $150,000. But disregarding the failure of the company to perform the conditions upon which the people voted the bonds, on the 5th day of December, 1870, the county court of Perry county made an order directing the judge and clerk of the court to issue one hundred bonds, of $1000 each, to the railroad company, bearing date January 1, 1871, payable January 1, 1891, with interest at seven per cent per annum.

After the adoption of the constitution of 1870, a county had no power to become a stockholder in any railroad corporation, or make donation to, or loan its credit in aid of, such corporation, except when subscriptions had been authorized, under existing laws, by a vote of the people of such county prior to the adoption of the constitution. In the case under consideration, there was a vote of the people of the county before the adoption of the constitution, but the authority conferred upon the court by the vote was upon condition that the railroad company should locate its machine shops at Du Quoin. The county had no right to take stock and issue bonds except upon the terms and conditions specified in the vote of the people.

Middleport v. Ætna Life Ins. Co. 82 Ill. 562, is an authority in point. It is there said: “The obligations assumed under existing laws can not, since the adoption of the constitution, be enlarged or materially changed, either by the action of the people of the township or its corporate authorities. All power is taken away, and the utmost that can be done is to make and complete the subscription or donation previously voted under then existing laws, upon the same terms and conditions voted. Subscriptions or donations on other terms would obviously require new consent on the part of the people of the municipality, which can not be had for the want of power.” The same rule is announced in People v. Town of Waynesville, 88 Ill. 469, and in People v. Jackson County, 92 id. 451.

Under the decisions cited, it is manifest that the county authorities of Perry county could do no more than carry out the will of the voter, as embodied in the conditions expressed in the order under which the vote was taken, and any other action taken by the county authorities could not be obligatory or binding upon the tax-payers of the county. Here, the county authorities were authorized to issue bonds, provided the railway company located its machine shops at Du Quoin. This, however, the railway company failed to do, and as it had failed to perform the condition upon which the bonds were to be issued, the county authorities had no power whatever to issue the bonds. If, then, the bonds were issued without authority of law, it follows that taxes can not be levied to pay the interest on the bonds. We think, therefore, that the court erred in rendering judgment against appellant’s lands to pay taxes levied to pay interest on the ninety-seven bonds.

We now come to the second question presented, which involves the validity of the judgment rendered by the county court against appellant’s lots for taxes levied to pay interest on the bonds issued by Perry county to the Chester and Tamaroa Coal and Railroad Company.

The bonds were issued under the act of November 6, 1849. (Public Laws of 1849 and 1851, p. 28.) The 4th section of the act is as follows: “No subscription shall be made, or purchase or bonds issued, by any county or city under the provisions of this act, whereby any debt shall be created, by said judges of the county court, or by the common council of any city, to pay any such subscription, unless a majority of the qualified voters of such county or city, (taking as a standard the number of votes thrown at the last general election previous to the vote had upon the question of subscription, under this act, for county officers,) shall vote for the same,”

On the 18th day of January, 1810, the county court of Perry county submitted the proposition to the voters of the county, to subscribe $100,000 to the capital stock of the Chester and Tamaroa Coal and Railroad Company, the proposition to be voted upon on the 19th of February, 1810. Under this order an election was held in all the precincts in Perry county except Du Quoin, and, as appears from the poll-books, 1011 votes were cast,—986 in favor of the proposition and 91 votes against the proposition. No returns were made showing an election in Du Quoin precinct. It also appears, from the poll-books, that at the last general election next preceding the election of the 19th day of February, 1810,—to-wit, the general election on the 2d day of November, 1869, at which county officers of Perry county were elected,—2024 votes were thrown. It was, therefore, required by the act of 1849, that the proposition should receive 1013 votes before it could be held to have been adopted by the voters of the county. By the terms of the 4th section of the act under which the election was held, the county authorities were not empowered to issue the bonds unless a majority of the qualified voters of the county voted in favor of issuing bonds, taking as a standard the number of votes cast at the last general election held in the county next before this vote was had. This was not done.

In Marshall County v. Cook, 38 Ill. 45, where an election had been held and bonds issued under the act of 1849, the bonds were held to be invalid, because the election was called by the county court when it * should have been called by the board of supervisors. In Williams v. Town of Roberts, 88 Ill. 20, the Marshall County case is cited with approval and it is there said: “This court has repeatedly announced the doctrine that where a municipality is empowered to subscribe to the capital stock of a railroad company, and issue its bonds in payment of the subscription, but it is also required that there shall first be an affirmative vote of a majority of the electors of the municipality to that effect, no power exists to make the subscription and issue the bonds until after such vote shall have been obtained, at an election held for that purpose, called by the authority prescribed by the law, and upon such notice of the time and place of holding the election as the law shall direct.”

It will not be necessary to multiply authorities on the question. We are of opinion, as the proposition to issue the bonds did not receive the vote required by the statute, the county court had- no right to issue the bonds, and the bonds being illegal, taxes could not properly be levied and collected to pay interest thereon.

The judgment of the county court will be reversed, and the cause remanded for another trial consistent with this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Josiah Alkire et al. v. Christian Kahle.

      Filed at Mt. Vernon January 20, 1888.

      1. Partnership—whether land is to be considered partnership property. To make land partnership property, it must have been purchased with partnership funds for partnership purposes, or at least there must have been one of these elements present.
    2. The fact of a conveyance of land being made to the members of a co-partnership, even though the grantees may be described in the deed as “composing the firm of,” giving the firm name, affords no indication that the land was purchased with partnership funds or appropriated to partnership purposes. That was but descriptio personce of the individual grantees in the deed. .
    3. Same—rights of indimd/aal partners in respect to the partnership effects, including lands. The separate estate or interest of a co-partner in any of the co-partnership effects, is only his share of that part thereof which remains after the debts of the firm and the demands of his co-partners, as such, are satisfied; and if one of the partners has paid more than his share of the partnership debts, he will have a claim upon the partnership property, including real estate, which, in equity, is paramount to the claims of the separate creditors of his co-partners. And the real estate of the firm is, in equity, to be treated as part of the effects of the firm.
    4. Alteration—case showing change in date of deed. In this case the facts and circumstances are stated, from which the court finds that a deed of a judgment debtor, of land to his partner, made, in fact, in 1886, after the recovery of the judgment, was altered by the erasure of the figure “6” and putting the figure “4” in its place, so as to make its date appear to have been in 1884, and prior to the judgment.
    Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Messrs. Happy & Travous, for the appellants:
    The deed from Henry Robinson to Cato Abbott was not admissible without explanation of the alterations in its date; and in the absence of explanation it will be presumed such alterations were made after its execution, and being material they are fatal to the validity of the deed. Walters v. Short, 5 Gilm. 252; Hodge v. Gilman, 20 Ill. 437; Montag v. Linn, 23 id. 551; Pyle v. Oustatt, 92 id. 209.
    Complainant is not a Iona fide purchaser, and hence not entitled to any relief or protection, because he has not paid the consideration. Moshier v. Knox College, 32 Ill. 155; Keys v. Test, 33 id. 316; Roseman v. Miller, 84 id. 297; Wait v. Smith, 92 id. 385; Story’s Eq. Jur. secs. 64c, 381, 1502, 1503. And because he was informed, at the time of his purchase of the Alkire judgment, the certificate of sale to appellant Travous was of record, and the suit of Abbott v. Alkire et al., in which his grantor claimed but a half interest in the land, was pending. Railroad Co. v. Kennedy, 70 Ill. 350; Russell v. Ranson, 76 id. 167; Hunter v. Stoneburner, 92 id. 75; Alwood v. Mansfield, 59 id. 496; Dickson v. Todd, 43 id. 504; Garrick v. Chamberlain, 97 id. 620; Vanlandingham v. Ryan, 17 id. 25; Knowlton v. Hanbury, 117 id. 471.
    Appellant Travous is an innocent purchaser, and having purchased in good faith, without notice of any equities, and for a valuable consideration actually paid, equity will protect him. Robinson v. Rowan, 2 Scam. 499; Massey v. Westcott, 40 Ill. 160; Bogue v. Williams, 48 id. 371.
    The representations and conduct of complainant’s grantor, Abbott, respecting the ownership of this land, estop the complainant from asserting any rights as against appellant Travous, who purchased on the faith of such representions. Clark v. Morris, 22 Ill. 434; Cochran v. Harrow, id. 345; Hefner v. Vandolah, 57 id. 520; Anderson v. Armstead, 69 id. 452; Noble v. Christman, 88 id. 186; Harding v. LeMoyne, 114 id. 65; Bigelow on Estoppel, 434, 452; Grimshaw v. Paul, 76 Ill. 164; McCoy v. People, 71 id. 111; Greenleaf on Evidence, secs. 172, 189; Williams v. Judy, 3 Gilm. 282; Simpkins v. Rogers, 15 Ill. 397; Vennum v. Thompson, 38 id. 143; Mueller v. Rebhan, 94 id. 142; Randegger v. Ehrhardt, 51 id. 101.

