text:
    The People, etc., on Complaint, etc., v. Isaac Strauss.
    1. Construction of Statutes — Ms to Offenses Committed Against a Former Law. — No law is tobe construed so as to repeal a former law, as to any offense committed against it, or as to any act done, penalty, forfeiture or punishment incurred, or right accrued or claim arising under it, or as to in any manner affect the same, except that legal proceedings thereafter shall conform so far as practicable to the laws in force at the time such proceedings are had. (R. S., Chap. 181, Sec. 4, Hurd’s Ed. 1899, p. 1650.)
    2. Same — Acts Relating to the Revenue. — The provisions of section fifty-six of the act of 1872 (R. S. 1874, p. 868) relating to making false schedules, so far as such provisions had been violated previous to the taking effect of the act of 1898, are enforceable under the provisions of section four of chapter 131 R. S. (Hurd’s Ed. 1899, p. 1650).
    3. Limitations — In Suits Prosecuted by the People. — Where the people in their sovereign capacity prosecute a suit, they occupy the same position as regards the statute of limitations as an individual citizen; the State must accept the same position on the same terms as the individual.
    4. Same — How the Statute is to be Pleaded. — When the declaration shows on its face that the time of the statute has run and at the same time discloses that the case is not within any of the exceptions of the statute when applied to the particular cause of action stated, the question of limitations may be raised by demurrer.
    5. Forms — Declaration in an Action on the Complaint of a County to Recover a Penalty for Giving a False Schedule (Revenue Act).

    State of Illinois, / In the Circuit Court, to the April term, A. D. County of Pike, j 1899.
    The People of the State of Illinois on complaint of the County 1 of Pike by its Board of Supervisors, {_ Isaac Strauss. j
    The People of the State of Illinois, on the complaint of the County of Pike, in said State, here made by its board of supervisors, by A. Clay Williams, State’s Attorney for said county, and William Mumford, attorneys for plaintiff, complain of the defendant, Isaac Strauss, that he render unto the plaintiff the sum of $2,000, debt.
    For that, whereas, heretofore, to wit, on and before the first day of May, A. D. 1898, and continuously thereafter, until, to wit, on and after the first day of July, A. D. 1898, in the town of Pittsfield, at the county aforesaid, he, the said defendant, and one Jacob Strauss, constituted and composed a firm and partnership, then and there doing' business under the firm name and style of Strauss & Bro., and were by that name then commonly known and called.
    And, whereas, during all said times, said firm and partnership did business and had its principal office and place of business at said town of Pittsfield, in said county.
    And, whereas, said firm and partnership did, on the first day of May, A. D. 1898, at the town of Pittsfield, aforesaid, own, have, possess and control large amounts and sums of credits, to wit, namely, the following described promissory notes, to wit:
    DATED. DUE. AMOUNT. EXECUTED BY. TO WHOM PAYABLE. Oct. 1, 1887. Oct. 1, 1889. $176.58. Challes E. Atwood. Dorcas Atwood. Strauss & Bro. Dec. 15,1888. Dec. 15,1893. $300.00. Henry Beard. Strauss & Bro. Mar. 29,1898. Mar. 29,1892. $500.00. Henry Troutner.
    * * * * * * * * #
    and certain other personal property, which were then and there and thereafter subject, and legally liable to be assessed and taxed in said town for said year, over and in excess of all legal deductions and statutory exemptions, on any and all accounts.
    And the plaintiff, on the complaint aforesaid, avers that it then and there and thereafter became and was the duty of said defendant, as a member of said firm and partnership, to make out and deliver to the assessor of said town-, for said year, upon being called on by the assessor for that purpose, a true and correct list and a schedule of the amounts of all of the said credits and other personal property owned, had, possessed and controlled by said firm and partnership, on the first day of May, A. D. 1898, and subject and legally liable to be assessed for the taxes of that year, over and in excess of all statutory exemptions from assessment and legal deductions. Plaintiffs aver that on, to wit, the first day of June, A. D. 1898, one James Carroll was then and there the acting assessor in and fpr said town, and that on said day said assessor did then and there call upon the defendant and did then and there require of him, as a member of said firm and partnership, that he make out a true and correct statement of the taxable property, according to the statute, of said firm and partnership.
    Yet, the plaintiff, on the complaint aforesaid, avers that said defendant did not, nor did any one for him, make out and deliver to the assessor such true and correct list and schedule of the amounts of said credits, and other personal property, owned, had, possessed and controlled by said firm and partnership on the first day of May, A. D. 1898, at said town, which were subject and legally liable to be assessed and taxed in said town, for said year, over and in excess of all legal deductions, and statutory exemptions, but on the contrary, said defendant did, to wit, on June first, A. D. 1898, at said town, make out under oath and deliver to the assessor a certain false and fraudulent list, schedule and statement, and none other, as and of the amounts of the credits and other personal property of said firm and partnership owned, had, possessed and controlled by said firm and partnership, on the first day of May, A. D. 1898, and subject and legally liable to be then assessed and taxed for said year, and as 'and of the credits and other personal property for the said year, over and in excess of all statutory exemptions, and legal deductions, in this, that said defendant, at the town aforesaid, on, to wit, June first, 1808, made and delivered to the assessor of such town, for said year, the said false and fraudulent list and schedule and statement wherein and whereby the said defendant falsely and fraudulently did list, schedule and state, that said firm and partnership did not on May 1, A.D. 1898, own, have, possess and control, at said town, subject and legally liable to be assessed and taxed in said town for said year, over and in excess of all statutory exemptions and legal deductions, any credits of any kind or character, other than bank, bankers’, etc., whereas, in truth and in fact, plaintiff, on the complaint aforesaid, avers and charges that on May first, A. D. 1898, at the town aforesaid, said firm and partnership did own, have, control and possess, subject and legally liable to be assessed and taxed in said town, for said year, over and in excess of all statutory exemptions and legal deductions, said credits other than bank, bankers', etc., in a large sum and amount, to wit, in the sum and amount and of the value of $100,000.
    Wherefore, the plaintiff, on the complaint aforesaid, avers and says that an action hath accrued to the plaintiff, by virtue of the statute in such case made and provided, to have and recover of and from the defendant, Isaac Strauss, the sum of $3,000; and therefore the plaintiff, on the complaint aforesaid, brings here its suit, etc.
    Debt, for a penalty. Appeal from the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    A. Clay Williams, State’s Attorney, and William Mdmrord, attorneys for appellant.
    Matthews & Grigsby, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

Action in debt by appellant, on complaint of the county board, against appellee, to recover the penalties provided by the fifty-sixth section of the revenue act of March 30, 1872, for giving a false schedule or statement required by the act, and for a failure and refusal to deliver to the assessor, when called on for that purpose, a list of the taxable personal property he was required to list under said act. The declaration contained fourteen counts, two for each of the years 1898, ’97, ’96, ’95, ’94, ’93 and ’90, one in each year for a false schedule, and one for a failure to give any schedule. A demurrer was interposed, both general and special, to the declaration, and the court sustained the demurrer, and the plaintiff abiding by the declaration, final judgment was given in bar of the action, to reverse which this appeal is brought, and the action of the court in so sustaining the demurrer, and giving such judgment, is assigned and argued to effect such reversal. .

In support of the judgment it is first insisted that the act of February, 1898, repealed section 56 of the act of 1872, under the provisions of which this suit is brought and prosecuted. We are of the opinion, however, that the provisions of section 4 of chapter 131, Revised Statutes, saves this prosecution, notwithstanding the act of 1898, repealing the .former provision in section 56, which provides that no law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceedings. The case of Mix v. I. C. R. R. Co., 116 Ill. 508, cited and relied upon by appellee, as prescribing a different rule, is not in point, for the reason that the repealing statute in that case contained the provision that it should govern all cases, whether occurring before or after such statute should take effect, and no act or part of act inconsistent with it, should in any way apply. Such provision, or anything similar to it, is absent from the repealing act of 1898. Therefore we conclude the provisions of section 56 of the act of 1872, so far as they had been violated previous to the taking effect of the act of 1898, are enforceable under the provisions of section 4 of chapter 131, before referred to.

It is contended on the part of appellee that all of the counts of the declaration before 1898 and 1897, are invalid because they are barred by the statute of limitations. Inasmuch as the court sustained the demurrer to the whole declaration this point does not necessarily come before us for decision, but it has been stipulated by both sides, in their argument, that the technicalities by which the point might properly be raised in this court, are waived, and it is agreed and requested by both parties, in view of other ■ pending suits in the trial court, that this question be submitted to this court for its decision, and under such stipulation we shall give the question our best consideration.

