author: Mr. Justice Dickey

text:
    North Chicago Rolling Mill Company v. Andrew Monka.

      Filed at Ottawa March 28, 1883

      Rehearing denied September Term, 1883.

    1. Limitation—-as to new count in declaration. A new cause of action, distinct from that already mentioned in tbe declaration, can not escape the effect of tbe Statute of Limitations, after the time for suing upon it has elapsed, by being introduced by way of amendment or additional counts into the declaration, in an action for a different cause of action, brought before the lapse of the statutory time.
    2. But when the amendment in an additional count is introduced merely to restate, in a different form, the same cause of action mentioned in the declaration as originally drawn, and not to present a new and different cause of action, the rule has no application, and the plea of the Statute of Limitations to such new count is not proper.
    3. Pleading—additional counts—as to identity of cause of action. In case, by a servant of a corporation against the corporation to recover for personal injuries received through negligence in the defendant, the declaration charged that defendant “carelessly and wrongfully furnished and permitted to remain in use” an insufficient and defective clamp, etc. Afterward, by' leave of court, another count was filed, claiming damages for the same injury, and averring that “defendant carelessly and wrongfully permitted to become and remain in said rolling mill an unsafe, insufficient and defective clamp, and wrongfully and negligently suffered the same to become and remain in bad and unsafe repair and condition, ” etc.: Held, that the cause of action in both counts was the same, only differently stated.
    4. Evidence—extracts from boohs on mechanics. In an action on the ease to recover for an injury caused by the use of defective machinery, there is no error in refusing to allow the party to read in evidence certain extracts from a standard work on mechanics.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    This was an action on the case, brought by the appellee, against the appellant, on March 15, 1877, to recover damages for the loss of a portion of his right foot, in November, 1876, while in the employ of the appellant as a laborer about a certain blast furnace. A trial was had at the February term, 1879, resulting in a verdict and judgment for $4000, which was reversed on appeal to the Appellate Court, and the cause remanded. (4 Bradw. 664.) Upon the cause being redocketed, the plaintiff, by leave of court, filed the additional count referred to in the opinion. A trial was again had, resulting in a verdict and judgment for $4500 in favor of the plaintiff.
    Messrs. Willard & Driggs, for the appellant:
    The court erred in sustaining the demurrer to appellant’s plea of the Statute of Limitations to the new count. The legal effect of a demurrer to a plea is an admission that the plea is properly filed. It brings in question only the legal sufficiency of the plea. Bobe, Admr. v. Frowner et ux. 18 Ala. 89.
    The order sustaining the demurrer was a judgment of the court that new and distinct causes of action may be engrafted into old suits, independent of the Statute of Limitations. Such is not the law. Illinois Central R. R. Co. v. Cobb et al. 64 Ill. 128; Phillips v. Cobb, 94 id. 548; Dunphy v. Riddle, 86 id. 22; Crowl v. Nagle, id. 437.
    The court erred in sustaining objection to appellant’s offer to read from 3 Knight’s Mechanical Dictionary, page 2191, concerning sister hooks. The testimony of the witness Poole showed that the work was an accepted standard. The work treated upon a subject included in the exact sciences. Such works may be read from in evidence. Wharton on Evidence, sec. 667; Connecticut Mut. Life Ins. Co. v. Ellis, 89 Ill. 516.

      Messrs. Hynes, English & Dunne, for the appellee;
    The additional count allowed to be filed presented no new cause of action, but only stated the facts on which .negligence was claimed in different and more explicit terms, and hence the plea of the Statute of Limitations was not proper to such count.
    The court did not err in refusing to allow appellant to read to the jury passages from Knight’s Mechanical Dictionary, concerning sister hooks; on the contrary, that ruling is sustained by the very authority cited by appellant,—Wharton’s Evidence, sec. 665. In section 666, that author says: “Witnesses are not permitted, in their testimony, to read extracts from books on physical philosophy as primary proof. ” A standard work on, geometry or arithmetic might properly be allowed in evidence, because these sciences are exact, and founded upon self-evident axioms; but the science of mechanics, like that of medicine, is ever changing and advancing-
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action by Monka, against appellant, begun March 15, 1877, to recover damages for injury to his person, caused in November, 1876, while plaintiff was in the service of the corporation. The declaration originally filed attributed the injury to the fault of appellant, and in specifying that fault charged that appellant “carelessly and wrongfully furnished and permitted to remain in use” an insufficient and defective clamp, etc. While the suit was still pending, on October 2, 1880, plaintiff, by leave of court, filed an additional count, claiming damages for the same injury, and averring that “defendant carelessly and wrongfully permitted to become and remain in said rolling mill an unsafe, insufficient and defective clamp, and wrongfully and negligently suffered the same to become and remain in bad and unsafe repair and condition,” etc. To this count defendant pleaded that the cause of action therein stated did not accrue at any time within two years next before “the exhibiting of said additional count,” etc.

The court held this plea bad, on demurrer, and appellant contends this was error. We do not think so. The additional count was not for a cause of action in substance other and different from that stated in the first count. It was merely another mode of telling the same story. Had plaintiff recovered a judgment on the first count alone, and had he brought a subsequent action stating a cause of action precisely as stated in the second count, the second declaration might have been successfully answered by a plea of a former recovery, setting out the record of the first action. The damages sought are for the same injury alleged to have resulted from the defectiveness or insufficiency of the same machinery, and that the existence of such defects was by reason of the fault of defendant. In one case the fault alleged consisted in furnishing and permitting to remain in use the defective clamp, and in the other the fault stated is, that defendant permitted the machinery to remain in use after it had become in an unsafe condition. The substance of the additional count is identical with' that of the first', varying only in the description of the particular point in which the defendant was alleged to have failed in its duty to plaintiff. It is true that a new cause of action distinct from that mentioned in a declaration can not escape the effect of the Statute of Limitations, after the time for suing upon it has elapsed, by being introduced, by way of amendment or additional counts, into the declaration in an action for a different cause of action brought before the lapse of the statutory time, and so this court has decided; but it was at the same time declared, that where the amendment or additional count was introduced merely to restate, in a different form, the same cause of action mentioned in the declaration as originally drawn, and not to a .new and different cause, the rule has no application. Illinois Central R. R. Co. v. Cobb, 64 Ill. 140.

We have considered the exception to the ruling of the court in refusing the defendant the right to read certain extracts •from a standard work on mechanics. This ruling is in entire harmony with the ruling of this court in Connecticut Mutual Life Ins. Co. v. Ellis, 89 Ill. 516, and presents no error.

We have also considered the rulings of the court in giving, refusing and modifying instructions. The objections urged are not substantial. We think, upon the whole, the law necessary 'to guide the jury in its deliberation was correctly given, and with sufficient fullness. The questions of fact in the case are not subject to review in this court.

Finding no error of law, we affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Shober and Carqueville Lithographing Company v. Frank Kerting.

      Filed at Ottawa June 16, 1883

      Rehearing denied September Term, 1883.

    1. Contract—assuming the debts of another—consideration. Where a corporation is formed, and purchases the business and assets of a firm, the members of which compose the corporation in part, which business is conducted as before the dissolution of the partnership, and the corporation, as a part of the consideration of the property and assets of the firm, assumes its debts and liabilities, the promise to pay such debts is founded' on a sufficient consideration, and a creditor of the firm may maintain an action for his debt against such corporation, especially when it still continues him in the same employment out of which the debt has arisen.
    2. Eight op triad by. jury—striking items from bill of particulars. Where a party was employed by a firm to solicit orders, in which employment he continued until the firm ceased and was organized as a corporation, and afterward he continued in the same business for it without any new special contract, and there was evidence tending to show that the corporation, in consideration of the business and assets of the firm being transferred to it, assumed the debts of the firm, and promised the party to pay him for his services rendered to the firm, it was held, in an action by such party against the corporation, that a motion to strike out all the items in his bill of particulars for services rendered before the organization of the corporation, was properly overruled, as he had a right to submit the question of the liability of the corporation for those services to a jury, upon the evidence.
    3. Same—party can not complain of irrelevant evidence brought out by himself. Where it appears that evidence complained of was mainlj' called out upon cross-examination by the defendant’s own counsel, he will have no right to complain, even if the evidence is irrelevant.
    4. Practice in the Supreme Court—abstract of the record—what it should contain. Where the abstract of an appellant fails to show that he took any exception to an instruction on the trial, this court will not look into the record to see whether the abstract is correct or not, especially when no substantial objection is perceived in the instruction.
    5. Exception—when necessary. A party can not complain in this court of the admission of evidence, where the record fails to show that any exception was taken to it at the time, or any motion made to exclude the same.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Messrs. Hutchinson & Partridge, for the appellant:
    The corporation never assumed the prior debts of the firm. An officer or mere agent of a corporation can not assume payment of debts without express authority from the corporation, and even with that there must be a valid consideration. Life and Fire Ins. Co. v. Mechanic's Fire Ins. Co. 7 Wend. 34; Soper v. Buffalo and Rochester R. R. Co. 19 Barb. 310; Brown v. Weymouth, 36 Maine, 414; Angell & Ames on Corp. secs. 298, 309; Story on Agency, (7th ed.) 149, 150, 151.
    The declarations and admissions of the officers of a corporation are not binding on it. Franklin Bank v. Stewart, 37 Maine, 519; Franklin Bank v. Cooper, 39 id. 555; Burnham v. Ellis, id. 320.

