text:
    Minnie Metz v. McAvoy Brewing Company et al.
    1. Idem Sonans — Meetz and Metz. — The names Meetz and Metz are so near alike in spelling and pronunciation that, under the authorities in this State and elsewhere, they are idem sonans.

    3. Practice — Correction of Error in Spelling. — Where there is any doubt because of the different spelling of a name it is within the power of a court of equity to correct such doubt upon notice to the parties in interest and a showing of the facts.
    3. Executions — Right of the Defendant in, to Turn Out RealEstate.— A defendant in an execution has the right to turn out real estate in satisfaction, before his personal property can be taken.
    4. Equity Jurisdiction— Where Remedies at Law Must Be First Exhausted. — Equity will not enforce a legal demand until a creditor has exhausted his remedy at law.
    5. Same — On Cross-bills, When Without Jurisdiction cm the Original Bill. — Where a court of equity is without jurisdiction on an original bill, it is also without jurisdiction on a cross-bill filed in the same suit.
    6. Covenant — Right of, to Nominal Damages. — A covenantee has no right of action against a covenantor on his covenant of warranty until he has suffered a loss, except for nominal damages.
    Creditor’s Bill. — Appeal from the Circuit Court of Cook County: the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed, with directions.
    Opinion filed December 23, 1901.
    Statement Iby the Court. — The McAvoy Brewing Company, on November 6, 1895, filed its creditor’s bill against Lorenz Metz, the appellant, Minnie Metz, the appellee New-berry, and others, upon a judgment in its favor against said Lorenz Metz and one Sierk, by which it sought a discovery pertaining to divers matters alleged in the bill, asked authority to proceed upon alias execution upon its judgment against certain real estate described in the bill, which it is alleged the title to was, at the time of the rendition of the judgment upon'which the bill is based, in said Lorenz Metz, and was subsequently conveyed so that the title became vested in the appellant, and was by her sold and conveyed to the appellee Newberry before the filing of the bill. The bill prays other relief not necessary to be stated, and for general relief.

      After other proceedings, the appellant answered, by which, among other things, she claimed that the judgment in question was void, that the debt on which it was based had been paid, and that the brewing company had not exhausted its remedy at law.
    The appellee Newberry filed his answer and cross-bill, setting up the conveyance of the property to him; that he had no notice of the brewing company’s judgment; that appellant was insolvent and that she held his three notes of §3,437.50 each, given for a balance of the purchase money of the real estate; that the property belonged to Lorenz Metz, and not to appellant; and praying that he might be permitted to withhold the entire sum of money evidenced by the notes, and that proper orders be made protecting him.
    Issues were made upon the bill and cross-bill, and the cause referred to a master to take proof and report his conclusions thereon. The master took evidence and reported his conclusions thereon, substantially as hereinafter stated in the findings of the decree. Objections to the report were overruled by the master, and like exceptions before the court were overruled by the chancellor, and the report was in all things approved and confirmed.
    The decree in substance finds as follows: Finds that on the 21st day of July, A. D. 1893, John Sierk and Lorenz Metz executed a judgment note to the brewing company, payable on or before July 21, 1895, for §2,641.82, with interest payable quarterly at six per cent per annum after date, until maturity, and seven per cent per annum after maturity until paid, and that said note contained a power of attorney authorizing confession of judgment thereon at any time thereafter, with thirty dollars attorney’s fees, and waiving and releasing all errors which might intervene in any such proceedings; that said note was given by said Sierk and Metz in payment for a saloon purchased by Sierk from said brewing company; that at the time the note was executed by Sierk and Metz, Metz stated to an agent of the brewing company that he was the owner of a manufactory of cigar boxes and of the property upon which the same was located, and that the said brewing company took said note, relying upon the ownership by Metz of said property; that on the 17th day of January, 1894, a judgment ■by confession was rendered upon said note for $2,747.97 and costs; that the record of said judgment shows the judgment against “ Lorenz Meetz; ” that the misspelling of the word “ Metz ” was by reason of a clerical error, which appeared upon the narr. and cognovit upon which said judgment was entered; that the signature of Lorenz Metz upon the said note was written in such a manner as to lead a person not familiar with said signature to regard it as written *■ Lorenz Meetz.” That on the 25th day of January, 1894, an execution was duly issued upon said judgment and placed in the hands of the sheriff, upon which execution is indorsed as follows:
    “ The within named defendants and no property of the within name defendants found in my county on which to levy this writ. I therefore return the same, no property found and no part satisfied this 24th day of April, 1894. James II. Gilbert, Sheriff, by J. II. Wetherfield, Deputy.”
    That the amount of said judgment, together with the costs thereof, is still unpaid and due and owing from the said John Sierk and the said Lorenz Metz to the brewing company, together with interest thereon from the date of the rendition of said judgment, except that there is a credit of $450, as hereinafter mentioned, upon the amount of said judgment, by reason whereof there is now due and owing to the brewing company from the said Lorenz Metz the sum of $2,297.97, with interest thereon at five per cent per annum from the 1.7th day of January, 1894, together with the cost of said suit. That the said note was- secured by a chattel mortgage executed by the said John Sierk on the 21st day of July, 1893, by which was conveyed unto the brewing company certain goods and chattels in the saloon on the premises 54 Dearborn street, Chicago, and was duly acknowledged before a justice of the peace. That default was made in the payment of the note secured by the chat- • tel mortgage, and it was foreclosed by a constable, in accordance with the terms of said mortgage, and that the goods and. chattels named in the mortgage were, on the 18th day of January, 1894, sold to Thomas J. Finucane for $200, he being the highest bidder, and became the property of the brewing company; and that afterward said goods and chattels were sold by the brewing company for $450, which was tendered to Metz and was accepted by him as a credit, upon the trial of this cause, and is not included in the amount found due and owing under the said judgment. That John Sierk was present at the said foreclosure sale, and that the defendant Lorenz Metz was notified of the said sale before the sale took place. That the fixtures that were foreclosed and sold under and by virtue of said chattel mortgage were but a part consideration for the amount paid by John Sierk for the place, as evidenced by his note, and that the purchase price of said saloon included the good-will. That upon the 17th day of January, 1894, said Lorenz Metz was the owner in fee of the property described in the bill. That upon the 20th day of January, 1894, three days after the rendition of the said judgment, Lorenz Metz, by his deed dated the 20th day of January, 1894, transferred his said property to Frank Rayner, which deed was afterward duly recorded, and that said Lorenz Metz had actual notice of the entry of said judgment prior to the transfer and conveyance thereof by him to Rayner. That Rayner, on the 20th day of February, 1894, transferred the property by quit-claim deed, to Minnie Metz, which deed was duly recorded, and that at the time the said transfers were made, Rayner was upon intimate terms with the Metz family, and some time after this transfer married a daughter of the said Lorenz Metz and Minnie Metz; and that Rayner gave no consideration for the transfer of the property to him by Lorenz Metz, and received none from Minnie Metz when he, Rayner, transferred the property to her; that on the 31st day of May, 1895, the defendants, Minnie Metz and Lorenz Metz, by their warranty deed, transferred the said property to Walter C. Rewberry, which deed was duly recorded in the recorder’s office of Cook county, Illinois; that ¡Newberry paid for the said property one-fourth in cash and the balance by notes secured by a trust deed upon the property given to Minnie Metz; that said notes remained in the hands of Minnie Metz; that Newberry, as defendant in this suit, was restrained by an order of the court entered herein, from paying the notes or any part thereof, and the defendants, Lorenz Metz and Minnie Metz, were restrained from receiving any payment on said notes; and that on the 16th day of December, 1895, an order was entered by the Honorable Murray F. Tuiey, one of the judges of this court, releasing one principal note and coupon last due held by Minnie Metz, the preliminary injunction entered herein to stand as to the remaining notes and in the bills and proceedings mentioned until the hearing of the motion to dissolve the said injunction; and thereafter, to wit, on the 2d day of November, 1896, an order was entered in this cause by the Honorable Murray F. Tuiey, one of the judges of this court, by which the injunction order heretofore entered was modified, so as to release from the operation of the injunction the first of the three notes made by the said Newberry, and which was then due and unpaid, and New-berry was thereby authorized to pay, and the said Minnie Metz to receive the sum of money then due upon the first note executed by Newberry; and afterward, to wit, on the 6th day of December, 1898, it was ordered by the Honorable Edward F. Dunne, one of the judges of this court, that the remaining note executed by Newberry and payable to the order of Minnie Metz, might be paid by said Newberry to the Hibernian Banking Association, to be held by it in lieu of any claim or lien that any of the parties herein may have against said note or the land held in trust for the security of said note; the injunction granted herein as to said note was by the said order dissolved upon the pavment of the said note as in said order provided, but the said injunction was to stand as to the moneys held by said banking association the same as if the bank had held the said note, and by the said order the rights of the several parties herein were reserved for further adjudication. That on the 8th day of December, 1898, the sum of $4,155.98 was deposited to the account of Graham H. Harris, trustee, in said bank, and said account, together with interest thereon from the day last mentioned, remains in the bank under and by virtue of said injunction.order and the orders subsequent thereto entered in this court. That Lorenz and Minnie Metz were married at Crown Point, Indiana, in 1871, and came to Chicago, where Metz worked on a salary in a box manufactory; that prior to that time and subsequently, until the year 1881, Minnie Metz was in the dressmaking business, and from time to time earned money, which, together with what she had .received from her grandmother and what had been saved by her from the sum which her husband gave her for the support of the household during that time, amounted to the sum of $2,000; that during the time from 1871 to 1881, Lorenz Metz worked upon a salary and supported his wife and children and contributed to the fund above mentioned. That in the year 1881, Lorenz Metz started in the business of manufacturing cigar boxes for himself and in his own name, and invested said sum of $2,000 in that business; that the business was conducted, managed and controlled by Lorenz Metz up to and including the year 1887, at which time the profits of the business for those years amounted to $14,000 or $16,000; that in the year 1887, was organized the Chicago Box Company, with a capital stock of $10,000, at $100 per share, of which stock Lorenz Metz had first, twelve shares and afterward twenty shares, which represented the value of $2,000; that the remainder of the stock in that company was owned by a Mrs. Schwartz and one Bosenberger; that Minnie Metz had no interest in said business, but during the year 1887, and a part of the year 1888, worked for the said Chicago Box Company upon a salary of four dollars a week. After the year 1888, Minnie Metz took no part in the business of the Chicago Box Company. That in the year 1884, Lorenz Metz purchased for the sum of $2,500 the property described in the bill, which was, on the 20th day of January, 1894, transferred by him to Frank Ravner, as aforesaid, and that the purchase of said property in 1884 for the sum of $2,500 was made with the profits from the box business carried on by Lorenz Metz from 1881 to 1884, and with money borrowed, which was afterward paid off from the proceeds of said business; that afterward a building was placed upon said lot by the said Lorenz Metz, which building was paid for out of the profits of said business, and by a mortgage placed upon said property; that said mortgage was taken in the name of Lorenz Metz, and was afterward paid off by the profits received by the said Lorenz Metz from the Chicago Box Company. That Lorenz Metz dealt with this property as his own; that all transactions with reference to its sale, mortgage, and other transactions in connection with it were made through Metz. That the interest of Lorenz Metz in said property exceeded the amount of the claim of complainants, and that the evidence is not sufficient to sustain the title of Mrs. Minnie Metz as against the complainants, who had no knowledge of her interest therein. That Lorenz Metz has taken no steps to avoid the irregularities of the sale for the illegality of the exercise of the powers under the mortgage by the mortgagee, and has been negligent of his rights and guilty of laches with respect thereto. That the judgment is in a lien upon the property, and that the note upon which it was entered" contained an express waiver and release of all errors which might intervene in the proceedings taken thereunder, and that the note upon which this judgment was rendered wTas actually signed by Lorenz Metz. That Minnie Metz made, executed and delivered to Mewberry a warranty deed to said property, which deed contained full covenants of warranty of the aforesaid property, running from Minnie Metz and Lorenz Metz to "Walter C. Mew-berry. That all the material allegations in said bill of complaint of the brewing company, and the cross-bill of Mewberry are proved and true, and that there is due the complainant, the brewing company, out of the $4,155.98 deposited in the Hibernian Banking Association in the name of Graham H. Harris, trustee, the sum of $2,297.97, together with lawful interest at five per cent per annum thereon from the 17th day of January, 1894, the date of the rendition of said judgment, and also the costs of this suit, including the master’s fees on the reference herein, which are hereby taxed at the sum of $250.
    The decree then directs that Lorenz Metz pay the amount found due upon the judgment, the costs and master’s fees, and in default thereof that said Harris, trustee, pay the same out of the deposit in his name in the banking association, and the balance to appellant, and that upon such payment being made, the brewing company satisfy its judgment of record. To review this decree this appeal is taken.
    Graham H. Harris and Pence & Carpenter, attorneys for appellant; A. M. Pence, of counsel.
    Winston & Meagher, attorneys for appellees; Frederick B. Babcock and Silas H. Strawn, of counsel.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The first question presented is as to whether, upon the facts found by the decree and upon the allegations of the bill and cross-bill, chancery has jurisdiction. Appellant’s counsel argue the case in this regard upon the basis of the facts stated in the bill and found by the master as being true. The bill alleges that the complainant recovered its judgment against Lorenz Metz “ under the name of Lorenz Meetz,” and that the note on which the judgment was rendered might be read Metz or Meetz. The decree finds that the record of said judgment shows the judgment against 61 Lorenz Meetz,” and that the misspelling of the word “ Metz ” was by reason of a clerical error which appeared upon the narr. and cognovit upon which the judgment was entered. There is no question made but that Lorenz Metz is the same person who is called Lorenz Meetz. The bill alleges and the decree finds that he was the owner of the real estate in question at the time the judgment was rendered. By virtue of the statute the judgment as soon as entered became a lien upon the real estate. The decree so finds, and the case of the brewing company, as well as that of Newberry on his cross-bill, proceeds upon the theory that the judgment, from its rendition, was a lien upon the real estate. That being so, there was nothing to prevent the brewing company from proceeding under an execution to sell the property without a resort' to equity. The fact that the real estate was conveyed by Metz to Eayner, by the latter to appellant and by her to appellee Newberry, could make no difference with the brewing company’s right to proceed by execution against the real estate to enforce its lien. Davenport v. Karnes, 70 Ill. 465-70; Walters v. Defenbaugh, 90 Ill. 241; Davidson v. Burke, 143 Ill. 139.