It is first argued by counsel for appellant that limitations do not run against the people in this case. Whatever may be the rule in other jurisdictions in respect to this question, we think in this State it depends upon the proper construction to be given to the legislation upon this subject. It is conceded that if the suit was in the name of a private person, that the two years limitation contained in section 14, chapter 83, Revised Statutes, would apply, which provides that actions for a statutory penalty shall be commenced within two years next after the cause of action accrued. But because this suit is in the name of the people, there is no limitation, it is said. It may be an open question whether the suit is necessarily in the name of the people, when the statute provides that it shall be in the name of the people, on complaint of any person. While the suit is on complaint of the County of Pike, a component part of the State government — and wejdo not deny its right in this respect — still that fact does not in any wise lessen the broad right of the statute for. any individual citizen to bring the suit upon his complaint, and in such a case it would hardly be contended the statute of limitations would not be a good defense. The statute being of a highly penal nature, it must be strictly construed, and we are disposed to hold that if the people, in their sovereign capacity, will prosecute the suit, they must occupy the position permitted to an individual citizen, and the State must therefore accept the position on the same terms as an individual person. Moreover, if it is insisted that the people in their sovereign capacity are alone prosecuting this suit, and we doubt if this position could be maintained, then the question arises whether or not section 4, division 4 of the criminal code does not apply, which provides that all prosecutions by indictment, or otherwise, for misdemeanors, or for any fine or forfeiture under any penal statute, shall be commenced within one year and six months from the time of committing the offense or incurring the fine or forfeiture except as otherwise provided by law, followed in the next section by the provision that the period the party was not usually or publicly resident within the. State shall not be included in the time of limitation. So' Ave conclude that any form of prosecution, or action, for a statutory penalty, Avhether by the State in its so\Tereign capacity, or by any lesser division of the State government, or by an individual person, is by the clear intent of the legislature, subject to the limitation provided by statute.

The next question is Avhether, in an action of this nature the statute of limitations may be raised by a demurrer, or Avhether it must be specially pleaded. The decisions in this State are not in entire harmony upon this subject. The general rule is that the statute must be pleaded, so that the plaintiff may reply that the caséis within the exceptions of the statute. Burnap v. Wight, 14 Ill. 303. Again in Gebhart v. Adams, 23 Ill. 397, it was said, it, the statute of limitations, can not, by demurrer to the declaration, be used as a defense. In an action on a penal statute, to make the statute of limitations a bar, it must be specially pleaded. Under the general issue, the lapse of time might be given in evidence to defeat the action, as well as under the plea of the statute. In equity practice the rule of pleading requires, when the time of the statute is shoAvn to have run, that it be further shoAvn that some of the exceptions of the statute apply, or that the apparent bar be otherwise excused. It has also more recently been held at law that where the petition or declaration disclosed the proper facts, the question of the statute of limitations may be interposed by demurrer. People ex rel. v. Boyd, 132 Ill. 60. The decision in Gebhart v. Adams, supra, it seems to us is plainly inconsistent with itself, wherein it says that the statute must be specially pleaded to make it a bar, or it might be given in evidence under the general issue. The reason of the rule, as given in Burnap \T. Wight, supra, so that plaintiff may reply that the case is within the exceptions of the statute, is logical, and no doubt this is the true rule, subject to such exceptions as have been pointed out in the later decision of People v. Boyd, supra; where the declaration discloses the proper facts, the statute may be taken advantage of upon demurrer. That is, if the declaration shoAvs on its face that the time of the statute has run, and at the same time discloses that the case is not within the exceptions of the statute when applied to the particular cause of action stated in the declaration, then the question may be raised by demurrer. In other words, where the facts in the declaration sufficiently show that the cause of action is barred b\r the statute, and that none of the exceptions in the statute take it out of the bar, then the reason for the rule is gone, and no reason is perceived why the question may not be raised upon demurrer. We have already given our opinion that the two years statute of limitations applies to an action for a statutory penalty, such as this. What are the exceptions ? There is no pretense of a new promise, for the action is not founded upon a promise. Absence of the defendant from the State is inconsistent with the whole theory of the declaration, as likewise is fraudulent concealment, in view of the particular description of credits alleged in the declaration to have been omitted from the schedules. Hence we conclude that the question of the statute of limitations might be raised upon demurrer to all the counts except those for the years 1897 and 1898.

The remaining question for our decision is as to the sufficiency of the first four counts of the declaration. We think the credits alleged to have been omitted from the schedules were sufficiently described and their values given. The demurrer admits this. The serious objection to the counts, and, as we understand, the one most strenuously urged, is that they do not aver that the defendant resided in the town of Pittsfield, where it is claimed the schedules were due.

Relative to the counts for a false schedule it is only necessary to say that by executing and delivering a schedule at all, the defendant thereby admitted that he was subject to assessment in the town of Pittsfield. The counts for a failure and refusal to deliver a- schedule aver that defendant and Jacob Strauss constituted and composed a firm and partnership, then and there in the town of Pittsfield, doing business under the firm name and style of Strauss & Pro., and were by that firm name then commonly called, and had its principal office and place of business in said town of Pittsfield. Section 13 of the revenue act provides that the personal property of banks or bankers, brokers, stock-jobbers, insurance companies, hotels, livery stables, saloons, eating houses, merchants and manufacturers, ferries, mining companies, and companies not specially provided for in this act, shall be listed and assessed in the county, town, city, village or district where their business is carried on, except such property as shall be liable to assessment elsewhere, in the hands of agents. While there is no averment in the declaration that Strauss & Bro. constituted a company within the meaning of the section to which we have just referred, nor is the nature of their business stated so as to bring it specifically within the description of that section, yet Strauss & Bro. is, by the declaration, designated as a firm and partnership, and we are justified in giving to such descriptive words their ordinary significance. “ Firm,” is defined by Webster as the name, title, or style under which a company transacts business; a partnership of two or more persons; a commercial house; and the same author defines partnership as an alliance or association of persons for the prosecution of an undertaking or a business on a joint account; a company; a firm; a house. So that it will be perceived that firm and partnership are synonymous with company, and the averment of the declaration brings the defendant strictly within the provisions of section 13 of the statute, to which we have alluded, and by that section the credits of Strauss & Bro. should have been listed in the town of Pittsfield, where their business was carried on. If any or all of it was liable elsewhere in the hands of agents, this was a matter within there own knowledge, to be availed of in defense. It therefore follows from what we have said that the Circuit Court erred in sustaining the demurrer to the first four counts of the declaration, and for this error the judgment will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