      Mr. J. N. Barker, and. Mr. A. W. Green, for the appellee:
    If, for a good consideration, appellant agreed to pay the debts of Shober & Carqueville, that will be regarded in the light of a contract for the^ benefit of the creditors of Shober & Carqueville, and any such creditor may maintain an action for the breach of such contract. Brown v. Strait, 19 Ill. 88; Wilson v. Bevans, 23 id. 232.
    The transfer of all the property and assets of Shober & Carqueville to the corporation, was a good consideration for its assumption of the debts of the firm.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, in favor of Frank Kerting, the appellee, and against the Shober & Carqueville Lithographing Company, the appellant, for the sum of $1157.23, on account of commissions claimed to be due the .former for soliciting and obtaining lithographing orders for the company.

The material facts essential to an understanding of the questions discussed are, in substance, as follows: On the 1st of January, 1874, anci prior thereto, Charles Shober and Edward Carqueville were carrying on the lithographing business as co-partners in the city of Chicago, under the firm name of Shober & Carqueville. On that day appellee entered their service and employment for the purpose of-soliciting orders for lithographing work, on which he was to receive certain specified commissions as compensation for his services. The business was continued, apparently to the satisfaction of all parties, until the 9th of April, 1877, when the partnership seems to have ceased, and a joint stock company organized in its stead, under the name of the Shober & Carqueville Lithographing Company, and the business of lithographing was thereafter carried on in, the name of the corporation substantially as it was before. The company took charge of all the partnership assets, paid some of the firm debts, and filled the old orders for work. Appellee and other employés of the firm continued in the employment of the company, as though no change had occurred.

In addition to the inference to be drawn from the foregoing facts, there is direct testimony tending to show that the appellant company, upon its organization, in consideration of the partnership property and assets having been turned over to it, undertook and agreed to pay all the firm debts, including the demand of appellee, and this was the vital and controlling question on the trial of the cause in the Superior Court, and consequently must have been equally so in the Appellate Court. Upon this and all other issues of fact both courts have found adversely to appellant, and by their finding, of course, he is concluded. It remains to consider what, if any, errors of law are presented by the record whereby the appellant has been injured or prejudiced.

It is first complained that the Superior Court erred in refusing to sustain appellant’s motion to strike out of appellee’s bill of particulars all items for services rendered before the organization of the corporation. There was clearly no error in this. Whether those items should have been allowed or not depended upon whether the corporation, for a valuable consideration, had assumed their payment, and this was a question appellee had .a* constitutional right to have submitted to a jury, which would have been defeated had the motion prevailed.

It is also objected that the court erred in admitting in evidence the admissions of the officers of the company. This objection is not well founded. No exception was taken to it at the time, nor was any motion subsequently made to exclude it. Indeed, the abstract shows that the evidence complained of was mainly called out upon cross-examination by appellant’s own counsel, and hence the company has no right to complain, even if the evidence was irrelevant, as to which we express no opinion.

The only other objection which we deem worthy of notice •is'that made to plaintiff’s second instruction. It is as follows :

“The jury are instructed, that if'they find, from the evidence, that the defendant purchased the business and assets of Shober & Carqueville, and as a part of the consideration paid therefor assumed the debts of said firm of Shober & Carqueville, that that is sufficient consideration for the promise, if one was made, to pay the debts of said firm, as aforesaid ; and if you find, from the .evidence, that said firm of Shober & Carqueville was indebted to the plaintiff in this case, and that the defendant assumed the -same, and agreed with the plaintiff to pay the same to him for the consideration as above stated, then the plaintiff is entitled to recover the amount of such indebtedness from the defendant in this suit, unless you find, from the evidence, that the defendant has paid the same. ”

The abstract fails to show that any exception was taken to this instruction on the trial, and we will not stop to look into the record to see whether the abstract is correct in this respect, for, conceding it is not, we see no substantial objection to the instruction. There was clearly sufficient evidence .before the court upon which to -base it, and the conclusion of law which it announces, we think, is sound.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig Mr. Justice Craig : Mr. Justice Mulkey,

text:
    William H. Barclay v. Lafayette H. Smith.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883. ■

    1. Membership in board of trade—is not property—and is not subject to judicial sale. A certificate of membership in the board of trade of the city of Chicago, is not property, in any such sense as to render it liable to be subjected to the payment of the debts of the holder by legal proceedings.
    2. The board of trade of the city of Chicago is a corporation. Under its charter and by-laws no one can become a member except upon a favorable vote of not less than ten of the board of directors; nor is a certificate of membership transferable to any person except he be approved by the directory, after due notice. The right of membership is not a right which the holder can dispose of as he pleases; nor can it be enforced in favor of a purchaser or assignee of the certificate, by the courts. It has none of the elements of property to render it liable to judicial sale.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Messrs. Lawrence, Campbell & Lawrence, and Mr. John H. Batten, Jr., for the appellant:
    A membership in the board of trade of the city of Chicago is not property which can be subjected to the payment of debts by process of law, or order, or decree of court. Nichols v. Eaton, 91 U. S. 716; Deere v. Chapman, 25 Ill. 610; Good v. Fogg, 61 id. 451; Const. 1870, art. 4, sec. 32; Rev. Stat. chap. 52; Gallagher v. Lane, 16 Blatchf. C. C. 410; Hyde v. Woods, 94 U. S. 523; Nicholson v. Gooch, 5 El. & Bl. 999; Ritterband v. Boggett, 4 Abb. N. C. 67; In re Sutherland, 6 Biss. 526; Thompson v. Adams, 93 Pa. St. 55; Pancoast v. Gowen, id. 66; Barry v. Kennedy, 2 Abb. Pr. (N. S.) 421; People ex rel. v. Board of Trade, 80 Ill. 134; Baxter v. Board

      of Trade, 83 id. 146; Chase et al. v. Cheney, 58 id. 509 ; Robinson v. Yates City Lodge, 86 id. 598; Duvergier v. Fellows, 5 Bing. 248; Goesele v. Bimeler, 14 How. 590; Bennett v. Am. Art Union, 5 Sandf. 614; Collyer v. Fallon, Turn. & Russ. 459; Boss v. Hopkinson, 18 W. R. 725; Glover v. Moore, 39 L. J. Chan. 98; White v. Brownell, 4 Abb. Pr. (N. S.) 162; Nagle v. Stagg, 15 id. 348; Morewetz on Priv. Corp. sec. 351.
    The complainant in this case has a complete and adequate remedy at law, and is therefore not entitled to maintain a creditor’s bill. Bev. Stat. chap. 77, secs. 52, 55; Story’s Eq. Jur. secs. 546-549.
    Mr. C. Beckwith, also, for the appellant.
    Mr. Morton Culver, for the appellee:
    The right of membership in a hoard of trade or stock exchange is an incorporeal hereditament, and is property which'may be taken for the payment of the holder.’s debts-in case of his bankruptcy or insolvency. Hyde v. Woods, 2 Sawyer, 655 ; Same case, 4 Otto, 523; Ritterband v. Boggett, 4 Abb. N. C. 67; In re Ketchum, 1 Fed. Rep. 840; Gallagher v. Lane, 16 Blatchf. C. C. 410; In re Warder, 10 Fed. Rep. 275.
   Mr. Justice Craig

delivered the opinion of the Court:

There is but one question presented by this record, and that is, whether a certificate of membership in the board of trade of the city of Chicago, is property, which is liable to be subjected, to the payment of the debts of the holder by legal proceedings.

The Board of Trade of Chicago is a corporation created by a special act of the legislature of the State, with power to sue and be sued, to purchase and hold property not to exceed at any time $200,000. The objects of the corporation, as declared by the charter and by-laws, are “to maintain a commercial exchange; to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in trade; to facilitate the speedy adjustment of business disputes; to acquire and to disseminate valuable commercial and economic information; and generally, to secure to its members the benefits of cooperation in the furtherance of their legitimate pursuits. ” By the 12th section of the charter the corporation is prohibited from transacting any business excepting such as is usual in the management of boards of trade or chambers of commerce. No dividends whatever are made among the members of the corporation. No person can become a member unless he receives the votes of not less than ten of the board of directors. A certificate of membership is transferable on the books of the association to any person eligible to membership who may be approved by the board of directors, after due notice. The corporation has power to make by-laws for the management of its business, and the mode in which it shall be transacted. Under the by-laws the board of directors are required to provide necessary rooms and offices for the purposes of the association, which shall be kept open on all business days during certain hours, for the admission of the members.

From an examination of the charter and by-laws of the corporation it is apparent that no member receives any pecuniary profit from the corporation, or from its capital or revenue, except such advantage in the way of trade that he may derive from the mere privilege of being a member, and from being admitted to transact business in the rooms of the board. If dividends were authorized to be declared among the members, as stockholders, of the earnings or accumulations of money or property, there might be some ground for holding that a certificate of membership was property, and liable to be taken for the debts of the member; but such is not the case. However much money or property may be accumulated by the board, it is powerless to declare a dividend among its members.

When the nature and object of a certificate of membership are understood, can it, upon any reasonable principle, be said to be property? In Bouvier’s Law Dictionary, the author, under the head of ‘‘Property, ” gives a definition, as follows: “The right and interest which a man has in lands and chattels to the exclusion of others.” The author also announces the rule that property, considered as an exclusive right to things, contains not only the right to use those things, but a right to dispose of them as the owner may desire. The certificate of membership is neither lands nor chattels, nor can a member dispose of his mémbership-as'he pleases. A sale' can ohly.be made to such person as the board, through its directors, may determine. If, then, a certificate of membership is property, it does not fall within the definition given, nor do we know of any definition of property within which it would fall.

