text:
    Morris Kallenbach, Jr. v. Eliada Dickinson.

      Filed at Springfield September 30, 1881.

    1. Limitations—partial payment—implied new promise therefrom— joint debtors—partial payment by one—effect as to co-debtor. In order to remove the bar of the Statute of Limitations in respect to a debt, there must be a new promise to pay the debt. But to bind a party to a new promise there must exist the elements essential to a new contract, .express or implied. There must be such circumstances as will reasonably authorize an inference of an intention to waive the bar of the statute. There must be affirmative action or conduct designed to prospectively affect the rights of the parties to the prior contract.
    2. This new promise may be implied from the fact of a partial payment made after the bar of the statute has become complete, by the party originally chargeable. But in order to authorize the inference of a new promise from the fact of such payment, the party making the payment, and sought to be charged thereby, must have had an affirmative intention in making the payment, and that it should be applied to the particular debt.
    3. In respect to the effect to be given to the making of a partial payment, as authorizing the inference of a new promise, payment before the bar is complete, thereby arresting the running of the statute so that it shall commence to run anew, and payment afterward, whereby the bar of the statute is removed, rest upon precisely the same principle. In either case, if the running of the statute is arrested, or if the bar already complete is removed, it is because of the new promise, express or implied, and it is that new promise,'—i. e., contract,—resting upon the consideration of the old debt, where the statute is pleaded, that is replied to take the case out of the statute. In either case the same elements of contract must exist.
    4. It is doubtless the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions,—but this can only be as to facts affecting rights or remedies then existing. The admissions must relate to matters showing what are the terms of a contract already made, or whether it has been performed or otherwise discharged. The idea, however, can not be sanctioned, that a co-debtor, merely because he is such, has authority to bind his associates to a new contract, although it may be in regard to the old debt.
    5. In the case of joint debtors, therefore, a partial payment by one, without the knowledge or assent, or subsequent ratification, of the others, will not operate to bind the latter so as to authorize the inference of a new promise on their part, and therefore will not affect the defence of the Statute of Limitations as to them.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    • Mr. E. S. McDonald, and Messrs. Cbea & Ewing, for the appellant:
    Partial payment by,one of the joint makers of a note binds the other maker, although a surety, within the spirit of the Statute of Limitations'. The payment being for the benefit of all, must bind all. Whitcomb v. Whiting, 2 Doug. 652.
    This was the English rule, until it was recently changed by act of Parliament. Counsel cited the following American authorities adhering to the English rule: Shepley v. Waterhouse, 22 Me. 497; Dinsmore v. Dinsmore, 21 id. 433; Colburn v. Averill, 30 id. 310; Joslyn v. Smith, 13 Vt. 353; Wheelock v. Doolittle, 18 id. 440; Carlton & Manning v. Ludlow Woolen Mills, 27 id. 496; White v. Hale, 3 Pick. 291; Sigourney v. Drury, 14 id. 387; Bissell v. Adams, 35 Conn. 299; Beardsley v. Hall, 36 id. 270; Perkins v. Barstow, 6 R. I. 505; Merritt v. Day, 38 N. J. 32; Ellicott v. Nichols, 7 Gill, 85; Schindel v. Gates, 46 Md. 604; Warner v. Wardell, 1 Del. Ch. 49; Blair v. Young, S. C. Law Rep. (Hill,) part 2, vols. 2 and 3, in our page 112; Goudy v. Gillam & Smith, 6 Richardson, 28; Morgan v. Metoyer, 14 La. Ann. 612; Hicks et al. v. Lusk & Co. 19 Ark. 692; Craig v. Calloway, 12 Mo. 94; McClurg v. Howard, 45 Mo. 365; Dickerson v. Turner, 12 Ind. 223.

      Mr. Iba J. Bloomfield, for the appellee:
    A partial payment on a joint and several promissory note by one of the several makers, will not prevent the running of the Statute of Limitations as to the others. Hance v. Hair, 25 Ohio St. 349; Shoemaker v. Benedict, 11 N. Y. 176; Bell v. Morrison, 1 Pet. (U. S. S. C.) 612; Steele v. Soule, 20 Kan. 39; Mayberry v. Willoughby, 5 Neb. 368; Yandes v. Lefavour, 2 Blackf. 371; Watson v. Woodman, 15 Moak, (English) 572; Coleman v. Forbes, 22 Pa. St. 156; Clark v. Burns, 86 id. 502; Van Keuren v. Parmelee, 2 N. Y. 523; Exchange Bank v. Sullivan, 6 N. H. 124; Kelley v. Sanborn, 9 id. 46; Whipple’s Admrs. v. Stephens, 22 id. 219; Lowenthal v. Chappell, 8 Ala. 353; Myatts & Moore v. Bell, 41 id. 222; Foute v. Bacon, 24 Miss. 156; Buscoe v. Aukleet, 28 id. 361; Sigler v. Platt, 16 Mich. 206; Slowers v. Blackburn, 21 La. Ann. 127; Great v. Ashler, 12 Ark. 762; Wooddy v. State, 12 id. 780; Payne v. State, 39 Barb. 639; Graham v. Selon, 59 id. 33; Helm v. Cantrell, 59 Ill. 524; Goudy v. Gillam, 6 Rich. (S. C.) 28; Borden v. Pray, 20 Ark. 293; Belote’s Exr. v. Wynne, 7 Yerg. (Tenn.) 534; Muse v. Donelson, 2 Humph. 166; Winchell v. Hick, 18 N. Y. 558; Tine v. Andrew, 35 Me. 183.
    Evidence that the principal, Wenzel, made payments upon the note in suit, does not sustain the issue tendered by the plaintiff’s replication, that the defendants made payments. Butcher v. Hexton, 4 Leigh, (Va.) 519.
    Payments made by the principal within sixteen, years prior to suit, and before the right of action was barred by the statute, do not affect the defence of the statute by the surety. Shoemaker v. Benedict, 11 N. Y. 176.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case comes before us by appeal from a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of McLean county. The action was assumpsit upon a promissory note, of which the following is a copy:

“$424.20.

“Two years after date, for value reóeived, we promise to pay Morris Kallenbach or order four hundred and twenty-four 20-100 dollars, and ten per cent interest.

Gottfried Wenzel, Eliada Dickinson.”

June 3, 1861.

Dickinson alone was served with process, and there was no appearance for the other defendant. Dickinson interposed the defence, by proper plea, that the cause of action did not accrue within sixteen years. The plaintiff replied that payments were made within sixteen years, and upon the issue thus formed the circuit court, upon trial, gave judgment for the defendant Dickinson.

Dickinson was in fact but a surety on the note, Wenzel being its maker and the principal debtor. Wenzel made several payments upon the note within the sixteen years, but these were neither expressly authorized by Dickinson before being made, nor ratified nor assented to by him afterwards. The question is, do the payments thus made afford sufficient evidence of a subsequent promise by Dickinson, to remove the bar of the Statute of Limitations as to him ?

The Limitation act of 1845, upon which Dickinson relies, contains a clause providing that if any payment shall have been made, the period of limitation shall only run from that time forward. See Revised Statutes of 1845, p. 348, sec. 4. It does not say by whom such payment shall be made, nor as against whom only the period of limitation shall run, but leaves those questions to be determined by the principles of the common law. We do not regard the statute as asserting any new legal principle, but simply as enacting a principle of the common law that had been for many years applied by the courts in construing statutes of limitation. See Angell on Limitations, sec. 240, and notes.

In order that Dickinson shall be concluded by the payments of Wenzel, it must be determined that )Venzel was Dickinson’s agent, not only for the purpose of liquidating the note by payment, but also for the purpose of doing what in legal estimation is necessary to make a new promise that will remove the bar of the statute.