      Messrs. Metcalf & Metcalf, and Messrs. Wise & Davis, for the appellee:
    Open and notorious possession of land is sufficient to put subsequent purchasers and incumbrancers upon inquiry, and is constructive notice to them of the occupant’s legal or equitable claim to the land. Keys v. Test, 33 Ill. 316; Truesdale v. Ford, 37 id. 210; DeWolf v. Pratt, 42 id. 200; Lyman v. Russell, 45 id. 281; Warren v. Richmond, 53 id. 52.
    Actual possession of land under a parol or unrecorded contract or an unrecorded deed made prior to the recovery of the-judgment against the vendor, is notice to the judgment creditor, and all persons claiming under him, of the purchaser’s rights. Walsh v. Wright, 101 Ill. 178; Brainard v. Hudson, 103 id. 218; Weber v. Curtis, 104 id. 320; White v. White, 105 id. 313.
    Possession of land by the tenant is notice of the landlord’s rights. Whitaker v. Miller, 83 Ill. 381; Hayworth v. Taylor, 108 id. 275; Bank v. Sperling, 113 id. 282.
    The partnership of Abbott & Bobinson being insolvent, and this land being partnership property, and Abbott, having paid the partnership debts to the amount of $2500, being more than the value of the land, would be entitled to reimbursement out of the proceeds of said land before the individual creditors of Bobinson would become entitled to the land or its proceeds; but Bobinson having deeded Abbott his half interest in the land in consideration of said payments by Abbott, he has the same rights as if the land had been sold, and purchased by him under a decree to wind up the partnership business. Ruffner v. McConnel, 17 Ill. 212; Bank v. Bank, 94 id. 274; Ladd v. Griswold, 4 Gilm. 25; Morrison v. Kurtz, 15 Ill. 196; Rainey v. Nance, 54 id. 29; Preston v. Colby, 117 id. 477.
    If, on the settlement of firm affairs, one partner is found to-be indebted to the other, the latter may retain enough of the partnership assets to cancel the indebtedness, if they are in Ms hands and the firm debts are all paid. Mack v. Woodruff, 87 Ill. 570.
    PartnersMp realty is treated in equity like personal funds. Faulds v. Yates, 57 Ill. 416; Bopp v. Fox, 63 id. 540.
    PartnersMp property must first be applied to the payment of partnership debts, and the true and actual interest of each partner in the partnership stock is the balance found due to Mm after payment of all the partnership debts and the adjustment of the partnership account between himself and Ms co-partners; and, in equity, real estate forms ho exception, but stands on the same footing, in this respect, with personal property, no matter in whom the legal title may be vested. Taft v. Schwamb, 80 Ill. 289; Bopp v. Fox, 63 id. 540; Woodbridge v. Cross, 117 id. 109; Simpson v. Leach, 86 id. 226.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, brought by Christian Kahle, against Alkire & Co. and Charles N. Travous, to set aside a sheriff’s sale and certificate of purchase of a certain tract of land made to Travous, on an execution upon a judgment, in favor of Alkire & Co., against one Henry Bobinson,

The original bill set forth that' on August 26, 1884, Cato Abbott and Henry Bobinson were each seized in fee simple of an undivided one-half of the land; that on that day, Bobinson conveyed his one-half to Abbott, the deed whereof was recorded May 26,1886; that upon the execution of the deed Horn Bobinson, Abbott entered into and continued in the possession of the premises until the sale thereof to complainant; that on April 24,1886, complainant purchased the same from Abbott for the consideration of $1800, and received a warranty deed therefor; that at the October term of court, 1884, Alkire & Co. recovered a judgment against said Bobinson, under wMch, on execution, the sheriff’s sale in question, of Bobinson’s interest in the land, was made to Travous on August 24, 1885. At a late stage of the cause, after answers, replication and reference to the master to take testimony, the hill was amended by alleging further that the land in question was partnership property, of the firm of Abbott & Robinson; that there had been a dissolution of the firm; that it was insolvent and unable to pay its debts, and that Abbott had advanced, for the firm, moneys, by paying debts of the firm of a greater amount than the value of the land, claiming a superior equitable lien upon the premises on that account, and that since filing the original bill, a sheriff’s deed had been made to Travous, and asking that it should be set aside. The court below, upon hearing, on proofs taken, decreed in favor of the complainant, and the defendants appealed.

The ground of the complainant’s claim for relief, by the original bill, is, that Robinson had no interest in the land at the time the judgment against him was obtained and the sale under execution thereon made; that he had previously conveyed away his interest to Abbott, and, under the amended bill, that if Robinson had any interest in the land at the time of the judgment, it was subject to a valid lien, in equity, which Abbott had upon it as partnership property for what was due to him as partner in the firm of Abbott & Robinson.

The judgment against Robinson was at the October term, 1884. To show that at that time Robinson had no interest in the land, complainant introduced in evidence a quitclaim deed from Robinson to Abbott, of Robinson’s interest in the land, purporting to bear date February 26, 1884, and Robinson & Abbott testified, generally, that the deed was executed at the time it bears date, and the officer who took the acknowledgment testified that it was taken before him at the time it bears date,—which was February 26, 1884. In opposition to this, the defendants introduced four witnesses, three of them being entirely disinterested, who testified that in the date of the year appearing in the body of the deed and in the certificate of acknowledgment, (1884,) there had been an erasure of the last figure in the number of the year, and the figure “4” written over it, making it read 1884; that in the certificate of acknowledgment, the erasure was complete, there being no trace of the figure erased left, but that in the body of the deed the erasure had been so imperfectly made, that by an examination under a glass the figure “6” was plainly to be seen under the figure “4.” There was no rebuttal whatever of this testimony, but it stood entirely uncontradicted, with no attempt at explanation of the erasure and alteration of date. All that appeared as in any way opposed thereto, was the general statement before referred to, made by witnesses on introduction of the deed by the complainant, that the deed was executed at the time it bears date. But Bobinson, one of the witnesses who had so testified in chief, on cross-examination said: “All I can tell about the execution and delivery is from the date of the deed. Have no recollection aside from that. When I testified this deed was executed on the 26th of February, 1884, it was because the deed bears date that day.” The same may have been the case with the two other witnesses who testified the deed was executed at the time it bears date. It appears that the writing in the body of the deed and in the certificate of acknowledgment was made by different persons,—Bobinson and the officer taking the acknowledgment. It would be extraordinary that they both should make the same identical mistake in the date of the year.

There is corroborative evidence of the alteration of the date of the deed. Abbott & Bobinson executed a written lease of the land, dated August 23,1883, for one year, from March 1, 1884. The tenant occupied the land for three years, from March 1, 1884, he testifying that he knew of no change in the ownership of Abbott & Bobinson. The rent for the first two years he paid to Abbott, the latter signing all the rent receipts in the name of Abbott & Bobinson.

On April 3, 1885, Abbott procured an abstract of title of the land to be made, for the purpose of borrowing money on his interest. The abstracter testifies that at that time Abbott objected to the abstract, showing the judgment against Robinson, as it had nothing to do with his half, and that Abbott then told him Robinson had promised at one time to deed him his half, because he had paid some debts for him, but that Robinson had never done so. Abbott says he does not remember so telling the abstracter.

The banker to whom Abbott applied for the loan in the spring of 1885, testifies that he was satisfied with the security on Abbott’s half interest in the land, but as the abstract presented showed the title to be in Abbott & Robinson, he was apprehensive there might be a partition suit, to which he did not wish to be a party, and for that reason he refused to make the loan to Abbott. He says that Abbott did not then claim to own more than one-half of the land. The person who accompanied Abbott at the time, to assist him in obtaining the loan, testifies to the same effect. Mr. Happy, to whom this money expected to be borrowed was to be paid, to satisfy a judgment against Abbott, testifies that Abbott told him of the refusal of the loan,—that he said he only had an undivided interest in the land he had offered as security, and that the banker had refused to loan him the money on an undivided interest, and he would have to make other arrangements. This witness was interested as a purchaser from Travous of one-half of his interest in the land. The defendant Travous testifies, that some two or three days before the sale under the execution, in a conversation he had with Abbott, the latter told him that Robinson had promised to deed his half of the land to him, (Abbott,) but never had done so, and now it was going to be sold away from them,—to all which Abbott says he does not recollect the occurrences.

We are satisfied, from the evidence, that the deed from Robinson to Abbott was not made on the 26th day of February, 1884, as it so purports, but that it was made subsequent to the recovery of the judgment of Allure & Co. against Robinson, and so subject to the lien of that judgment, unless the claim, under the amended bill, of a paramount equitable lien of Abbott upon the land, as partnership property, can be sustained. Respecting such claim, it appears that the firm of Abbott 6 Robinson, consisting of Cato Abbott and Henry Robinson, was formed in 1857, to do a general merchandise business, at "Venice, in Madison county, Illinois, the partnership continuing -until December 5,1881, when it was dissolved by Cato Abbott ■selling out to two other individuals his interest in the stock of merchandise then in the store. The partnership name of the new firm was Henry Robinson & Co. A warranty deed of the land-in question was made September 24, 1872, conveying the same to “Cato Abbott and Henry Robinson, composing the firm of Abbott & Robinson, of the county of Madison and State of Illinois.”