It may be said that a certificate of membership has a large value, and hence ought to be regarded as property. ' It is true that the board requires a person who becomes a member to pay an initiation fee of $5000, and the evidence shows that a certificate of membership- is regarded in the market as worth $4000; but this does not change the character of the right. A church organized under our statute may own property, for .the uses and privileges of its members, worth as much as the property possessed by the board of trade, and the right of a member to attend the meetings of the church and occupy a pew may be regarded as a high and valuable right, and yet the right of membership has never been regarded as property which may be subjected to the payment of the debts of a member. The same may also be said in regard to the membership in a masonic lodge, or a social club, and various other organizations of a similar character.

There may be, and doubtless are, many privileges which a man may possess that are valuable to him, which do not fall within the definition of property, and which may be enjbyed, but can not be subjected to the payment-of debts. A liquor dealer may be licensed to sell liquors at a certain place, for a certain time, for which privilege he is required to pay $1000 per annum. That privilege is worth to him much more than he is required to pay; but is that privilege property which may be sold on execution, or reached by a creditor’s bill, for the payment of debts ? We have never so understood the law. A peddler or an auctioneer may be licensed to carry on his vocation within a certain district, for which he may pay a stipulated sum of money. The profits arising from the privilege of exercising the right may be much larger than can be earned’by a person exercising the right to transact business on the floor of the board of trade, and yet we have never understood that such a privilege was liable to be seized and sold in satisfaction of debts. The attorney and the physician are licensed to practice their professions. It costs money to obtain such a privilege. It may be, and is, a valuable right, and yet such a right can not be taken by a creditor’s bill and sold in satisfaction of a debt. The same may be said in regard to various other privileges which may be, and often are, conferred upon persons in the different pursuits of life.

A certificate of membership in the Board of Trade of Chicago empowers the person who is admitted as a member to attend the meetings of the board, and deal in the various products of the country. This right to appear at a certain place and transact certain business, in our judgment is not property, but it is a mere privilege conferred upon the member, which can not be reached and sold by the process of courts. It is a right which may be regarded as valuable, but which can not be divested or destroyed, except by the board itself, for a failure of the member to conform to the rules and regulations of the association. This view is in harmony with the rule announced hy the Supreme Oourt of the State.of Pennsylvania, where a similar question arose. Thompson v. Adams, 93 Pa. St. 55; Pancoast v. Gowen, id. 66.

We have been referred to some cases which seem to hold a different view, but without entering upon a review of the cases cited we do not think they establish the correct rule, and we are not inclined to follow them.

The judgment of the Appellate Oourt will be reversed, and the cause remanded.

Judgment reversed.

Subsequently, on an application for a rehearing, the following additional opinion was filed:

Mr. Justice Craig :

A petition .for a rehearing has been filed in this case, in support of which we have been favored with an elaborate argument, in which it is urged that the decision rendered by this court is not in harmony with the current of authority ón the question involved. We have given the argument of the petitioner a careful consideration, but we are unable to arrive at a different conclusion from that reached on the original argument of the case.

In the petition for a rehearing it is said: “Appellee does not claim that Barclay’s membership is property that he could levy on by attachment, execution or garnishment, at law, but he does claim that the ‘incorporeal right’ which Barclay has to a seat on the board of trade is property,—valuable property,—and can be reached in chancery, subject only to the prior claims of his co-members of the board for debts contracted in the regular course of business on the exchange.” It is true that, under our statute, certain assets of a judgment debtor not liable to be levied upon and sold under execution as property, strictly speaking, may be reached by a judgment creditor by a creditor’s bill, as, money, things in action due to the judgment debtor, or held in trust for him; but does a certificate of membership in the board of trade fall within that species of property?

We have been referred to Hyde v. Woods, 4 Otto, 523, as an authority sustaining the position of appellee. That was a case brought by the assignee in bankruptcy of Thomas W. Fenn, to recover the proceeds of the sale of the seat of Fenn in the San Francisco Stock and Exchange Board, which came into the hands of the defendants within four months before the filing of the petition in bankruptcy. The court held that the plaintiff could not recover; that the proceeds of the sale of the seat were properly disposed of by the defendants in the manner provided for by the articles of incorporation. It is true the court, in its opinion, says that the incorporeal right which Fenn had to his seat was property, but, as we understand the decision, that was not a question involved in the case. The seat of Fenn had been sold and converted into money, and the action was brought by the assignee to recover that money in the hands of third persons. It was not a proceeding, as this is, to compel a certificate of mem-. bership to be delivered over to an officer of the court, and to obtain a decree ordering such officer to sell the certificate. If Barclay, the appellant, had sold his certificate of membership on the board of trade, and had converted it into money, and this was a proceeding to reach that money in the hands of a third party, in satisfaction of a judgment or for the benefit of creditors, then the case, in principle, would be like the one cited, and the case cited could be relied upon as authority. But such is not the ease. Had the certificate been converted into money, and this was a proceeding to reach that money, we would have no difficulty in holding that the action was well founded; but the power of a court of chancery to divest a man of a mere right to transact business on the board of trade, and sell that right in satisfaction of a judgment, on the ground that such a right has value, is going further than we think the rules of equity will warrant.

We have also been referred to Powell v. Waldron, 89 N. Y. 328, as an authority on the question involved. In that case one Bobbing, who was &■ member of the New York Cotton Exchange, pledged his certificate of membership, which entitled him to a seat, as collateral security for his note given for a loan of money. The amount due on the note was tendered the holder, and he refused to accept the money and surrender the'certificate, when Powell, as receiver, appointed in supplementary proceedings on execution against Bobbins, brought in a claim against the holder of the certificate to redeem. The court, following Hyde v. Woods, supra, which is cited to sustain the position, held that the certificate was property. The articles of the cotton* exchange are not set out in the statement of the case or opinion, but it seems manifest, from the opinion of the court, that they differ widely from the articles of the board of trade. In the opinion it is said: “It was something more than a mere personal license or privilege, for it could qiass from one to another of a certain class of persons, and belong as full to the assignee as it did to the assignor. That characteristic gave it not only value, which might attach to a bare personal privilege, but market value, which usually belongs only to things which are the subject of sale. * * * It could be transferred from hand to hand, and all the time keep its inherent value, and be as freely and fully enjoyed by the permitted purchaser as by the original owner.” A certificate of membership in the board of trade can not be transferred by a member at any time or to any person he may see proper to select. Under the by-laws, a transfer can only be made to a person who may be approved by the board of directors. The board reserved the power to prevent any transfer or sale which it might think best, hence a certificate of membership could not be sold and transferred in the market from hand to hand, as seems to be authorized by the cotton exchange. If a certificate off ’membership on the board of trade was subject to sale and transfer by a member, at his will and pleasure, as seems, from the opinion, to be the case in the cotton exchange, we might not hesitate to hold, as did the court of appeals, that it could be reached on creditor’s bill in satisfaction of a judgment, But such is not the case.

We have also been referred to several cases decided in the United States District Courts, but it will not be necessary to consider them here. Those cases are mainly predicated upon Hyde v. Woods, supra, which, as we have attempted to show, is so different in its facts from this case that it can not be regarded as an authority.

But even the decisions in the district courts have not been harmonious. In the matter of In re Sutherland, 6 Biss. 526, where a certificate of membership in the Board of Trade of Chicago was involved, it was expressly held not to be property. In concluding, the court said: “I am of opinion that the bankrupt’s membership in this board, being in the nature of a franchise, title or privilege, does not vest in or pass to his assignee, and can not be treated as a portion of his assets.”

Section 6 of the charter of the board declares: “Said corporation shall have the right to admit or expel such persons as they may see fit, in manner to be prescribed by the rules, regulations and by-laws thereof. ” Under this section of the charter, and the by-laws adopted under it, no person can become a member of the board except such as the board may see proper to admit. It makes no difference what may be his standing, either morally, intellectually or as a business man, he can not become a member without the consent of the board,—in other words, the board has been empowered by the legislature to determine for itself who shall be its associates. We do not understand that a court of equity, or any other court, has the right to determine who shall be a member of the board, and entitled to enjoy the rights and privileges conferred by the legislature on that body, and yet we are asked to hold that the circuit court had the right to take from appellant his membership, and sell it in the, market to another. What could be'gained by a sale unless the purchaser could be invested with the right to a seat on the board ? Is a court of equity created to render a decree in a case which it is powerless to enforce? We have never understood that courts of equity were organized to render decrees which could be of no practical benefit to any person, and which could not be carried out and enforced.

In Gallager v. Lane, 16 Blatchf. 410, (a ease cited by appellee in support of his petition' for a rehearing,) Choate, Justice, in delivering the opinion of the court, said: “In an unreported case in this district Judge Blatchford refused to make an order for the sale at auction of a seat in the stock exchange, solely, however, on the ground that he would not permit a public sale to be made, under the sanction of the court, in a case where the assignee could not undertake, with the purchaser, to deliver the thing sold.” There is much wisdom in this remark. As we have seen, a purchaser, should a sale of the certificate be ordered, could acquire no right to a seat unless the board saw fit to admit such purchaser, and a court ought not to be required to render a decree. that could be of no practical benefit to any person.