source: Caselaw Access Project

author: Me. Peesiding Justice Bubeoughs

license: Public Domain

text:
    City of Mattoon v. Mattoon Tile Co. et al.
    1. Mandamus — To Disconnect Territory — Form of the Petition. — The court in its opinion sets out the petition for the disconnection of the appellee’s lands from the city of Mattoon in this case, and holds it suffic ient, in substance, to warrant the court in overruling a general demurrer to it and awarding the writ as prayed for.
    Mandamus, to disconnect territory. Appeal from the City Court of the City of Mattoon; the Hon. James E. Hughes, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    John McNutt, Jr., and Anderson Stewart, attorneys for appellant.
    Andrews & Vause, attorneys for appellees.
    Statement. — On December 5,1900, appellees filed, in the . office of the clerk of the City Court of Mattoon, their petition for mandamus against appellant as follows:
    “ The petitioners, the Mattoon Tile Company, a corporation, Richard Heap, Harry Heap, James H. Clark, conservator for John F. Michaels, Margaret Cain and Elizabeth C. Mason, of the city of Mattoon, in said county and State, complaining, show that they are now and were on the 27th day of June, 1900, the owners of the following described real estate, within the city of Mattoon, to wit:
    Mattoon Tile Company.
    Beginning at a point where the east line of the right of way of the I. C. R. R. Co. crosses the south line of section 12, town 12, range 7 east, thence north to the half section line, thence east 5.30 chains, thence south 40.18 chains, to the south line of said Sec. 12, thence west on said section line to place of beginning, containing 54.12 acres, more or less.
    Harry Heap and Richard Heap.
    Beginning 5.30 chains east of a point where the east line of the I. C. R. R. right of way intersects the half section line in section 12, town 12, range 7, thence east on said one-half section line 11.20 chains, thence south 33.11 chains, thence west 7.07 chains, thence south 7.07 chains, thence west 4.13 chains on the section line, thence north 40.18 chains to place of beginning.
    James H. Clark, Conservator for John F. Michaels.
    Beginning at a point on the south line of Sec. 12, T. 12, It. 7, 23 chains and 37 links west of southeast corner of said section, thence westerly on said line 7.07 chains, thence north 7.07 chains, thence east 7.07 chains and thence south to place of beginning.
    Margaret Cain.
    Part of the S. W. J of the S. E. J, Sec. 12, T. 12, E. 7, beginning at a point 4 rods west of the S. W. corner of E. of S. E. -jr of said Sec. 12, thence west 10 rods, thence north 80 rods, thence east 10 rods, thence south 80 rods to place of beginning, containing 5 acres.
    Elizabeth C. Mason.
    The east 94 acres of the S. E. Sec. 12, T. 12, E. 7, excepting the parcels of land described herein as heretofore deeded to James Kitchin, William Schroeder and Margaret Cain, grantors of the said Elizabeth C. Mason.
    Your petitioners would further show that the heirs of William Schroeder, deceased, and James Kitchin, own the following described land within the said city of Mattoon and which is contiguous to the land aforesaid, and when taken with the land owned by your petitioners comprises all that part of the northeast corner of the corporate limits of the said city of Mattoon, lying east of Illinois Central Railroad.
    Estate of William Sohrceder.
    A strip of land 4 rods wide off the east side of the S. W. -J of the S. E. and a strip of land 6 rods wide off the west side of the S. E. J of the S. E. \ of Sec. 18, T. 12, E. 7.
    James Kitchin.
    A strip of land beginning at the S. E. Cor. of said Sec. 12, thence west on south line of said Sec. 12 to its intersection with west line of E. 12th St. in the city of Mattoon, thence north with extensions of said west line of said 12th St. 370 feet, thence east to east line of said Sec. .12, thence south to place of beginning.
    Your petitioners would "further show that they represent a majority of the area of the land in said territory aforesaid, within the said city of Mattoon, which said territory is upon the border and within the boundary thereof and not laid out in city lots or blocks.
    And your petitioners, so being a majority of the owners of said territory, filed with the said clerk of the city of Mattoon in said county and State, a petition, a copy of which is hereto attached and made a part of this petition, which said petition was addressed to the city council of said city and stated the facts which petitioners aver were true June 27, 1900, the date said petition was filed with said city clerk, and are still true, viz.: That petitioners were the sole owners of a majority of the area described herein, and that said territory was within the city limits of the city of Mattoon, upon the northeast corner of said city within the boundary thereof, and not laid out into city or field lots or blocks, and said petitioners in said last-mentioned petition asked said city council to disconnect said premises in said petition described, from the said city of Mattoon, pursuant to the act in relation to the disconnection of territory from the cities and villages, approved and in force May 29, 1879.
    •Petitioners further show to the court that said petition was verified by the affidavit of Emery Andrews and accompanied by the certificate of A. 0. Sellars, county clerk of said county, under the seal of his office, that on the 26th day of June, 1900, the date of said certificate, all city taxes and assessments on said premises due on said last named date were fully paid, and copies of the affidavit of Emery Andrews and of the certificate of said county clerk are also hereto attached and made a part of this petition.
    Petitioners further show to the court that the time for the next regular meeting of the said city council after filing the petition with the said city clerk was July 3, 1900, and that on said last named date, said city council did meet and transact business and voted to lay said petition on the table.
    Petitioners aver that it was the duty of said city council and of said city by its said council, at said meeting, to take steps to investigate the truth of the matters in said petition stated, and to grant the prayer of said petition and to pass an ordinance disconnecting said territory from said city.
    Petitioners further show that although said city council met July 3,1900, and many times thereafter, and transacted business, and could have passed an ordinance disconnecting said premises from said city, yet C. B. Fry, who is now and was July 3, 1900, mayor of said city, and F. E. Bell, W. W. Williams, Joe Gharrett, J. A. Brown, F. M. Beals, D. D. James, Earl Barker, O. B. Crawley, J. J. Beall, C. C. Robinson, R. Pence, William Morgan, James Morris and George DeWald, who are now aldermen of said city and members of said council, all of whom were aldermen as aforesaid on July 3, 1900, and the said city council of Mattoon, then and there wholly refused, and ever since then have neglected and refused to pass an ordinance disconnecting said premises from said city.
    By means whereof the said real estate of your petitioners and the said territory petitioned to be removed is wrongfully and unlawfully kept within and a part of said city, subject to its ordinances and liable to taxation for its proportionate part of the amounts appropriated and levied annually for the needs of said city by said city council.
    Wherefore petitioners pray a writ of mandamus, directed to said city of Mattoon and to the said C. B. Fry, mayor of the said city, and F. E. Bell, W. W. Williams, Joe Gharrett, J. A. Brown, F. M. Beals, D. D. James, Earl Barker, O. B. Crawley, J. J. Beall, C. C. Robinson, R. Pence, William Morgan, James Morris and George DeWald, commanding them and the said city of Mattoon, through its council, at the time fixed by the ordinance of the city of Mattoon for the next meeting of said council, after such writ issues, to hold a meeting of the council of said city and pass into immediate effect an ordinance of said city disconnecting said territory above described, from said city, and that such further order may be made in the premises as justice may require, etc.
    Mattoon Tile Company,
    Richard Heap,
    Harry Heap,
    Jas. H. Clark, Cons.,
    Margaret Cain,
    Elizabeth C. Mason.
    Andrews & Vause, Attorneys.
    State oe Illinois, ) Coles County. j
    Theo. Jonte, Sec’y of Mattoon Tile Co., one of the petitioners in the foregoing petition named, makes oath and says that the several matters and things in the said petition contained are true to the best of his knowledge and belief. Theo. Jonte.
    Subscribed and sworn. to before me this 5th day of December, 1900.
    Ralph H. Barehther, Rotary Public.”

      To that petition was attached appellees’ petition to the mayor and city council of appellant as follows:

      “ To the Honorable Mayor and City Council of Mattoon, in the County of Coles, and State of Illinois :
    Tour petitioners, Mattoon Tile Company, Bichard Heap, Harry Heap, James H. Clark, conservator of John E. Michaels, Margaret Cain and Elizabeth C. Mason, do respectfully represent that they are the owners of the following described territory within the city of Mattoon :
    Mattoon Tile Company.
    Beginning at a point where the east line of the right of way of the I. C. B. B. Co. crosses the south line of section 12, thence north to the half section line, thence east 5.30 chains, thence south 40.18 chains, to the south line of said section 12, thence west on said section line to place of beginning, containing 54.12 acres, more or less.
    Bichard Heap, Harry Heap and Heirs of John Heap.
    Beginning 5.30 chains east of a point where the east line of the I. C. B. B. right of way intersects the half section line in section 12, town 12, range 7, thence east on said half section line 11.20 chains, thence south 33.11 chains, thence west 7.07 chains, thence south 7.07 chains, thence west 4.13 chains on the section line, thence north 40.18 chains to place of'beginning.
    James H. Clark, Conservator for John F. Michaels.
    Beginning at a point on the south line of section 12, town 12, range 7, 23 chains and 37 links west of southeast corner of said section, thence westerly on said line 7.07 chains, thence north 7.07 chains, thence east 7.07 chains and thence south to place of beginning.
    Margaret Cain. .
    Part of the S. W. \ of S. E. ¿ Sec. 12, T. 12, B. 7, beginning at a point 4 rods west of the S. W. Cor. of E.-J- S. E. ¿ of said Sec. 12, thence west 10 rods, thence north 80 rods, thence east 10 rods, thence south 80 rods, to place of beginning, containing 5 acres.
    Elizabeth C. Mason.
    The east 94 acres of the S. E. E Sec. 12, T. 12, B. 7, excepting the parcels of land described herein as heretofore deeded to James Kitchin, William Schroeder and Margaret Cain, grantors by the said Elizabeth O. Mason.
    They further represent that the heirs of William Schroetier, deceased, and James Kitchin, own the following described land within the said city and which, taken with the land owned by your petitioners, comprises all that part of the northeast corner of the corporate limits of the said city, lying east of the Illinois Central Kailroad.
    Estate of William Sohroeder.
    A strip of land 4 rods wide off the east side of the S.W. ¿ of the S. E. \ and a strip of land 6 rods wide off the west side of the S. E. £ of the S. E. £, Sec. 18, T. 12, E. 7.
    James Kitchin.
    A strip of land beginning at the S. E. Cor. of said Sec. 12, thence west on south line of said Sec. 12, to its intersection with west line of E. 12th St., in the city of Mattoon, thence north with extension of said west line of said 12th St., 370 feet, thence east to the east line of said Sec. 12, thence south to the place of beginning.
    These petitioners further represent that they represent a majority of the area of the land in said territory within the said city of Mattoon, which said territory is upon the border and within the boundary thereof, and not laid out in city lots or blocks.
    They do therefore petition the city council of the city of Mattoon, praying the disconnection of such territory therefrom, and they do accompany this petition with a certificate of the county clerk showing that all city taxes and assessments due up to the time of presenting this petition are fully paid.
    These petitioners respectfully ask you all that upon presentation of this petition you proceed by ordinance, to be passed by a majority of the members elected to such city council, to disconnect the territory described in such petition, from the city of Mattoon.
    And this they will ever pray.
    Mattoon Tile Company,
    By Theo. Jonte, Sec’y.
    Kichard Heap.
    Harry Heap.
    Margaret Cain.
    Jas. H. Clark,
    Cons, of John F. Michaels.
    Elizabeth C. Mason,
    By L. L. Lehman, her atty. in fact.
    State of Illinois, 1 County of Coles, j
    Emery Andrews, being first duly sworn, upon oath states that he has read the petition addressed to the mayor and city council of the city of Mattoon hereto annexed.
    This affiant further states that the facts and matters therein set forth are true in substance and in fact.
    This affiant further states that the signatures thereto annexed are the signatures of the Mattoon Tile Company, by Theodore Jonte, its secretary, Richard Heap, Harry Heap, James H. Clark, conservator, and John F. Michaels, Margaret Cain, and Elizabeth C. Mason, by L. L. Lehman, her attorney in fact. *
    Emery Andrews.
    Subscribed and sworn to before me this 27th day of June, A. D. 1900.
    [Seal.] T. M. Lytle, Clerk.”
    And also the following :

      “ State of Illinois, ) County of Coles. | s '
    I, A. C. Sellars, county clerk of the county of Coles, do hereby certify that all city taxes and asséssments due up to date of this certificate on the following described real estate are fully paid.
    Mattoon Title Company,
    Beginning at a point where the east line of the right of way of the I. O. R. R. Co. crosses the south line of said Sec. 12, thence north to the half section line, thence east 5.30 chains, thence south 49.18 chains, to the south line of said Sec. 12, thence west on said section line to place of beginning, containing 54.12 acres, more or less.
    Richard Heap and Harry Heap and Heirs of John Heap.
    Beginning at 5.30 chains east of a. point where the east line of the I. C. R. R. right of way intersects the half section line in section 12, T. 12, R. 7, thence east on said half section line 11.20 chains, thence south 33.11 chains, thence west 7.07 chains, thence south 7.07 chains, thence west 4.13 chains on the section line, thence north 40Í18 chains to place of beginning.
    James H. Clark, Conservator for John F. Michaels.
    Beginning at a point on the south line of section 12, T. 12, R. 7, 23 chains and 37 links west of southeast corner of said section, thence westerly on said line 7.07 chains, thence north 7.07 chains, thence east 7.07 chains and thence south to place of beginning.