Moreover the names Metz and Meetz are so near alike in spelling and pronunciation that under the authorities in this State as well as elsewhere, they are idem sonans. They are German names and in pronunciation are very similar in sound, the letter “ e ” in Metz having very much the same sound as the letter a ” in such English words as pate,” rate ” or “ fate.” The sound of the letter “ e ” in Meetz, being doubled, is merely prolonged. That the two words are idem sonans is not controverted by appellees.

In Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148, it was held that Mitchell Allen was idem sonans with Michael Allaine, and Otaine Allaine with Antoine Allaine. In McDonald v. People, 47 Ill. 533, McDonnell was held idem sonans with McDonald. In Gahan v. People, 58 Ill. 160, the defendant was indicted for an assault upon the person of Mary Danner, though her real name was Mary Dannaher, but a conviction was sustained, the court holding'that the names were substantially idem sonans. See also Myer v. Fegaly, 39 Pa. St. 429, and 16th Am. & Eng. Ency. of Law, 122, ánd cases there cited.

The rule in this regard is thus stated in the Encyclopaedia of Law, supra, viz:

“ Absolute accuracy in spelling names is not required in legal documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name, as thus given, is a sufficient designation of the individual referred to, and no advantage can be taken of the clerical error.”

For this reason it would seem, that the brewing company had a perfect right to enforce its judgment as against the property of Lorenz Metz, notwithstanding the record of the judgment showed his name spelled Meetz.

If, however, there were any doubt because of the different spelling of the name, it was clearly within the power of the Circuit Court to have corrected the clerical error upon notice to the parties in interest and a showing of the facts. In cases of confession of judgment the court liasequitable powers. Watson v. Reissig, 24 Ill. 281; Chittenden v. Rogers, 42 Ill. 95; Reedy v. Millizen, 155 Ill. 636-46, and cases cited; Blake v. State Bank, 178 Ill. 182.

Even if it be conceded that the return of the sheriff upon the execution issued on the brewing company’s judgment was sufficient prima facie to give jurisdiction in chancery on a creditor’s bill, which we consider very doubtful, the allegations of the bill and the proof overcome it and show that the complainant’s remedy at law had not been exhausted. The return is:

“ The within named defendants and no property of the within named defendants found in my county upon which to levy this writ.”

Does it mean that the defendants were found by the sheriff, or that they were not found? To say the least, we think the meaning of this language is very doubtful. In any event, it fails to show that a demand was made on the defendants, or either of them. It is a grave question whether the remedy at law is exhausted without a demand having been made of a defendant who is shown, as is Metz, to be a resident of the county where the execution issues. A defendant has the right, under the statute, to turn out real estate before his personalty shall be taken. But this is not controlling. Equity will not enforce a legal demand until the creditor shall have first exhausted his remedy at law. That fact, as a general rule, is essential to chancery jurisdiction. Detroit, etc., Mills v. Ledwidge, 162 Ill. 305, and cases cited; Durand v. Gray, 129 Ill. 9-17, and cases cited.

The bill alleges, in substance, that when the judgment was recovered Lorenz Metz was seized of real estate in Chicago, describing it specifically, and that subsequent to the rendition of the judgment he conveyed it to Rayner, the latter conveyed it to appellant, and that she, her husband joining, conveyed to Newberry. The latter held the title at the time the bill was filed, appellees claim, and it was a fact that the judgment was then a lien on this realty and no reason is shown why the brewing company could not have obtained an alias execution, levied it upon the real estate and sold the same to satisfy the judgment. These facts overcome the return of the sheriff, even though it was prima faoie sufficient to give equity jurisdiction.

The brewing company, therefore, having at the time the bill was filed a complete and adequate remedy at' law, a court of chancery had no jurisdiction to entertain the bill, and it should have been dismissed.

There being no jurisdiction in chancery on the original bill it follows that the cross-bill should also have been dismissed unless it contains matters of equitable cognizance. Houston v. Maddux, 179 Ill. 377-91, and cases cited.

The evidence shows that the same attorneys who represented the brewing company in the confession of judgment, acted for Newberry and examined the abstract of title when he purchased from appellant. These, attorneys, knowing of the judgment, Newberry, for whom they were acting, is chargeable with their knowledge and must be held to have taken the title knowing it was subject to the lien of the judgment.

Moreover, Mr. Newberry has no such standing in equity as would enable him to maintain his cross-bill. He has no right of action against appellant on his covenant of warranty until he has suffered a loss, except for nominal damages. Richard v. Bent, 59 Ill. 38-43; Brand v. Henderson, 107 Ill. 146.

The case of Coffman v. Scoville, 86 Ill. 300-6, relied on by appellees’ counsel, is not, in our opinion, applicable to the facts here. If appellant sought to enforce payment by foreclosure, a different question would be presented. She is asking no relief, and we therefore think the cross-bill must fall with the original bill.