It is contended that the two Pennsylvania cases cited in the opinion are not authority in this case. In one of the cases (Pancoast v. Gowen, 93 Pa. St. 66,) it is said: “A seat in the board of brokers is not property subject to execution in any form. It is a mere personal privilege, perhaps more correctly a license, to buy and sell at the meetings of the board. It certainly could not be levied on or sold under a fi. fa. The sheriff’s vendee would acquire no title which he could enforce. Nor is it within either the words or the spirit of the act of June 16, 1836, providing for attachment on judgment. Whether the proceeds of the sale of the seat in the hands of the treasurer of the board, and payable to the defendant according to the regulations and by-laws of the board, could be thus reached, is an entirely different question. This, and no more, is. what we understand to have been decided by the Supreme Court of the United States in Hyde v. Woods, 4 Otto, 525, where Mr. Justice Miller says: ‘ If there had been left in the hands of the defendants any balance, after paying the debts due to the members of the board, that balance might have been recovered by the assignee in bankruptcy.’ ” We supposed this and the other case had a direct bearing on the question. Indeed, this case cites Hyde v. Woods, the leading ease upon which petitioner relies, and shows plainly, as we think, that it has ho bearing in a case like the one under consideration.

It will not, however, be necessary to discuss the question further. We are satisfied that the conclusion reached on the original hearing was correct, and the petition for a rehearing will be denied.

Mr. Justice Mulkey,

dissenting:

When the opinion in this case was first filed, I, with some hesitation and doubt, concurred with the majority of the court in its approval; but subsequent investigation, and a more mature consideration of the subject, fully satisfy me that the conclusion reached is not supported either by principle or authority, and I therefore reápectfully dissent from it. All that there is in the charter, rules and by-laws of the board of trade, in regard to the transferability of certificates of membership, are the following rules of the board:

“Rule 10—Memberships.

“Sec. 1. Any person of good character and credit, and of legal age, and resident of or permanently doing business in the city of Chicago, on presenting, a written application, indorsed by two members, and stating the name and business avocation of the applicant, after ten days’ notice of such application shall have been posted on the bulletin of the exchange, may be admitted to membership in the association, upon approval by at least' ten (10) affirmative ballot votes of the board of directors, and upon payment of an initiation fee of $1000, or on presentation of a certificate of unimpaired or unforfeited membership, duly transferred, and by signing an agreement to abide by the rules, regulations and by-laws of -the association, and all amendments that may, in due form, be made thereto.

“Sec. 2. Every member shall be entitled to receive á certificate of membership, bearing the corporate seal of the association, and the signatures of the president and secretary; and if the member in whose name said certificate stands has paid all assessments due, and has against him no outstanding unadjusted or unsettled claims or. contracts held by members of the association, and said membership is not in any way impaired or forfeited, it shall, upon the payment of ten (10) dollars, be transferable upon the books of the association, to any person eligible to membership who may be approved by the board of directors, after due notice, by posting, as provided in section 1 of this rule. The membership of a deceased member shall be transferable, in like manner, by his legal representative. Prior to 'the transfer of any membership, application for such transfer shall be posted upon the bulletin of the exchange for at least ten days, when, if no objection is made, it shall be assumed the member has no outstanding claims against him. ”

Mr. Justice Sheldon also dissents.


author: Mr. Justice Dickev Per Curiam :

text:
    William Stage v. Jacob Gorich.

      Filed at Ottawa March 28, 1883

      Rehearing denied September Term, 1883.

    1. Abbitbation—settlement of partnership through aid of another is not an arbitration and award. Where partners sought and obtained the aid of an accountant in adjusting their accounts, for the purpose of a settlement, and he prepared a paper showing what he considered a fair settlement between them, which they adopted: Held, that this was no arbitration, and the paper prepared by the accountant was no award, it merely constituting a settlement, liable to be opened for mistake.
    2. Settlement—opened for correction of mistakes. Where it is clearly shown that one partner has made advances for the use of the firm of considerable sums, which were not taken into consideration at a settlement had between the partners, on bill filed by one of the partners for an account, it was held, the cause should have been referred to the master to state anew the accounts, so far as concerned the omitted items.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Josiah McRoberts, Judge, presiding.
    Mr. Pebey A. Armstrong, for the appellant:
    The proof fails to show there was any arbitration or sub-' mission to an arbitrator. The exhibit upon which the settlement was based ismot.under seal,.nor signed by Judge Grant as arbitrator, referee or accountant, so that if there was any submission to him * as arbitrator, it was in parol, which, in order to bind the parties, must be clearly proved. Koon et al. v. Hollingsworth, 97 Ill. 52; Ingraham et al. v. Whitmore et al. 75 id. 24.
    But if it was an award, it is not valid, because it did not cover and determine what is claimed to have been submitted. An award, to be good, must settle and determine every matter submitted. If it does not, or goes outside and beyond the submission, it is void. Alfred v. Kankakee and Southwestern R. R. Co. 92 Ill. 609; Hadaway v. Kelly, 78 id. 286.
    It is not pretended that various advances and payments made by appellant were disposed of by Judge Grant. Then, if there had been a submission of the partnership accounts to him, his statement of the account would have been voidable, and subject to review and correction in a court of equity for either fraud, corruption, unfairness, mistake, undue influence, accident, miscalculation, improper conduct of the arbitrator, or for any other cause vicious. Pulliam v. Pensoneau, 33 Ill. 375; Wiley v. Platter, 17 id. 540 ; Williams v. Warner, 21 id. 541; Haywood v. Harmon, 17 id. 477; Spink v. Cook, 19 id. 415; Kimball v. Walker, 30 id. 482; Tucker v. Page, 69 id. 180; Howell v. Howell, 26 id. 460; Sherfy v. Graham, 72 id. 158.
    Mr. S. P. Aveby, for the appellee, contended, from the facts in evidence, that the partnership matters of the firm were submitted by the parties to Judge Grant as an arbitrator, and that his finding, on a full and fair hearing and investigation, was an award binding on all the parties, and that there was no mistake made.
    Mr. S. C. Stough, also, for the appellee:
    An award has the effect of an adjudication, and is conclusive” upon the parties. Rogers v. Holden, 13 Ill. 293; Pulliam v. Pensoneau, 33 id. 374; Morgan et al. v. Stevens, 78 id. 286.
    All reasonable intendments will be indulged in for the purpose of supporting an award. Haywood et al. v. Harmon et al. 17 Ill. 477; Tucker v. Page, 69 id. 179.
    An erroneous decision, or an error of judgment on the part of the arbitrator, will not vitiate the award. Merritt v. Merritt, 11 Ill. 565; Smith v. Douglas, 16 id. 34; Ross & Hammond v. Watts, id. 99.

      Arbitrators by a submission become the judges, by choice of the parties, both of the law and' the fact, and there is no appeal or review from or of any decision made by them within the scope of their powers, except for fraud, partiality or misconduct. And a mistake, either of law or of fact, by arbitrators, is no ground for setting aside their award, but a mistake in the draft of the award may be reformed so as to conform to the award actually made. Sherfy v. Graham, 72 Ill. 158.
   Mr. Justice Dickev

delivered the-opinion of the Court:

This is a bill by Stage, against Gorich, for an accounting and an adjustment of their accounts as partners, alleging that they had made a settlement, with the aid of Judge Grant, to whom their memoranda and vouchers and statements were made, but that, by mistake, several important items of advances by Stage to the use of the firm were omitted, etc. Defendant answered, among other things alleging, in substance, that their matters in dispute were submitted to Grant as an arbitrator, and that he had made an award, by which the parties were bound, and the right to an accounting was cut off. Evidence was taken, and the question thus raised was submitted to the court. The circuit court held the proceeding before Grant to be an arbitration, and the result to be an award binding upon the, parties. This was affirmed by the Appellate Court, and this is an appeal from the judgment of affirmance.

After a careful examination of the proofs, we think this conclusion was erroneous. Prom the proofs we think -that the parties simply sought and obtained the aid of Judge Grant in adjusting their accounts for the purposes of a settlement, and that the paper prepared by him was simply an expression of an opinion by him, to them, as to what would constitute a fair settlement between them. This paper had no legal force until it was accepted and agreed to by the parties. The whole transaction constituted a mere settlement between the parties. The proofs show, satisfactorily, that Stage made advances for the use-of the partnership of considerable amounts, which, by mistake, were not taken into consideration at this settlement. Instead of holding the parties bound by these proceedings as by the award of an arbitrator, the cause ought to have been referred to the master to state anew the accounts between the parties, so far as concerns these omitted items. The decree of the circuit court ought to have been reversed and the cause remanded.

The judgment of the Appellate Court is therefore reversed, that further proceedings may be had in .conformity to this opinion.

Decree reversed.