      Elizabeth C. Mason.
    The east 94 acres of the S. E. ¿ Sec. 1 2, T. 12, R. 7, excepting the parcels of land described herein as heretofore deeded to James Kitchin, William Schroeder and Margaret Cain’s grantors by the said Elizabeth C. Mason.
    Margaret Cain.
    Part of the S. W. £ of the S. E. J Sec. 12, T. 12. R. 7, beginning at a point 4 rods west of the S. W. Cor. of E. £ S. E. i of said section 12, thence west 10 rods, thence north 80 rods, thence east 10 rods, thence south 80 rods to place of beginning, containing 5 acres.
    Estate oe William Schroeder.
    A strip of land 4 rods wide off the east side of the S. E. % of the S. E. J and a strip of land 6 rods wide off the west side of the S. E. ^ of the S, E. J section 12, T. 12, R. 7.
    James Kitchin.
    A strip of land beginning at the S. E. Cor. of said Sec. 12, thence west on south line of said section 12 to its intersection with west line of E. 12th St., in the city of Mattoon, thence north with extension of said west line of said 12th St., 370 feet, thence east to east line of said Sec. 12, thence south to place of beginning.
    Dated this 26th day of June, A. D. 1900.
    [Seal] " A. C. Sellabd,
    County Clerk of Coles County.
    To the petition for mandamus, appellant interposed a general demurrer, which the court overruled, and appellant electing to stand by the demurrer, the court found for appellees and ordered a peremptory writ of mandamus to issue to appellant and to the mayor and the members of the city council of the city of Mattoon, commanding it and them, at the time fixed by the ordinances of said city for the next meeting of said city council after such writ issues, to hear and consider the petition so filed with said city clerk as aforesaid, and by ordinance duly passed to disconnect said premises from said city.
    Appellant, being dissatisfied with the order of the court, procured an appeal therefrom to this court, and having filed the transcript of the record of the proceedings of the City Court in the case with the clerk of this court, assigns thereon the following errors :

      1. The court improperly overruled the demurrer to the petition for mandamus.
    2. The court improperly awarded the writ of mandamus to issue.
   Me. Peesiding Justice Bubeoughs

delivered the opinion of the court.

This was a petition by appellees for a writ of mandamus to compel the mayor and members of the city council of appellant to pass an ordinance disconnecting certain lands from the corporate limits of appellant as provided in section 1 of the act of 1879, which is as follows:

“ That whenever the owners representing a majority of the area of land of any territory within any city or village, • and being upon the border and within the boundary thereof, and not laid out into city or village lots or blocks, shall petition the city council of such city, or the trustees of such village, praying the disconnection of such territory therefrom, such petition shall be filed with the city clerk of such city or the president of the trustees of such village, accompanied with a certificate of the county clerk, showing that all city taxes or assessments due up to the time of presenting such petition are fully paid, at -least ten days before the meeting of such city council, or trustees, at which it is proposed to present such petition, and the city clerk of such city, or president of the trustees of such village, shall present such petition to the city council or trustees, as the case may be, and upon such presentation the city council of such-city or trustees of such village may, by ordinance to be passed by a majority of the members elected to such city council or board of village trustees, disconnect the territory described in such petition from such city or village.”

Appellant demurred to the petition, and it being overruled, abided the demurrer, whereupon the court entered judgment awarding the writ.

Appellant brings the case to this court by appeal, and to effect a reversal of the judgment, argues for error, that the petition does not show with sufficient certainty that appellees are the owners of a majority of the area of the lands sought to be disconnected, or that appellees all signed the petition to the city council, or that appellees requested the city council to pass the desired ordinance at any of its meetings held at least teh days after such petition had been filed with the city clerk.

Appellant having demurred generally, the petition must have been defective in substance in the respects complained of, to have warranted the court in sustaining it.

The petition for the writ, while somewhat inartificially drawn, yet in substance, sets forth which of the appellees own certain parts of the lands in question, and states with particularity, those owning the other parts, and then sets up that appellees “ represent a majority of the area of the land in said territory aforesaid,” which in our opinion sufficiently shows that appellees were the owners of such majority, when questioned by a general demurrer.

And while it appears from the petition of appellees to the city council, that the same was signed, among others, by “ Mattoon Tile Company, by Theo. Jonte, Sec’y,” “Jas. H. Clark, Cons.,” and “ Elizabeth C. Mason, by L. L. Lehman, her att’y in fact,” yet, it being averred in the petition for the writ that appellees (among whom are Mattoon Tile Company and James H. Clark, conservator of John F. Michaels), by said petition to the city council, “ asked said city council to disconnect said premises in said petition to the city council described, from the city of Mattoon, pursuant to the act in relation to the disconnection of territory from cities and villages, approved and in force May 29, 1879,” that, in our opinion, as against a general demurrer, was sufficient to show that such petition to the city council was signed by -said appellees.

And the petition for the writ avers that the petition of appellees to the city council to disconnect said territory was filed by appellees with the city clerk of appellant, June 27, 1900; that said council met and transacted business on July 3, 1900, at which time it voted to lay said petition on the table, and had met many times thereafter and transacted business, yet up to the time of filing the petition for the writ, December 5,1900, said council have wholly refused and neglected to pass an ordinance disconnecting said premises from said city, whifeh, in our opinion, sufficiently avers a refusal to pass such ordinance although a sufficient time had elapsed since appellees had filed said petition with said clerk.

And as the statute makes it the duty of the city clerk, and not appellees, 'to present the petition to the city council after it is filed with him, the petition for the writ shows a sufficient request by appellees to the city council, to pass such ordinance.

The petition for the writ, under the holding in Young v. Carey, 184 Ill. 613, being sufficient, in substance, to warrant the court in overruling the demurrer thereto, and as appellant abided its demurrer, the court properly awarded the writ, and its judgment will be affirmed.


author: Mr. Presiding Justice Burroughs

text:
    Harry V. Bailey, Coroner, etc., for the use of, etc., v. Farmers National Bank.
    1. Corporations — Exercise of Express and Implied Powers. — The character of a corporation, read in the light of general laws which are applicable to it, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. All contracts made by a corporation beyond the scope of those powers are unlawful and void, and no action c,an be maintained upon them in the courts,
    2. National Banks — Derive Their Powers from the Federal Statutes. —The United States statutes relative to national banks, constitute the authority of such banks, and they can not rightfully exercise any powers except those expressly granted or which are incidental to carrying on the business for which they are established.
    3. Same — No Power to Become Surety upon a Replevin Bond. — The execution of a bond by a national bank as surety in a replevin suit is beyond its powers and void.
    Debt, on a replevin bond. Error to the Circuit Court of Tazewell County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    T. N. Green, attorney for plaintiff in error.

      William S. Kellogg, attorney for defendant in error.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Plaintiff in error, Harry V. Bailey, coroner of Tazewell county, Illinois, sued the Carlisle Shoe Co., and defendant in error, the Farmers National Bank of Pekin, Illinois, in the Circuit Court of said county, in an action of debt upon the following bond:

“ Know all men bt these presents, That we, N. C. Brouer, agent for and acting on behalf of Carlisle Shoe Co., incorporated, as principal, and Farmers National Bank of Pekin, Illinois, a corporation, are firmly bound unto Harry V. Bailey, coroner, as surety, of Tazewell county, in the State of Illinois, and to his successors in office, executors, administrators and assigns, in the penal sum of sixteen hundred and nine and sixty-one hundredths dollars, lawful money of the United States, for the payment of which sum we do hereby jointly and severally bind ourselves, our heirs, executors and administrators.

The condition of this obligation is such, That whereas, on the fifteenth day of September in the year of our Lord one thousand eight hundred and ninety-four, the said Car-lisle Shoe Company, incorporated under the laws of the State of Pennsylvania, sued a writ of replevin out of the Circuit Court of the County of Tazewell, against J. C. Friederich, sheriff of Tazewell county, Illinois, defendant, for the recovery of the following described goods and chattels, property, to wit:

(Then follows a description of the stock of shoes.)

Now, if the said Carlisle Shoe Company, incorporated as aforesaid, plaintiff, shall prosecute its suit to effect and without delay, and make return of said property, if return thereof shall be awarded, and save and keep harmless the said coroner in replevying the said property, and, moreover, shall pay all costs and damages occasioned by wrongfully suing out said writ of replevin, then the obligation to be void; otherwise to remain in full force and effect.

Witness our hands and seals, this fifteenth day of September, A. D. 1894.