We recognize it as a principle of the law of partnership, that the separate estate or interest of a co-partner in any of the ■co-partnership property is only his share of that part of the co-partnership effects which remains after the debts of the firm, and the demands of his co-partners, as such, are satisfied; and if one of the co-partners has paid more than his share of the partnership debts, he has a claim upon the partnership property, which claim, in equity, is paramount to the claims of the separate creditors of his co-partners, and that real estate of a co-partnership is, in equity, to be treated as part of the effects of the firm.

The fact of the conveyance being to the members of the partnership did not make the land co-partnership' property, nor did the mention in the deed of the grantees as “composing the firm of Abbott & Robinson” do so. (Sigourney v. Munn, 7 Conn. 334.) That was but descriptio persona of the individual grantees in the deed. Such a description of the grantees, as said in the case last cited, affords no indication that the land was purchased with partnership funds, or appropriated to partnership purposes. To have made this land partnership property it must have been purchased with partnership funds for partnership purposes, or at least there must have been one of such elements present. Parsons on Partnership, 364, 365; Collyer on Partnership, sec. 135, and cases cited in note; Hoxie v. Carr, 1 Sumn. 183; Buchan v. Sumner, 2 Barb. Ch. 165; Wheatley's Heirs v. Calhoun, 12 Leigh, 264; Alexander v. Kimbro, 49 Miss. 529.) The business of this co-partnership-was that of merchandising in a small village. The land in question was farm land, situated several miles distant, and does not appear to have had any connection in any way with the business of the partnership. The evidence shows the land was sometimes rented, and a part of the time Abbott= and Bobinson farmed it themselves, sowing it generally in wheat. There is in the record no evidence whatever that the land was purchased for partnership purposes, or that it was appropriated to any purpose of the partnership; and, as we think, there is an equal absence of evidence that the land was purchased with partnership funds. All that there appears in this respect, aside from the description in the deed above adverted to, is that Abbott and Bobinson, in giving their testimony herein some five years after the dissolution of the partnership, in enumerating the assets of their merchandising business, class this, land among the assets of the firm. There is not an intimation in their testimony that the land was bought with partnership funds or for partnership purposes, or that it was ever put to partnership use, and no other witness speaks upon the subject. Such calling of land assets of a partnership, as above mentioned, does not make it such, and we do not regard it as evidence which should impress the land with the character of partnership property. In order for that, there should be some evidence of the elements which go to constitute the land partnership property,—some evidence of facts going to show it to be partnership property.

"We find, from the evidence, that the land in question was real estate held by the two co-partners, Abbott and Robinson, as tenants in common, and not as a part of the partnership property, and consequently that there is no foundation for the equitable claim which is set up of Abbott upon the land as partnership property.

The decree will be reversed, and the cause remanded with (Erection to dismiss the bill. decree reversed.


author: Mr. Justice Magruder

text:
    The Galena and Southern Wisconsin Railroad Company et al. v. William Ennor.

      Filed at Ottawa January 19, 1888.

    Measure oe damages—on non-delivery of bonds subscribed for—enjoining collection of judgment on failure of consideration. A railway company recovered a judgment on a subscription for eight of its bonds, secured by mortgage on forty shares of stock, the company having, before judgment, disposed of all its bonds, so that it was out of its power to deliver the same on payment of the judgment. The company was insolvent: Held, that the subscriber had the right to have the market value of the bonds at the time the company put it out of its power to deliver them, credited upon the judgment, and if that sum, with other payments or credits, exceeded the judgment, to have its further collection perpetually enjoined.
    Appeal from the Appellate Court for the Second District;—■ heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Bbown, Judge, presiding.
    Mr. M. Y. Johnson, and Messrs. Tbumbull, Bobbins & Tbumbull, for the appellants.
    Mr. E". H. McClellan, and Messrs. D. & T. J. Sheean & McHugh, for the appellee:
    When the obligor converts the obligation, the liability for the conversion is the full face of it. (3 Sutherland on Damages, 522.) And if the vendor sells the goods which he contracted, the party to whom they were contracted may recover on the basis of the amount the vendor sold for. 2 Sutherland on Damages, 374.
    The judgment plaintiff would be liable to Ennor for money had and received to his use for the amount it received for his eight bonds. Cooley on Torts, 92-94; McDonald v. Brown, 16 Ill. 32.
    It would be unconscionable to permit the judgment plaintiff to dispose of the bonds at sixty-five cents, on the dollar, and account to Ennor for them at only thirty-two cents. The conversion of the eight bonds benefited the judgment plaintiff to the extent of sixty-five cents on the dollar. This sum was the avail to it of these bonds. Dock Co. v. Dunlap, 32 Ill. 207; Railroad Co. v. Ennor, 116 id. 66.
   Mr. Justice Magruder

delivered the opinion of the Court:

On May 27, 1887, the Appellate Court for the Second District, from whose judgment this case has been brought before us by appeal, delivered the following opinion:

Welch, J.: “This ease was before this court in December, 1883, and is reported in 14 Bradw. 327, when the full measure of relief prayed for was granted the appellant. The appellees took an appeal to the Supreme Court. The Supreme Court modified the decree of this court, and remanded the case to the circuit court for further proceedings in conformity to its opinion. (116 Ill. 55.) We refer to this opinion for a statement of the case.

“Appellees filed their motion to dismiss this appeal, assigning various reasons therefor. We overruled the motion, deeming the reasons insufficient. Appellees, after the overruling of their motion to dismiss, filed their brief to the merits of the case.

“There is but one question now involved in the case on the part of the appellant, and that is, whether the circuit court gave the appellant credit for what, under the opinion of the Supreme Court, he was entitled to, viz.: The proportional share of the eight bonds, for which complainant (appellant) subscribed, in the mortgage security, and the avail of it. Appellant complains of the decree only in this respect. He claims that the circuit court found that value too small, and credited too little on the judgment in this respect. No cross-errors are assigned.

“ Justice Sheldon, in the decision of the Supreme Court, says: ‘The inability to furnish the bonds has come through the company’s default, and it should answer in respect of it upon this judgment, as it is the only mode in which it can be made to respond for the consideration of it. It is of no benefit to complainant to have the bonds in specie. They are of themselves, independent of the mortgage security, worthless. It is only their value which, in an equitable view, complainant is entitled to have. • This is not necessarily the face value of the bonds, or the price at which they were subscribed for. The company is, we think, under a no more rigorous responsibility than would come from a conversion of the bonds, considering them as held in trust for complainant, at the time the company disposed of them or became unable to deliver them. All the value the bonds ever had, so far as appears, consisted in the mortgage security given for their payment. This mortgage has been foreclosed, and the mortgaged property bought in, in satisfaction of the bonds the mortgage was given to secure, these bonds for which complainant subscribed being among them, they entering into and forming part of the decree of foreclosure.’

“The mortgage sale took place May 3,1879. At that time, as shown by the testimony of Eichard Barrett and Frederick Stahl, the two presidents of said railroad company, there had been built and- put in operation about forty miles of railroad. This much had been constructed prior to the election of Stahl as its president. It was from Galena to Plattsville Junction, thence to Plattsville, and about eight miles from the junction on the line to Montfort. The items that went into its construction and equipment were $100,000 of cash subscriptions, $57,000 of city bonds, and the proceeds of three hundred and sixty bonds of the company, $234,000. In addition to the cash and bonds that went into the construction and equipment of this railroad, there were gifts of the right of way and of depot grounds. It was worth $10,000 per mile. Barrett also states: ‘There were no bonds to be delivered to the complainant after June 18, 1878, for on that day all the bonds that were left were deposited in the National Bank of Galena, as security for the debts of the company. After that, I know of no way in which he could have obtained the bonds he subscribed for by paying for them.’

“Appellant insists that the 18th of June, 1878, is the date at which the value of the eight bonds must be ascertained. He claims that that was the day the railroad company disposed of them to its own use, and thereafter became unable to deliver them. The circuit court took April, 1880, as the time at which to fix the value of the bonds, that being the time when the Chicago and Northwestern Eailway Company purchased from the new company organized after the foreclosure sale. We are of opinion that in this the court erred, if it is true, as stated by Barrett, that there were no bonds to be delivered to complainant after June 18, 1878, and no way of obtaining them by paying for them after that time.

“Under the rule announced by the Supreme Court in this case, the value of the bonds should have been fixed at the time the company disposed of them, or became unable to deliver them.