A petition for rehearing was filed in this case, chiefly upon the ground that the court had not, in its opinion, disposed of a motion to dismiss the appeal, which was reserved for the hearing. The application for rehearing was denied, and the following filed:

Per Curiam :

The motion to dismiss this appeal can not be. allowed. It rests upon the allegation that the amount involved is less than $1000. Taking to be true all the proofs tending to support the claims of complainant, and rejecting all proofs to the contrary, it is apparent that more than $1000 is involved in this controversy.


author: Mr. Justice Sheldon

text:
    Jacob Haish v. George Payson.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Evidence—opinion on question of value of services. In an action by an attorney to recover for professional services for the defendant, such services resulting in a favorable compromise of litigation, opinions of other attorneys may be received as to the value of the services rendered; but opinions as to the benefits of the compromise to the defendant in his business in the future are not admissible.
    2. Same—elements that may be considered in fixing value of professional services. 'While the amount involved in the litigation may not improperly be considered infixing the value of the services of an attorney in the case which led to a settlement of the matters in dispute, and the securing of certain rights and privileges to his client, yet it is not admissible to go into an inquiry concerning prospective benefits which may accrue in the future to the client from such settlement.
    3. Same—comparing result of litigation with other cases on question of value of legal services. In proving the value of legal services of an attorney in the defence of a suit, and attending to other matters, leading to a favorable settlement of the litigation, it is not proper to present to the view of the jury the settlements made with other persons by those settling with the client, either by direct evidence or by the form of a hypothetical question to witnesses. It is not proper to show that the settlement with the client was much more favorable than with other parties. Such comparisons should not be permitted.
    4. Same—hypothetical question, as assuming facts. If it be allowable to assume facts in a hypothetical question to a witness, it is not permissible to assume what is not within the range of legitimate evidence. Such a question, filled with partial statements of facts, containing inferences and conclusions drawn from them, should not be allowed, and is well calculated to mislead the jury.
    5. In this case a question covering some two and a half pages, containing no appearance of hypothesis until near the close, was read to several witnesses, in the presence of the jury, which was objected to, and it was held an anomaly, and condemned as improperly allowed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      This was a suit brought in the Superior Court of Cook county, to recover for legal services rendered. The nature of the case appears sufficiently from the following question, which was propounded to witnesses on the trial:
    Question—“This is a suit by George Payson, Esq., a member of the bar of this city, against Jacob Haish, of De Kalb, to recover fees for professional services. Haish had been sued some time about the end of 1876, in the United States Court, in Chicago, for the infringement of certain patents on barbed fence wire. Other parties being sued under the same patents formed an association for their mutual defence, and retained Mr. Payson, Mr. N. C. Gridley, and Messrs. Mun-day, Evarts & Adcock, as their counsel. Haish joined this union in 1879. The suits—fourteen in all—then went on together, and a very large amount of testimony was taken. They were all tried together before Judges Drummond and Blodgett, argued at great length, taken under advisement, and a decision rendered some seven months thereafter, finding three of the plaintiffs’ patents valid, and all of the defendants guilty of infringement. A petition for rehearing was presented by the other defendants, but in this Haish did not join. He had received assurances from one of the plaintiffs’ attorneys that he should not be in any way molested,—that he should pay nothing for the past, and have a free license for the future. He accordingly refused to apply for a rehearing. At the request of the plaintiffs’ attorney he wrote him a letter, stating that he wanted no rehearing. He went in person to Judge Drummond and told him the same thing, and finally stood up in open court and publicly stated to the court that he was content with the decree then drawn, and was willing to have it entered against him. He also used his influence with the other defendants to settle, which they all finally did; but on his applying to the plaintiffs to carry out their agreement with him he was told that they had made no such promises, and that he could have no better terms than the rest. This he refused to do, and soon after, in January, 1881, he retained Messrs. Munday, Evarts & Adcock to carry on the litigation for him alone, and he also retained Mr. Payson to act with them as counsel. The services here sued for commenced at this time. Mr. Haish had $300,000 invested in his business of making barbed wire, having one manufactory at De Kalb, Illinois, and anpther at Johnstown, Pennsylvania. These gentlemen accepted his retainer. They at once went . to work to see if they could not get a rehearing, or if they failed in that, to prevent an injunction. The court did allow them to re-argue the case, and then held that only two of the plaintiffs’ patents had been infringed by Haish. The next question was whether. Haish should be enjoined. This question was also argued at length by eminent counsel for the plaintiffs, and Mr. Payson and Munday for Haish, and the court finally decided that no injunction should issue, provided he paid into court every month, to await the final result of the suit, seventy-five cents for every one hundred pounds, the same as had to be paid by the other licensees. The negotiations for a settlement, which had been previously broken off, were now renewed, Mr. Thurston, leading counsel for the patentees, going at once from the court room to Mr. Payson’s office for that purpose, but still without success, the patentees not being willing to offer Mr. Haish such terms as he or his counsel were ready to accept. The next step taken by the patentees was to prosecute a suit against one of Mr. Haish’s customers in the State of New York, whereupon a petition was prepared by Munday, Evarts & Adcock, and presented to Judge Drummond, for the purpose of preventing the patentees from going on with said suit. Judge Drummond intimated so clearly his opinion that Haish’s customers should not be interfered with in that way, that nothing more was done in that suit, and negotiations were again resumed, after long and repeated consultations, Haish’s counsel striving all the time to secure for him the most favorable terms, encouraging him to hold out, assuring him of final success in the Supreme Court if his proposition should be rejected by the other side, but at the same time urging hird to settle whenever he could do so oh proper terms. A settlement was at last effected,—a settlement whereby, it is claimed by Mr. Payson, that Haish secured the following advantages: First, he is released from all claims for past infringements, amounting, according to his own estimate, to $107,000; second, he is allowed to withdraw some $25,000 deposited by him in court; third, he received from the patentees $10,000 in cash; and fourth, he obtains a license under all their patents for fourteen years, the same as all their licensees, with’ the following ' important differences : Thus he obtains the right to make 10,000 tons of barbed wire for each year during the fourteen years, whereas the utmost they had been before willing to offer him was 4000 tons. On the first 4000 tons he pays no royalty, whereas on the terms first offered he would have had to pay seventy-five cents a hundred pounds, making a saving to him of $60,000 a year. On the next 4000 tons he pays only fifty cents a hundred, instead of seventy-five cents, making a further saving of $20,000 a year, or in all, $80,000 a year, or $1,-120,000 for the whole fourteen years, if the business continues so long, which he would have had to pay if he had got no better terms than those first offered,—all this being in addition to the regular profit made by him in common with all the rest, and which, at two cents a pound, would amount to $400,000 a year, thus leaving him in a better position than if the patents had been held invalid and the business thrown open. On this supposed state of facts, what, in your opinion, would be a fair and reasonable compensation for Mr. Payson’s service to Mr. Haish, Messrs. Munday, Evarts and Adcock being associated with him and continually advising with him, and he taking part in the consultation, the negotiations, and the arguments in court?”

      The court permitted the plaintiff’s counsel, against the objection of the defendant, to read and propound the above question to five several attorneys who were called as witnesses. After opinions had been given under this question by the witnesses, varying from $15,000 to $30,000, these witnesses were recalled, and the question was amended by striking out the following language: “All this being in addition to the regular profits made by him in common with all the rest, and which, at two cents a. pound, the present profits, would amount to $400,000 a year, thus leaving him in a better condition than if the patents had been held invalid and the business thrown open to all the world, ”—and as thus amended the question was re-propounded to the witnesses, and their original valuation re-asserted.
    Evidence was also given,. against the objection of the defendant, tending to show that the terms of defendant’s compromise were more favorable than those on which those other individuals who had been similarly prosecuted, settled, and also tending to show what special benefits resulted to the defendant, as stated in the question above, and with the same estimation thereof in figures at $1,120,000.
    The jury, by their verdict, found for the plaintiff, and assessed his damages at $8000, for which the court, after overruling the defendant’s motion for a new trial, gave judgment, which, on appeal to the Appellate Court for the First District, was affirmed, and the defendant appealed to this court.
    Mr. Frank J. Smith, Mr. Joseph B. Stephens, and Mr. F. A. Helmer, for the appellant.
    Mr. William H. King, and Mr. Frederick W. Packard, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The mode of presentation of this base to the jury was such as, in our opinion, to require a reversal of the judgment. The evidence which was permitted to be given, and the so-called hypothetical question which was allowed to be put and read over to witnesses, were calculated to draw away the minds of the jury from the true inquiry, what was the extent and value of the professional services rendered the defendant by the plaintiff, to the contemplation of the large sums of money which would result in the future from the saving of royalty, which in fourteen years would reach the enormous amount of $1,120,000,—suggestive of the idea, to the jury, that the plaintiff ought to be admitted to- a participation of such magnificent gains. While the amount involved might not improperly be considered in fixing the value of the plaintiff’s services, yet we consider it not admissible to go into an inquiry concerning prospective benefits which might accrue in the future. Testifying to the amount of the benefits which would be realized by the defendant in the future is not the statement of a fact, but the giving of an opinion. In the present case, opinions may be received as to the value of the services, but opinions as to benefits in the future are not admissible.

A citation is made of the rule, as laid down in Eggleston v. Boardman, 37 Mich. 18, that the professional skill and standing of the person employed, his experience, the nature of the controversy, both in regard to the amount involved and the character and nature of the questions raised in the case, as well as the result, should all be taken into consideration in fixing the value of the services rendered, and it is claimed that what was here done was justified under the above authority, as showing the result. The word “result,” thus used, we understand to mean the termination of the controversy, whether successful or otherwise, and not the ultimate benefit to the client. As remarked in Robbins v. Harvey, 5 Conn. 341, the inquiry under a quantum meruit is not what benefits, immediate and remote, have been derived from the services, but the question is, what is the general worth of the services rendered. The objection is not that the amount involved might not be taken into consideration, but the mischief of the course pursued was, that it was calculated to mislead the jury to think that the ultimate benefits to be derived by the defendant was the measure of compensation.

Another objection to the mode of the presentment of the case was in offering to the view of the jury the settlements which had been made with other persons. This was done by the evidence, and by the question objected to. The idea was held out to the jury that the settlement got by the defendant was a much more favorable one than those made by others, and that that was an advantage obtained by the defendant ■which should be considered by the jury. The question remarks upon the “important differences” between the settlements as an advantage of the defendant, and upon the price which “had to be paid by the regular licensees under the patents. ” Comparison of the settlement which the defendant made, with settlements which other people might have made, should not have been admitted,—and this, if not done directly, was at least in an indirect manner brought before the jury.