Signed; sealed and delivered in presence of

N. C. Beoder, [L. S.]

Farmers National Bank,

By C. H. Turner, Cashier. [L. S.] ”

.Plaintiff in error recovered a judgment in the Circuit Court for the amount of the penalty of the bond and $596.31 damages, which, upon appeal to this court, was reversed and the cause remanded for reasons stated in the opinion reported in 69 Ill. App. 349.

After the cause had been remanded and reinstated in the Circuit Court, on motion of plaintiff in error, the suit was dismissed as to the Carlisle Shoe Co., and defendant in error, by leave of court, filed what is called “ defendant’s second additional plea,” which is as follows:

“ And by like leave of the court, for further plea in this behalf the Farmers ¡National Bank of Pekin, Illinois, says aotio non, because, it says, that this defendant is, and at the date of the execution of said supposed writing obligatory in plaintiff’s declaration mentioned was, duly organized and incorporated as a national bank, under the laws of the United States of America, for the purpose of transacting and carrying on a banking business under said laws passed and in force June 3,1864, and the laws amendatory thereof, and that this defendant at the time of the execution of said supposed writing obligatory in plaintiff’s declaration mentioned, was not empowered nor authorized by law to execute said supposed writing obligatory, and that the execution of said writing obligatory was and is beyond the power of this defendant given it by law, and that the same is, as to this defendant, null and void, and this the defendant is ready to verify; wherefore this defendant prays judgment, etc.”

To which plaintiff in error interposed two replications as follows:

u 1. And for replication to the second plea of the said defendant, the Farmers National Bank of Pekin, Illinois, said plaintiff says precludi non, because, he says, that at the. time of the execution of said writing obligatory in plaintiff’s declaration mentioned it is not true, as in said plea alleged, that the said defendant, the Farmers ¡National Bank of Pekin, Illinois, was not empowered or authorized by law to execute said written obligation in plaintiff’s declaration mentioned as surety, as in said plea is averred, and of this the said plaintiff puts himself upon the country.”

“ 2. And for replication to the second amended plea of the said defendant, herein pleaded for the Farmers ¡National Bank, of Pekin, Illinois, plaintiff saysprecludi non, because he says that the said defendant, the Farmers National .Bank of Pekin, Illinois, through its authorized officer, the cashier of the said Farmers National Bank, duly executed the bond sued on in this case as a surety for the said Carlisle Shoe Co., which bond so executed was by and on behalf of said Farmers National Bank of Pekin, Illinois, as surety, delivered to and accepted by the said plaintiff, H. V. Bailey, coroner of said Tazewell county, as a good and sufficient bond, by reason of the said Farmers National Bank of Pekin, Illinois, having executed the same, as surety for the said Carlisle Shoe Co., as aforesaid, and not otherwise, and by virtue of the said bond so executed and delivered by the said Farmers National Bank of Pekin, Illinois, as aforesaid, and not otherwise, the goods and property bv the said writ of replevin issued at the instance of the said Carlisle Shoe Company for the possession of the said goods and property in the said writ of replevin described, the goods and property therein described were by the said plaintiff, H. Y. Bailey, coroner of said Tazewell county, taken and delivered to the said Carlisle Shoe Co.; and plaintiffs further aver the said defendant, the Farmers National Bank of Pekin, Illinois, thus became and is liable in law upon the said bond so delivered by it as surety and accepted by the said coroner, all of which plaintiff is ready to verify, wherefore he prays judgment as he has heretofore prayed.”

Defendant in error took issue upon the first, and demurred generally to the second replication, but later was permitted, over the objection of plaintiff in error, to withdraw its joinder in issue as to the first, and so amend its demurrer as to make it apply to both the first and second replications; and the same being sustained to both, plaintiff in error excepted, and declining to further answer the plea, the court gave judgment thereon in bar of the action and for costs.

Plaintiff in error prosecutes this writ of error to reverse the judgment, and argues for error that the court improperly allowed defendant in error to withdraw its joinder in issue as to the first replication and then demur to it, and also improperly sustained the demurrer to said first and second replications.

When the suit ivas dismissed as to the Shoe Company upon, motion of plaintiff in error, it was proper for the court to allow defendant in error to so present its defense to the action by changing any pleading already filed, and to file others and afterward withdraw them, as seemed reasonable, and we do not think that the discretion given to the court by our statute of amendments, was abused by allowing defendant in error to withdraw its joinder in error upon said first replication, and then demur to it.

Under the national bank act of 1864, and its amendments, referred to in the second additional plea, we find that banks organized under it are given power “ to exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security, and by obtaining, issuing and circulating according to the provisions of this title.”

And it has been expressly held “ that the United States statutes relative to national banks constitute the measure of the authority of such corporations, and that they can not rightfully exercise any powers except those expressly granted, or which are incidental to carrying on the business for which they are established.” California National Bank v. Kennedy, 167 U. S. 362 (L. Ed. 42, 198).

And the rule is, that “the charter of a corporation read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. Ail contracts made by a corporation beyond the scope of these powers are unlawful and void, and no action can be maintained upon them in the courts, and this upon three distinct grounds: the obligation of every one contracting with a corporation to take notice of the legal limits of its powers; the interest of the stockholders not to be subjected to risks which they have never undertaken; and above all, the interest of the public, that the corporation shall not transcend the powers conferred upon it bylaw.” Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 59 (L. Ed. 35, 55); Best Brewing Co. v. Klassen, 185 Ill. 37.

The plea in question set up in bar of the action that defendant in error was organized and incorporated as a national bank, under the laws of the United States, for the purpose of transacting and carrying on a banking business under said laws, passed and in force June 3, 1864, and the laws amendatory thereof, at the time the bond sued upon was executed; that defendant in error was not empowered or authorized by law to execute same; that the execution of the bond by it was beyond its power, and the bond, as to it, was therefore null and void.

The provision of the statute above quoted does not, in our opinion, expressly or impliedly give defendant in error authority to execute the bond sued upon, as the record shows that it was not given to aid or assist it in any manner, in carrying on any business connected with or in furtherance of its banking business, but was executed by defendant in error merely as surety for the shoe company. Uor are we aware of any provisions in the national bank act, or any other statute, that does so confer power upon it; and therefore the plea set up a good defense to the action and required answering, which plaintiff in error undertook to do by said first and second replications.

But the first replication was bad, because it merely denied a conclusion of law, and offered to have that issue determined by jury; so the court very properly sustained' a demurrer to it for that reason.

And the second was also bad, because, even if defendant in error had duly executed the bond sued upon in this case as surety for the shoe company, and it had been delivered and accepted by plaintiff in error on the faith of such execution, and he had incurred liabilities upon the strength of it by executing the replevin writ as therein stated, yet if defendant in error was without authority to execute the bond, it would not be liable upon it, as expressly held in Best Brewing Co. v. Klassen, supra; Central Transportation Co. v. Pullman Palace Car Co., supra; and the court for that reason, therefore properly sustained the demurrer to it also.

And when plaintiff declined to further answer the “ second additional plea, which, as we have shown, set up a good defense to the entire action, the court properly gave judgment in bar of the action and for costs, and its judgment will be affirmed.


author: Mr. Justice Wright

text:
    The People ex rel., etc., et al. v. The City Council of the City of Hamilton et al.
    1. Final Judgment — In Mandamus Cases.— The sustaining of a demurrer to a petition for a mandamus, dismissing it and giving final judgment refusing the writ, is such a final judgment as may be reviewed in this court upon a writ of error.
    Mandamus. — Error to the Circuit Court of Hancock County: the Hon, George W. Thompson, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Apollos W. O’Harra, attorney for plaintiffs in error.
    Berry, McCrory & Kelley and Truman Plantz, attorneys for defendants in error.
   Mr. Justice Wright

delivered the opinion of the court.

This was a petition for the peremptory writ of mandamus against the City Council of the City of Hamilton, to require such city council to disconnect from the limits of the corporation 1,100 acres of land owned by the relators. The court sustained a demurrer to the petition, dismissed it, and gave final judgment refusing the writ of mandamus, to reverse which this writ of error is prosecuted and such action of the court is assigned and argued as error to effect such reversal.

The petition shows that application was made to the city council, which delayed action upon it for four or five months, whereupon this action was commenced. We are of the opinion that under the statute as construed in Young v. Carey, 184 Ill. 613, the petition for mandamus, which by the demurrer was admitted, stated sufficient facts to require action by the city council upon the application that was made to it by the relators. It is specially objected that the certificate of the county clerk required by the statute is insufficient, but we believe it is a substantial compliance with the statute.

A motion has been made in this court to dismiss the writ of error upon the ground that the act in relation to the disconnection of territory from cities and villages and. to repeal an act therein named, approved and in force May 10, 1901, deprives the plaintiffs in error of the right to prosecute this writ of error or to have the judgment reversed. This court is permitted only to review the final judgments of the trial courts and the rulings thereof leading up to such final judgments, and can determine only whether there was error at the time of the rendition of such judgments. If, therefore, when the judgment herein was rendered it was properly done, it should be affirmed, and if erroneous at the time it was entered it should for that reason be reversed. The statute alluded to can not, we think, upon clear principles, affect a judgment already rendered. Whatever rights appellee may have obtained under the provisions of that statute, different from the one thereby repealed, must in some appropriate manner be first raised in the trial court, before this court, according to the well established practice, can review the same and express its judgment concerning such matter. While the case may be pending and undetermined in the trial court, we have no doubt the questions under the new statute may be raised in some appropriate way, but not in this court for the first time, and the motion to dismiss the writ of error will therefore be overruled.