It is contended by appellant that the sale under the chattel mortgage mentioned in the statement did not have the effect of passing title in the mortgaged property to the brewing company, and that it should be charged with the full value thereof, which, the evidence tends to show, although it is not found by the decree except by the general affirmance of the master’s report, was worth at least $500-, if not as high as $3,000. We think this contention is untenable. A provision in the mortgage is to the effect that the mortgagee may become the purchaser of the mortgaged property at its own sale. The evidence shows that the sale was conducted according to the provisions of the mortgage, and was in all respects regular, the mortgagor and said Lorenz Metz having been notified of the time and place of sale. This had the effect of vesting the title in the mortgagee. Jones on Chat. Mort., Sec. 791, and cases cited; Griffin v. Marine Co., 52 Ill. 130-8; McConnell v. People, 84 Ill. 584; Goodell v. Dewey, 100 Ill. 308.

The cases cited by appellant are not in point. The mortgagor in this case, by the express terms of that instrument, gave to the mortgagee the right to become the purchaser, and neither he nor appellant can now question that right. Her position is no better than that of the mortgagor.

The decree is reversed, and the Circuit Court is directed to dismiss the bill and cross-bill for want of equity. Reversed with directions.


source: Caselaw Access Project

author: Mb. Justice Seabs

license: Public Domain

text:
    Northern Trust Co., as Executor and Trustee, v. Charles V. Marsh et al.
    1. Probate Courts — Limited Equity Jurisdiction. — The Probate Court has certain limited equity jurisdiction in connection with matters which are by statute within its defined jurisdiction, but it has no general chancery jurisdiction and its limited equity jurisdiction does not divest other courts of general chancery jurisdiction of their jurisdiction in the same matters.
    2. Courts of Equity — Jurisdiction to Order an Accounting. — A court of equity has jurisdiction to order an accounting to the end that contribution may be forced in a case where the parties complainant are entitled to it.
    Bill for an Accounting and Relief. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed in part, reversed in part, and remanded.
    Opinion filed December 12, 1901.
    Statement. — This litigation grows out of transactions had in relation to the following agreement, which was entered into Hay 14,1891, by the appellees and the testator of appellant:
    “ This agreement between Charles Y. Harsh, Isaac C. Harsh and Carrie Louise Harsh, witnesseth :
    That whereas, they are the owners of the undivided one-half ($) of lot one (1) in the Assessor’s division of lot six (6), seven (7), eight (8) and the south one-half of lot five (5) (S. i 5) in block thirteen (13), Fort Dearborn Addition to Chicago, said Isaac C. Harsh and Carrie Louise Harsh being the owners of the fee to said property, subject to the dower interest of said Charles Y. Harsh.
    And whereas, it is the decision of all the parties hereto to sell said property and to re-invest the proceeds of such sale in other real estate in the city of Chicago.
    And whereas, said parties hereto have entered into a contract with John L. Bremer by which said Bremer agrees to purchase said property at the price and sum of one hundred thousand dollars ($100,000).
    How in consideration of the premises it is hereby mutually agreed by and between the parties hereto that the proceeds of said sale, after deducting costs and commissions thereof, shall-be held in trust by Isaac C. Harsh, for the following purposes:

      First, to be invested in such bonds or stocks as shall be approved by all of the parties in interest. Said bonds or stocks to be held by said trustee until a suitable investment in real estate in the city of Chicago, Illinois, approved by all of the parties hereto, shall be found, when said trustee shall, acting under and by the advice of all the parties hereto, make-sale of such bonds or stocks as shall have been purchased as above named and shall invest all of the money so obtained and all other moneys covered by this trust, in such real estate as he may be directed to purchase by the parties hereto. The interest of the parties hereto in said real estate to be the same as that heretofore existing in the hereinabove described, namely:
    The "fee to one-third (-J-) in Isaac C. Marsh, the fee to one-third (-J-) in Carrie Louise Marsh, and the fee to one-third Q-) in Isaac C. Marsh and' Carrie Louise Marsh, subject to the life estate of said Charles Y. Marsh. The income resulting from time to time from the proceeds of the sale of the property herein described, also- the rents and profits of real estate to be purchased, to be divided equally among the parties hereto, after all legal and proper charges against same have been paid.
    When the moneys above referred to and which are the subject of the trust herein created have been re-invested as herein contemplated in Chicago real estate, then the trust herein created shall cease.
    Carrie Louise Marsh,
    Charles Y. Marsh,
    Isaac C. Marsh.”
    Appellant’s testator, Isaac C. Marsh, and appellee Carrie Louise Marsh, now Doty, are the children of appellee Charles Y. March. Certain property, left by the deceased wife of Charles Y. and mother of Isaac C. and Carrie Louise, formed the subject-matter of the agreement. The money realized from this property, viz., $100,000, was, under the terms of the agreement, placed in the hands of Isaac C. Marsh. While he was in Europe he permitted his father, Charles Y., to make use of $40,000 of this fund, which was by him invested and lost in stock speculation. After Isaac returned to this country he learned of the use to which his father, Charles Y., had put this sum of $40,000. He might then have closed the stock deals into which Charles Y. had put"1 the $40,000, and not only have got back the $40,000, but as well a certain amount of profit or winnings which had resulted from the speculation. This he did not do, but on the contrary permitted the $40,000 to remain invested in the stocks. By subsequent fluctuations of the stock market the entire $40,000 became lost. Carrie Louise Marsh, since intermarried with Doty, was not a party to these stock speculations. She knew nothing of them. In September, 1894, Isaac C. Marsh died. Appellant is the executor of his last will and trustee to carry out certain of its provisions.
    Of the $100,000 which was the subject of the written agreement, $60,000 was invested in a certain note, known as the Watriss note, and in 160 shares of stock in the American Strawboard Company.
    In the administration of the estate of Isaac in the Probate Court of Cook County, Carrie Louise presented a claim against the estate for the amount of her share in the funds intrusted to Isaac by the written agreement of May 14, 1891, and lost by reason of a diversion of $40,000 thereof from the purposes of the. agreement. This claim was allowed' to the extent of $13,000. She also obtained an order of the Probate Court by which one-half of the 160 shares of American Strawboard Company stock was turned over to her by the executor of Isaac.
    Charles Y. Marsh, the father of Isaac and Carrie Louise, and the person through whom the $40,000 was diverted to stock speculation and lost, also petitioned the Probate Court for an order upon the executor of Isaac to pay over to Charles Y. his share of the income derived from the Watriss note. The executor replied to the petition, admitting that it held the Watriss note, which represented $60,000 of the original $100,000 intrusted to Isaac under the agreement of May 14, 1891. But it set up the fact of the loss of the $40,000, through use of it in stock speculation by Charles Y., the petitioner, as a reason why the petition should not be allowed. The petition was denied and dismissed by the Probate Court “ for want of equity.”
    The executor of Isaac C. Marsh has accounted to Carrie Louise Doty for the income upon a one-half interest in the Watriss note, and has turned over to her one-half of the shares of stock in the American Strawboard Company. Mrs. Doty has in turn paid over to Charles Y. Marsh one-third of the amounts received by her as income upon her share of the Watriss note, such payments having been made upon the supposed dower interest of Charles Y. in the property which had in part been invested in the Watriss note.
    The appellant, executor and trustee of the last will of Isaac C. Marsh, filed its bill of complaint in this suit, by which relief is sought as against Charles Y. Marsh and Carrie Louise Marsh Doty.
    The bill prays that the $50,000 Watriss note and the Strawboard stock, both that transferred to Mrs. Doty and that in the hands of complainant, be declared to be assets of a trust created by the written agreement of May 14, 1891, and that complainant be declared to be entitled to the proceeds and control thereof; that all the interest of Charles Y. Marsh in said note and stocks, and all income and proceeds thereof, be declared subject to an equitable lien for the repayment of the aforesaid losses; for an accounting to Charles Y. Marsh, and that complainant be allowed to apply upon the amount which should b.e found due from said Charles Y. Marsh, all income which it has or shall collect under the alleged trust agreement, out of the trust assets, and which would otherwise go to said Charles Y. Marsh, on the account to be taken; and that all amounts which Mrs. Doty had collected, or should collect, out of the income of said assets, and which would otherwise go to said Charles Y. Marsh, be applied upon said accounting, as a credit upon' the liability of .Charles Y. Marsh to complainant, and upon the claim allowed in favor of Mrs. Doty against said estate. That said eighty shares of Strawboard stock transferred to Mrs. Doty be re-transferred to complainant.
    The cause went to final hearing on bill, answer and replication, and the chancellor dismissed the bill for want of equity.

      A cross-bill filed by Charles Y. Marsh praying for a decree that the Trust Company, as executor and trustee, pay him one-third of the income of the Watriss note and the Straw-board stock and of the $40,000 lost, was withdrawn and dismissed without prejudice.
    The answer of Charles Y. Marsh to the original bill denied-that he had lost or failed to properly account for the moneys in question, and denied that the Probate Court had held him primarily responsible therefor, and averred that said moneys were lost by appellant’s testator.
    From the decree dismissing the original bill of complaint for want of equity, this appeal is prosecuted.
    Dupes, Judah, Willaed & Wolf, attorneys for appellant.
    John M. Hamilton and James A. Fullenwideb, attorneys for appellees.
   Mb. Justice Seabs

delivered the opinion of the court.

The question of controlling importance in this cause isas to whether the appellant, as executor of the will of Isaac C. Marsh, is entitled in equity to contribution from Charles Y. Marsh upon the amount paid by the estate of Isaac to Carrie Louise Doty to indemnify her against loss of her share of the $40,000, which was squandered in stock speculation, and to that end is entitled to an accounting.