The above question, read to witnesses, was a compound of. positive assertions of facts and conclusions. It is said the question is a hypothetical one, and that in such a question it is allowable to assume facts; but it is not permissible to assume what is not within the range of legitimate evidence. The sum of $1,120,000 as future benefits is a conclusion, which the question figures out by inference from 'alleged facts. Evidence is to be given only of facts. The inference and conclusion which the question contains a witness would not be admitted to testify to. The hypothetical feature of the question is hardly discernible. The question covers some two and a half pages, containing in it no appearance of hypothesis, until in the last sentence, in the words, “on this supposed state of facts.” The reading over of this lengthy paper, filled with partial statements of facts, containing conclusions drawn from them, many times in the hearing of the jury, was calculated to possess them most fully with the plaintiff’s side of the case, and not leave their minds open to an unbiased consideration of the whole of the facts of the case. Opportunity should not be given for doing this, through the medium of a question put to witnesses. The question is an anomaly, and must receive condemnation.

For the errors indicated the judgment of the Appellate Court will be reversed, and the cause remanded for further

proceedings.

Judgment reversed.

Scott, Ch. J., and Walker, J.: We do not concur in this opinion.

Mr. Justice Dickey took no part in the decision.


author: Mr. Justice Craig

text:
    Paul Cornell v. The People ex rel. Charles Walsh.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Municipal corporations—how far subject to legislative control. There is no doubt in regard to the general proposition that the legislature has the power to control municipal bodies which it has created, and may, as a general rule, alter or amend the act of incorporation at pleasure; but all such changes must be subject to such limitations as may be imposed by the constitution of the State.) It may enlarge or diminish the corporate powers of the South Park Commissioners of Cook county.
    2. Same—who are, “corporate authorities,” upon whom the power of taxation may be conferred. The “corporate authorities” intended by the constitution upon whom the power of taxation may be conferred, are such municipal officers as may have been elected directly by the people of the district, or appointed in some mode to -which the people of the district have given their assent. The people of such bodies must assent to the conferring and exercise of such powers by electing the authorities, or must, by a vote for the charter, assent to their appointment by some other officer or person.
    3. The clause in the constitution of 1848 that the corporate authorities of cities, etc., may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property, etc., and a similar clause in the present constitution, is held a limitation upon the power of the legislature to confer the right to assess and collect taxes upon any other piersons than the corporate or local authorities of the municipality or district to be taxed.
    4. Board op dark commissioners—considered as a municipal corporation—with power of taxation. The people of the towns affected by the Park act of 18G9, having, by a vote, accepted its provisions, the board of park commissioners thereby created became a municipal corporation, in whom the legislature might vest power to assess and collect taxes within the park district for the special corporate purposes of its creation.
    5. Same—as to the mode of their appointment—and by whom. By adopting the Park act of 1869, the people of the district assented to its provisions making the commissioners corporate authorities, and that they might be appointed as provided in that act. They gave their assent that the first board of corporate authorities should be appointed by the Governer, and that their successors should thereafter, as a vacancy occurred, be appointed by the judge of the circuit court of Cook county. Upon no other terms did the people of the district assume the burden of taxation which the corporate authorities had the power to impose.
    6. Same—changing the mode of appointment without the assent of those interested—constitutionality of the act. Where the people of a municipality have assented to the appointment of park commissioners who are invested with the corporate power of levying taxes, by a judge of a court in their midst, a subsequent act of the legislature taking such appointing power from such judge, and conferring it upon the Governor of the State, thereby changing the mode of appointment in a manner not assented to, is unconstitutional and void, and a commissioner appointed by the Governor will have no rightful authority to exercise the duties of such office.
    7. The first section of the act of 1881 merely prohibits any judge of the circuit court from appointing any park commissioner; but the second section purports to authorize the Governor to appoint. The second section being unconstitutional, and the purpose of the entire act being to accomplish but a single object, both sections must fall together.
    8. Statute—of its validity, in part or os a whole. Where it is apparent that an entire act of the legislature is intended to accomplish a single object, although one section may be good, and the other bad, as in violation of the constitution, both sections must fall together; but if a statute attempts to accomplish two or inore objects, and is void as to one, it may be in every respect valid as to the other.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. E. S. Williams, for the appellant:
    The opposition between an act of the legislature and the constitution must he strong and clear to justify the courts in holding the act unconstitutional. Lane v. Dorman, 3 Scam. 238; People v. Marshall, 1 Gilm. 672; People v. Hatch, 33 Ill. 130; Chicago, Danville and Vincennes R. R. Co. v. Smith, 62 id. 268.
    The park commissioners, by the vote of the people, became a corjiorate authority, and are the agents by whom, in part, the people of the State carry on the government. People v. Salomon, 51 Ill. 37; Wilcox et al. v. People ex rel. 90 id. 192; People ex rel. v. Walsh et al. 96 id. 232.
    Being a public municipal corporation, it is subject to legislative control, there being no vested, right in its franchises. County of Richland v. County of Lawrence, 12 Ill. 8; Trustees of Schools v. Tatman, 13 id. 30; Dennis v. Maynard, 15 id. 480; People v. Power, 25 id. 191; People ex rel. v. Brislin, 80 id. 432; People ex rel. v. Brown, 83 id. 97; Buffett et al. v. Great Western R. R. Co. 25 id. 355; Coles v. Madison County, Breese, 115; United States v. Railroad Co. 17 How. 329; State Bank v. Knoop, 16 id. 369; Sloan v. State, 8 Blackf. 361; 1 Dillon on Mun. Corp. sec. 54.
    The legislature ■ may change the mode' of appointing the commissioners without a vote of the people, as well as enlarge their powers. People ex rel. v. Brislin, 80 Ill. 423 ; Bank of the Republic v. Hamilton County, 21 id. 53; People ex rel. v. Wright, 70 id. 395; People ex rel. v. Auditor, 1 Scam. 537; People v. Haskell, 5 Cal. 357; City Council v.
      Sweeney, 44 Ga. 463; Davis v. State, 7 Md. 157; West Chicago Park Comrs. v. Telegraph Co. 103 Ill. 33.
    The legislature has the right to repeal the chapter of this corporation, and thereby abolish all offices under it. People ex rel. v. Brown, 83 Ill. 97; People ex rel. v. Power, 25 id. 191; United States v. Railroad Co. 17 How. 329; 1 Dillon on Mun. Corp. (3d ed.) sec. 54; People v. Morris, 13 Wend. 331; Cooley on Const. Lim. sec. 235, p. 290; People ex rel. v. Brislin, 80 Ill. 423; People ex rel. v. Wright, 70 id. 338; Wilcox et al. v. People, 90 id. 186; Andrews v. People, 83 id. 529; People v. Morgan et al. 90 id. 558; People v. Walsh et al. 96 id. 232; Dunham v. People, id. 333.
    Mr. J. L. High, also, for the appellant:
    It is claimed there can be no change in the method of selecting or appointing municipal officers invested with taxing powers, unless such change shall receive the assent of a majority of the tax-payers affected thereby. The legislature, unless restrained by constitutional restrictions, has the power to change, modify or destroy municipal corporations. Cooley on Const. Lim. 192; Coles v. County of Madison, Beecher’s Breese, 154; People v. Wren, 4 Scam. 269; County of Richland v. County of Lawrence, 12 Ill. 1; Trustees of Schools v. Tatman, 13 id. 27; People v. Power, 25 id. 187; Mayor of Baltimore v. The State, 15 Md. 376; Dartmouth College v. Woodward, 4 Wheat. 693; Bristol v. New Chester, 3 N. H. 524; East Hartford v. Hartford Bridge Co. 10 How. 511; City of Philadelphia v. Field, 58 Pa. St. 320.
    All other amendments to the park acts have been held constitutional. People v. Brislin, 80 Ill. 423; Andrews v. People, 83 id. 529; People v. Walsh, 96 id. 232; West Chicago Park Comrs. v. Telegraph Co. 103 id. 33; People v. Morgan, 90 id. 558.
    Municipal charters are not contracts, but are granted for public purposes, and may be amended or repealed, at the discretion of the legislature. East Hartford v. Hartford Bridge Co. 10 How. 511; Cooley on Taxation, 56, 192.
    Mr. Luther Laplin Mills, State’s Attorney, and Mr. A. W. Green, for the appellee:
    The act of February 2, 1869, when assented to by the people of the towns of South Chicago, Hyde Park and Lake, created a public municipal corporation, of which the South Park Commissioners are the corporate authorities. People v. Salomon, 51 Ill. 37; People v. Chicago, id. 58; People v. Walsh, 96 id. 232.
    The constitution of 1848, which was in force when this act was passed, provides that the corporate authorities of cities, towns, and other municipal corporations, may be vested with power to collect and assess taxes for corporate purposes. Const. 1848,. art. 9, sec. 5.
    This section is a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other than the corporate or local authorities of the municipality or district to be taxed; and corporate authorities are those municipal officers who are either directly elected by the people to be taxed, or appointed in some mode to which they have given their assent. Harward v. St. Clair Drainage Co. 57 Ill. 130; People v. Salomon, 51 id. 37; People v. Mayor, id. 17; Hessler v. Drainage Comrs. 53 id. 105 ; Lee v. Ruggles, 62 id. 427; Trustees v. People, 63 id. 299; Board v. Houston, 71 id. 318; Gage v. Graham, 57 id. 144; People v. McAdams, 82 id. 356.
    Section 9, article 9, of the constitution of 1870, must be construed in the same manner as the kindred section in the constitution of 1848. Updike v. Wright, 81 Ill. 49; Dunham v. People, 96 id. 331; People v. Harper, 91 id. 357.
    The act of 1881, under which the appointment was made, makes it unlawful for any judge, etc., to appoint any park commissioners, and provides that the Governor shall appoint such commissioners of any public park or parks not under the control of any city, village, or other municipal corporation. As this park was and is under the control of a municipal corporation, the Governor has no power, under the act, to appoint. People v. Salomon, 51 Ill. 37; People v. Morgan, 9.0 id. 558; People v. Walsh, 96 id. 232.
    The act in question contravenes the constitutional limitation that the persons to exercise the powers of taxation granted shall be “corporate authorities,”—that is, elected by the people, or appointed in some mode to which they have assented. Lovingston v. Wider, 53 Ill. 303; Wider v. East St. Louis, 55 id. 133; People v. Canty, id. 33; Hinze v. People, 92 id. 406.
    The act must necessarily produce a result forbidden by the constitution, and therefore can not be upheld. People v. Cooper, 83 Ill. 585.
    • While, perhaps, the first section of this act, standing by itself, may not be invalid, still, as the evident purpose of the whole act is to accomplish a single object only,—namely, to change the 'method of appointment of park commissioners,— the second section being void the whole act must fall. Cooley on Const. Lim. 178,179 ; People v. Cooper, 83 Ill. 585; Hinze v. People, 92 id. 106.
   Mr. Justice Craig