Being of the opinion that at the time the final judgment was entered herein relators were entitled to the peremptory writ of mandamus, such judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


text:
    Isaac Hudson et al. v. E. J. Miller.
    1. Evidence — Admissiblity of, Under Pleas of Justification in Trespass. — Justification as a defense must be pleaded before evidence of justification is admissible.

      2. Same — Admissibility of, in Rebuttal, Discretionary. — The admission of evidence in rebuttal is within the sound discretion of the court.
    8. Same — To Explain Plats of Streets. — When the plat of a city does not contain a statement of the width of a street and is in other respects defective as statutory proof of a dedication at common law, supplementary evidence tending to explain it and to show a dedication at common law, is competent.
    4. Burden of Proof — Justification in Trespass. — The burden of proof is always upon the party holding the affirmative in presenting an issue; so in trespass, the plaintiff has the burden of proof upon the issues presented by his declaration; and where the defendant pleads a justification he tenders a new and different issue and assumes the burden of proving it.
    Trespass to Beal Estate. — Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    W. K. Whitfield, Spitler & Burns and Mills Bros., attorneys for appellants.
    John R. Edem, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was an action in trespass brought by appellee against appellants in Moultrie county, and upon change of venue, trial by jury in Macon county resulted in a verdict and judgment against appellants for $5.58, of which reversal is asked by this appeal upon the grounds chiefly urged that it is not supported by the evidence, that the court admitted improper evidence, gave improper, and refused proper instructions to the jury.

The declaration counts upon a removal of a fence by appellants from premises of appellee in the city of Sullivan. Appellants, who were officers of that city, pleaded the general issue and special pleas of justification, in substance, on the ground that the fence occupied a portion of a public street of the city, was a nuisance, and so they were not guilty of trespass by removing it.

After appellee having introduced testimony tending to support the declaration prima facie, the appellant offered proof under the pleas, and having rested, appellee was permitted to introduce proof on rebuttal; which action of the court is alleged and argued as error. The character of proof so permitted in rebuttal was strictly in answer to the testimony of appellants upon their special pleas in justification. It is of no avail for appellants to say, as they do, that such pleas amount only to the general issue and that the evidence in rebuttal should have been offered in chief for that reason. It is the well settled rule in our courts that justification as a defense must be pleaded before evidence of that character is admissible; and such pleas were filed in this case, making proper foundation for the competent proof on that issue, which appellee was at liberty to rebut if he could. Even if there was force in appellant’s contention that the special pleas amounted only to the general issue, it is the well established rule that the admission of evidence on rebuttal is within the sound discretion of the court. We are convinced the court committed no error by admitting the proof of appellee on rebuttal.

Appellee owned a lot at the intersection of two public streets in Canfield’s Eailroad Addition, his grantor being Moriarity. The important issue was the boundary line common to the east side of this lot and the west side of the street. Appellants contend that by the plat and subsequent dedication of the street in addition, made in 1868, it should be fifty feet in width at the intersection and along the line of the premises in controversy. The plat in evidence does not contain a statement of the width of the street; and the plat being in other respects defective as statutory proof of the dedication, supplementary evidence was introduced to explain it and to show a dedication at common law. The appellants further contend that in 1895, upon the occasion of paving the other street, intersecting east and west, Moriarity, then the owner of the premises in controversy, adopted a line run by the city, in surveying the street, and thereby effectually established the wddth of this street at fifty feet, and that appellee is bound by his action. Appellee constructed a fence upon the east of the premises; and, acting under an ordinance of the city providing for five days’ notice to be given in such cases, notice was served upon him to remove the fence, on the claim that it was in the street. Appellee took up thé fence and later erected it again tw.o or more feet west of the line he was notified to vacate. Without further notice from the city, appellants lifted the fence and deposited it upon appellee’s lot, thereby committing the damages complained of; and it is insisted by appellee that he should have had notice again from the city and an opportunity to remove it himself, before appellants were at liberty to take up the fence, even if it was in the street, and that it was not placed upon the street. He contends the line in controversy was - for twenty years and more so recognized in fact as to make the width of the street in controversy at the intersection thirty-seven feet and not fifty feet; and contends that the original survey of the line, according to stakes set to evidence it, established it as recognized, and that the line thus made is the true one, notwithstanding anything in the plat to the contrary, and that the fence was upon his lot accordingly. Evidence for appellee was further offered and admitted by the court that the line claimed by appellants to have been adopted by Moriarity and the city in 1895, if extended, would cut through certain private improvements upon other premises, erected many years before with the original line in view, as contended for by appellee; and this action of the court is criticised because it is said it permitted the jury to contemplate injury to property not in controversy, should their determination be adverse to appellee, and such evidence was therefore misleading and immaterial. ,

For appellee the court instructed the jury that if in the original survey stakes were set to designate the corners in controversy, the places where such stakes were set are the true corners, notwithstanding any variance from the location of such corners on plats or other measurements; that if the streets staked off were dedicated and accepted and fences were erected on the street lines and improvements made according to such lines and the lines regarded as correct and acquiesced in as such for more than. twenty years, and that material damage to property along the streets would follow changing such street lines, then if the fence in controversy was outside the western line so constituted, it would not be in the street; that the best evidence of the location of streets, when located by survey and plat, is evidence of where the surveyor ran the lines from which the plat was made, and the preponderance of the evidence showing where such line was run governs, regardless of whether it then agrees with courses and distances marked on such plat; to establish a common law dedication of the streets in controversy the burden of proof is upon appellants to show that the street had been dedicated to the city by the owner of the land and accepted by the city authorities; that it was only nebessary for appellee to prove the trespass and damage to lands lawfully in his possession to recover; and the burden of proof was upon appellants to show that the fence was in the street and on land not lawfully in appellee’s possession.

It is said that these instructions as given are prejudicial to appellants, because no reference is made to the contention that the line was agreed upon by Moriarity and the city; that appellants were free of the onus jprobandi on any issue; and that no title to a portion of the public street could be acquired by appellee under the statute of limitations; with numerous other reasons founded on objections to the introduction of the evidence on which they are based.

At the request of appellants the court very fully instructed the jury upon their contention that the agreements between Moriarity and the city in 1895 fixed the line in controversy. The point was intelligently presented to the jury; and we see no reason for saying in that connection that any prejudicial error occurred to appellants. The whole scheme of the production of evidence in a trial is built up on the assumption of the burden of proof by a party holding the affirmative in presenting an issue. The appellee certainly had the burden of proof upon the issues presented by the declaration — that the injury was done upon his premises. By their pleas the appellants tendered a . new and different phase — that the fence was in the street — and thereby assumed the affirmative of such issue. If the burden of proof was not upon appellants there would be no apparent reason for the rule; and we think the court very properly instructed the jury, as it did, upon the burden of proof. We do not gather from any of the instructions that the court intended or did inform the jury that by fencing in a portion of the public street and keeping possession of it for more than twenty years appellee could thereby gain title to any part of the street. USTo such question arises from any of the issues; nor does appellee put forth any such claim. It is'merely a part of the proof offered by appellee that the line he contends for was established by the survey of the addition and that the stakes were placed at the corners marking that line which was accepted,' recognized and acquiesced in for more than twenty years as the true line, in no proper sense alluding to title by limitation. From such proof the instruction sprang; and we see no just reason for the criticism .attributed to it. Another instruction informed the jury that before appellants might lawfully remove the fence it must appear that appellee was notified at least five days before such action; and that if in response to such notice appellee did remove his fence and afterward set it up in another place,whereupon appellants without further notice to appéllee from the city removed it, then the first notice was insufficient to warrant the disposition of the fence unless by a preponderance of the proof it appeared that the fence remained a nuisance after its removal by appellee. It is said this instruction is bad because the jury are led to believe that in all cases of an obstruction in a street notice is required before the same may be removed. From the issues in the case we are not warranted in considering this question in a general sense. One of the special pleas of appellants, counts on an ordinance of the city under which appellants claim, as officers of the city, to have acted. They do not claim the right of a private citizen to justify the removal of the fence, but only claim that they acted under this ordinance as officers of the city, and to that extent they are not the real parties in interest, which is, in fact, the city; and so the question of the right of a private citizen to act in a like matter was not an issue in the case and can not properly be considered to arise on this instruction. The instructions given at the instance of appellee seem fairly based upon the facts in issue and meet with the approval of the court.

The several instructions requested by appellants and refused by the court we have examined, and it is not perceived that therein any material error intervened. The material substance of all those refused instructions was made the subject of. others given by the court for appellants as fully as their interests demanded and we feel that no just complaint can be made in that behalf.