“Barrett says, that at the time complainant subscribed for the eight bonds, “I certainly thought they were worth $650 each. I have no doubt that they were worth that sum on June 18, 1878.’ At that time, as shown by the evidence, all of the bonds had been sold or hypothecated at sixty-five cents on the dollar of their face value.

“The appellant was entitled to a credit, on the judgment against him, for the amount received by the Galena and Southern Wisconsin Eailroad Company for the eight bonds subscribed for by appellant and converted by said railroad company to its use. In our opinion, the amount so received was sixty-five cents on the dollar of the principal sum of the eight bonds'of $1000 each, making the sum of $5200, to which appellant was entitled to a credit, on said judgment, for said bonds. Appellant,, under the decision of the circuit court, was only given a credit of $2560 on said judgment, for said bonds, when, as we hold, he should have been credited with the further sum of $2640, in addition to said sum of $2560, for said bonds. Crediting him with this amount for said bonds, together with the other credits allowed him in the decree of the circuit court, to which no cross-errors are assigned, it more than pays off and satisfies said judgment.

“Eor the errors herein indicated, the decree is reversed and the cause remanded, with directions to enter an additional credit of $2640 on said judgment, of the same date as the credit of $2560, heretofore made, these two sums together making the sixty-five cents on the dollar on the principal sum of said bonds, and an order be made that the judgment be perpetually enjoined.”

A careful study of the record leads us to the same conclusion as that reached in the foregoing opinion, and the reasons therein given for the conclusion arrived at are in harmony with our own views.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The Union National Bank et al. v. The International Bank et al.

      Filed at Ottawa January 19, 1888.

    1. Usury—who may amail of it as a defence—as to ajumor mortgagee, or subsequent purchaser from the mortgagor. The right to set up usury as a defence is personal to the debtor. If any one is injured by the usury it is he, and if he chooses to perform the contract or to waive the defence of usury, no one else has a right to say he shall not do so. It is for him to elect. Those who are in privity with the debtor, it is held, may also set up the defence. There is no privity either in contract or estate between the mortgagor in a usurious mortgage and the mortgagee in a junior mortgage.
    2. When the mortgagor, however, conveys his equity of redemption by deed, the grantee will then be in privity of estate with him iñ the mortgaged premises,—that is, he will then occupy the same relation toward them that the mortgagor before did; and thereafter the mortgagor will have no interest, whether the usurious mortgage shall be enforced or defeated, and the grantee will have the right, at his election, to interpose the defence of usury.
    3. But a second mortgagee whose mortgage has not been foreclosed, and who has not been let into possession under his mortgage, can not interpose the defence of usury, in the indebtedness secured by a prior mortgage, to a bill for the foreclosure of the prior mortgage.
    4. In this State a junior mortgage conveys no interest vested by a prior one, and in case of usury, under our statute, in the senior mortgage, the junior mortgage can only confer a lien upon the mortgagor’s equity of redemption,—that is, a right to redeem from the prior mortgage, if the mortgagor shall not pay the debt secured by the junior mortgage on or before maturity.
    5. So when the mortgagor in an usurious mortgage gives a second mortgage, which is merely a lien, his right to elect whether to interpose the defence of usury is not cut off, and while he has such right of election it can not be exercised by the second mortgagee. A junior lienholder has no> right to diminish the amount due to another under a prior lien, by the defence of usury, for the enlargement of his own lien.
    6. Same—usury as affecting validity of mortgage security. Our statute does not declare the mortgage securing a debt in which is charged usurious interest, void, but it merely declares the interest contracted to be received, void. Such a mortgage is valid, and may he enforced as to the original debt, and the usury only affects the accounting.

      7. Bes judicata—decision of question in another case. After a party has brought a question before this court in one case and it has been decided adversely to him, it will conclude him, and he can not have the same question passed upon in another case in which he is a party. If the court had jurisdiction, his only remedy is by application for a rehearing.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Melville W. Fuller, Messrs. Williams & Thompson, and Messrs. Herrick & Martin, for the appellants:
    Each of the appellants had the right to set up usury in the Bosenthal deed of trust. Maher v. Lanfrom, 86 Ill. 521; Pike v. Crist, 62 id. 461; Safford v. Vail, 22 id. 327; Henderson v. Bellew, 45 id. 322; Valentine v. Fish, id. 462; Essley v. Sloan, 116 id. 391; Jones on Mortgages, secs. 644, 646; 2 id. secs. 1, 494; 1 Hilliard on Mortgages, (4th ed.) 459; Thompson v. Vechten, 27 N. Y. 568; Berdan v. Sedgwick, 44 id. 636; Dix v. Van Wick, 2 Hill, 522; Shufeldt v. Shufeldt, 9 Paige, 127; Devlin v. Shannon, 65 How. Pr. 148; Pinnell v. Boyd, 6 Stew. Eq. 600; Brolaski v. Miller, 1 Stock. Eq. 805.
    Messrs. Smith & Pence, for the appellees:

    The defence of usury is personal, and can only be made by the borrower, or with his consent by a person in privity with him, but not without his consent. McGill v. Ware, 4 Scam. 21.
    The legislature can change or repeal the penalty for taking usury after the loan is made. Parmalee v. Lawrence, 48 Ill. 339; Wooley v. Alexander, 99 id. 188.
    A subsequent mortgagee can not plead usury, as against the prior mortgage. Adams v. Robertson, 37 Ill. 45; DeWolf v. Johnson, 10 Wheat. 393; Chamberlain v. Dempsey, 36 N. Y. 149; Sands v. Church, 2 Seld. 351; Bensley v. Homier, 42 Wis. 631; Ready v. Huebner, 46 id. 692.
    The cases of Maher v. Lanfrom, 86 Ill. 513, Valentine v. Fish, 45 id. 462, and Henderson v. Bellew, id. 322, are where the persons raising the questions were subsequent purchasers of the fee, and not applicable.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question is presented upon this record, whether a second mortgagee, whose mortgage has not been foreclosed, and who has not been let into possession under his mortgage, may interpose the defence of usury in the indebtedness secured by the first mortgage, to a bill in chancery for the foreclosure of that mortgage. It has been several times said in opinions of this court, that it may, but the question has never before been before us for adjudication, and the remarks, in that respect, were unnecessary to a decision of the questions under consideration, and are therefore not conclusive upon us now.

In Valentine et al. v. Fish, 45 Ill. 468, the late Mr. Justice Bbeese, in delivering the opinion of the court, said: “The doctrine is well established that the owner of land, who has given a usurious mortgage upon it, may sell or mortgage the land to another generally, and give to such purchaser or mortgagee, by express agreement, the same right to contest the validity of the first mortgage as he has himself. But he may affirm the validity of the usurious mortgage by selling only the equity of redemption in the mortgaged premises, or by selling or mortgaging the land, subject, in express terms, to the previous mortgage, in which case the purchaser, or subsequent mortgagee, will be entitled to the equity of redemption merely, and can not question the validity of the prior mortgage.” And for authority he referred to Shufeldt v. Shufeldt, 9 Paige, 137, Green v. Kemp, 13 Mass. 515, Spengler v. Snapp, 5 Leigh, 478, Ferris v. Crawford, 2 Denio, 595, and Henderson v. Bellew, 45 Ill. 322. But the bill in that case was, by the mortgagors and the owner by subsequent purchase of the equity of redemption, to redeem.

In Henderson v. Bellew, the bill was also by the owner by subsequent pwrchase and grant of the equity of redemption, and to redeem. In that case, the only ruling pertinent here is thus stated: “We hold the better rule to be, that if, in a sale of land subject to a mortgage tainted with usury, the purchaser is informed of the fact of usury by the vendor, and authorized by him to set it up as against the mortgage, the abatement to which the mortgage would be subject on account of usury thus -constituting an element in the price of the land, the purchaser, in such circumstances, would be at liberty to raise the question.”

In Pike v. Crist et al. 62 Ill. 462, the owner, by purchase and grant, of the equity of redemption, sought to interpose usury as a defence to a bill to foreclose a mortgage, and it was held admissible, because he accepted title expressly subject to the prior mortgages, “except as to usurious interest in the same.”

In Maher et al. v. Lanfrom, 86 Ill. 513, the purchaser and grantee of real estate incumbered by a prior mortgage, was allowed to interpose the defence of usury to a bill to foreclose that mortgage, and in the opinion then filed, the language we have quoted from the opinion in Valentine v. Fish, supra, is referred to in argument, and assumed to be authoritative.

There are also other cases, to which it is needless to make reference, in which there are rulings recognizing the right of the purchaser of the equity of redemption to set up the defence ■of usury to the foreclosure of a prior mortgage. But neither in the cases to which we have referred, nor in any other which we are able to call to mind, was it necessary to consider, nor was it, in fact, considered, whether a second and junior mortgage occupies precisely the same position with reference to a prior and senior mortgage, as that occupied by the subsequent purchaser and grantee, by an absolute deed, of the title to the property or the equity of redemption.