delivered the opinion of the Court:

This. was an information in the nature of a quo warranto, brought against Paul Cornell, to determine his right or authority to hold the office of- park commissioner in a corporation in Cook county, known as the South Park Commissioners, which was created by an act of the General Assembly approved February 21, 1869, entitled “An act to provide for the location and maintenance of a park for the towns of South Chicago, Hyde Park and Lake.” By section 1 of the act, five persons, to be appointed by the Governor, together with their successors, are constituted a board of park commissioners, to be known as the South Park Commissioners. Under section 2 of the act, the term of office of one of the commissioners would expire on the 1st day of March, 1870, and the term of office of another on the first day of the next succeeding March, and so on, Until the term of all those first appointed would expire. Section 2 also contains this provision : “All vacancies occurring in said board shall be filled by the appointment of the judge of the circuit court of Cook county, when such vacancies shall occur.” The 8th section provides, that for any deficiency arising from acquiring title to the park, and for the payment of expenses of maintaining and improving the park,.and other expenses, the commissioners are authorized to borrow a sum of money not exceeding $-2,000,000, -with authority -io issue bonds. The 9th section empowers the commissioners to levy an annual ■ tax, not exceeding $300,000 in airy one year, for the payment of interest on the bonds issued, and the expenses of the improvement and maintenance of the park for the current year. The 18th section provides for an election to be held in the towms of South Chicago, Hyde Park and Lake, for the voters to vote whether they will aecept the provisions of the act. The election was held, and the act adopted by the people.

In May. 1881, the legislature passed an act, sections 1 and-2 of which are as follows:

“Sec. 1. Be it enacted, by the People of the State of Illinois, represented in the General Assembly, That hereafter it shall not be lawful for any judge or judges of any circuit court in this State to appoint any park commissioner, or fill any vacancy in any such office of park commissioner.

“Sec. 2. The Governor of the State of Illinois shall appoint all park commissioners hereafter to be appointed under and by virtue of any act or acts providing for the location and maintenance of any public park or parks not under the control of any city, village or other municipal corporation, and shall fill all vacancies which may hereafter occur in any such office of park commissioner or board of park commissioners, by like appointment, anything in any such act or acts to the contrary notwithstanding. ”

After the passage of this act a vacancy occurred in the board, and the Governor appointed Cornell, who claimed the right to hold the office under the appointment, by virtue of section 2 of the act.

The act of 1S69, which created this corporation, has been before this court in a number of cases, and the force and effect of many of its provisions have been settled by judicial construction. In The People v. Salomon, 51 Ill. 37, it was held that the people of the towns affected by the act having, by a vote, accepted its provisions, the board of park commissioners thereby created, to whom was committed the entire control of the park, became a municipal corporation, in whom it was competent for the legislature to vest the power to assess and collect taxes within the park district so created, for the special corporate purpose of its creation. The board of park commissioners being, then, within the meaning of the law, a municipal corporation, it is contended by the defendant that the State has the power to amend, alter or change the act creating the corporation, in such manner as its wisdom may dictate. There is no doubt in regard to the general proposition that the State has the power to control municipal bodies which it has created, and may, as a general rule, alter or amend the act of incorporation at pleasure; but all feuch changes and amendments must be subject to such limitations as may be imposed by the constitution of the State. The complete control of the legislature, subject to constitutional limitations, is conceded by the People, but they contend that the act of 1881 is unconstitutional, and although other questions have been discussed in the argument, this is the main question involved in the record.

The constitution of 1848, which was in force when the act of 1869 was passed, provides: “The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.” This clause of the constitution has been before the court for construction in a number of cases, and the decisions of this court are uniform to the effect that the clause is a limitation upon the power of the legislature to confer the right to assess and collect taxes upon any other persons than the corporate or local authorities of the municipality or district to be taxed. Harward v. St. Clair and Monroe Levee and Drainage Co. 51 Ill. 130; Updike v. Wright, 81 id. 49; People v. Mayor, 51 id. 17; People v. Morgan, 90 id. 558.

The corporate authorities intended by the language of the constitution, upon whom the power of taxation was conferred, are such municipal officers as have been elected directly by the people of the district, or appointed in some mode to which the people of the district have given their assent. Upon this point, in the Harward case, it is said: “These authorities are elected by the people to be taxed, or appointed in some mode to which the people have given their assent, and to them alone can this power be safely delegated. ” In The People v. Morgan, supra, in the discussion of the question, it is said: “Under section 10, of article 9, of the constitution, the General Assembly is prohibited from imposing taxes on municipalities, and, under section 9, can only vest the corporate authorities of such bodies with power to levy and collect taxes for corporate purposes.” Thus it is held that the people in such bodies must assent thereto by electing the authorities, or, by a vote for the charter, assent to their appointment by some other officer or person.

Section 9, of article 9, of the constitution of 1870, has received the same construction that was placed upon the constitution of 1848 on the same subject. (Updike v. Wright, 81 Ill. 49; Dunham v. The People, 96 id. 331.) In tlie last case cited it is said: “The1, clause in the constitution of 1870, adopted in the .light of this construction, must be construed in the same manner as was construed the kindred clause in the constitution of 1848.”

Under the act of 1869, the park commissioners, who were the corporate authorities of the corporation, were not elected by the people of the district, but as the people adopted the act by a vote, they were appointed in a mode to which they had given their assent, and upon this ground the act was sustained. The act, as -we have seen, conferred upon the park commissioners -the power of taxation, with the right to issue bonds, for which the people of the park district and their property were held liable. This burden could not have been imposed without the consent of the people of the district, because the park commissioners, without that assent, would not, within the meaning of the constitution, have been corporate authorities. By the vote adopting the provisions of the act the people of the park district gave their assent that the first board of corporate authorities should be appointed by the Governor of the State, and that their successors should thereafter, as often as a vacancy occurred, be appointed by the judge of the circuit court of Cook county. This was the mode provided by the act. To this the people of the district gave their assent, and upon no other terms or conditions did they agree to assume the burden of taxation which the corporate authorities, under the act, had the power to impose. It may be that the Governor is quite as competent to select honest and capable commissioners ’ as the circuit judge of Cook county; but that does not affect the question. Had the people of the district seen proper to reject the act when it was submittéd for their adoption or rejection, the act could not have been imposed upon them. They saw proper to adopt it as it was, with the plain provision that the corporate authorities should be appointed by the circuit judge of Cook county. It can not be said they would have given their assent to the act if the appointing power had been deft - in the hands of the Governor. They may have had the most cogent reasons for consenting to an act where the appointing power was left in the hands of a public officer residing in their own county, occupying a position which of itself would place him above any and all political influences which might be brought to bear upon a political officer of the State entrusted with the appointing power. But however this may be, they never assented to any other or different mode of appointment of the corporate authorities, and until they have done so they can not be bound to accept them.

Lovingston v. Wider, 53 Ill. 302, is a case in point. In that ease the legislature passed an act to establish a police force for the city of East St. Louis, which authorized the Governor, with the consent of the Senate, to appoint three commissioners, who were to control the police department of the city, and in case of failure of the city council to appropriate money according to their annual estimate of the amount required, the commissioners were given the power to issue certificates of indebtedness in the name of the city, which should be receivable for taxes, and might be converted into bonds on demand of the holder. The act was held to be in violation of the constitution. It is there said: “These police commissioners are not the corporate authorities of East St. Louis, and therefore can have no power of taxation. They were not elected by the people of that city, nor appointed in any mode to which the people have given their assent. The act creating them has never been accepted by the people or by the city council. * * * So far from being corporate authorities, in the sense in which this court has construed that phrase, these commissioners, by the act in question, are forced upon the people of this municipality, without reference to their wishes or consent, to hold over them the unlimited power of taxation. ” The doctrine of this decision was approved in The People v. Canty, 55 Ill. 42; and in Hinze v. The People, 92 Ill. 406, the validity of the act again came before1 the court, and, after a thorough review .of the whole subject, was again held unconstitutional.