The admission by the court of the evidence concerning the interference of the street with private property by an extension of the recent survey, claimed by appellants to evidence the true boundary line, is nothing more than an application of the rule whereb}r appellee was permitted to prove that upon determination of the street line, originally, the residents and property owners there erected improvements conformable to such line. While appellants claimed the recent survey to establish the correct line, it was a course open to appellee to prove another to be the true and correct line and to show that it was long considered so and that much improvement had taken place upon and along that line by reason of the evidence then existing as to the boundary. Such proof, if competent for that purpose, ought not to be inadmissible by the further fact that it proved a damage to improvements so erected in case the line contended for by appellants be the true line. We do not discover that the evidence was offered to prove a damage, but only to prove the original line and the acts of the parties in relation to it; and it is but an incident that a change of the street line to conform, to the theory and contention of appellants would create such damage. We think no error prejudicial to the interests of appellants occurred in the admission of this proof.

The evidence regarding the absolutely correct line of the street was conflicting. " Satisfactory proof was not to be had from the plat; the original stakes marking the true corners had decayed during the lapse of time since they were located; and the jury were compelled to depend upon the evidence of persons more or less familiar with the conditions then existing. ¡Recollections are variant in such instances; but the proof seems to have well established that for more than twenty years before appellee’s fence Avas erected the street line on which it was placed was contracted and that it had been long regarded as the correct line. Whether this was as the survey intended was a matter of conflict in the evidence. The proof offered by appellee, standing alone in the record, would justify a finding in his favor; and the jury and the trial court having passed upon it, and no controlling reason being apparent wherein any prejedicial error exists, we are disposed to accept their verdict and judgment •as decisive of the controverted issues of fact, and the judgment of the Circuit Court will be affirmed.


author: Mr. Justice Burroughs

text:
    Thomas Pressed Brick Co. v. Catherine A. Fowler.
    1. Change of Venue — Province of the Court to Determine What is a 'Reasonable Notice to be Given.— On an application for a change of venue it is within the province of the court to determine that one day is not reasonable notice for the application.
    3. Settlement — Memoranda of, Open to Explanation. — A written memorandum of a settlement, like an ordinary receipt, is open to explanation as to what transactions were in fact covered by its general terms.

      Assumpsit, on coupons. Appeal from the Circuit Court of Calhoun County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    William Fairlee, attorney for appellant.
    Frank A. Whiteside, attorney for appellee,
   Mr. Justice Burroughs

delivered the opinion of the court.

July 9, 1900, appellee sued appellant before a justice of the peace in Calhoun county, to recover the amount due upon nine coupons numbered from 5 to 13 inclusive, number 5 being as follows:

“ $15.00.

The Thomas Pressed Brick Company will pay to bearer, at its agency, the Central National IBank, in the city of Norwalk, Connecticut, fifteen dollars, in lawful money of the United States, on the first day of June, 1896, being six months’ interest on bond No. 41.

W. Gr. Thomas, Jr., Treasurer,”

And each of the others just like it, except that number 6 became due December 1, 1896; number 7, June 1, 1897; number 8, December 1, 1897; number 9, June 1, 1898; number 10, December 1, 1898; number 11, June 1, 1899; number 12, December 1, 1899, and number 13, June 1, 1900.

Appellee recovered a judgment before the justice and appellant appealed therefrom to the Circuit Court where the case was tried by jury and resulted in a verdict and judgment in favor of appellee for $137.10, to reverse which appellant prosecutes an appeal to this court.

The grounds upon which such reversal is urged are that the Circuit Court improperly denied appellant’s application for a change of venue; admitted improper and excluded proper evidence; refused proper and gave improper instructions; and that the verdict and judgment are contrary to the evidence.

The record discloses that this case was reached in the ordinary call of the docket on October 9, 1900, being the second day of the term, and after it was called for trial, appellant applied for a change of venue, alleging that the inhabitants of the county were so prejudiced against it that it feared it would be unable to obtain a fair trial in the county on that, account; that knowledge of such prejudice came to them within two days before, and that on the day before, it had given notice to the attorney for appellee that it would apply to the court next morning for a change of venue upon that ground.

The allegations of the petition for change of venue were verified by the secretary and treasurer of appellant, and the allegation that the inhabitants of the county were so prejudiced was supported by the affidavit of two residents of the county. The court denied the application and we do not feel warranted in reversing the judgment on that account because it was within the province of the Circuit Court to determine that one day was not reasonable notice for an application of that nature, Kelly v. Downs, 29 Ill. 74; and Hudson v. Hanson, 75 Ill. 198.

The defense interposed by appellant in the Circuit Court and relied upon in this court, is that the money due upon the coupons sued upon, was included in a settlement made March 23, 1900, which was reduced to writing and is as follows:

“ This agreement between the parties hereto, made and executed in consideration of a settlement of all book accounts, claims and demands whatsoever, and matters of difference between said parties, witnesseth: that The Thomas Pressed Brick Company, a corporation organized nnd existing under and by virtue of the laws of the State of New Jersey, and doing business in the county of Calhoun, State of Illinois, hereby releases, relinquishes and discharges one Jeremiah Fowler, and his wife, Catherine Fowler, of said county of Calhoun, State of Illinois, of any and all claims, debts, dues and demands of every nature whatsoever, and hereby acknowledge full settlement in payment of the same, including a certain bond of indemnity or demand executed by the said Jeremiah Fowler and eight (8) others, then constituting the board of directors of the said Thomas Pressed Brick Company, to Wm. C. Thomas, now deceased, in the sum of $15,000, and of which sum the said Jeremiah Fowler, it is claimed, is liable for one-ninth .part thereof, amounting to about $1,666.67, and also a balance on book account claimed to be due from said Fowler to said company January 1, 1897, of $438.20, with any and all interest claimed thereon, and also for any and all damages claimed by said company against said Fowler On account of any alleged mismanagement or misconduct, or from any other cause, while acting as superintendent of said company, and for any and all other, debts, demands, claims and dues whatsoever, and including also any and all claims which Charles E. McEwing or the said William G. Thomas claim to have or hold, of whatever description, against the said Jeremiah Fowler or the said Catherine Fowler; and in consideration of said settlement between the parties hereto, said Jeremiah Fowler hereby releases, relinquishes and acknowledges settlement in payment of same of all claims, debts, demands and dues, and for any and all damages now claimed, or heretofore claimed by- him, from any cause, against said company, or the estate of Wm. G. Thomas, or of any other of the parties hereto; and he, the said Fowler, hereby agrees to surrender and deliver up to the treasurer and secretary of said Thomas Pressed Brick Company twenty (20) shares of stock now held by him in said company within ten (10) days from this date, and if the same is not so delivered, as herein agreed, the secretary of said company is hereby authorized to cancel same; and the said Catherine Fowler, wife of the said Jeremiah Fowler, also in consideration of said settlement, hereby releases, relinquishes and discharges to the said Thomas Pressed Brick Company, and to the said William G. Thomas, and all claims and demands which she now has, or heretofore claimed to have had, against any of the parties hereto for damages to any lands or the orchards on said lands, or to both, and any and all claims and demands whatsoever, including demand for extra service, meals, board alleged to have been furnished and rendered to said company, it being the intention of the parties to these instruments that a full and complete settlement of all matters aforesaid have this day been made by the parties hereto. It is further understood between all the parties hereto that this settlement in no way prejudices the rights of The Thomas Pressed Brick Company, or their assigns, that they now hold or have acquired under any instruments or deeds that may have been heretofore executed, now of record.

This instrument signed in duplicate. Dated this 23d day of March, 1900, at the city of St. Louis, Missouri.

Í Seal. -j The Thomas (Pressed Brick Co. ) The Thomas Pressed Brick Co., r By W. G. Thomas, Sec’v and Treas. '} Estate of Wm. G. Thomas, Dec’d,

By W. G. Thomas, Executor.

W. G. Thomas,

Chas. E. McEwing,

Jeremiah Fowler,

Catherine Fowler,

By T. J. Selby, their agent and att’y.

Witness for all parties:

B. L. D. Mernagh.”

In support of this defense the court permitted appellant to introduce the writing in evidence and in addition to that, allowed Mr. Thomas and Mr. McEwing both to testify that as officers of appellant they made such settlement, in its behalf, with Mr. Selby representing appellee, and to give their version of whether or not the money due upon coupons was included in the settlement. Both of them testified that it was, but upon cross-examination, Mr. Thomas was questioned and answered as follows:

“ Q. The claim was made that they (the coupons) ought to be included in the settlement? A. We (Mr.Thomas and Mr. McEwing) claimed that they ought to be included in the settlement and he (Mr. Sibly) claimed that they were not to be included.

“ Q. What was the final settlement in regard to it ? A. We finally settled the matter by leaving it undecided.

“ Q. How was it at the time of the agreement, the final agreement, Mr. Thomas ? A. At the time we made the agreement it was not settled one way or the other.” Becord, p. 72.

And Mr. Sibly testified that the interest on the bond represented by the coupons was not included in the settlement,, and that he did not have authority from appellee tti include it, and that he so told both Thomas and McEwing when making the settlement.

It is insisted by counsel for appellant that the written memorandum ■ of the settlement alone should- have been admitted in evidence, and the parol evidence which the court admitted to explain or vary it, was improper.

The bill of exceptions shows that appellant went into the question with its witnesses in chief as to what was included in the settlement, and offered parol testimony that the money due upon the coupons was included therein; and it was proper for the court to allow appellee, in rebuttal, to meet such parol testimony with that of the same kind. Besides, the written memorandum of the settlement, like an ordinary receipt, was open to explanation as to what transactions were in fact covered by its general terms.