The contention on behalf of the appellant is, that the statute recognizes what his counsel assume was the common law at the date of its enactment, namely: that any payment on a note after its maturity, by one of several joint makers, enables the holder to bring suit against all the makers within the original period of limitation after such payment is made, and hereon hinges the controversy.

That the statute recognizes what was in fact the common law on this question at the date of its enactment, is not, we think, fairly subject to controversy, but in our opinion, on reason, on the authority of the principles announced in decisions heretofore made by this court, and on the weight of modern decisions in other courts, and the authority of text writers, the common law rule was not as thus contended. The English courts generally, we admit, since the decision in Whitcomb v. Whiting, (Douglas, 652,) have held to that effect, and a number of the courts of our sister States have, following the ruling in that case, likewise so held. But the question has never been directly passed upon by this court, and since Whitcomb v. Whiting arose under the act of twenty-first James I, and was not decided until 1781, however persuasive an argument it may be as to what the common law was upon that question, it can not be conclusive upon us as an authority. We are free to inquire whether the reasoning by which it is supported is satisfactory, and to adopt or reject the rule it announces.

The entire opinion in Whitcomb v. Whiting, as delivered by Lord Mansfield, so far as relates to this question, is as follows : “Payment by one is payment for all, the one acting virtually as agent for the rest; and in the same manner an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due.”

The doctrine that the law raises a promise to pay from the mere act of admitting a debt to be due, alone, was in harmony with the prior decisions of the English courts. Freeman v. Fenton, Cowp. 548; Bryan v. Horseman, 4 East, 599; Lawrence v. Worrall, Peake, 93; Beecher v. Harney, 4 East, 599, N. C.; Clark v. Brashall, 3 Esp. 155.

It is said by the learned editors of Smith’s Leading Cases, vol. 1, part 2, notes to Whitcomb v. Whiting, in speaking of that case: “But in truth this decision was based on a conception which, though inconsistent with the letter and spirit of the statute, prevailed for more than a century in the courts of justice, that if the presumption of payment arising from the lapse of time was rebutted by the acknowledgment of confession of the defendant, the end which the legislature had in view was sufficiently attained, and the plaintiff might recover without proving a cause of action within six years. It followed, as a necessary consequence, that if the debt was confessed to exist by any one competent to make such an admission, the acknowledgment would be equally good whether his authority did or did not extend to making a new contract, and as the admissions of one co-contractor are evidence against another, a payment or acknowledgment by either was, when viewed in this aspect, a good answer to the plea of the statute by both. Davidson v. Turner, 12 Ind. 223; post, vol. 2, Bowerman v. Radenius. The authority of the principal case continued to prevail after the principle on which it proceeded had been laid aside, and it was, until recently, the established rule in England that a joint debt may be revived by one of the contractors without the consent of the rest, and notwithstanding an express disclaimer on then* part. ” This court has uniformly adopted a different construction of the statute, and held that the mere confession or admission of a debt to be due, is not alone sufficient to remove the bar of the statute. Thus, in Ayers v. Richards, 12 Ill. 148, it was said: “In order to take a case out of the Statute of Limitations, there must be a promise to pay the debt. Such promise may be implied, it is true, from an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay. It is not sufficient that the debtor admitted the account to be correct, or that he had received the goods or the money, or had executed the note sued on, but he must have gone further, and admitted that the debt was still due and had never been paid. The bare admission of the correctness of the account or genuineness of the note sued on, is no more a satisfactory answer to the statute than would be the testimony of a witness proving the same ' facts. The statute presupposes the debt to have been due, and that there is no evidence that it has ever been paid. It would be absurd to say, that a promise shall be implied by the bare admission of the party of what the law itself supposes to be true.”

Again, in Norton v. Colby, 52 Ill. 202, it was said: “On this whole subject (i. e., the construction of the Statute of Limitations) a just reaction has taken place against the rulings of Lord Mansfield, which went so far to neutralize the beneficial purposes of the law. The modern doctrine, as laid down by this court in Parsons v. Northern Illinois Coal and Iron Co. 38 Ill. 433, is, that there must be either an express promise, or a conditional promise with performance of the condition, or such an unconditional admission of the justice of the debt as fairly to imply an intention and promise to pay. ” See, also, Kimmel v. Schwartz, Breese, 278; Keener v. Crull et ux. 19 id. 189; Carroll et al. v. Forsyth, 69 id. 127; McGrew et al. v. Forsyth, 80 id. 596.

And so in Lowery v. Gear, 32 Ill. 383, where the question arose as to the sufficiency of certain credits indorsed upon Gear’s note by Brown, the original payee, to establish a new promise, it was said: “There must be an actual, affirmative intention to make a payment on the note, before we can infer the promise. It is a general rule, no doubt, that where a debtor makes a payment without designating to which of several claims it shall apply, the creditor may apply it to which he pleases; but this could not authorize Brown to so apply it as to hind Gear by an implied new promise, without the actual intention of Gear to make such a promise. This was a matter in which Gear must have had an affirmative intention, before he could be bound. His volition was indispensable in order to bind him. If he had no thought or intention one way or the other, even then he could not be held to have -made a new promise, for to do that he must have had an affirmative intention.”

A parol promise reviving a debt, has the same effect as payment, under the statute. It revives or renews the debt so that the period of limitation commences anew to run from the date of the promise. In the case of a promissory note, it operates as a new delivery of the note. Sennott, Admx. etc. v. Horner et al. 30 Ill. 429. In practical effect the parol promise, or the payment, operates as the creation of a new debt of the same character or dignity as the old. In Keener v. Crull et ux. 19 Ill. 189, it was said: “The"' statute bars the action and all remedy for recovery of the debt, and when the bar is complete, the statute being interposed in defence, no action for' the recovery of the debt can be maintained. The debt, however, is not annihilated, and remains the same as before, excepting that all remedy for enforcement of the obligation is gone. The debt constituting an unquestioned moral obligation, is, however, a good consideration to support a promise to perform that obligation, and a new promise, based upon this moral obligation, is binding upon the debtor in avoidance of the bar of the statute. * * * Were this a new question, we should hold that the action .could alone be brought upon the new promise. But the current of authority and long usage sanction the practice of declaring upon the original cause of action and of replying the new promise. ”

In effect, then, Whitcomb v. Whiting has been repudiated by the decisions of this court, because they rest upon principles inconsistent with that decision. Whitcomb v. Whiting asserts no authority in a joint contractor to make a new contract, but merely that he has authority to admit that a prior contract exists, while we hold that to bind a party to a new promise there must exist the elements essential to a new contract, express or implied. There must be such circumstances as reasonably authorize an inference of an intention to waive the bar of the statute. There must be affirmative action or conduct designed to prospectively affect the rights of the parties to the prior contract. Whitcomb v. Whiting infers a new promise from the mere admission of the existence of a past contract, which doctrine this court repudiates.

It is, doubtless, the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions; but this can only be as to facts affecting rights or remedies then existing. The admissions must relate to matters showing what are the terms of a contract already made, or whether it has been performed or otherwise discharged. There can be no foundation in cases decided heretofore by this court, nor, as we think, in reason, for asserting that two or more parties, by the simple act of becoming joint debtors, empower each other to act as their respective agents, any further than may be necessary to consummate that contract, which is only to pay or discharge the debt. To that extent all are bound, and there the duty and liability of each terminates. Each may, doubtless, affect the other by making admissions that would be competent evidence against him to the purport that the debt had not been paid or discharged, etc., but we are aware of no principle of law which sanctions the idea that a co-debtor, merely because he is such, has authority to bind his associates to a new contract, although it may be in regard to the old debt.

We have held, even in the case of partners (in most respects a much stronger ease than that of mere joint debtors), that after dissolution a single member can not bind the firm by giving, a promissory note or accepting a bill of exchange in the firm name, and this for the reason that the dissolution of the partnership operates as a revocation of all authority for making new contracts. Bank of Montreal v. Page, 98 Ill. 109. If one of two joint debtors, however, without other authority than that arising from their being such, could make new contracts binding on all, then the dissolution could make no difference, for they are, at least, still joint debtors as to - the firm debts, after dissolution.