The evidence establishes that Isaac C. Marsh, the testator of appellant and the person to whom was intrusted the care and management of the fund of $100,000, in which he and appellees were jointly interested, turned over $40,000 of that fund to his father, Charles Y. Marsh, one of the appellees, for investment; that Charles Y. invested this money in stock speculation; that after Isaac C. heard of this investment and had ample opportunity to withdraw the fund therefrom without loss, he, deliberately, and with full knowledge of the facts, elected to leave the $40,1)00 thus invested. Its subsequent loss through fluctuations of the stock market is to be charged to him so far as Carrie Louise Doty is concerned, and so far as Charles Y. Marsh is concerned, the loss brought about through action of himself and Isaac is chargeable to both Isaac and Charles. Both were active in causing the loss, the one by his investment of the fund in a purpose foreign to the purposes contemplated by the written agreement of May 14, 1891, and the other by acquiescing in such investment after he had learned of it and had the opportunity afforded him to withdraw it unimpaired from such investment. As against either, Mrs. Doty, who was no party to the speculation through which a part of the fund was lost, might assert ground for relief. But she is asking for no relief. The Probate Court of Cook County has afforded her the relief in this behalf to which she was entitled. As between themselves Charles Y. and Isaac C. stood as two, who, owning a fund jointly, have jointly embarked it in speculation, by which it has become lost. It is clear from the evidence that Isaac was at fault, as well as Charles. Y. Mr. Jamieson, one of the stock brokers through whom the money was invested in stocks, testified as follows:

“ The first time that Isaac C. Marsh came in to talk to me about this account of mine with Charles Y. Marsh I don’t know why he came unless to find out about his account or talk with me about it. I inferred that he was interested in that account. He told me that was his money that he put in, and he told me that he sent the money to his father to invest for him. * * * I think the next conversation I had with him was along in January. I asked him what he intended to do, if he intended to sell the stocks he purchased on the order of Mr. Marsh, which, as I remember, was either in January or February, and they were worth something like $25,000 more than he had paid for them. I told him how much profit, how much advance there was in the stocks since he had bought them, and he said ‘ I will leave the whole thing with my father.’ * •* * It was later on when I sold out this stock, between June 1st and June 22d, after this conversation in April or March; he seemed to regret that his money had been lost, and I asked him then, ‘ Have you any criticism to make of what your father has done?’ He said, ‘ Hone whatever; ’ that he did not wTant any complaint made or anything said about it. * * * I sent for Charles Y. Marsh and I said to him, 1 How these stocks are only partially paid for and there is a panic here and my advice would be to sell these stocks out; ’ he again refused. Then I went to Isaac C. Marsh and spoke to him again and he did not want to sell them out.”

If there was any evidence in the record tending to show that Isaac C. Marsh was of tender years, or otherwise incompetent to act for himself in the management of the fund committed to his care, or if it appeared that he was under an undue and controlling influence exerted over him by his father, a different question would be presented. But the evidence discloses that he was a man of mature years; that he had previously dealt in stocks, himself, and there is no ground for concluding that he was not capable of exercising judgment in the management and investment of this fund. . The fact that he had been selected as the one of the three jointly interested and by them chosen to have the care and custody of the fund, would indicate their confidence in his capacity. Upon this state of facts no relief should be awarded to either Charles Y. or the estate of Isaac as against the other for the purpose of permitting either to escape sharing the loss sustained through their joint action.

But a different question is presented in the claim of appellant for an accounting and contribution from Charles Y. because of the payment by the estate of Isaac of the full amount of the loss sustained bv Mrs. Doty. .

Although Isaac and Charles Y. were jointly the cause of the loss of the $40,000, yet it does not follow that the estate of Isaac, having been compelled, by order of the Probate Court, to make good to Mrs. Doty her share of the loss, may not in equity seek contribution from Charles V. We are of opinion that the authorities sustain the contention of appellant that such contribution may be enforced. 2 Perry on Trusts (4th Ed.), Secs. 848-819; Crocker v. Dillon, 133 Mass. 91.

It is unnecessary, in this connection, to consider the contentions of the learned counsel as to whether the writing of Mav 14, 1891, constituted Isaac C. Marsh a trustee, as contended by appellant, or a mere custodian of the fund, without power to invest or dispose of it except by direction of all parties to the agreement, as contended by appellee of Charles Y. Marsh. For in either event, as between the estate of Isaac and Charles V., the former would be entitled to relief by way of contribution.

It is contended by counsel for appellant that the judgment of the Probate Court of Cook County dismissing the petition of Charles V. Marsh for want of equity, is in effect an adjudication that the fund lost in speculation was lost through his fault and not through the joint fault of Charles Y. and Isaac. We do not regard this contention as sound.

On September 1, 1895, Charles Y. Marsh filed his petition in the Probate Court of Cook County, in re estate of Isaac C. Marsh, setting up the written agreement between him and his two children, and alleging that $50,000 of the $100,000 mentioned therein had been loaned and was represented by the Watriss note for $50,000; that that note had been in the hands of appellant as executor ever since the death of Isaac, and that it had collected one-half of the interest accruing on that note, and that it wrongfully refused to pay him his one-third of that interest, the proceeds of his dower as provided in the agreement, and also that the petitioner was entitled to one-third of any proceeds of the Strawboard stock, also held by appellant, which had been purchased bjr money, a part of the $100,000 mentioned in the agreement, in which he had dower, and praying "for an order of the Probate Court on appellant, as executor, to pay over to him the proceeds of his dower right in the note and stock collected.

Appellant answered the petition, admitting possession of the note and stock and collection of interest and praying a set-off against Marsh’s petition, because of the loss of money by him, as set up in the bill of complaint in this case.

On April 16, 1897, appellant filed in the Probate Court its cross-petition, setting up the grounds for relief substantially as set out in the bill of complaint here, and as set up by its answer to Charles Y. Marsh’s petition. By this cross-petition appellant prayed “ that an order be entered denyingthe petition of said Charles Y. Marsh for want of equity, and finding and lfolding and adjudging that the said Charles Y. Marsh is the person primarily liable for the losses aforesaid, and that the undersigned is entitled to the rights of recoupment and subrogation, etc., and giving the undersigned such other and further relief in the premises as to the court may seem meet.”

On June 8, 1897, the Probate Court entered an order as follows:

“This day came Charles Y. Marsh and also came The Nor them Trust Company, executor of the last will and testament of Isaac Clarence Marsh, deceased, by their respective attorneys; and this cause coming on to be heard upon the further hearing of the petition of one Charles Y. Marsh, the cross-petition of said executor, and the demurrer of Charles Y. Marsh thereto, on hearing had, it is ordered by the court that the original petition of said Charles Y. Marsh be and the same is hereby dismissed for want of equity. And on motion of said executor it is ordered that it have leave to withdraw its cross-petition heretofore filed herein. And leave is given to Charles V. Marsh to withdraw his demurrer heretofore filed herein. And the rule heretofore entered herein on Charles Y. Marsh and Carrie Louise Doty to answer the cross-petition of said executor is discharged.”

These various proceedings were ' not had upon a claim filed in the Probate Court as a claim against the estate of the deceased, but upon the original petition, which sought to have certain moneys, collected by the appellant upon property owned jointly by the estate and petitioner and another, turned over in part to the petitioner. And in the same proceeding relief was sought by appellant, through its cross-petition, of very much the same nature as the relief now sought through a court of equity. No order appears in the Probate Court allowing or disallowing a claim of Charles Y. Marsh against the estate. If the prayer of the petition could have been granted by the court the order would not have been one allowing a claim against the estate, to be paid as of any class in due course of administration, but an order to turn over to the petitioner certain property held by the appellant, not as property of the decedent, but as property of the petitioner.

The order is, in effect, that this prayer for relief be denied and the petition be dismissed. Upon the cross-petition no order whatever is entered, for it was withdrawn.

LTo question is now presented as to the right of Carrie Louise Doty to be indemnified from loss by reason of the mismanagement of the $40,000. The only question presented in the case now under consideration is as to the right of the executor to be indemnified to the extent of the interest of the estate of Isaac C. Marsh. As to this question we can not regard the judgment of the .Probate Court in dismissing the petition of Charles Y. Marsh as constituting res acljudieata. In this behalf it is not necessary to determine whether the agreement of May 14, 1891, created a trust within the meaning of the sixth division of section 70, chapter 3, Eevised Statutes, in relation to the administration of estates. If this agreement could be treated as creating a trust within the meaning of that provision of the statute, yet, as a matter of fact, the proceedings and adjudication of the Probate Court are not had upon a claim of Charles Y. Marsh under this provision. If the Probate Court could have entertained jurisdiction to adjust all the equities between these three persons, growing out of their agreement of May 14, 1891, and the loss of $40,000, upon a claim filed against the estate by which it was sought to have the funds held by the executor declared a trust fund, within the act regulating administration of estates, yet no such claim appears to have been filed, and hence no such ground for jurisdiction arose. There is no doubt but that the Probate Court has certain limited equity jurisdiction in connection with matters which are by statute within its defined jurisdiction; but it is equally certain that it has not general chancery jurisdiction. We are of opinion, therefore, that the judgment of the Probate Court dismissing the petition of Charles Y. Marsh can not be treated as a previous adjudication by a court of competent jurisdiction to the effect that the estate of Isaac C. Marsh is in equity entitled to be indemnified by Charles Y. Marsh for the entire amount of the loss of the $40,000 in question.

It is contended by counsel for appellees that the right of the appellant against Charles Y. Marsh, if it has any, may be asserted at law, and hence that the bill was properly dismissed. But the bill alleges that Charles Y. Marsh is insolvent, and it appears from the allegations of the bill that there will be due to Charles Y. from time to time amounts accruing as income upon the Watriss note, and perhaps as well, future earnings of the Strawboard stock.

It also appears from'the allegations of the bill that appellant has been compelled by judgment of the Probate Court to pay to Mrs. Doty the full amount of a liability for which appellant and Charles Y. Marsh were jointly answerable.