It is, therefore, fairly to be assumed, that the use of the word “re-mortgage,” and other kindred expressions, in Valentine v. Fish, and their repetition in subsequent cases, were simply because of a too literal following of the language in some of the opinions in the cases cited and relied upon to support the decision then made, and not because it was found, after due-consideration, indispensable to the argument that they should be used; and a slight investigation will demonstrate that it can not follow that because those words were accurate in the cases-cited by Mr. Justice Breese, they must also be accurate under the materially different phraseology of our statute in relation to usury. Under the statute controlling in those cases, it will be seen, by examination, that a mortgage securing a debt in which usurious interest was charged, was, at the election of the mortgagor and his privies, absolutely void. He and they were, in such case, authorized to treat the mortgage as a nullity, and to wholly disregard it, and consequently might subsequently sell and convey, or re-mortgage, just as if it had never been executed. This is shown by the chancellor, in his-opinion in Shufeldt v. Shufeldt, 9 Paige, 145, where he says; “In the ordinary case of the giving of an usurious mortgage by the owner of the mortgaged premises, the statute having; declared the usurious security void, the owner of the premises,, of course, has the right to sell his property, or to mortgage the same, as though such void mortgage had never existed.”

Necessarily, then, in this view, the second mortgage, at the election of the mortgagor, is to be treated as a first or original mortgage, and creating, a privity of estate between the mortgagor and mortgagee. But this line of reasoning is not possible under our statute in relation to usury. It does not declare the mortgage securing indebtedness on which usurious-interest is charged, void. It merely declares the interest contracted to be received, void. (Rev. Stat. 1874, chap. 74, see. 6.)-The mortgage, in such ease, therefore, is valid, and must be enforced, to secure the payment of the money actually loaned. The usury only affects the accounting. See Snyder v. Griswold, 37 111. 216. '

The second and junior mortgage conveys no interest vested by the first and prior mortgage; and so even in case of usury, under our statute, in the first and prior mortgage, the second. and junior mortgage can only confer a lien upon the mortgagor’s equity of redemption,—that is, a right to redeem from the prior mortgage if the mortgagor shall not pay the debt secured by the junior mortgage on or before maturity. See Dodd v. Snyder, 44 Ill. 53.

The right to set up usury as a defence is personal to the debtor. If any one is injured by the usury, it is he, and it is for him to say whether he has been injured or not. If he chooses to perform the contract, or to waive the defence of usury, no one else has a right to say that he shall not do so. It is for him to elect. (Safford et al. v. Vail, 22 Ill. 327; Maher et al. v. Lanfrom et al. supra; Tyler on Usury, chap. 21, and authorities cited.) Those, however, who are in privity with the borrower, it is held, may also set up the defence. “The term ‘privity,’ ” says Greenleaf, in his work on Evidence, (vol. 1, sec. 189,) “denotes mutual or successive relationship to the same rights of property.” There can be no ground for pretending that there is privity between the mortgagor of a usurious mortgage and the mortgagee of a subsequent and junior mortgage, other than by contract or in estate; and we think it quite clear that there is no privity in either of these respects. It is enough to say, on the question of privity by contract, that the junior mortgagee was neither directly nor indirectly a party to the usurious contract, and he derives and makes claim to no right through or resulting from it.

With regard to the question of privity in estate, it is to be observed that the equity of redemption of the mortgagor, under our statute, may he levied upon and sold by virtue of an execution, and the purchaser obtaining a sheriff’s deed thereafter will take all the interest he had in the land. (Walters v. Defenbaugh, 90 Ill. 241.) And on the same principle, manifestly, the mortgagor may at private sale sell the equity of redemption, and convey it by deed to the purchaser, and the purchaser will then he in privity of estate with him in the mortgaged premises,—that is, he will then occupy the same relation towards them that the mortgagor did, and, necessarily, thereafter the mortgagor will have no interest, in the absence of covenant or agreement affecting the question, in the usurious mortgage. Whether it shall be enforced or defeated will be to him alike immaterial.

But it would seem to be self-evident that the same right to elect to plead usury to a mortgage, or to waive the usury and affirm the entire validity of the mortgage, can not be in different and distinct parties in interest at the same time, for if this were not so, one party might elect to do one thing and the other party might elect to do directly the opposite, and thus one election would nullify the other. The equity of redemption of the mortgagor is the right to redeem from the first and senior mortgage, either by paying the amount of the principal debt only, or by paying that amount and the amount of interest usuriously contracted to be paid, as he shall elect. The junior mortgage, conveying a lien only on that right, does not cut it off, but leaves it still to be exercised by the mortgagor until he shall terminate it by grant or it shall be terminated by foreclosure. The junior mortgagee does not therefore occupy the same relation towards the property that the mortgagor did before he executed that mortgage, and since the mortgagor has not parted with his right of election to plead or to waive the defence of usury, it is impossible that the junior mortgagee can have acquired it.

We have expressly held that the mere fact that a creditor has a lien on land by virtue of a mortgage, gives him no right to set up usury as against the claim of a co-creditor secured by the same mortgage. (Adams et al. v. Robertson, 37 Ill. 45.) And this would seem to necessarily follow from the legal proposition that no one can demand the execution of a particular mortgage, because, alone, of his being a creditor. Whether a debtor shall execute any or what mortgages to secure his creditors, depends upon his sense of justice to his creditors, and although the creditor may decline to accept a given mortgage, if he shall elect to accept it, he must, in the absence of fraud, accept it as 'it is written. The effect of allowing usury in Adams et al. v. Robertson would have been to have increased the amount that might be resorted to in satisfaction of the one debt by decreasing the amount of the other debt secured by the mortgage,—and this is precisely the effect of a junior mortgagee pleading usury to a prior mortgage. The principle is the same, though the result would, in the amount of benefit to the pleader, be slightly different. It is not perceived that the circumstance that the party in Adams et al. v. Robertson voluntarily took his mortgage, is one to vary the principle from that applicable where usury in the prior mortgage is pleaded by the second and junior mortgagee. The junior mortgagee takes his mortgage quite as voluntarily as does the co-mortgagee. No principle of estoppel was applied in that case, and none is now believed to have been applicable. The decision rests alone on the ground that a creditor secured by a mortgage lien, as such only, has no right to diminish the amount of another mortgage lien, by the defence of usury, for the enlargement of his own lien,—and this was ruled in Darst v. Bates, 95 Ill. 493.

. These views render an examination of the numerous questions discussed by counsel for the Union National Bank and the heirs of Ooolbaugh, upon the pleadings and the ruhngs in admitting and excluding evidence, unnecessary. Under no state of pleading would it have been admissible for the Union National Bank and the heirs of Ooolbaugh, as second mortgagees, to have introduced evidence proving usury in the mortgage securing the notes held by the International Bank, Lowenthal, Austrian, and others.

The errors assigned by Larned can not be considered. He brought the same questions before us for consideration in Miller v. Larned, 103 Ill. 562, and that decision was only subject to review on petition for rehearing. (Manufacturing Co. v. Wire Fence Co. 119 Ill. 30.) It may be that on the principle of International Bank v. Jenkins, 109 Ill. 219, we ought not to have taken jurisdiction of the case; but we did so, and, undoubtedly, we had jurisdiction of the subject matter and of the person, and therefore the decision was not a nullity. At most it was erroneous, only, (Curtiss v. Brown, 29 Ill. 231, Thomson v. Morris, 57 id. 333,) and the remedy was, as stated supra, by petition for rehearing. See, also, Norton v. Moshier, 114 Ill. 146.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Magruder took no part in the decision of this case.


text:
    The Chicago and Alton Railroad Company v. Sebastian Fietsam, Admr.

      Filed at Mt. Vernon January 20, 1888.