In Helm v. Cantrell et al. 59 Ill. 524, it was held that a promissory note given by one partner, after the dissolution of the firm, for a firm debt which had been barred by limitation, did not revive the debt as to the other members of the firm. This would seem to be conclusive against the power of one joint debtor, by contract, express or implied, to revive the debt as to his co-debtor, for there is no reason for pretending that the form in which the debt is revived can make any difference. The note is not binding, for the reason that there is no power to contract to revive the debt, and not because there is no power to execute a promissory note, simply.

The only theory upon which the present case can be maintained is, each joint debtor owes the duty, of satisfying or liquidating the debt. Payment by one is payment for all, because it satisfies or liquidates, pro tanto, the debt, and therefore, from the mere fact that .so much of the debt is liquidated, the law steps in and implies a contract binding upon all, as well upon those who know nothing in regard to the payment, and have done nothing to cause it to be made, and can therefore have had no intention or volition in the matter, as upon those who made the payment and who did have intention and volition in regard to it,—in other words, because the debt has been partially liquidated or discharged, the law charges and binds all the original debtors, without regard to their actual knowledge of or participation in the act causing the partial liquidation or discharge, as having at that date, for a sufficient consideration, each promised anew to pay the debt, and in this view it would manifestly be unimportant whether such partial liquidation or discharge should be by reason of a direct payment upon the specific debt, or by reason of a payment on general account.

But, as we have seen in Lowery v. Gear, supra, the doctrine of this court is, a party, to be bound to a new promise by the fact of payment, must have had an affirmative intention in. making the payment, and so, whatever may be the legal inference as against the party who actually made the payment, it is impossible that a promise to pay the residue of the debt can be implied from the ignorance and want of intention of the party who neither made nor knew of the payment, nor had any sort of volition in the matter.

Whitcomb v. Whiting has been approved and followed by the courts of Massachusetts, Connecticut, Vermont, Virginia, North Carolina, Maine, New Jersey, Rhode Island, Delaware, and, it may be, of some other States, but in the main without giving any reasons therefor other than that of stare clecisis. It has been repudiated and overruled in Pennsylvania, New York, New Hampshire, Indiana, Ohio, Kentucky, Tennessee, Alabama, Kansas, Nebraska and Florida, and also by the Supreme Court of the United States. And it seems in Maryland, Georgia, Arkansas, and North and South Carolina, an intermediate view prevails, under which it is held an acknowledgment by one of several joint contractors will suspend the running of the statute as against the rest, but can not revive their liability after it has once been extinguished.

In Bell v. Morrison, 1 Peters, 351, the question was, whether, as to a debt of a firm barred by Statute of Limitations, the promise of a partner after dissolution could remove the bar as to the other partners. The case arose under the Limitation law of Kentucky, and was decided at the January term, 1828, of the Supreme Court of the United States. After quoting the opinion in Whitcomb v. Whiting, Mr. Justice Stoby, who delivered the opinion of the court, said: “This is the whole reasoning reported in the case, and is certainly not very satisfactory. It assumes that one party who has authority to discharge, has, necessarily, also authority to charge the others,—that a virtual agency exists in each joint debtor to pay for the whole, and that a virtual agency exists, by analogy, to charge the whole. Now, this very position constitutes the matter in controversy. It is true that a payment by one does inure for the benefit of the whole; but this arises not so much from any virtual agency for the whole, as by operation of law, for the payment extinguishes the debt. If such payment were made after a positive refusal or prohibition of the other joint debtors, it would still operate as an extinguishment of the debt, and the creditor could no longer sue them. In truth, he who pays a joint debt pays to discharge himself, and so far from binding the others conclusively by his act, as virtually theirs also, he can not recover over against them in contribution, without such payment has been rightfully made, and ought to charge them. When the statute has run against a joint debt, the reasonable presumption is that it is no longer a subsisting debt, and therefore there is no ground on which to raise a virtual agency to pay that which is not admitted to exist. But, if this were not so, still there is a great difference between creating a virtual agency, which is for the benefit of all, and one which is erroneous and prejudicial to all. The one is not a natural or necessary consequence from the other. A person may well authorize a payment of a debt for which he is now liable, and yet refuse to authorize a charge where there at present exists no legal liability to pay. Tet if the principle of Lord Mansfield be correct, the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt at the time when such acknowledgment was made.”

Again he says: “We think the proper resolution of this point depends upon another, that is, whether the acknowledgment or promise is to be deemed a mere continuation of the original promise, or a new contract, springing out of and supported by the original consideration. We think it is the latter, on both principle and authority; and if so, as after the dissolution no one partner can create a new contract binding upon the others, his acknowledgment is inoperative and void as to them. * * * The revival of a debt supposes that it has been once extinct and gone,—that there has been a period in which it had lost its legal use and validity. The act which revives it is what essentially constitutes its new being, and is inseparable from it. It stands not by its original force, but by the new promise, which imparts validity to it. Proof of the latter is indispensable to raise the assumpsit on which the action can be maintained. It was this view of the matter which first created the doubt whether it was not necessary that a new consideration should be proved to support the promise, since the old consideration was gone. That doubt has been overcome, and it is now held that the original consideration is sufficient, if recognized, to uphold the new promise, although the statute cuts it off as a support for the old. What, indeed, would seem to be decisive on this subject is, that the new promise, if qualified or conditional, restrains the rights of the party to its own terms, and if he can not recover by those terms he can not recover at all. If a person promise to pay upon condition that the others do an act, performance must be shown before any title accrues.”

And again he says: “The light in which we are disposed to consider this question is, that after a dissolution of a partnership no partner can create a cause of action against the other partners except by a new authority, communicated to them for that purpose. It is wholly immaterial what is the consideration which is to raise such cause of action, whether it be a supposed preexisting debt of the partnership, or any auxiliary consideration which might prove beneficial to them. Unless adopted by them they are not bound by it. When the Statute of Limitations has once run' against a debt, the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to create a new cause of action,—to revive a debt which is extinct,—and thus to give an action which has its life from the new promise implied by law from such an acknowledgment, and operating and limited by its purport. It is, then, in its essence, the creation of a new right, and not the enforcement of an old one. We think that the.power to create such a right does not exist, after a dissolution of the partnership, in any partner. ”

We have quoted thus at length from this case because it-may be regarded as the leading case in opposition to Whit-comb v. Whiting, and because, also, we believe the opinion to contain a forcible and accurate view of the law.

The effect of this case, as an authority, is sought to be somewhat impaired by the statement that it arose upon the statute of Kentucky, and was decided as it was because of the authority of the decisions of the Kentucky courts.' So far as the opinion purports to be governed by the expositions of the law by the Kentucky courts, it has been referred to by this court approvingly in Keener v. Crull et ux., Carroll et al. v. Forsyth, and Norton v. Colby, supra.

So far as affects the present question, Mr. Justice Stoky in the opinion says: “The Kentucky decisions present no authority directly in point, ” and he proceeds to reason the question out on principle.

In United States v. Wilder, 13 Wallace, 254, it was held that when a debtor admits a certain sum to be due by him, and denies that a larger sum claimed is due, a payment of the exact amount admitted can not be converted by the creditor into a payment on account of the larger sum denied, so as to take the claim for such larger sum out of the statute.

In the Exeter Bank v. Sullivan, 6 N. H. 124, decided at the March term, 1833, a like view of the law as that in Bell v. Morrison was announced by the Supreme Court of New Hampshire. In that case, Richardson, J., in delivering the opinion of the court, said: “If one joint debtor admits that he owes the debt, and says nothing to the contrary, it may be inferred .from his silence that he is willing to pay; but his silence can furnish no ground to presume that another who is absent is willing to pay. ” This was followed, in the same State, by Kelly v. Sanborn, 9 N. H. 46, and Whipple v. Stevens, 2 Foster, (N. H.) 219.