We are of opinion that this state of facts affords good ground for the intervention of a court of equity. It can not be doubted but that a court of equity has jurisdiction to order an accounting to the end that contribution may be enforced in a case where the complainant is entitled to contribution. If the Probate Court might dispose of the interest of Charles Y. in the Watriss note and the Strawboard stock, by offsetting it against the claims of the estate for contribution, yet that would not preclude the jurisdiction of a court of equity to adjust these equities, and to that end to take an accounting. The limited equity jurisdiction of the Probate Court does not divest the court of general chancery jurisdiction of its jurisdiction in the same matters.

The Probate Court has exercised jurisdiction only as yet to the extent of denying Charles Y. Marsh’s petition for an order to turn over to him certain moneys held by the executor.

Upon an accounting in this cause equitable adjustment may be had under appropriate allegations, if such are added to the bill of complaint, in relation to sums received back by Charles Y. Marsh from the stock brokers, if any sums were by him received, out of the $40,000 invested in stock operations, and as well in relation to the amounts which may become due to him' upon the Watriss note and the Strawboard stock, which should in equity be applied to contribute his half of the sum recovered by Mrs. Doty against the estate of Isaac because of the loss of the $40,000. So far as Mrs. Doty is concerned, no share of the loss thus incurred through her father and brother, is in equity to be imposed upon her. Nor should she be compelled to pay to appellant, or allow it credit for, any sum heretofore received by her as her share of the income of the Watriss note or the Strawboard stock. The fact that she received such sums subject to a right in them of Charles V., and has settled with him therefor, does not, in our opinion, warrant relief as against her. She owns the one-half of the note and the eighty shares of Strawboard stock, subject to a right of Charles V. in the same. This bill seeks by a sort of equitable garnishment to reach that interest of Charles Y. in Mrs. Doty’s income, and subject it to the right of appellant to a contribution from Charles Y. But so far as appears, the right of Charles Y. in the one-half of the Watriss note and Strawboard stock held by the estate will be ample to satisfy such claim to contribution. Therefore there is no reason why Mrs. Doty should be kept an unwilling and unnecessary party to this litigation. No right to relief as against her appears.

In so far as the decree of the Circuit Court has dismissed the bill of complaint as to Carrie Louise Doty, it is affirmed, and in so far as it has dismissed the bill as to Charles Y. Marsh, it is reversed and the cause is remanded. Affirmed in part and reversed in part, and remanded.


author: Mr. Presiding Justice Windes

text:
    White-Kingsland Manufacturing Co., use of, etc., v. Frederick H. Herdrich.
    1. Practice — When a Case is to be Submitted to the Jury. — It is not the province of the trial judge to weigh conflicting evidence in the first instance, but to submit it to the jury; and if its verdict is not supported by a preponderance of the testimony, his duty is to award a new trial.
    2. Instructions — When They May be Oral. — The mere direction as to the manner in which the jury should proceed, though oral, is not erroneous. Under the statute (R. S., Chap. 110, Sec. 53), it is necessary only that instructions upon the law o£ the case should be in writing.
    Garnishment. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 23, 1901.
    James Harvey Hooper, attorney for appellant.
    Anton W. Soiiroeter, attorney for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The Carqueville Lithographing Co. obtained a judgment against the White-Kingsland Mfg. Co., April 11, 1899, before a justice of the peace, on which execution was issued and returned nulla bona, when the former company began garnishment for its use in the name of the latter conq.any against appellee before a justice of the peace, and obtained judgment, which was appealed to the Circuit Court, where a trial resulted in the court’s directing the jury, at the close of all the evidence, to find the issues for appellee, which was done, and a judgment rendered accordingly. Prom that judgment this appeal was taken.

The evidence shows, and it is conceded by appellee’s counsel, that appellee became the owner of two shares of stock of the par value of $100 each in the White-Kingsland Mfg. Co., a corporation of Illinois, and this suit is to recover from appellee the unpaid price of the stock owned by appellee, it being claimed that he never paid for it. That is the principal question in the case.

The witness Hooper testified, in substance, that on January 12, 1899, he had a conversation with appellee, in which the latter said that he had never paid for his two shares of stock in the White-Kingsland Mfg. Co., which Mr. O. D. White, the secretary of the company, had coaxed him to take; that White owed appellee two notes for money that he, White, had borrowed of appellee in 1893 to live on, while he, White, was getting the company in going order.

Appellee in substance testified that he had paid for his stock by two checks, which were produced and offered in evidence, each check being for the sura of $100, payable to the order of O. D. White, by him indorsed in blank and marked paid; one dated January 20, 1893, and the other dated February 25, 1893. On cross-examination he testified, first, that he had two notes which Mr. White gave for those checks, and later testified that the notes were given in payment of the stock; that the checks were given to pay for the stock, and that shortly after the second payment on the stock he sold the stock to White, and that White gave him the two notes in' question for the stock. The notes were produced and offered in evidence, and are of the same amounts as the checks and bear the same dates. Appellee testified that they were dated back so as to draw interest from the date the checks were given, when it appears that White received the money on them.

We think, in view of this evidence, which is squarely conflicting as to whether the appellee’s stock was paid for, a question of fact is presented which should have been submitted to the jury. Even if it could be said that the appellant failed to make out a case by a preponderance of the evidence, or that the preponderance of the evidence is with the appellee, still the evidence on behalf of the plaintiff, when taken alone, is clearly sufficient to justify^ a verdict for the appellant. It is not the province of the trial court to weigh conflicting evidence in the first instance, but it is its duty to submit it to the jury, and if the jury’s verdict is not supported by a preponderance of the evidence, then to award a new trial. Frazer v. Howe, 106 Ill. 563-74; R. R. Co. v. Shiplett, 85 Ill. App. 683-5; Barnes v. Western Wheel Works, 84 Ill. App. 646-53, and cases cited; Linnertz v. Dorway, 175 Ill. 508-13; Offutt v. Columbian Exp., 175 Ill. 472-9; Westville Coal Co. v. Schwartz, 177 Ill. 272-7; I. C. R. R. Co. v. Griffin, 184 Ill. 9-12.

In the Linnertz case, supra, the court say, after stating-that plaintiff in error presented testimony tending to show that the defendant in error was in possession of the premises sought to be recovered by ejectment:

“ It was not necessary, in order to entitle the plaintiff in error to have that issue presented to.and decided by the jury, that the court should have been of the opinion the preponderance of the evidence supported his contention, for that would be to deprive him of his constitutional right to have his cause determined by a jury. Unless the court can say there is no evidence upon which the jury could, in the eye of the law, reasonably find for the plaintiff, the issue must be determined by a jury.”

In the Westvjlle Coal Co. case, supra, the court in speaking on this subject, say :

“ The argument, that the jury were not justified in crediting his (plaintiff’s) statement, because he was not corroborated but was contradicted by three witnesses, two of whom were examined on the subject in his own behalf, does not present the question of a want of evidence on the part of plaintiff, but rather that there was a clear preponderance on the other side. * * * If a verdict is against a clear weight of the evidence, it is the duty of the trial court to grant a new trial, and the Appellate Court may for a like reason reverse the judgment and award a new trial.”

It is claimed by appellant that the court erred in orally directing the jury “to find the issues for the defendant.” We think not. In Ill. Central R. R. Co. v. Wheeler, 140. Ill. 525, it xvas held that a “ mere direction to the jury as to the manner in which they should proceed,” though oral, is not erroneous under the statute (Ch. 110, Sec. 52); it is necessary only that “an instruction upon the law of the case” should be in writing.

For the error in not submitting the cause to the jury, the judgment is reversed and the cause remanded.


author: Mr. Justice Adams

text:
    William W. Boone v. Patrick H. A’Hern.
    1. Limitations — Sufficiency of a Promise to Bar the Statute. — A promise to pay when the promisor is able, or on a named contingency, is a conditional promise and there can be no recovery without proof that the condition has been fulfilled or that the contingency has happened.

      3. Practice — On Appeals from Justices of the Peace — Waiver.—On an appeal from a justice of the peace, where both parties on the call of the case on the regular call of the docket announce themselves ready for trial and proceed to try the case on its merits, all irregularities in perfecting the appeal and entry of appearance are waived.
    Assumpsit, on an open account. Appeal from the County Court of Cook County; the Hon. John Batten, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 23, 1901.
    Feed H. Atwood, Frank B. Pease and Chas. 0. Lodges, attorneys for appellant.
    James Jat Sheridan, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

' This is an appeal from a judgment of the County Court, rendered in that court on appeal from a justice of the peace. Appellant sued the appellee for a balance of $133.75, which he claimed to be due him from appellee for the hire from him of horses by appellee.

The evidence tends to prove that appellee owed appellant the said balance. The indebtedness accrued due about the last of November, 1891. Appellee made certain small payments on the original bill, the last payment being December 12, 1894. The defendant relied on the statute of limitations, which limits the bringing of such action as the present to a period within five years from the time when the right of action accrued. That the action was not commenced within five years from December 12, 1894, when the last payment was made by appellee, is not disputed. But appellant claims that promises to pay the balance claimed by appellant were made by appellee, and relies on such promises to take the case out of the statute.

Appellant, in his examination in chief, was interrogated and answered as follows:

Q. “ After 1894, did you see Mr. A’Hern ? ” A. “ I did; every time I had a chance to go - north to see him, and in 1898 particularly, because I had been out of work, at that time, a long time, and we didn’t have any money in the house, and I went to him then, in January, 1898, particularly, and asked him for money.”
Q. “ What did he tell you ? ” A. “ He said he didn’t have any, and he called his wife over to him, and she said she didn’t have any, and he said they were hard up, and that if he did have the money he would pay the bill.”
Q. “ Did you, at that time, present him a bill ? ” A. “ Yes, sir, not only at that time but in all the years through from 1894 to 1898, including 1898.”
On cross-examination the following questions were asked appellant and answers given:
Q. “Mr. Boone, you said in your direct testimony that Mr. A’Hern said he would pay if he had the money ? ” A. “ Yes, sir, he did.”
Q. “ Was there anything more to the conversation than that ?” A. “Yes, sir, he said that he would pay as soon as he got the money.”
Q. “ What did he say to you, in short, about this account ? ” A. “ That was all; that he didn’t have the money, and that when he got it he would pay me.”