    1. Negligence—due care required, of the plamiiff. In an action by an administrator to recover damages for the death of his intestate through negligence of the defendant, the plaintiff can not recover, unless, at the time of the accident, the deceased was in the exercise of due care for his own safety. If the deceased was guilty of negligence which materially contributed to the injury, no recovery can be had.
    2. Same—am. instruction, on the question of due care, construed. In such case the court instructed the jury, that if they believed, from the evidence, that G. was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving a switch open, and was exercising due care himself at the time, or if the jury believed, from the evidence, that G. was guilty of slight negligence contributing to his death and that the employes of the defendant were guilty of gross negligence contributing to the death of G., but that the negligence of G. was slight and that of defendant’s employes gross, when compared with each other, the plaintiff was entitled to recover, and the verdict should be accordingly: Held, that the instruction would not bear the construction that the plaintiff might recover although the deceased was guilty of negligence materially contributing to the injury, but that the second ground of recovery must be understood as being, like the first ground, predicated upon the fact that the deceased was in the exercise of due care for his own.safety.
    3. Instruction—modification, of a correct instruction, which does not ■change its meaning. In an action by the personal representative of a deceased person, against a railway company, to recover for the death of the deceased, alleged to have been the result of the defendant’s negligence, the defendant asked this instruction: “If the jury believe, from the evidence, that the deceased, G., was guilty of more than slight negligence, then the jury will find for the defendant,” to which the court added, “if the jury believe, from the evidence, he was guilty of negligence:” Held, that while the instruction as asked .stated a correct proposition of law, there was no ■ error in the modification, it in no manner changing the meaning of the instruction.
    4. Practice—offer to prove certain facts—statement of what the party expects to prove by a witness on the stand. The practice is well settled, that a party has a right, when he has a witness on the stand, to offer to prove such facts as may be thought to be material to the case, and if the ■court rules it to be incompetent, the offered evidence may be preserved in a bill of exceptions and. the ruling may be reviewed, and there is no error in counsel stating to the court the facts he expects to prove by the witness.
    5. Same—excluding evidence improperly admitted—as curing the error. ■On the trial of a case, one of the plaintiff’s witnesses testified to a material fact, and on cross-examination was asked how he knew such fact, and answered, “because they told us so.” On the defendant’s request, the ■court excluded the witness’ answer: Held, that there was no error in the admission of improper evidence, it being excluded.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East ■St. Louis; the Hon. B. H. Caney, Judge, presiding.
    Mr. Ltjíce H. Hite, and Messrs. Brown & Kirby, for the •appellant:
    Error in admitting improper evidence is not cured by its subsequent exclusion by an instruction. Peck v. Cooper, 13 Bradw. 27.

    Counsel for appellee made improper remarks of what he proposed to prove by a witness, in the presence of the jury.

      The court erred in giving appellee’s first instruction—
    First—It presents only a partial view of the case, and fakes from the consideration of the jury a main feature of the case insisted upon by appellant, which is, that Guess came to his death through one of the ordinary perils or hazards of his employment.
    Second—It fails to submit, and, on the contrary, wholly ignores, the contention of appellant that Guess and the servants of appellant stood in the relation which was practically, in law, so far as their rights are concerned, of fellow-servants.
    Third—It assumes that appellant’s servants negligently left the switch open, whereas, even if it should be found that they did, in fact, leave it open, it does not follow, as a matter of law, that such conduct was negligent.
    ’ Fourth—It permits a recovery even if Levi Guess was not at the time in the exercise of due care. The first clause of the-instruction predicates and declares the right of recovery, “if they believe, from the evidence, that Guess was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving the switch open, and was exercising due care at the timethen follows the disjunctive conjunction “or,” and another ground of recovery is stated, which is exclusive and independent of the conditions theretofore hypothecated, the effect of which is to tell the jury that appellee might recover independent of the consideration of his exercising due care and caution for his own safety. Railroad Co. v. Johnson, 103 Ill. 512.
    In such cases the jury must be accurately instructed. It is not sufficient that other instructions were given which stated the law correctly. Railroad Co. v Van Patten, 64 Ill. 510; Railroad Co. v. Murray, 62 id. 326.
    The court erred in refusing to give appellant’s instructions. A party injured for the want of ordinary care on bis part, which is gross negligence, can not recover. Railroad Co. v.
      Johnson, 113 Ill. 512; Railroad Co. v. Van Patten, 64 id. 510; Railroad Co. v. Lee, 68 id. 576.
    Due care and ordinary care mean the same thing. Schmidt v. Sinnott, 103 Ill. 160.
    Mr. M. Millard, for the appellee:
    The authority cited as to the admission of improper evidence does not hold that it is not competent for the court to strike out an improper answer of a witness, and thus keep error out of the record. It is submitted, therefore, that a casual remark addressed to the judge, which conceded the testimony was incompetent at the pending trial, and only claimed that the ruling might be changed, is too trivial for serious consideration.
    The instruction complained of is not open to the four objections made to it. It assumes nothing as a fact. Under the testimony, there are two theories upon which a right to recover may be based. One is, if the defendant’s servants were guilty of the. negligence charged, and Guess used due care; and the other, if that negligence was gross and Guess’ was only slight. The instruction presented both aspects, because the testimony supported both theories, and there was no ground for objection.
    The fourth point made is, that the court erred in refusing two of appellant’s instructions, though they were properly modified and then given. It was proper to tell the jury, perhaps, in the absence of an instruction presenting the point, that slight negligence would prevent a recovery; but to add that they must first believe there was such negligence, was so unimportant that its omission or commission would be a matter of no consequence whatever.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court, affirming a judgment of the City Court of East St. Louis, wherein appellee, administrator of the estate of Levi Guess, deceased, recovered a judgment against the Chicago and Alton Eailroad Company for negligence resulting in the death of the intestate, Levi Guess.

The first error relied upon is, the court erred in admitting improper evidence for the plaintiff. A witness for the plaintiff had testified that a Chicago and Alton engine and crew went into the stock-yards switch at East St. Louis and left the switch open, which resulted in the injury complained of. On cross-examination, the witness was asked how he knew the switch was left open. He replied, “Because they told us so.” It is sufficient to say of this evidence, that the court, on the request of defendant, excluded the answer of the witness to the question from the jury, so that the evidence was not before the jury for their consideration.

It is also complained, that counsel for plaintiff made improper remarks in the presence of the jury. The improper remarks consisted of an offer made by plaintiff to prove certain facts, which the court, upon the offer being made, held was incompetent. We perceive no error in this. The practice is well settled, that a party has a right, when he has a witness -on the stand, to offer to prove such facts as may be thought to be material to the case, and if the court rules that the evidence is incompetent, the offered evidence may be incorporated into a bill of exceptions, and the ruling may thus be reviewed on appeal or writ of error.

One instruction was given in behalf of the plaintiff, and that is claimed to be erroneous. It is as follows:

“The jury are instructed, that if they believe, from the evidence, that Levi Guess was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving the switch open, and was exercising due care himself at the time, or if the jury believe, from the testimony, that the said Levi Guess was guilty of slight negligence contributing to his death, and that the employes of the defendant were guilty of gross negligence contributing to the death of the said Levi Guess, but that the negligence of the said Guess was slight and that of defendant’s employes was gross, when compared with each other, the plaintiff is entitled to recover, and the verdict should be accordingly.”

The law is well settled that the plaintiff could not recover unless, at the time of the accident, the deceased was in the exercise of due care for his own safety, and if the instruction was calculated to convey the idea to the jury that plaintiff might recover although deceased was guilty of negligence which materially contributed to the injury, it could not be sustained. But we do not think the language used will bear that construction. It will be observed that the term “due care” is incorporated in the first part of the instruction as one of the requirements upon which a recovery might be had, and we think the second ground named in the instruction, upon which a recovery might be had, must be understood as also being predicated upon the fact that the deceased was in the exercise of due care for his personal safety, otherwise the instruction would be bad.

But if there was any probability of the jury being misled by the instruction of plaintiff upon this question, the instructions of defendant were so clear and pointed that no ordinary juror could fail to understand the law. As an example, in No. 2 the jury were directed, that “before the plaintiff can recover, he must prove, by the weight of the evidence, first, that the defendant’s servants left the switch open; and second, that the deceased, Levi Guess, approached that switch with due care and caution. If the jury believe, from the evidence, that the defendant’s servants left the switch open, yet if they further believe, from the evidence, that the deceased, Levi Guess, approached that switch with his train in a careless and imprudent manner, and did not exercise due care and caution, then the jury will find for the defendant.” And in No. 10 they were told, that although they might find that defendant’s servants left the switch open, yet if they further found that the deceased, in approaching the switch with his train, by exercising ordinary care, might have discovered that the switch was open, and thus avoided the consequences of defendant’s negligence, then it was his duty to do so, and if he failed in this respect, the jury will find for defendant. These instructions are plain, and the fact that no recovery could be had unless the deceased exercised ordinary care and caution, is brought out so prominently that we can not conceive how the jury could be misled, conceding that the instruction complained of is not as clear and as well guarded as it ought to have been.

It is also claimed that the court erred in refusing instructions Nos. 5 and 6, and in modifying the same. As to No. 5, its substance was embraced in Nos. 2 and 10, which were given to the jury. No. 6 was as follows:

“If the jury believe, from the evidence, that the deceased, Levi Guess, was guilty of more than slight negligence, then the jury will find for the defendant.”

To this the court added, “if the jury believe, from the evidence, he was guilty of negligence.” We think the instruction, as prepared, announced a correct proposition, but, at the same time, we perceive no objection to the modification. ,It in no manner changed the meaning of the instruction, but called the attention of the jury to the fact that the evidence must determine whether deceased was negligent or not.

This disposes of all questions of law raised in the argument, and as we perceive no substantial error, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Patrick Flaherty v. Leander J. McCormick et al.

      Filed at Ottawa January 19, 1888.