But it is said the act of 1881 in no manner impairs, alters or adds to or takes from the powers of taxation by the original act, or by the amendments thereto. It is true the corporate authorities appointed, under the act of 1881, by the Governor, are clothed with the same duties, and exercise the same powers, as the corporate authorities appointed by the circuit court of Cook county under the act of 1869; but that fact does not affect the question in the least. If they were not appointed in a mode to which the people of the district -have given their assent, their appointment falls within the inhibition of the constitution. This is made apparent by the plain language of the court in Hessler v. Drainage Commissioners, 53 Ill. 105, where it is said: “By the term ‘ corporate authorities ’ must be understood those municipal officers who are either directly elected by the people, or appointed in some mode to which they have given their assent. ”

The People v. Brislin, 80 Ill. 423, has been cited by the defendant as an authority in his favor. In this case it is true that an amendment to the act of 1869, passed in 1871, enlarging the powers of the park commissioners,.was sustained by the court. The proposition is not denied that the act of 1869 may be amended by the legislature,—the powers and duties of the park commissioners may be enlarged or curtailed; but while the act of 1871 enlarged the powers of the corporate authorities of the district, these powers were still left to be exercised by the corporate authorities appointed in a mode to which the people had given their assent, and hence the constitutional provision was not impaired by the act. Andrews v. The People, 83 Ill. 530, also cited by the defendant, merely announces the same doctrine of the Brislin case. . Other cases have, been cited, but it will not be necessary to refer to them here. We find none of them sustaining the position of defendant.

It may be said that the first section of the act of 1881, which prohibits any judge of the circuit court from appointing any park commissioner, may be valid, as a repeal of that portion of the act of 1869 which confers the power, although section 2, which authorizes the Governor to appoint, may be unconstitutional. That question is not directly presented by the record, as the defendant, Cornell, claims title to the office under an appointment made by the Governor under section 2 of the act. We deem it, however, proper to state, that it is apparent that the two sections of the act, when read together, were intended to accomplish but a single object,—that is, a change in the mode of appointment of park commissioners. When such is the case, although one section may be good and the other bad, both must fall together. (Hinze v. The People, supra.) If, however, a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect valid as to the other. But such is not the statute in question. As the two sections were intended to accomplish but a single object, section 1 must be held bad, as well as section 2, and the two sections of the act must fall together.

The judgment of the Superior Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Charles H. Sedgwick et al. v. Samuel R. Johnson et al.

      Filed at Ottawa September 24, 1883.

    1. Party—equitable assignee of note secured by mortgage may foreclose. Where a party makes notes payable to his own order, secured by mortgage on real estate, and delivers the same to his surety upon another obligation, as indemnity against loss by reason of the suretyship, without indorsement, the surety having been compelled to pay as such, may maintain a bill to foreclose the mortgage given by the maker, without the correction of any mistake growing out of a failure to indorse the notes. An equitable assignment of a note secured by mortgage will authorize the assignee to foreclose the mortgage.
    2. Appeal—whether more than $1000 is involved. A person gave his sureties on his official bond, as indemnity, his two notes, one for $1000 and the other for $1500, secured by mortgage on real estate.. The sureties having been compelled to pay money for him on his bond, and being sued in another suit on the bond, and threatened with others, filed their bill to foreclose the mortgage, making a prior mortgagee a party. The court found the sums due on both mortgages at their face, and ordered sale of the premises for over $3000, out of which was to be paid the prior mortgage (about $600) and the complainants $274.35, then due them, and ordered the balance of the proceeds of sale to be brought into court, to abide its further order in case of any further payments by the complainants. This decree was affirmed by the Appellate Court, and the mortgagor appealed to this court: Held, that the amount actually involved in the suit was the $600, to be paid on the prior mortgage, together with the $274.35 to reimburse the complainants, which aggregate less than $1000, so the appeal would not lie.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county,
    Mr. Consider H. Willett, for the appellants.
    Mr. C. F. White, for the appellees,'
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought to foreclose a mortgage given by Charles H. Sedgwick to the sureties on his official bond as county judge of Douglas county, in the State of Nebraska, to save them harmless as such sureties. On the appeal of the mortgagor and Marcia F. Sedgwick, the decree rendered by the Superior Court foreclosing the mortgage for the sum found to be due, was affirmed in the Appellate Court for the First District, and the case is brought to this court on their further appeal. A motion is now made to dismiss the appeal, for the reason this court has no jurisdiction to hear and determine the cause, because the amount in controversy, as appears from the record and the decree rendered in the Superior Court, is less than $1060, exclusive of costs. It is thought the motion to dismiss the appeal sho.uld be allowed. The principal facts of the case may be shortly stated. On the 12th day of October, 1875, Charles H. Sedgwick was elected county judge of Douglas county, in the State of Nebraska, and on the 5th day of January, 1876, he executed his official bond, with complainants in this bill as his sureties on such bond. Afterwards, on the 9th day of April, 1878, Sedgwick executed his two promissory notes, one'for $1000 and the other for $1500, each payable to his own order three months after date, with interest at the rate of twelve per cent per annum. Both notes contained a provision that if the notes were not paid at maturity, and. an action should be commenced thereon, a reasonable attorney’s fee, not exceeding ten per cent on the amount due, should be allowed by the court and included in the judgment. At the same time Sedgwick made a mortgage to the sureties on his official bond, on lands situated in Cook county, in this State, to secure the promissory notes mentioned, and delivered both the notes and mortgage to the mortgagees.

In a suit brought by D. M. Osborn & Co., against Sedgwick and his sureties on his official bond, plaintiffs recovered a judgment against the suretiés for $97, and costs of suit. Although made a party, Sedgwick was' not served with process, and no judgment was rendered against him with the sureties. That judgment the sureties afterwards paid, with an attorney’s fee of $50, and thereupon they brought this bill to foreclose the mortgage for the amount they allege they had paid as the sureties of Sedgwick. It is claimed that by mistake defendant omitted to indorse the notes before he delivered them to complainants, and that mistake they ask, by their bill, to have corrected. It was a matter of no consequence whether defendant indorsed the notes or not. The delivery of them to complainants was an equitable assignment of the notes, and that' would enable complainants to commence and prosecute a suit to foreclose the mortgage securing the same, in their own names. A party holding a prior mortgage was made a defendant to the bill, and it was decreed the sum due him was a prior lien on the mortgaged premises, and should be first paid. As to that part of the decree neither party makes any complaint.

Defendant answered the bill, and then filed a cross-bill, in which he alleged the recording of the mortgage was fraudulent ; that there was no indebtedness then or now existing between the parties, and asked, to ’have the mortgage can-celled, and discharged of record. Replications were filed to the answers to the original and cross-bills, and the cause was heard oh the issues made by the pleadings. The court found the sum due the prior mortgagee to be $353, and $50 on account of reasonable attorney’s fees, and also found that there was due on the notes $3937.50; that such promissory notes, and the mortgage securing the same, were executed and delivered to complainants 'as sureties on the official bond of defendant, and decreed the payment of the sum of $174.35 in full of the sum paid by them on the judgment against complainants, as sureties for defendant, together with costs and attorney’s fees; and also the further sum of $100 as a reasonable attorney’s fee in .this cause. The court also further found there is now pending in the District Court of Douglas county, in Nebraska, another suit against the sureties of defendant on his official bond, and that complainants are threatened with further liability. By the decree it was provided when the amounts found to be due the prior mortgagee and complainants, shall be paid, the cause should stand continued, with leave to the original complainants to suggest further damages to which they may be subjected as sureties on the official bond of defendant. In case default should, be made in payment of the sum found due to the prior mortgagee, ($403,) and the sum found due to complainants, ($274.35,) it was decreed the entire premises should be sold to realize the amount due the prior mortgagee, and such further property sold until the amount realized would be $3957.50, and out of the latter sum the amount due complainants ($274.35) should be paid, and the balance brought into court.

It is quite obvious from this statement of the facts of the case, the only contention between the parties was whether there was anything due to complainants from the defendants for money paid by them as his sureties on his official bond. All that complainants claimed by their bill or the proofs, in the case, was the amount of a judgment for about $97, with costs and attorney’s fees,—making, in all, the sum of $274.35. On the other hand, defendant, by his cross-bill, insisted there was nothing due to complainants, and asked to have the mortgage cancelled, and discharged of record. That was the only issue made either by the pleadings or the testimony. Defendant, by payment of the sums found due to the prior mortgagee and to complainants, the aggregate of which sums is much less than $1000, could relieve his property from sale.- It is not now definitely known that there will.ever be any further liability on complainants as sureties for defendant. No other sum than that now found due to complainants is now in controversy, and the fact the cause is to stand continued for the future security of complainants makes no difference. " Whether complainants shall he subjected to further liability as sureties on defendant’s official bond, depends on contingencies that may never happen. It is certain there is now no other controversy between the parties, and may never be. The statute, in cases like the one being considered, only gives an appeal or writ of error “where the sum or value in controversy exceeds $1000, exclusive of costs.” No sum or value to that extent is involved in this suit, and an appeal will not lie. Umlauf v. Umlauf, 103 Ill. 654; Piper v. Jacobson, 98 id. 389; Hutchinson v. Howe, 100 id. 11.

The appeal must be dismissed, which is done.

Appeal dismissed.