The court held that the evidence was insufficient to remove the bar of the statute, and instructed the jury to find for the defendant.

In Mellick v. De Seelhorst, Breese, 221, the court say:

“An unqualified promise to pay the debt has, by all the decisions, been held sufficient to take the case out of the statute. When the promise to pay is accompanied with a qualification, or upon a contingency, the court are of opinion that the proof rests upon the plaintiff to do away with the qualification, or show that the contingency has happened.”

In Kimmel v. Schwartz, lb. 278, the court say:

“ The promise to pay must be absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.”

In Keener v. Crull, 19 Ill. 189, a witness testified that a testator whose estate was sought to' be charged, said “that he had agreed to give his daughter (one of the plaintiffs) two hundred dollars per year for her work, and he had not paid her yet, and she had gone to Ohio.” Of this language the court say:

“The amount of the debt was not named, or in any manner indicated, nor was there any language unequivocally importing a present intention or undertaking to pay.”

The court in the last case announces this rule:

“ The new promise may arise out of such facts as identify the debt, the subject of the promise, with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it, at the time acted upon and acceded to by the creditor or promisee,” citing numerous cases.

In Carroll v. Forsyth, 69 Ill. 127, this language is used:

“ The law, as recognized by this court, is, that to remove the bar of the statute of limitations it. is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay; it must be of such a character as to clearly show a recognition of the debt, and an intention to pay it. Parsons v. Northern Illinois Coal and Iron Co., 38 Ill. 433; Ayers v. Richards, 12 Id. 148; Norton v. Colby, 52 Id. 199.”

The court, in the same case, quote with approval the following from Bell v. Morrison, 1 Peters, 362:

“If there be accompanying circumstances which repel the nfesumption of a promise or intention to pay, if the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways, we think they ought not to go to the jury as evidence of a new promise to revive the cause of action.”

See also, Wachter v. Albee, 80 Ill. 47, in which case the court say:

“When, however, a party permits a debt to run, making no effort to collect it until the statute of limitations can be pleaded in bar of the action, he is in no position to call upon the court to aid him upon slight proof; on the contrary, the evidence ought to be clear and satisfactory, to overcome the bar of the statute.”

In Tanner v. Smart, 6 Barn. & Cress. 603, the promise was: “1 can not pay the debt at present, but I will pay it as soon as I can.” Held, that the promise was conditional and did not take the case out of the statute without proof of ability to pay.

In Bethell v. Bethell, 34 Chan. Div. 561 (1887), the deceased, whose estate was sought to be charged, wrote to the claimant: “I have been bundled off to the Cape fora year, on the shortest notice, by an infuriated parent. Will you make out your account and send it to me, addressed Postoffice, Durian, Natal. I will send it to you as soon as possible. Send your account next week. Mail every Thursday.” In another letter, written after receiving tlie account, he wrote: “I will send you a check as soon as I can.” In still another letter he wrote : I will send you some coin home as soon as ever I can.” Held, that there Avas only a conditional promise, and there being no proof of ability to pay, the claim could not be alloAved. To the same effect are Davies v. Smith, 4 Espinasse, 36; Scales v. Jacob, 3 Bing. 638; and Ayton v. Bolt, 4 Bing. 105.

The folloAving American authorities support the proposition that a promise to pay when the promisor is able, or on a named contingency, is a conditional promise and there can be no recovery without proof that the condition has been fulfilled or the contingency happened. Richardson v. Bricker, 7 Col. 58; Hanson v. Towle, 19 Kan. 273; Mattocks v. Chadwick, 71 Me. 313; Bidwell v. Rogers, 10 Allen, 438; Tompkins v. Brown, 1 Davis, 247; LaForge v. Jayne, 9 Penn. St. 410; Parsons v. N. Ill. C. & I. Co., 38 Ill. 430, 434; Norton v. Colby, 52 lb. 198, 202; Mullett v. Shrumph, 27 lb. 107; Mellick v. De Seelhurst, Breese, 221.

Tested by the authorities cited, appellee’s statements, as testified to by appellant, can not, at the utmost, be otherAvise regarded than a conditional promise to pay money.

“ He said he didn’t have the money * * * and he said he was hard up, and that if he bad the money he would pay the bill. He said that he would pay as soon as he got the money.”

There is no proof that he ever got the money or was able to pay. In the interviews between appellant and appellee no amount was mentioned. Appellant testified that he merely asked appellee for money. He says he presented him with an account, but the amount presented is not in evidence; what balance it showed, if any, or whether appellee examined it, does not appear. Appellant produced and put in evidence a book showing an account against appellee, which he testified he found the Sunday next preceding the trial, but there is no evidence that the account. O ' which he says he presented to appellee, was a copy of the account in the book. We do not think there was a sufficient identification of the debt claimed.

In Norton v. Colby, 52 Ill. 192, 202, the court say :

“ In Keener v. Crull, 19 Ill. 193, this court speaks of the identification of the debt as the first condition of a new promise. On this point, see also Burr v. Burr, 26 Penn. (2 Casey), 284, and Moore v. Bank of Columbia, 6 Pet. 86.”

The cases cited by the court fully support the view expressed.

Appellant’s counsel rely mainly on Horner v. Starkey, 27 Ill. 13, and Sennott v. Horner, 30 lb. 429. In both these cases the court held that a promise to pay when the promisor could make a raise, was not a conditional promise. Ho authorities are cited in support of the holding in either of the opinions, and we are of opinion that the decisions are not in harmony with later decisions of the Supreme Court, nor with the great weight of authority.

The appeal from the justice in this case was taken by ■ appellee by filing his appeal .bond with the clerk of the County Court April 17,1900; no summons was served on Boone, the appellant, but January 23, 1901, an appearance was entered for Boone. The same day the cause was called for trial, when the plaintiff, appellant here, moved for a continuance, on the ground that his appearance had not been entered ten days before the first day of the term, which motion was overruled, and this is assigned as error. In support of f this assignment, counsel for appellant rely on sections 65, 67 and 68 of the act concerning justices of the peace, etc., in force July 1, 1872, 2 S. & C. Stat. 1896, pp. 2475-6, and on the opinion in Camp v. Hogan, 73 Ill. 228. In 1895, an act was passed, entitled “ An act to revise the law in relation to justices of the peace and constables,” which took effect July 1,1895. (Ib., p. 2405.) Sections 67 and 68 of the act of 1872 are omitted from the act of 1895, and as the latter act purports to be a revision of the entire subject-matter of the former, at least in so far as it relates to appeals from justices, the writer is of opinion that sections 67 and 68 are repealed by the later act. Waiving this question, however, and on the hypothesis that sections 67 and 68 of the earlier act are in force, appellant is not in a position to take advantage of them. It appears from the record proper that, December 15,1900, the cause was re-instated in the record, and placed at the foot of the trial calendar; and it appears from the bill of exceptions that such re-instatement of the cause was made on motion of appellant’s attorney. It also appears from the bill of exceptions, that appellant’s attorney, after moving for a continuance, announced to the court, “ We are ready for trial, if your honor please,” and then proceeded to try the case on the merits, and examined witnesses on behalf of appellant. Both parties consented to the trial, the court had jurisdiction of the persons of both parties, and of the subject-matter, and appellant’s motion was waived by his consenting to and proceeding with the trial. Wasson v. Cone, 86 Ill. 46; Belford v. Beatty, 145 lb. 414.

Camp v. Hogan, supra, does not support appellant’s contention. In that case there was no trial; the appeal was dismissed on motion. The court did not err, as contended by appellant’s counsel, in taking the case from the jury. It was a question of law for the court, whether the alleged promise of appellee was, or not, conditional, and the court was, as we think, warranted in holding that it was conditional; and, even on the hypothesis that there could be a .recovery on the alleged promise, appellant failed to produce any evidence tending to prove performance or fulfillment of the condition, which is an element essential to recovery.

The judgment will be affirmed.