    1. Chancery—what proceedings become a matter of record—office of a certificate of the chancellor—of exceptions to rulings. All oral motions in. a chancery case should be noted upon the clerk’s docket, and a minute made thereof by the judge, and the motions, with the orders made thereon, should be duly entered of record by the clerk. By this means they become a matter of record, without the aid of a certificate of the judge. So, written motions, when filed, become a part of the record, and a certificate of the judge showing the same is unnecessary and inoperative.
    2. The certificate of the judge in a chancery case, as to what the motions and orders were, is as inoperative and as much out of place as a statement in a bill of exceptions of the pleadings, and the rulings of the court in respect to them, would be in a case at law. Under the practice, the only certificate which an appellate tribunal can receive is one of the evidence.
    3. The sole office or function of a certificate of evidence in a chancery case is to truly set forth the evidence offered, rejected, received and considered on the hearing, and any attempt to make it subserve any other purpose is without warrant of law.
    4. In chancery cases it is never proper to take exceptions to the rulings of the court, as it would be, under like circumstances, at law. All motions, proceedings and orders must be entered of record, and on appeal or error all the motions and orders, with the pleadings and the files in the case, constitute the record upon which the case is reheard. On the hearing of the appeal, the question is not so much as to whether the lower court ruled properly upon this or that question, as it is in cases at law, but whether, upon the whole record, the decree is right.
    5. While a bill of exceptions, in a case at law, usually performs the same office, yet its chief function, as its name implies, is to preserve exceptions to the rulings of the court upon motions and questions of evidence, and the like, and thereby make them a part of the record, which they otherwise would not be.
    6. Same—right of complainant to dismiss his bill—leave to dismiss without prejudice. After the filing of a cross-bill by the defendant in a chancery suit, it is error for the court to dismiss the original bill on the complainant’s motion.
    7. After final decree in a chancery suit has been made, and reversed for want of equity in the' bill, and remanded, leave to the complainant to dismiss his hill without prejudice is never granted as a matter of course. After the cause has progressed to that stage, there should he some special reasons for granting leave to dismiss without prejudice, as, where the dismissal is occasioned by some slip or mistake in the pleadings or the proof.
    8. After the hearing of a cause, and a decree upon the merits against a defendant's title, a reversal of that decree, and an opinion of this court sustaining the defendant’s title and holding that the complainant had no-equities against him, and the cause was remanded and redocketed, it was held an abuse of the discretion of the court to enter an order, on complainant’s application, dismissing the bill without prejudice. In such case he: had the right to dismiss at his costs, but not without prejudice.
    9. Same—after reversal and remanclment—and before the eause is re-docketed. After the reversal of a decree with an order to remand the cause, the defendant served a notice on the complainant that on the 12th day of October, 1885, he would file the remanding order, and move the court toredocket the case. On October 10, and before the remanding order was filed, complainant filed with the clerk a writing, to the effect that the bill was dismissed at complainant’s cost, without prejudice, for the purpose of preventing the filing of a cross-bill: Held, that as the cause was not pending in the court before the filing of the remanding order, the filing of the stipulation of dismissal could avail nothing, and was a fruitless act.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. William B. Mason, and Mr. J. D. Adair, for the appellant :
    The cross-bill of Flaherty was on file before the motion to dismiss the original and cross-bills was made.
    The cross-bill of the appellant having been filed on October 12, 1885, before said motions were made and a rule asked on the parties thereto to answer, it was error to dismiss both the original and cross-bills filed by Cyrus H. McCormick, deceased, without the consent of Flaherty.
    The order dismissing the original and cross-bills of the McCormicks was erroneous, for even assuming that Flaherty’scross-bill was not on file, the motion to dismiss was made on October 12, 1885, without notice to the appellant. 1 Daniell’s Ch. Pr. (4th Am. ed.) 791.

      The order of the court is erroneous in the following respects, viz.:
    In dismissing Flaherty’s cross-bill, the dismissal of the McCormick bills did not carry with them the Flaherty cross-bill. Belief was sought thereunder other than by way of defence, and as to matters connected with those alleged in the dismissed bills. Notwithstanding this, the court first, of its own motion, and without assigning a reason, dismissed the Flaherty cross-bill, and then, by “stipulation,” followed this dismissal with that of the bill and cross-bill of the McCormicks. Flaherty’s cross-bill should, in any event, have been retained. Ralls v. Ralls, 82 Ill. 243; Ladner v. Ogden, 31 Miss. 344; Worrell v. Wade’s Heirs, 17 Iowa, 96; Ragland v. Broadnax, 29 Gratt. 422; Follansbee v. Mortgage Co. 7 Bradw. 486; Mitchell v. Shortt, 113 Ill. 255; Hurd v. Ascherman, 117 id. 509.
    The “stipulations,” so-called, could in no event be the basis of the action of the court. When they were placed with the files, no cause was pending in the court below. Owens v. McKethe, 5 Gilm. 79; Simpson v. Alexander, id. 260; Keyser v. Farr, 15 Otto, 265; Coutes v. Wilkes, 94 N. C. 174; Stone v. Spellman, 16 Texas, 432; Levi v. Karrick, 15 Iowa, 444; Austin v. Dufour, 110 Ill. 85; Rev. Stat. 1885, (Starr & Curtis,) chap. 110, sec. 84, p. 1840.
    Pending the appeal in this court, the court below retained the right only to preserve the status in quo between the parties. Railroad Co. v. Railroad Co. 105 Pa. St. 13.
    Mr. Jno. N. Jewett, for the appellees:
    Independently of the fact that the jurisdiction of the court depended upon the issue of partition, it was the absolute right of the McCormicks to dismiss their bill under the conditions disclosed by the record.
    After reversal of the decree and a simple remanding, the case stood precisely as if no decree had ever been made. Chickering v. Failes, 29 Ill. 294; Hays v. Cassell, 70 id. 669;
      Hough v. Harvey, 84 id. 308; Mohler v. Wiltberger, 74 id. 163; Purdy v. Henslee, 97 id. 389.
    A complainant has the right to dismiss at any time before a cross-bill is filed. Rev. Stat. 1874, chap. 22, sec. 36; Mohler v. Wiltberger, 74 Ill. 163; McConnel v. Smith, 23 id. 611; Blair v. Reading, 99 id. 600.
    A motion for leave to file, and an actual filing of the cross-bill, with or without leave of the court, are two separate and distinct matters. The statute applies only when such bill is actually filed.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Leander J. McCormick, on the 20th day of October, 1882, filed a bill in the Superior Court of Cook county, against Cyrus H. McCormick and Patrick Flaherty, for the partition of certain lands set forth in the bill. The bill alleged, in substance, that the complainant, and the defendant Cyrus H. McCormick, acquired title to the land, by purchase, from Samuel J. Walker, the owner in fee; that before and at the time of Walker’s conveyance to them, Flaherty was a squatter on a portion of the premises, without any title whatever, and prayed for an equal partition and division of the land between the McCormicks, and that Flaherty’s claim be declared invalid, etc. Defendant McCormick answered, admitting the averments in the bill, and also filed a cross-bill, setting up the same facts and praying the same relief. Flaherty answered the bill and cross-bill, as to the land occupied by him, denying all equities in complainant and cross-complainant, and alleging that he had been in the actual adverse possession of the property, under claim of absolute ownership, for over twenty years. On the hearing, the lower court entered a decree in conformity with the prayer of the bill and cross-bill. On Flaherty’s appeal, this court sustained his defence and title as set up in his answer, reversed the decree, of the court below, and remanded the cause for further proceedings, without specific instructions. Cyrus H. McCormick having died after the reversal, Cyrus H. McCormick, Jr., and Nettie Fowler McCormick, devisees and trustees of Cyrus H. McCormick, deceased, together with appellee Leander J. McCormick; filed a petition for a rehearing in the cause, which having been duly considered by this court, was formally overruled on the 15th of September, 1885.

On the 2d of October, 1885, Flaherty served the McCormick’s with a written notice, “that on Monday, the 12th day of October, 1885, at 10 A. M., or as soon thereafter as counsel can be heard, he would, before Judge Gardner, file the remanding order of the Supreme Court in the cause, and move the court to redocket.the same.” On the 10th, and before the remanding order was filed, the following so-called stipulations entitled in the cause, with the clerk’s indorsement thereon, were placed among the files of said cause in the Superior Court:

“The bill of complaint in this case is hereby dismissed by the complainant therein, at his costs, and without prejudice.

William T. Burgess, Complainant’s Solicitor.”

“That the cross-bill of complainant in the above entitled cause is hereby dismissed, without prejudice to the rights of the said cross-complainant, or persons claiming through or under him. John N. Jewett,

Att’y and Sol’r for estate of Cyrus H. McCormick, dee’d.”

Some exceptions are taken to the manner in which these papers are entitled, but we regard them as rather technical, and without force.