We have carefully considered all the rulings of the court upon the evidence, and find they were fair and in accordance with the rules of law applicable to the questions raised and determined.

The instruction given, properly announced the law applicable to the issue tried and the evidence presented, and those refused were not such as were so applicable, and the court committed no prejudicial error in that regard.

Under the conflicting evidence upon the defense interposed, it was the province of the jury to determine what the truth was, and we are unable to say, after fully considering all the evidence, that they were not warranted in arriving at the conclusion they did, and hence we will affirm the judgment rendered upon their finding, which has been approved by the trial judge. Affirmed.


text:
    Otto Seibert et al. v. Sarah D. Swayne.
    1. Mandamus — A Olear Right to the Writ Must Be Shown. — In proceedings for mandamus, a clear right must be shown before the peremptory writ will be awarded.
    2. Same — The Act of May 29,1879, Does Not Apply to Municipalities Like the Town of Normal. — The act of May 39, 1819, entitled “An act in relation to the disconnection of territory from cities and villages,” has no reference to a municipality organized like the town of Normal. It neither mentions nor refers to such towns.

      3. Appellate Court — Scope of its Powers. — The Appellate Court is permitted only to review the final judgments of the trial courts and their rulings'leading up to such final judgments, and can determine only whether there was error at the time of the rendition of such judgments.
    Mandamus, to disconnect territory. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    O. R. Trowbridge, attorney for appellants; E. L. Fleming and J. A. Bobber, of counsel.
    Lillard & Williams, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a proceeding in mandamus by appellee against appellants, as president and members of the town council of the town of Normal, to compel them to disconnect from the corporate limits of the town a tract of land lying upon the border of such limits and owned by appellee. The petition was. answered and the court sustained a demurrer to the answer and gave judgment against appellants awarding the peremptory writ of mandamus, to reverse which this appeal is prosecuted, and various errors are assigned and argued to effect such reversal, but in the view we have of the case we will consider but a single question.

It is insisted by appellee that the judgment of the Circuit Court is supported by the statute as construed in Young v. Carey, 184 Ill. 613. We are of the opinion, however, that the statute under which this decision was given has no reference to a municipality like the town of Normal, which is incorporated by special act, February 25,1867, and by that act is given the special designation The Town of Normal,” with certain defined powers therein enumerated. Vol. 3, Private Laws, 1867, p. 321.

The act in relation to the disconnection of territory provides only for such disconnection from cities or villages, and neither mentions nor refers to towns organized like the town of Normal. By a reference to the act of Hay 29, 1879 (Hurd’s Stat. 1899, p. 294), it will be found that neither the title nor the body of the act, refers to towns, while in the preceding act, April 10, 1872, in relation to-proceedings in the Circuit Court for the same purpose, both the title and the body of the act includes towns as well as cities and villages. We can not say that the omission of towns in the later act was accidental and that it ought to be construed in pari materia with the other act, and thus it was the legislative intent that both acts should embrace the same objects. It is a familiar principle in proceedings like this that the clear right to it must be shown before the peremptory writ of mandamus will be awarded. We are of the opinion no such right has been shown. If the legislature intended to include municipalities like this one, within the provisions of the act under which this proceeding can alone be justified, it doubtless would have said so in clear and unambiguous language, and not left it to be determined by doubtful construction.

It is further insisted by counsel for appellant in his brief that the matter of disconnecting territory is within the discretion of appellants, and the act of May 10, 1901, is cited in support of this position. In Young v. Carey, supra, the "act of 1879 was given the contrary construction. Whatever construction may hereafter be given to the act of May 10, 1901, we can not, of course, anticipate. It could, upon ■principle, have no effect upon the judgment that was rendered in this case, for the act was not in force at that time. This court is permitted only to review the final judgments of the trial courts and the rulings thereof, leading up to the final judgments, and can determine only whether there was error at the time of the rendition of such judgments. Whatever rights the appellants may have obtained under the latter statute different from the one repealed, must in some appropriate manner be first raised in the trial court, before this court, according to the well established practice, can review the same and express its judgment concerning such matter. While the case may be still pending and undetermined in the trial court, we have no doubt the questions under the new statute may be raised; but not in this court for the first time.

For the error indicated, the judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


text:
    John S. Wren v. Samuel C. Dooley.
    1. Common Law — Decisions, When Applicable as Precedents Under Statutes. — When a statutory provision introduces no new principle but is merely affirmative of the common law, decisions of the common law are applicable as precedents after the enactment of the statute.

      2. Bills of Discovery— Wh 'em They Will Lie to Beach the Salary of a Public Officer. — When a court of law is incompetent to reach the property of a defendant in execution, either by reason of its peculiar character, as the salary of a public officer, or by inability to discover it, a bill in equity against such defendant for a discovery, is the only adequate remedy to reach the property.
    Creditor’s Bill, to reach the salary of a public officer. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed,
    Opinion filed September 11, 1901.
    L. C. Hay, attorney for appellant.
    Henry S. Dooley, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a creditor’s bill filed by the appellee against appellant for the purpose of reaching $300 alleged to belong to appellant as superintendent of schools of McLean county, to be paid him through the medium of an auditor’s warrant upon the state treasurer. The bill avers the usual matters of judgment, execution and due return of no property found, and that appellant is insolvent and has no property subject to execution. The bill then avers that there is due to appellant, and fully earned, from McLean county, to be paid by the state auditor out of said county’s proportion, of the State school fund, the sum of $300, which amount has accrued to the appellant as salary in his capacity of county superintendent of schools of McLean county, for the quarter ended June 2, 1900, and that said sum ought, in equity, to be applied in satisfaction of the judgment of appellee against appellant. The bill then prays that defendant be compelled to discover and set forth all the facts and circumstances in regard to. the alleged salary, and prays an injunction restraining him from assigning or collecting the warrant, asks that a receiver be appointed to receive and collect the same, and appljT it to the discharge of the judgment, and for general relief. An injunction was issued as prayed in the bill. Defendant appeared and demurred to the bill, but the court overruled the same, and defendant abiding by his demurrer the court gave its decree in accordance with the prayer of the bill, appointed a receiver to take and collect -the warrant and pay the same upon the judgment, made the injunction perpetual, and directed the appellant to indorse and deliver the warrant to the receiver. To reverse the decree, this appeal is brought.

It is argued against the decree that writs of garnishment and creditors’ bills, like this, are, in effect, instituted for the same purpose, and that it is contrary to public policy to permit the garnishment of a public corporation, upon the same ground and for like reasons a creditor’s bill against the State can not be sustained. If the county, or the State, was a party to the suit, we have no doubt the decisions cited by counsel to support this point would have force. Neither county nor State, nor the disbursing officer of either, is a party to this suit, nor, so far as the purposes of the bill are concerned, a necessary party. From none of these is any relief sought. The entire scope and object of the bill is to compel a disclosure from a judgment debtor, as to an alleged indebtedness to him, to the end. that a receiver may be appointed to receive money, or the warrant for money-, in order that the same maybe applied in satisfaction of the complainant’s judgment, The point made, and the authorities in support of it, is therefore without force. Section forty-nine of the chancery code, relative to the issuance of execution and the return of it unsatisfied, in whole or in part, as a preliminary to the right to file a creditor’s bill, introduces no new principle and is but affirmative of the common law; therefore decisions under the common law are applicable as precedents since the enactment of the statute. A court of equity will never lend its aid where there is an adequate remedy at law. It must, therefore, appear that a court of law is incompetent to reach the property of the defendant in execution, either by reason of its peculiar character, or by inability to discover it. Durand & Co. v. Gray, 129 Ill. 9. In the case presented, a court of law is incompetent to reach the property described in the bill because of its inability to discover it, and when discovered because of its peculiar character. The warrant in the hands of the disbursing officer is neither subject to execution nor garnishment, and when it or the money is in the pocket of the debtor the court of law is likewise incompetent to reach it. A bill in equity against the debtor for discovery is the only adequate remedy to reach the property. Suppose the defendant had no property subject to execution, as the averments of the bill demonstrate, but he was receiving from the State a stated salary of $5,000 per year, payable on a given day, and on such day it was delivered to him. Go a step further and assume it had been paid to him, and he had the money in his personal possession. In either case a court of law would be incompetent to reach it by garnishment or execution. Is it to be supposed our system of jurisprudence is so weak and inadequate as not to furnish a remedy to compel payment of a judgment under such circumstances? Surely not. A bill for discovery in such a case is an appropriate remedy; and when, as here, the bill avers that defendant had the particular property described, or in other cases where discovery is sought and a disclosure of particular property obtained — in either case such facts render proper the appointment of a receiver, and granting an injunction to preserve the property for creditors. By demurring to the bill defendant admitted that he had the property in his possession or control. The same, therefore, ought to be applied to the debt here decreed against him, and there is no sufficient objection to his being restrained from putting it out of his hands, and being required to surrender it into the pos-1 session of a receiver, to be appointed for the payment of the sum found due by the decree. Runals v. Harding, 83 Ill. 75, and cases cited. The case of Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225, is similar to the one we are considering, and the reasoning and conclusion of the court in that case are strongly applicable to the facts in this.

The decree of the- Circuit Court was right and it will be affirmed.