author: Mr. Justice Sears

text:
    Daniel Regan v. Sargent Company.
    1. Proximate Cause — A Question for the Determination of the Jury. —Where the evidence in a suit for personal injuries tends to establish the fact that the injury of the plaintiff was caused by a set-screw projecting from the collar of a shaft at a place where it did not belong, it was a question for the determination of the jury, whether, from these facts, negligence of the defendant was tobe considered as the proximate cause of the injury.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 23, 1901.
    Statement. — This suit was brought by appellant to recover damages sustained, it is alleged, through negligence of appellee. There ivas evidence presented upon the trial tending to establish the following facts :
    Appellee owned and was operating an 'iron foundry in Chicago. Appellant was for about three weeks prior to the injury in the employ of appellee as an ordinary laborer, doing various kinds of odd jobs about the works of appellee, under the direction of appellee’s foreman. The first-week he was there he helped put in the pillars for a crane. He next dug a trench around the engine. The next work he did was to assist in putting up what was called a counter-shaft. This latter work was only begun on the morning of the accident, and the plaintiff was injured between seven and eight o’clock in the morning. The shafting referred to was intended to be suspended from certain girders or joists by certain iron hangers, which hangers were about three feet long, so that the shafting when in place would be about twenty-five feet above the ground or floor of the large building. A scaffold had been erected by appellee, which was about twenty or twenty-five feet above the ground. At the time of the injury there was in use another shaft called the line or main shaft, which was likewise about twenty-five feet above the ground, and ran lengthwise of the building. The main shaft was already in place before and at the time of the accident, and the purpose of the shafting was to supply and distribute the power for the shop by means of belts. It was the intention to erect this counter-shaft upon a plane with and parallel to the line or main shaft, and at a distance from it of about eighteen feet.
    Hudson, the master mechanic of the appellee, had charge of the work and was superintending it, and gave all orders to the laborers, including appellant, and directed what should be done, and how it should be done. Appellant had not been about or near the main shaft or upon or about the scaffold or the place where the counter-shaft was to be erected prior to the time of the injury. He had just gone upon the scaffold at the direction of Hudson, where the counter-shaft was to be erected, a few minutes before the injury. Hudson was upon this scaffold and the main shaft was eighteen feet away and about upon a level plane with where they were standing. It was necessary to have the counter-shaft parallel with the main shaft, and in order to have it so, it was first necessary to take measurements from the main shaft to where the counter-shaft was to be located. For this purpose Hudson got a long pole, and holding one end, told appellant to take hold of the pole and go across by way of some planks or scaffolding to where the main shaft was, and directed appellant to hold the pole against the main shaft while Hudson stood opposite him, eighteen feet away, and held the other end of the pole and took the measurements. Upon receiving this order from his foreman, appellant proceeded to obey it, taking the pole and carrying it, or one end of it, along with him, while Hudson held the other end. The main shaft was at the time in rapid motion. The building was dark and it was a rainy, cloudy morning. Just as appellant got over to the main shaft and started to put the pole against the shaft as directed, his clothing became caught on a set-screw which projected from a collar on the main shaft, which collar, it appears, was out of its proper place some eight to twelve inches. Appellant was revolved around the shaft a numher of times, and his clothing, excepting the waistband of his pants and drawers, was stripped off and he was hurled into a pile of old iron below, a distance of eighteen feet, by means whereof he sustained severe injury.
    The narr. consists of three counts. ITe first count is based upon the duty of .appellee to use reasonable care to see that appellant was provided with a reasonably safe place in which to perform the order which he was directed to perform. The second count is based upon the duty of appellee to keep its machinery and appliances in reasonably safe condition, so that appellant could perform the labors required of him in safety, and it is alleged that the collar was permitted to become and remain out of its proper and customary place upon the shaft, which rendered the place where plaintiff was required to go unsafe, etc. .The third, count is based upon the duty of defendant not to order appellant to perform work in a dangerous place, without warning appellant of the dangers which were unknown to him, etc. The plea of general issue was filed to the declaration by the appellee.
    At the close of appellant’s case the trial court directed a verdict for the defendant.
    From judgment upon the verdict this appeal is prosecuted.
    Francis T. Murphí and Thaddeus S. Allee, attorneys for appellant.
    Ambricos B. Melville and Frank J. Canty, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

The only question presented upon this appeal is as to the propriety of the order peremptorily directing the jury to return a verdict for the appellee. We are of opinion that the evidence so far tended to establish the right of action of appellant, as set up in his declaration, as to warrant the submission of it to the jury, and that it was error to direct a verdict for appellee. The jury would have been warranted in finding from the evidence that appellant was working under the immediate control and direction of a vice-principal of appellee. That in approaching the revolving main shaft and attempting to hold the measuring rod to it, he was obeying the command of appellee. That in so doing he was brought into peril by reason of the fact that a collar upon the revolving shaft, from which a set-screw projected, was out of place. The evidence tended very strongly to establish that this collar was from eight to twelve inches out of its proper place. It should have been up against the box which was about the hanger into which the shaft ran and by which the shaft was supported. The collar was to prevent the shaft from sliding further into the hanger. Its place was necessarily against the hanger box. From this collar a set-screw projected either three-fourths of an inch, as testified to by one witness, or one and one-half inches, as testified to by another. In either case it presented a danger to one approaching too closely to the revolving shaft. The jury would have been warranted in finding that appellant approached close to this revolving shaft by express direction of his employer. There is no evidence that appellant was aware of the misplaced collar with its projecting set-screw. When the employer spe-' cifically directs the employe to perform a certain work, a very different duty of inspection as to dangers rests upon him from that which rests upon the employe thus directed. Wood on Master and Servant, Sec. 336; Union Show Case Co. v. Blindauer, 75 Ill. App. 358.

The evidence tended to establish the fact that it was through the danger caused by the set-screw projecting from the collar at a place upon the shaft where it did not belong that appellant was injured. It was for the jury to determine whether from these facts, negligence of appellee was to be considered as the proximate cause of appellant’s injury. It can not be said that the minds of intelligent and reasonable persons would of necessity agree in a conclusion that there was not such negligence.

The judgment is reversed and the cause is remanded.


author: Hr. Presiding Justice Windes

text:
    Jennie P. Mullin v. K. Johnson.
    1. Appellate Court — Not Precluded, When. — The fact that no propositions are presented to the trial court to be held as the law of the case, while it may be assumed that all questions of law were correctly decided, ' does not preclude the Appellate Court from considering whether the^evidence is sufficient to sustain the judgment.
    2. Appellate Court Practice — Under What Assignments of Error the Sufficiency of the Evidence to Support the Judgment May be Reviewed.— When an exception is taken and preserved to the entry of a judgment, under an assignment of error, that the court erred in rendering the judgment, the sufficiency of the evidence to support such judgment may properly be reviewed.
    3. Bills op Exception— What is a Sufficient Showing that They Contain All the Evidence. — Where a bill of exceptions shows that upon the day of the trial “ the following evidence was taken and proceedings had in the cause,” followed by a statement of testimony taken and proceedings had, after which it appeared that “Thereupon the plaintiff rested. Thereupon the defendant rested,” and was followed by the finding of the court and rendition of judgment, held, to sufficiently show that it contained all evidence given on the trial in the court below.
    4. Evidence — Admissibility of Instruments Without Revenue Stamps. —The act of Congress requiring certain instruments to be stamped in accordance therewith, is without effect so far as concerns their admissibility as evidence in the courts of this State.
    5. Presumptions — Where the Tiial is Without a Jury. — When a trial is before the court without a jury it must be presumed that the court considered only competent evidence.
    Action on Appeal from a Justice of the Peace. — Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the March term, 1901.
    Beversed and remanded.
    Opinion filed December 23, 1901.
    Dunn & Ripple, attorneys for appellant.
    Frank Burke Draper, attorney for appellee.
   Hr. Presiding Justice Windes

delivered the opinion of the court.

Appellee began a suit before a justice of the peace against appellant and recovered judgment for $100, from which the latter appealed to the Superior Court, where a trial without a jury resulted in a finding for a like amount in appellee’s favor and judgment thereon, from which this appeal is taken.

Certain preliminary questions are raised by appellee:

1st. That no propositions of law were presented to the trial court to be held as law in the case, by reason of which, it is claimed, all questions of law were correctly decided by the court. This may be assumed to be true, but we are not thereby precluded from considering whether the evidence is sufficient to sustain the judgment. Cross v. Campbell, 89 Ill. App. 489; State Bank v. Boyesen, 87 Ill. App. 539; Smith v. Dauel, 29 Ill. App. 293; First Nat’1 Bank v. Daville Brick & T. Works, 91 Ill. App. 116.

2d. It is claimed that the first assignment of error, viz., “the court erred in rendering judgment for the appellee herein, the plaintiff below,” does not question the sufficiency of the evidence to support the judgment. We think otherwise. An exception was preserved to the entry of the judgment, and this assignment of error questions the holding of the court in that regard. Jones v. Buffum, 50 Ill. 278; Sands v. Kagey, 150 Ill. 109-14; Force Mfg. Co. v. Horton, 74 Ill. 310; Village of Hyde Park v. Cornell, 4 Ill. App. 602; Brettiman v. Braun, 37 Ill. App. 17; Martin v. Foulke, 114 Ill. 206; Metcalf v. Fouts, 27 Ill. 114; I. C. R. R. Co. v. O’Keefe, 154 Ill. 511.

3d. It is said the bill of exceptions does not purport to contain all the evidence. We think the contention can not be sustained. In Harris v. Miner, 28 Ill. 135-8, the court in speaking on this question say :

“ It is immaterial whether that fact appears from an express averment to that effect in the bill of exceptions, or is manifested in any other way. All that the court requires is to be satisfied that it has before it all the testimony upon which the judgment is to be predicated.”

In Marine Bank v. Rushmore, 28 Ill. 463-70, the Harris case is re-affirmed, and it was held that a bill of exceptions was sufficient which, after reciting the evidence, stated that “the testimony here closed.” This the court held was equivalent to an express averment that the bill of exceptions contained all the evidence heard in the canse, and further said:

“ In practice, testimony is never considered closed until all the evidence is heard.”

In People v. Henckler, 137 Ill. 582, the rule above stated is re-affirmed, as are also the cases cited supra.

Here the bill of exceptions shows that upon the day of the trial “ the following evidence was taken and proceedings had ” in the cause. Then follows a statement of testimony taken and proceedings had in the cause, after which appears the following:

“ Thereupon the plaintiff rested. Thereupon the defendant rested.”

Then follows the finding and judgment of the court, exception thereto, prayer for appeal and certificate of the presiding judge. We think it apparent that the bill of exceptions contains all the evidence given on the trial below.

The action was brought upon the following instrument in writing, to wit:

“ Chicago, April, 1900.
This is to certify that Captain Johnson agrees to settle with Mrs. Jennie P. Mullin under the following conditions:
Mrs. Mullin agrees to pay this day (April 14th) $100 to Captain Johnson. On the 15th day of July she agrees to pay him $100 more, providing he has not obtained a position as captain on some vessel.,
[Signed] Jennie P. Mullin, Capt. K. Johnson.”