The Supreme Court of Pennsylvania, in Levy v. Cadet, 17 S. & R. 126, decided at the December term, 1827, held that payment on account, or an acknowledgment, by one of two or more joint debtors, will not take the case out of the statute as to the others, and this has been followed, in the same State, by Coleman v. Forbes, 10 Harris, (22 Pa. St.) 156, Searight v. Craighead, 1 Pa. (Penrose & Watts) 135, Houser v. Irvine, 3 W. & S. 345, Shoneman v. Fegley, 7 Barr, (Pa. St.) 433, and Bush v. Slowell, 71 Pa. St. 208.

The Supreme Court of Indiana, in Yandes v. Lefavour, 2 Blackford, 371, (decided at their December term, 1830,) following Bell v. Morrison, held that an acknowledgment of a debt made by one partner, after the dissolution of the partnership, is not sufficient to take a case out of the Statute of Limitations as to the others.

It is claimed, however, that this case is overruled by Dickerson v. Turner, 12 Ind. 223. This is a misapprehension. In that case the court follow Whitcomb v. Whiting only to the extent that an admission by one of two joint debtors is an admission by all, but say: “The doctrine of Whitcomb v. Whiting, so far as it holds an admission by one to be sufficient to take a ease out of the Statute of Limitations, has been controverted in this country, and it has been overruled by the Supreme Court of the United States, by the Court of Appeals of New York, and by the Supreme Court of this State at an early day, ” and then, after referring to the cases, it is added: “The modern and more correct doctrine is, that it is the new promise, as such, supported by the original consideration, that takes the case out of the statute, and not the new promise, viewed merely as an admission of the debt. * * * Such new contract neither a joint contractor nor a-partner, after the dissolution, has power to make so as to bind his co-contractor or co-partner.”

By the Revised Code of Alabama, sec. 2914, it is enacted that “no act, or promise, or acknowledgment is sufficient to remove the bar to a suit, or is evidence of a new and continuing contract, except the partial payment made upon the contract by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby. ”

We do not think, so far as the effect of a partial payment is concerned, this statute differs essentially from a proper construction of ours. Ours, it is true, does not say that the partial payment must be made by the party sought to be charged,_ but this very clearly is its effect. A stranger—one owing no duty to pay—certainly can not make a payment. It can only be by one owing a duty to pay. Indeed, the whole contention on the part of the plaintiff here concedes this. He contends Dickinson is bound, not because paymept can be made by anybody which would be binding upon himj but because, in legal effect, payment by his principal is payment by himself, and this being so, a new promise by Dickinson is to be inferred as a matter of law.

The Supreme Court of Alabama, in Lowther et al. v. Chappell, 8 Ala. 353, held, under this section, “a payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt, relied on to sustain the action. ” This was followed in the same court by Myatts & Moore v. Bell, 41 id. 222; Knight v. Clements, 45 id. 89.

In Beloit's Exrs. v. Wayne, 7 Yerger, 534, decided at the March term, 1835, the Supreme Court of Tennessee followed the doctrine of Bell v. Morrison, and this has since been followed by Muse v. Donelson, 2 Humph. 166.

In Palmer v. Dodge, 4 Ohio St. 21, the same result was reached by the Supreme Court of Ohio.

More recently, in Kansas, Nebraska and Florida, the doctrine of Whitcomb v. Whiting is repudiated, and that of Bell v. Morrison followed. Steele v. Soule, 20 Kan. 39; Mayberry v. Willoughby, 5 Neb. 368; Tate v. Clements, 16 Fla: 339. Like reasoning will also be found in Stette v. Jennings, 1 McMullen, (S. C.) 297; Foute v. Bacon, 24 Miss. 156; Briscoe v. Auketell, 28 id. 361.

The earlier decisions in New York followed Whitcomb v. Whiting. See Johnson v. Beardslee, 15 Johnson, 3; Patterson v. Choate, T Wend. 441. But in 1849 the Court of Appeals" of that State, in VanKeuren v. Parmelee and others, overruled these cases after an able review of the authorities, and held that the presumed agency of a partner ceases with the dissolution of the firm, and that after dissolution an acknowledgment or promise to pay by one of the partners will not revive a debt against the firm which is barred by the Statute of Limitations. In the opinion, which was by Bronson, J., it is, among other things, said, after quoting the opinion in Whitcomb v. Whiting: “Nothing but the great name of Lord Mansfield could have given currency to this reasoning. It is plain enough that ‘payment by one is payment for all,’ so far as relates to the satisfaction of the debt; but that fact neither shows, nor has it any tendency to show, a new promise or acknowledgment by the other joint debtors. Payment is nothing more than an admission that the debt is due, and like any other admission it can only affect the party who makes it, unless he has authority to speak for others as well as himself. A joint debtor has no such authority. It can not be justly inferred from the relation which he sustains to the other joint debtors; and though he may conclude himself by an admission he can not conclude them. His Lordship, after saying that ‘payment by one is payment for all,’ adds, ‘the one acting virtually as agent for the rest.’ If the meaning be that there is such an agency as will make the payment by one inure to the benefit of all the other joint debtors, the reasoning is well enough, but it proves nothing on the point in controversy. If the meaning be that one joint debtor is the agent of the others for the purpose of making admissions to bind them, that was assuming the very point to be proved, and the assumption had neither authority nor argument to support it. There is nothing in the relation of joint debtors from which such an agency can be inferred. A joint obligation is the only one which links them together, and from the nature of the case payment of the debt is the only thing which one has authority to do for all.”

This case was followed by Shoemaker v. Benedict, 1 Kernan, (11 N. Y.) 176, in which it was held, payments made by one of the joint and several makers of a note, and indorsed upon it, before an action upon it is barred by the Statute of Limitations, and within six years before suit brought, do not affect the defence of the statute as to the others. And still more recently, in Winchell v. Hicks, 4 Smith, (18 N. Y.) 558, the same doctrine is reasserted and enforced.

Chancellor Kent, in the third volume of his Commentaries, (8th ed.) 55,* 50, after alluding to the doctrine of Whitcomb v. Whiting, says: “Of late, however, the decision in Whit-comb v. Whiting has been very much questioned in England, and it seems now to be considered an unsound authority by the court which originally pronounced it. And we have high authority in this country for the conclusion that the acknowledgment by a partner, after the dissolution of the partnership, of a debt barred by the Statute of Limitations, will be of no avail against the statute, so as to- take the debt out of it as to the other partner, on the ground that the power to create a new right against the partnership does not exist in any partner after the dissolution of it; and the acknowledgment of a debt barred by the Statute of Limitations is not the mere continuance of the original promise, but a new contract, springing out of and supported by the original consideration. ” What he says about the authority of Whitcomb v. Whiting in England is, perhaps, stronger than decisions made subsequent to the time he wrote will justify, but in all other respects, we apprehend, he is correct.

Story, in his work on Partnership, sec. 324, speaking of this question, says: “In some of the States the English doctrine has been approved; in others it has been silently acquiesced in, or left doubtful; and in a considerable number it has been expressly overruled. The Supreme Court of the United States have not hesitated, after a most elaborate discussion, to overrule it, as unfounded in principle and analogy. In truth, the whole controversy must ultimately turn upon the single point whether the-acknowledgment is a mere continuation of the original promise, or whether it is a new contract or promise springing out of and supported by the original consideration. It is upon the latter ground that the Supreme Court have deemed the doctrine wholly untenable. ”

The learned editors of Smith’s Leading Cases say that the rule under which an acknowledgment by one co-contractor will not take the debt out of the statute as against another, without some power other than that arising from the joint nature of the obligation, is the more logical one. Notes to Whitcomb v. Whiting, vol. 1, part 2, (7th Am. ed.) p. 982.