The record, immediately after reciting the filing of these papers, proceeds as follows: “And afterwards,—to-wit, on the 12th day of October, A. D. 1885,—there were filed in the office of the clerk of said court a certain order reversing and remanding, copy of order denying rehearing, motion to re-docket, etc., and cross-bill of Patrick Flaherty, which are in the words and figures following, to-wit,”—here the orders reversing and denying the petition for a rehearing, Flaherty’s motion to redocket, etc., and the cross-bill, are set out in ex-tenso, in the order above stated. The motion of Flaherty, omitting the title and signature of counsel, is as follows: “Now comes Patrick Flaherty, one of the defendants to the above entitled cause, and moves the court to redocket the above cause on the order of the Supreme Court reversing and remanding the same, and files his cross-bill herein, and further moves the court for a rule on Leander J. McCormick, Cyrus H. McCormick, Jr., and Nettie McCormick, to answer the said cross-bill by a day to be fixed by the court.”

The foregoing matters all appear in the record, in their natural and appropriate order. Following this there then appears a certificate of the judge, dated December 15, 1885, setting out again the so-called stipulations of dismissal of the McCormicks’ bill and cross-bill, and then, after reciting the appearance of the parties on the 12th, and the making of a motion by Flaherty’s solicitors to redocket the cause, proceeds as follows : “Thereupon, W. T. Burgess, solicitor for said Leander J. McCormick, moved to dismiss the same, in pursuance of the said stipulations, to which the solicitors for said Flaherty objected, and moved for leave to file a cross-bill on behalf of said Flaherty, and thereupon the solicitor for said complainant, McCormick, objected to granting such leave. The court thereupon ordered the cause to be redocketed, and the said motions to be placed upon the contested motion calendar for the 19th of October, 1885; and the said solicitors for said Flaherty irosísima upon his right to file said cross-bill without leave of the court, thereupon filed the same, with notice of motion to reinstate, and the certified copies of the orders of the Supreme Court reversing the decree and denying the motion for rehearing.” The court subsequently, on its own motion, dismissed Flaherty’s cross-bill, and also made an order dismissing the McCormicks’ bill and cross-bill ivithout prejudice, from which order Flaherty prosecutes this appeal.

Whether the court erred in simply dismissing the original and two cross-bills, depends upon whether Flaherty’s cross-bill was filed before or after the motion of the McCormicks to dismiss their own bills. That question must be determined from an inspection of the record itself.

The placing of the so-called stipulations among the files on the 10th, however intended, was a fruitless and innocent act, to which- no legal consequences attached. As the cause was not pending in the Superior Court at the time of filing them, nor until after the filing of the remanding order on the 12th, the solicitors might, so far as the rights of the parties are concerned, just as well have placed them in their office desks or side pockets. (Owens v. McKethe, 5 Gilm. 79; Keyser v. Farr, 15 Otto, 265; Simpson v. Alexander, 5 Gilm. 260; Levi v. Karrick, 15 Iowa, 444; Austin v. Dufour et al. 110 Ill. 85; N. B. and W. C. Railroad Co. v. P. Y. and C. Railroad Co. 105 Pa. St. 13.) This, counsel, in effect, concede. They say, in speaking of them in this connection: “They were simply there,—among the files,—ready for use when the proper time arrived.” If, therefore, they ever had any vitality, it was not infused into them until after the remanding order had been filed and appellees’ solicitors had indicated, by their motion in open court, an intention to use them. It is manifest, from the written motion of Flaherty to redocket the cause, that the making of the motion, and the filing of the remanding order and of the cross-bill, were contemporaneous acts. Even the certificate admits that Flaherty’s motion to redocket was before appellees’ application to dismiss; yet, strange to say, in the very teeth of that motion, which shows upon its face that Flaherty, in the act of making it, filed the cross-bill without leave, the certificate is then made to say that Flaherty moved for leave to file the cross-bill after appellees had made their motion to dismiss!

It is clear from the record, outside of this certificate, that the filing of Flaherty’s cross-bill was anterior to appellees’ application to dismiss. Indeed, the argument of appellees’ counsel in support of the contrary theory is based entirely upon the supposed conclusiveness of the certificate upon the question. In view of the effect which counsel claim must be given to it, we have endeavored to examine the subject with some care. It is to be noted at the outset, that the certificate is peculiar in a number of respects, one or two of which may be mentioned. In the first place, it is found sandwiched, as it were, between orders and motions similar to those referred to in it, which are verified, as a part of the record, by the certificate and seal of the clerk, only. It is not perceived upon what theory or principle it was thought necessary that the judge should embody a part of these motions and orders in a certificate, and not the others. If any of the motions or orders thereon had been omitted by the clerk in making up the record in the case, the proper course would have been to have caused the record, on notice to the other parties, to be amended by adding thereto the omitted motions and orders thereon, in the order in which they occurred, and not to attempt to remedy the matter by a certificate of the judge. All oral motions in a chancery cause should be, and are supposed to be, noted upon the clerk’s docket and a minute thereof made by the judge himself, and the motions, together with the orders made thereon, should be duly entered of record by the clerk in making up his orders in the case. By this means they become a matter of record, without the aid of a judge’s certificate or bill of exceptions, as is required in a case at law. So where a motion is reduced to writing and filed in the cause, it is then as much a part of the record as anything else in it, and the setting it forth, therefore, in such a certificate, would add nothing to its force or validity. Indeed, the certificate of a judge as to what the motions and orders were in a chancery case, is just as inoperative and as much out of place as a statement in a bill of exceptions of the pleadings and the rulings of the court in respect to them would be in an action at law. Under our practice, the only certificate we can now recall which a judge is required to make in a chancery cause, is what is known as a “certificate of evidenceyet the certificate in the present case does not, in our opinion, perform the functions of such a certificate.

There is a diversity as respects bills of exceptions in cases at law and in chancery. Indeed, taking the term “bill of exceptions” in its original and appropriate sense, it is altogether inapplicable to a proceeding in equity, for it is never proper to take exceptions to the rulings of the court in a chancery case, as it would be, under like circumstances, in a case at law. The reason of this is, that all motions and orders in a chancery cause must be entered of record, and, on appeal, these motions and orders, together with the pleadings and all the files in the case, constitute the record upon which the case is reheard. On the hearing before the appellate tribunal, the question is not so much as to whether the lower court ruled properly upon this or that question, as it is in cases at law, but whether, upon the whole record, the decree is right. The sole office or function of a certificate of evidence in chancery causes, as its very name implies, is to truly set forth the evidence offered, rejected, received and considered on the hearing, and any attempt to make it subserve some other purpose is without warrant of law. On the other hand, while a bill of exceptions in an action at law usually performs the same office, yet its chief function, as its name implies, is to preserve exceptions to the rulings of the court upon motions, questions of evidence, and the like, and thereby make them a part of the record, which they would otherwise not be. Rowen v. Bowles, 25 Ill. 113; Holdridge v. Bailey, 4 Scam. 125; Binkert v. Wabash Railway Co. 98 Ill. 205; Bressler v. McCune, 56 id. 476; Ferris v. McClure, 40 id. 99; Brooks et al. v. Morton et al. 64 id. 389; Smith v. Newland, 40 id. 101.

There is some diversity of statement in the opinions of this court, as well as in others, as to just what will and what will not be treated as evidence in a chancery eaus.e when being reviewed. This, however, it will be found, has resulted largely from the different circumstances under which these statements have been made. But this is a matter of no special concern in the present discussion. The important question here is, what is the proper office or function of a certificate of evidence in a chancery cause? Upon this subject we have already sufficiently expressed our views, and nothing need be added, further than to repeat, by way of emphasis, that it is no part of its office or function to preserve the motions and orders in a chancery cause for purposes of review by an appellate tribunal. It results from this conclusion, as already intimated, that the certificate in this case is inoperative and void.

But outside of this, we think the order of dismissal was erroneous. Assuming, for the purppses of the argument, that the motion to dismiss was made before the cross-bill of Flaherty was filed,—the decree having been reversed, and therefore no longer of any force or effect,—the appellees clearly had the right to dismiss their bill at their own costs. But the question is, did they have the right to have it dismissed, as it was, without prejudice ? After publication, an order of this kind is never granted as a matter of course. There should always be some special reasons for granting it after the cause has progressed to that stage. Byrne v. Frere, 2 Malloy, 157; Ogsbury v. La Forge, 2 N. Y. 114.

Speaking of orders or directions of this kind, Daniell, in his work on Chancery Practice, (vol. 2, star page 1200,) says: “Directions of this sort are inserted where the dismissal is occasioned by any slip or mistake in the pleadings or the proof.” There is not a single element in the present case of the character suggested by this author. On the contrary, here there had been not only a publication of the proofs, but there had been a hearing and decree upon the merits, a reversal of that decree, and an opinion by this court sustaining, in emphatic terms, Flaherty’s title, and holding that appellees have no equities as against Mm; and yet, in the face of all this, the court, on appellees’ application, made an order dismissing their hills without prejudice! TMs, we hold, was an abuse of the discretion of the court in matters of this Mnd.

The decree of the court below is reversed, and the cause remanded for further proceedings in conformity with tMs opinion.

Decree reversed.