The evidence of the appellee himself shows that on the 8th or 9th day of May, 1900, he sailed the vessel “Bertha Barnes,” as its captain, and continued so to do up to the 10th of July following, when he was relieved by the owner, who desired to sail the vessel himself. During the fall of the same year, in November, he sailed another vessel for one month. Prom this evidence it seems to us clear that the contingency or condition prescribed in the above agreement, upon which appellant became liable to pay appellee $100, did not arise. Appellant, by the agreement, was to pay appellee §100 more, providing he has not obtained a position as captain on some vessel” by the 15th of July. He did obtain such a position and held it for more than two months before July 15th. We think this relieved appellant from any liability. The argument of: appellee that the contract means that he should obtain a position as captain of a vessel to command and sail for the season, is not justified by the wording of the agreement or any evidence in the case.

Appellant claims that the court erred in admitting in evidence the agreement above quoted, because it bore no revenue stamp, in accordance with the act of Congress. There was no error in this regard. In American Fruit Growers’ Union v. Standard Box Factory, opinion filed October 10, 1901, not reported, we held that the act of Congress requiring certain instruments to be stamped in accordance therewith, was without effect so far as concerns their admissibility in evidence in the courts of this State. See the cases there cited, as also the case of National M. A. Assn. v. Seed, 95 Ill. App. 43.

Other questions as to the admissibility of evidence are presented by the argument of appellant, which we deem it unnecessary to consider, since the trial was before the court without a jury, and it must be presumed that the court considered only competent evidence.

Because the evidence is, in our opinion, insufficient to sustain the j udgment, it is reversed and the cause remanded.


author: Mr. Justioe Adams

text:
    Edward B. Butler v. Augustus W. Nohe.
    1. Judgments — On Gambling Debts Can Not Be Revived by Scire Faeias. — A judgment at law obtained on a promissory note given in settlement and payment of money due or claimed upon a gambling contract contrary to the statute, can not be revived by a writ of scire facias.
    2. Same — Rendered on Gambling Debts, Void. — A judgment rendered in an action upon anote given in settlement of differences resulting from a gambling transaction within section 181 of the criminal code (Hurd’s R. S. 1899, p 590) is void and no execution can be lawfully issued thereon.

      Scire Facias, to revive a judgment. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus. Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 23, 1901.
    J. S. McClure and Alanson C. Noble, attorneys for appellant.
    Gf. Langhenry and O’Donnell & Brady, attorneys for appellee.
   Mr. Justioe Adams

delivered the opinion of the court.

May 24, 1900, appellant sued out of the Superior Court of Cook County a writ of scire facias, on a judgment recovered by him in said court October 19, 1888, against appellee. The writ is in the usual form, and commands appellee to show cause, if any he has, why said judgment should not be revived, and why execution thereon should not issue. June 5, 1900, appellee filed a document ivhich, in the commencement thereof, purports to be a motion, but which in the body and in its conclusion is a plea in abatement of the writ. A demurrer was sustained to this anomalous document, and the appellee was ruled to plead, which he did. Appellant demurred to the plea, the court overruled the demurrer, and, appellant electing to stand by his demurrer, rendered judgment for appellee on his plea. The plea is verified by appellee’s affidavit, and is as follows:

“ And for a further plea in this behalf the defendant says that the plaintiff ought not to have his aforesaid execution against him, the defendant, because he says that the said judgment mentioned in the said scire facias was given, granted and rendered upon four certain promissory notes, and each of them, which said four promissory notes upon which the said judgment in the said suit was given, and the consideration of the said notes and the judgment thereon hereby sought to be revived, were, and each of them was given, executed, drawn and entered into in settlement and payment of money claimed to be due from the defendant upon certain transactions, which said transactions were gambling contracts, and contrary to the statute and void, by which said contracts the said defendant took and gave to the payees of the said several promissory notes certain options to buy and sell at a future time, certain grain and other commodity, which this defendant did not intend to receive or deliver, and which' the said' payees of the said several promissory notes did not intend to receive or deliver, and that the said promissory notes were, and each of them was, so given by this affiant in payment of differences between the market price of such grain and other commodities on the day of settlement, and the price at which said options were, and each of them was, so taken and given, and that by and under the statutes in such case made and provided, each of the said promissory notes and the judgment aforesaid was, and is void, and of no effect; and this the defendant is ready to verify: Wherefore, he prays judgment if the plaintiff ought to have his aforesaid action against him, etc. G-. Langhenry.
O’Donnell & Brady,
Attorneys for Defendant.”

It must be assumed, for the purpose of passing on the sufficiency of the plea, that the material facts averred in it are truly averred, and the question to be determined is, whether these facts constitute a legally sufficient reason why the judgment should not be revived.

The criminal code contains the following sections:

“ Sec. 130. Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain, or other commodity, stock of any" railroad or otlier company, or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or attempts to do so in relation to any of such commodities, shall be fined not less than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts, and shall be void.
“Sec. 131. All promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, when the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by gaming, or playing at cards, dice, or any other game or games, or by betting on the side or hands of any person gaming, or by wager or bet upon any race, fight, pastime, Sport, lot, chance, casualty, election, or unknown or contingent event whatever, or for the re-imbursing or paying any money or property knowingly lent or advanced at the time and place of such play or bet, to any person or persons so gaming or betting, or that shall, during such play or betting. so play or bet, shall be void and of no effect.”
“ Sec. 135. All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts, deeds, securities, or conveyances, given, granted, drawn or executed, contrary to the provisions of this act, may be set aside and vacated by any court of equity, upon bill filed for that purpose, by the person so granting, giving, entering into, or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser, or other person interested therein; or if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given.”

A contract such as is mentioned in section 130, is expressly declared by the section to be a gambling contract and void, and the Supreme Court has applied the section in accordance with its plain terms, and has also held that a note, given in consideration of and as a result of such contract, is void. Tenney v. Foote, 95 Ill. 99; Pearce v. Foote, 113 lb. 228; see also Jamieson v. Wallace, 167 lb. 386, 396.

We think it clear that the transactions alleged in the plea to have occurred between appellant and appellee were gambling contracts, and within the prohibition of section 130; and that notes given for the settlement of differences resulting from such gambling contracts are within section 131, and void. Pearce v. Foote, supra.

Therefore it follows, as we- think, that the judgment alleged by the plea to have been given in payment of said differences might, under section 135, above quoted, have been set aside on due notice and proof of the facts alleged in appellee’s plea. Appellant’s counsel contends that relief against the judgment can only be had in equity, and, in support of this contention, cites Mallet v. Butcher, 41 Ill. 383, West v. Carter, 129 Ib. 249, and Jamieson v. Wallace, 167 lb. 388. These cases are authority that relief from such a judgment may be had in equity, but are no authority whatever for the proposition that relief may not be had at law, by motion. In Mallet v. Butcher and West v. Carter, supra, it was contended by counsel that the remedy was at law. In the former case, Breese, J., delivering the opinion of the court, says :

“ We hold, application may be made, in the spirit of this law, in the first instance, to a court of equity, and it would be absurd to say that such a court can not do, under the terms of this law, by bill regularly filed, what the court, on a mere motion, could do.”

The concluding language of section 135 is: “ Or, if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given.” Motion where? Clearly, in the court in which the judgment was rendered. A court of equity would not entertain such motion for a judgment for a moment, To hold the contention of appellant’s counsel sound, would be, practically, to nullify the provision of the statute giving a remedy by motion. The contention of appellant’s counsel, that appellee having had an opportunity to make the defense set up by the plea in the suit in which the judgment was rendered, is concluded by the judgment, is fully answered in Mallet v. Butcher, supra, the court saying, in respect to the statute:

“ This provision takes all such cases out of the general rule, that a defense must be made at law, if action is brought on the gaming contract.”

It is further contended that the only judgments which can be set aside on motion, are judgments confessed, or those entered by collusion, and not such as are adversary. This contention is answered in West v. Carter, 129 Ill. 253, the court saying:

“We should, perhaps, notice the contention of counsel for appellant, that sections 131 and 135 of the criminal code can have no application to judgments unless rendered by confession; that is, these sections of the statute, in their application to judgments, affect only such as result directly from the voluntary act of the defendant, and not adversary judgments. We are not prepared to so restrict the operation of the statute,” etc.

We think the contention that relief may be had, on motion of the judgment defendant, against a judgment enfcered by his confession or collusion, and not against a judgment rendered contrary to his will, illogical, if not absurd. The plea in question is riot a motion. Appellee is not the actor in the proceeding, but the reus or defendant. He is not the moving party. He is limited by the terms of the writ to showing cause, if any there be, why the judgment should not be revived; so that the question whether the judgment could be set aside on mere motion, under section 135 of the statute, is not directly presented. But appellant’s counsel, apparently recognizing that if on the facts stated in the plea the court could vacate and set aside the judgment on appellee’s motion the plea is a sufficient showing why the judgment should not be revived, contends that the judgment could not be so vacated or set aside.

In West v. Carter, supra, the court say :

“ When a judgment had been obtained at law, upon a promissory note given for money won at gaming, it was held, upon bill filed by the master, under section 135 of the act, that the judgment was void, and it was accordingly set aside. (Mallet v. Butcher et al., 41 Ill. 382.) It was there said: ‘ It was the intention of the legislature to make all judgments, like the contracts on which they are founded, absolutely void, of no vitality, and they can not be vitalised, by any court”

If, as is here said, such a judgment as that described can not be vitalized by any court, certainly no court can revive it or issue execution on it.

The contentions of appellant’s counsel — that the remedy against a judgment based on a gambling contract is solely in equity, that such a judgment can not be set aside on motion, and that the court is powerless to set aside such a judgment at a time subsequent to that at which it was rendered — are irrelevant, and not only so, but fallacious. The appellee was called upon, by the writ issued on appellant’s motion, to show cause why the judgment should not be revived, a.nd the facts averred in the plea constitute legally sufficient cause why it should not be revived.

The judgment will be affirmed.