Proffatt, in his notes to Beitz v. Fuller, 10 Am. Decis. 697, says: “It must be confessed that'the later and better decisions show a strong preference for the rule, that except in cases .of a subsisting partnership one joint debtor shall not have the power to deprive his co-debtors of the statute by his own promise or admission without their consent, and that in States where the contrary doctrine is established it seems to rest upon the principle of stare decisis, rather than upon sound reason. ”

The point is made in argument that payment before the bar is complete and payment afterwards, rest upon different principles, and therefore, although on the authority of Bell v. Morrison one joint contractor, can not bind another by a payment after the bar is complete, he may do so by a payment before. It is true, in Bell v. Morrison, and in Van Keuren v. Parmelee, some stress is laid upon the fact that the debt is barred, and has therefore ceased to be obligatory, etc., but in principle it can make no difference. In either case, if the running of the statute is arrested, it is because of the new promise, express or implied; and it is that new promise,—i. e., contract,—resting upon the consideration of the old debt, in either case, where the statute is pleaded, that is replied to take the case out of the statute. The same .elements of contract must exist in either case.

This . was the ruling in Shoemaker v. Benedict, sivpra, and in other cases to which it is unnecessary to refer. In that case, the judge pronouncing the opinion, among other things, said: “And, in principle, I see not why a promise made before the statute has attached to a debt should be obligatory when made by one of several joint debtors, when it would not be obligatory if made after the action was barred. The 'statute operates upon the remedy. The debt always exists. * * * The same authority is required to make the promise before as after the six years have elapsed. Can it be said that one of several debtors can, on the last day of the sixth year, by a payment. small or large, or by a new promise, either express or implied, so affect the rights of his co-debtors as to continue their liability for another space of six years without their knowledge or assent, or any authority from them, save that to be implied from the fact that they are at the time jointly liable upon the same original contract, and yet that on the very next day, without any act of the parties, such authority ceases to exist?”

Surely, the question can admit of but one answer. Perceiving no error in the ruling of the Appellate Court, its judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Louisa Sharp v. Amos Thompson.

      Filed at Mt. Vernon June 21, 1881

      Rehearing denied November Term, 1881.

    1. Oppicebs de pacto—how far fheir acts ore binding. The acts of officers de facto are as valid and effectual, where they concern the public or the rights of third persons, as though they were officers de jure.

    2. Same—as to deputy clerks acting wider a verbal appointment, and without oath—taking acknowledgments of deeds. The sufficiency of the acknowledgment of a deed was questioned on the ground that the deputy clerk who took the acknowledgment had not been legally appointed. The law required deputy clerks to take an oath for the faithful discharge of the duties of their offices. It appeared that in this instance the deputy was only verbally appointed as such, that he was never sworn into office, nor executed any bond as deputy; but that he was acting as such deputy, and had taken other acknowledgments in the same manner. It was held, the deputy was at least an officer de facto, and his act in taking the acknowledgment was valid.

      3. Description of land in a deed—of two inconsistent descriptions— which shall prevail. It is a rule of construction that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. If there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him.
    4. A mortgage purported to convey several lots, the numbers of which were given, and which were described as “being all of block 25,” in a town named. It appeared, from the evidence, that “block 25” contained no lots of the numbers given, but another block did contain lots with those numbers. It further appeared that the arrangement before the mortgage was made was that the mortgagor should give a mortgage on a house and certain lots in the town named, being his residence in which he lived at the time, and that he was living at the time and had for several years lived on block 25. The mortgagee contended that the description of the block should prevail, and it was held that the evidence showed such was the intention. So, the description by the lots was rejected as a false particular of description, and the deed construed as conveying block 25.
    5. Same—extrinsic evidence to explain a latent ambiguity. The ambiguity in respect to the description of the property conveyed was a latent ambiguity—disclosed only by extrinsic evidence—and such evidence was admissible to explain the ambiguity.
    6. Reforming a deed—what so considered. The giving of a construction to a deed as to which of two inconsistent descriptions of the premises conveyed shall prevail, is not to be regarded as a reforming of the deed, in any such sense as, if the deed be made by a married woman, that the question could arise as to the power of the court to reform such a deed.
    7. Mortgage—lien in favor of mortgagee for taxes paid by him— subrogation. Where it is the duty'of a, mortgagor to pay the taxes upon the mortgaged premises, and upon his failure to do so they are paid by the mortgagee, the latter will be subrogated to the rights of the State, which- has a lien upon the land for the taxes, and upon foreclosure of the mortgage it will be proper to decree a lien upon the premises in favor of the mortgagee for the taxes so paid by him.
    Writ of Error to the Circuit Court of Clinton county; the Hon. George W. Wall, Judge, presiding.
    Messrs. Buxton & White, for the plaintiff in error.
    Messrs. Murray & Andrews, for the defendant in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is a writ of error brought to reverse a decree of foreclosure of a mortgage. The mortgage purports to convey a homestead, and to have been acknowledged before the deputy clerk of the circuit court of Clinton county.

It is objected that the acknowledgment is invalid, because the deputy clerk was not legally appointed such. It appears that he was only verbally appointed such deputy; that he was never sworn into office, nor executed any bond as deputy, but that he was acting as such deputy, and had taken other acknowledgments in the same manner.

The provision of the statute at the time (1867) was, “the clerk of the Supreme Court, the several clerks of ‘the circuit and county commissioners’ courts, may appoint deputies, who shall severally take an oath for the faithful discharge of the duties of their offices, and for whose conduct the principal clerk shall in all cases be responsible.” Rev. Stat. 1845, p. 395, sec. 6. The deputy clerk here was at least an officer de facto, and the principle is well settled that the acts of officers de facto are as valid and effectual, when they concern the public or the rights of third persons, as though they were officers de jure. Sullivan v. The State, 66 Ill. 75; Mapes v. The People, 69 id. 528.

The mortgage purported to convey, among other property, also lots 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, being all of block 25, in Lower Carlyle. These numbered lots are not in block 25, and it is contended by plaintiff in error that it is these numbered lots which are conveyed by the mortgage, and not block 25. The evidence shows that the blocks in Lower Carlyle are consecutively numbered from one to thirty, and contain ten lots each, the lots in all the blocks being consecutively numbered from one to three hundred. Lots 21 to 30 inclusive are in block 3. The lots in block 25 are numbered consecutively from 221 to 230.

It appears that the arrangement before the mortgage was made was that the mortgagor should give a mortgage on a house and certain lots in the town of Carlyle, being his residence in which he lived at the time, and that he was living at the time on block 25, in "Lower Carlyle, and had lived there for more than ten years previous. There is evidently a false particular of description here, in either the lots or block, and which description shall' prevail,—that of the lots or of the block? It is from extrinsic evidence that the ambiguity spears, and that same kind of evidence shows clearly enough that the description of the block was the description which was intended, and such evidence is admissible to explain a latent ambiguity.

It is a rule of construction that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. Whence, if there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him. Melvin v. Props. Locks, etc. 5 Metc. 27; 3 Washburne on Real Prop. 628-9, Marg.; Esty v. Baker, 50 Me. 831.

It is a maxim that falsa, clemonstratio non nocet. The description here by the block alone is full and sufficient to ascertain the estate, and it no doubt describing what was intended to be conveyed, that description, we are of opinion, should prevail, and the description by the lots be rejected as a false particular of description. This will not, as supposed by counsel for. defendant in error, amount to the reformation of the deed of a married woman, which this court has decided could not he made under our former law, hut it is only determining which one of two inconsistent descriptions shall prevail.

It is complained that the court below decreed the taxes which the complainant had paid upon the land to be a lien upon it. It was the duty of the mortgagors to pay the taxes, and they not having .done so, the mortgagee might pay them and be subrogated to the rights of the State,- which had a lien upon the land for the taxes. Pratt v. Pratt, 96 Ill. 184.

Finding no error in the decree it is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Marquis D. Moore, Admr. v. Benjamin Wood et al.

      Filed at Mt. Vernon May 11, 1881

      Rehearing denied November Term, 1881.

    1. FrauduiiEnt conveyance—to hinder and delay creditors—secret trust. A debtor can not convey real estate to another, to be held, wholly or in part, in secret trust for himself, so as to cut off the rights of existing creditors;—for although such a transaction may be upon a valuable consideration, yet it lacks the element'of good faith. While it professes to be an absolute conveyance on its face, there is a concealed agreement between the parties to it inconsistent with its terms, securing a benefit to the grantor at the expense of those he owes. A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right, and gives” to the debtor the beneficial enjoyment of what rightfully belongs to them.
    2. Where the secret trust reserves to the grantor future support, the gist of the objection to the transaction consists, not in the amount to be paid to the grantor on that account, but in the fact that the promise of future support forms part of the consideration as an inducement to the transfer. Where it is shown that the present consideration is inadequate tp satisfy his debts, whatever may be the amount secured to the debtor, the law, instead of endeavoring to determine what part of the consideration is money or other property, and what part is to be paid in future support of the grantor, and holding the grantee responsible for the latter sum, will treat the conveyance as a nullity, as between the grantee and the creditors of the grantor, and hold the property liable for their claims.
    3. Same—evidence in rebuttal. Evidence is admissible, however, upon the question of fact whether a secret trust really does exist. If the future ' support provided for was a mere gratuity tendered by the grantee, then it would be subject to be revoked at any time, and could not, even as between them, create a trust. But, presumptively, where the future support of the grantor is reserved, it represents an equivalent value in the property conveyed,—so the burden is upon the grantee to overcome such presumption by a clear and satisfactory preponderance of evidence.

      Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Mr. H. S. Pettingill, and Mr. F. W. Burnett, for the appellant.
    Messrs. Krome & Hadley, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case comes here by appeal from the decision of the Appellate Court for the Fourth District. Bill in chancery was filed in the circuit court of Madison county by Marquis D. Moore, administrator of the estate of William H. Segar, deceased, against Benjamin Wood and Isham W. Johnson, to set aside a conveyance of real estate executed by Wood to Johnson on the 15th day of March, 1877, on the ground that such conveyance was made to hinder and delay creditors. On hearing, the circuit court found that the conveyance was made to hinder and delay creditors, and decreed that the same was fraudulent and void as against the rights of creditors, and should therefore be set aside, etc. The Appellate Court reversed this decree, and directed that the bill be dismissed.

There are a few facts which we deem of controlling importance about which there is no dispute. Wood and wife were childless, and Johnson, being a nephew of Mrs. Wood, and an orphan, when about eight years of age was adopted by them as a member of their family, and he continued to reside with them as such until after the transactions involved in this controversy. Wood was indebted in an amount equal to or in excess of the entire value of all of his property, a portion of which, it is claimed, was to Johnson. He conveyed all of his real estate except the right of homestead, and assumed to sell the hulk of his personal property, including farming machinery and implements (not retaining any personal property subject to execution), to Johnson. The alleged consideration for this was the satisfaction of Johnson’s debt, the assumption by him of certain other preferred' debts of Wood, and the furnishing to Wood and wife of a support on the land during their lives. Wood and wife continued to occupy the principal dwelling house after as before the conveyance, and there was no outward and visible change of ownership at or near the conveyance and alleged sale of any of the property. Both before and after that time Wood and Johnson indiscriminately, and as convenience seemed to require, used and controlled the property. By the express terms of the agreement of sale, pursuant to which the conveyance was made, Wood and wife were to • remain in the dwelling house and have a living off the place.

About this there is no dispute. Both Johnson and Wood admit in their answers, and testify, when examined as witnesses, to this effect. The deed shows no such reservation, but the admitted fact is, Johnson accepted it in secret trust for this use of Wood and wife, and he has so held it since.

Johnson, in giving his testimony, says: “The bargain was that I was to assume the debts on the land, pay Hosier and John Atkins; I agreed to take everything there was there; he said if I could save myself, all he asked of me was to give him a home as long as he lived; the consideration that I have already stated was for the personal property and real estate; Wood said all he asked was for me to give him a living; Wood and family have had a living upon the premises since March, 1877; I can’t say how much money Wood has received from produce of the farm, because the money is all kept with him that is used on the farm, and whenever there is enough to pay a debt it is paid out; he has charge of the money, and takes out what he needs; Wood does not render me an account of the money he uses; he uses the money as he pleases; Mr. Wood receives from the farm the support of himself and family.”

Again, he said: “Wood gets all the proceeds of the farm, and uses what he wants out of it. ”

Wood, in testifying, said that a part of the consideration for the transfer was that he and his family were to have a living off the place, and also that he used for that purpose what was necessary, and kept no account of the amount. He says that all the money from the proceeds of the place is left in the care of his wife, and this has been used in purchasing supplies for his family, and in paying off the debts assumed by Johnson. Wood says he himself paid about $1168, assumed by Johnson, to John Atkins, in part from the proceeds of sales of apples, and in part from money obtained for other products of the farm.

So far as regards the personal property, the sale was clearly within the second resolution in Twyne’s case, (3 Coke’s Rep. 80,) 1 Smith’s Leading Cases, 33, and voidable at the instance of creditors. Thornton v. Davenport, 1 Scam. 296; Kitchell v. Bratton, id. 300; Rhines v. Phelps et al. 3 Gilm. 455; Funk v. Staats, 24 Ill. 633; Rozier v. Williams, 92 id. 187.

We think the conveyance of the real estate was also equally voidable at the instance of creditors. A debtor can not convey real estate to another to be held wholly or in part in secret trust for himself, so as to cut off the rights of existing creditors; for although, as was observed in Lukin v. Aird, 6 Wallace, 78, “such a transaction may be upon a valuable consideration, but it lacks the element of good faith; for while it professes to be an absolute conveyance on its face, there is a concealed agreement betwe’en the parties to it inconsistent with its terms, securing a benefit to the grantor at the expense of those he owes. A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right, * * * and gives to the debtor the beneficial enjoyment of what rightfully belongs to his creditors.”

The principle was announced and followed in Guffin v. First National Bank of Morrison, 74 Ill. 259, Annis v. Bonar, 86 id. 128, Jones v. King, id. 225, Truitt v. Griffin, 61 id. 26, Power v. Alston, 93 id. 587, Robinson v. Stewart, 10 N. Y. 195, Goodrich v. Down, 6 Hill, 438, Jackson v. Parker, 6 Cow. 84, Beadle v. Delaney, 6 Martin, (N. S.) 640, (Morgan’s ed. vol. 9, p. 339,) Macomber v. Peck, 39 Iowa, 354, and Coburn v. Pickering, 3 N. H. 415.

In the last named case, Richardson, C. J., lays down the rule that whether there was any trust is a question of fact; but the trust being proved or admitted, the fraud is an inference of law which the court must pronounce. His exact language, after a discussion of the authorities, is: “ It thus seems to us to be settled, as firmly as any legal principle can be settled, that the fraud which renders void the contract in these cases is a secret trust accompanying the sale. * * * It is, therefore, very clear that fraud is sometimes a question of fact, and sometimes a question of law. When the question is, was there, a secret trust, it is a question of fact; but when the fact of a secret trust is admitted, or in any way established, the fraud is an inference of law, which the court is bound to pronounce. ”

So, upon like principle, we held in Phelps et al. v. Curts et al. 80 Ill. 112, it is not important what motives may have animated the parties, if they have so disposed of the property that the necessary effect is to hinder and delay creditors. Such a disposition is, in judgment of law, a legal fraud. To the same effect, also, is Power v. Alston, supra, and Emerson v. Bemis, 69 Ill. 537.

“The gist of the objection,” in cases like the present, it is said, “consists, not in the amount to be paid in future support, but in the fact that the promise of future support forms part of the consideration as an inducement to the transfer. When it is shown that the present consideration is inadequate-to satisfy his debts, whatever may be the amount secured to the debtor, the law, instead of entering upon the task of determining what part of the consideration is money or other property, and what part is to be paid in future support of the grantor, and holding the grantee responsible to creditors for the latter sum, treats the conveyance as a nullity as between the grantee and the creditors, and holds the property liable for their claims.” Bump on Fraudulent Conveyances, pp. 246-7; Sidensparker v. Sidensparker, 52 Me. 481.

But appellees contend that evidence may be given, and here was given, to show that Johnson paid the full value for the property conveyed, and that the reservation of the support for Wood and family is of no value to creditors, because they can not complain if Johnson assumed a burthen which was- not to their prejudice. This view of the law is sanctioned by Bump on Fraudulent Conveyances, at p. 247, and Slater v. Dudley, 18 Pickering, 373, and Albee v. Webster, 16 N. H. 362.

If the future support of Wood and family was a mere gratuity tendered by Johnson to Wood, it might at any time be revoked, and could not, of course, even as between them, create a trust, and evidence to that effect was therefore admissible to rebut the claim that there was a secret trust. But, as has been seen, the parties expressly repel, by their own testimony, the idea that the future support of Wood and family was a mere gratuity offered by Johnson to Wood. They both testify that it wa's a part of the consideration for the transfer and conveyance of the-property, and Johnson is, therefore, no more at liberty to refuse to allow it to Wood and family than he is at liberty to refuse to make any of the payments of debts which he agreed to make. It was a valuable, substantial right, secured to Wood and his family, and presumptively represents an equivalent value in the property transferred and conveyed. The. burden is on Johnson to overcome this presumption by a clear and satisfactory preponderance of evidence. Such evidence, in our opinion, is not to be-found in this record.

No useful end will be subserved by quoting and commenting upon the evidence in extenso in this opinion. We have carefully examined and considered it repeatedly, and we deem it sufficient to say it does not, in our opinion, clearly rebut the presumption arising from the contract which Johnson and Wood both testify they made. The facts that Wood retained no property subject to execution; that he reserved to himself and family a support from the property for life; that after the transfer and conveyance he retained the same homestead, and continued to exercise, with but slight modification, the same dominion over the property that he did before; and that the debts, payment of which was ostensibly assumed by Johnson, so far as they have since been paid, as is shown by Johnson’s own testimony, have been paid from the products of the land, in part, at least, realized by reason of the supervision, care and management of Wood and wife, together with the evidence tending to show that the full value of the property, aside from the agreement to support Wood and wife, was not paid,—all coincide in stamping the transfer and conveyance as made in fraud of the rights of creditors.

Our conclusion is, the decree of the circuit court was right, and that the Appellate Court erred in reversing it and directing that the complainant’s bill be dismissed.

The decree of the Appellate Court will, therefore, be reversed, and the cause remanded to that court with directions to affirm the decree of the circuit court.

Decree reversed.


author: Walker, J.:

text:
    The People ex rel. George K. Clark et al. v. Josiah McRoberts, Circuit Judge.

      At Ottawa, March Term, 1881.

      'Mandamus—to compel the granting of a change of venue. .The writ of mamdamua will not lie to compel a court to enter an order granting a change of venue in a cause pending in such court. That was the rule at the common law, and it is not changed by any statute in this State.
    This is an application to this court for leave to file a petition for a writ of mandamus to compel the circuit court of Will county to enter an order granting a change of venue in a cause therein pending.
    Mr. D. J. Schuyler, and Mr. Henry T. Helm, for the b relators, and Mr. Charles B. Lawrence, of counsel:
    In this application the object of the writ sought is to compel the person to whom it shall be directed to do something which he is supposed to be bound by his duty to do, and which the applicant has the right to have done, and for which he has no other adequate specific remedy. Etheridge v. Hall, 7 Porter, (Ala.) 47; The State ex rel. v. Porter, 1 Ala. 688; Commonwealth ex rel. Hepburn v. Mann, 5 Watts & Serg. 403.
    In State v. McArthur, 13 Wis. 407, a peremptory writ was awarded to compel a change of venue. And the rule was changed in Ex parte Washburn, 22 Wis. 99, only because, by an amendment of the statute, an appeal could be prosecuted directly from the order refusing the change. In Ex parte Banks, 28 Ala. 45, the writ was refused only because the granting of a change of venue was discretionary. In Illinois, in a civil suit such as this, the granting of a change is not discretionary,—it is a matter of legal right. Whenever a suitor is entitled to a right which is withheld from him by the decision of a court, it can not, in any just and accurate sense, be called a mere matter of discretion. Ex parte Banks, 28 Ala. 45, citing Wormley v. Commonwealth, 70 Gratt. 658, and Etheridge v. Hall, 7 Porter, 47. See, also, Gordon v. Longest, 16 Porter, 97; Durosseau v. The United States, 6 Cranch, 312.
    In Exparte Chase, 43 Ala. 303, the court overrule the ease of Ex parte Banks, 28 Ala. 45, and award a mandamus to change the venue in a criminal case.
    The writ was in an early case, in Jared v. Hill, 1 Blackf. 155, allowed, to compel an inferior court to make an order for costs, in conformity with a decision of the appellate court, previously rendered. It has been more recently held that mandamus will lie to compel a court to issue an attachment for violation of an injunction, the remedy by appeal not being considered adequate in such case. Merced Mining Co. v. Fremont, 7 Cal. 131; Ortman v. Dixon, 9 id. 23.
    As, where an attachment issued in aid of an action at law is dismissed improperly, inasmuch as all benefit of such writ will be lost and can not be regained by appeal, mandamus will lie to restore the attachment. Boraim v. Da Costa, 4 Ala. 393.
    Where a court has erroneously refused to permit a suit to be revived, and has ordered it abated, it may be compelled by mandamus to rescind the order. Ex rel. Naber’s Heirs, 7 Ala. 459.
    Also, where a suit carried on for the benefit of another person has been dismissed at the application of the nominal plaintiff, mandamus has been granted to restore the suit. Brazier v. Tarver, 4 Ala. 569.
    Where a court has allowed an amendment to the pleadings in violation of an agreement of the parties, mandamus has been granted to compel the enforcement of the agreement. Ex parte Lawrence, 34 Ala. 446.
    So, where a cross-bill has been improperly dismissed before the final determination of the suit, mandamus has been granted to compel the court to restore the cross-bill. Ex parte Thornton, 46 Ala. 384.
    Also, pending proceedings for a divorce, it has been granted to compel the inferior court to enter an order for support of the wife pendente lite, no other adequate remedy being afforded in the law. Ex parte King, 27 Ala. 387.
    For other instances in which mandamus will lie, see State v. Stow, 51 Ala. 73; Ex parte Ware, 48 id. 225; Wright v. Johnson, 5 Ark. 687; Gibony v. Rogers, 22 id. 462; Spraggins v. County Court, 1 Cooke, 160; Brown v. Crippin, 4 Hen. & Mumf. 173; People v. Judge N. Y. Com. Pleas, 2 Denio, 199; State Court of Com. Pleas, 15 Ohio St. 377; Ex parte, in the matter of the U. S. 16 Wall. 699; People ex rel. v. Circuit Court, 41 Mich. 326.
    Mr. George S. House, for the respondent:

      Mandamus will not lie to compel an inferior court to give a particular judgment, or to reverse its decision where it has once acted. Seymour v. Ely, 37 Conn. 106. The writ will lie to compel the court to act, but never to direct how it shall act. Insurance Co. v. Wilson’s Heirs, 8 Peters, 296; Appling v. Bailey, 44 Ala. 335. Merely erroneous proceedings can not be reversed by mandamus. Buguhl v. Swan, 39 Cal. 411. The duty must be imperative, not discretionary. People v. Gilman, 5 Gilm. The writ will issue only in an extraordinary case. School Inspectors v. The People, 20 Ill. 531. It is not a writ of right, but' discretionary. People v. Hatch, 33 Ill. 124. In California mandamus will not be granted to compel a justice of the peace to change the place of trial. Flagley v. Hubbard, 22 Cal. 35. See, also, People v. Weston, 28 Cal. 639, and authorities there cited. Generally, as to when the writ will lie and when not, see People v. Sexton, 24 Cal. 84; State v. Board of Education, 22 Wis. 100, overruling State v. McArthur, 13 Wis. 407. The law is clearly stated in The People v. Dutchess, 20 Wend. 658, where it is said, “the

      writ of mandamus can not be awarded for the correction of judicial errors. ”
   Walker, J.:

This is an application for leave to file a petition for a summons in mandamus, and to make the writ returnable to this term of court. We have examined the application, and we find that the relief sought is simply to compel the court below to grant a change of venue. After an examination of the authorities, and the briefs of the parties, we are of opinion that the writ will not lie. At common law it seems that such a writ was not allowed, nor do we think that under our statute any change has been made in regard to an application of this character. If the writ was allowed in this case compelling the court to enter a mere interlocutory order, we see no reason why it might not be asked for and granted in every case while the suit was progressing, compelling the court to enter particular orders. In other words, it would be to bring up the case in fragments from the court below, and have every ruling of that court passed upon during the progress of the ease, and in that way bring cases before the court where there was no final judgment or determination in the court below.

The application will therefore be denied.

Mandamus refused.


author: Sheldon, J.:

text:
    Louisa McCall v. William S. Moss.

      At Ottawa, March Term, 1881.

    Appeal bond-—liability thereon—sufficiency as to amount. A decree was rendered in the trial court for $36,000. On an appeal to the Appellate Court an appeal bond was given in the sum of $40,000. The decree was affirmed on that appeal, and on a further appeal" to the Supreme Court an appeal bond in the sum of only $300 was given. On the question whether the latter bond was for a sufficient amount, it was considered that in case of an affirmance by this court of the judgment of t¡he Appellate Court, the appeal bond given on the appeal from the trial court would stand as security for the decree rendered in that court, and as the appeal bond given on the appeal to the Supreme Court was sufficient in amount to cover the costs in this court, that was all that was required.
    Appeal from the Appellate Court for the Second District.
    At the March term of this court the appellee entered his motion for a rule upon the appellant to give an additional appeal bond in a larger sum. At the present term the appellant moves to discharge the rule entered under the prior motion.
    Mr. H. B. Hopkins, for the appellant.
    Mr. David McCulloch, and Mr. John Muckle, for the appellee.
   Sheldon, J.:

This is a motion to discharge a rule to give an additional appeal bond in a larger sum. It is an appeal from the Appellate Court. The circuit court rendered a decree for $36,000. An appeal was taken to the Appellate Court, and the circuit court' required a bond of $40,000. That bond was given. The Appellate Court affirmed the decree. On appeal from the Appellate Court to this court an appeal bond of $300 vfas required. If given, that bond would be sufficient to cover costs in this court, in case we affirmed the judgment of the Appellate Court, and we' understand that this bond for $40,000, given in the circuit court on the appeal to the Appellate Court, would stand as security for the payment of the decree. If so, we think the bond is sufficient in amount. No exception is taken to the sufficiency of the sureties,—it is only as to the amount of the bond.

The rule will be discharged.

Rule discharged,


author: Scott, J.:

text:
    Isaac P. Coates v. Alexander Cunningham.

      At Ottawa, March Term, 1881.

    Practice in the Supreme Court—changing judgment at a subsequent term. A motion to vacate an order entered at a preceding term denying a petition for the rehearing of a cause in this court, will not be entertained. The term at which the order was entered having passed, this court has no power to change its judgment, or to entertain any motion to that end.
    This was a motion to vacate an order entered at the September term, 1879, denying a petition for rehearing.
    Messrs. Shufeldt & Westover, for the motion.
    Messrs. McCoy & Pratt, contra.

   Scott, J.:

It appears that this case was decided and an opinion filed in the vacation preceding the September term, 1879. To the September term, 1879, a petition for a rehearing under the rules of the court was regularly presented, and was considered by the court, and the prayer of the petition denied. At the present term a motion is made by the unsuccessful party to vacate the order denying the petition for a rehearing at the September term, 1879. We are of opinion that this can not be done. The case has long since passed.from the jurisdiction of this court. We have now no rightful authority to entertain any motion, and it is therefore denied.

Motion denied.


text:
    James J. McGrath v. The People ex rel. Linnemeyer.

      At Ottawa, March Term, 1881.

    1. Appeal—direct from the trial court to the Supreme Court—what is a franchise. An office is not a franchise, so as to give the Supreme Court jurisdiction to hear an appeal direct from the trial court in a proceeding by quo warranto bringing in question the right to hold and execute the duties of an office. The appeal in such a case should, in the first instance, be taken to an Appellate Court.
    2. Same—whether “the State is interested, as a party or otherwise." The State is not “interested, as a party or otherwise,” in a proceeding in the nature of a quo warranto to try the title of a person to an office into which it was alleged he had intruded, in any such sense as would give to the Supreme Court jurisdiction to hear an appeal in such a proceeding directly from the trial court, under section 88 of the Practice act. The interest which the State must have in a cause, within the meaning of this section, in order to entitle either party to bring it directly to the Supreme Court from the trial court, is a substantial interest—as, a monetary interest.
    Appeal from the Circuit Court of Cook county.
    This was an information in the nature of a quo warranto, brought in the name of the People, on the relation of Henry Linnemeyer, against. James J. McGrath, charging him with usurping and intruding into the office of alderman of the 14th ward of Chicago. On the hearing of the cause in the court below judgment of ouster was pronounced. Respondent thereupon prayed and perfected an appeal directly to this court, and now the appellee—the People—come and move to dismiss the cause for want of jurisdiction in this court to hear and determine the appeal in the first instance. The appellant seeks to maintain the appeal, or rather the jurisdiction of this court to hear the appeal, for two reasons: first, that a franchise is involved in the case; and, second, that “the State is interested” in the cause, within the meaning of the 88th section of the Practice act.

      Mr. Bichard Prendergast, for the appellee, in support of the motion:
    A quo warranto proceeding to try the title to an office is not a criminal case, nor does it involve a freehold or the validity of a statute, nor a franchise, hence an appeal from a judgment of the circuit court to this court is improper. People v. Holtz, 92 Ill. 426; Chicago and Western Indiana R. R. Co. v. Dunbar, 95 id. 571; Sec. 7, ch. 112, Rev. Stat.; Sec. 8 of act to establish Appellate Court.
    Mr. W. E. Leffingwell, for the appellant, contra, cited section 88 of the Practice act, and insisted: The realpcut'ties to this controversy are the People of the State of Illinois and the appellant. This court has said: “Where the object is the enforcement of a public right, the People are regarded as the real party, ancTthe relator need not show that he has any interest in the result. It is enough that he is interested as a citizen in having the laws executed, and the right in question enforced. ” Comr’s of Pike County v. The People ex rel. 11 Ill. 202.
    It is true, that was a mandamus case, but it is claimed that the same principle applies to quo warranto proceedings. A quo u'arranto information is of late considered as a civil proceeding. Rex v. Francis, 2 Term R. 484; Clark v. The People, 4 Cowen, 95; Richardson v. The People, id. 111, and notes.
   Scott, J.:

The first proposition can not be maintained. This court has decided, in The People v. Holtz, 92 Ill. 426, that an office is not a franchise, and that is conclusive as to this branch of the case.

We think the second position is also untenable. The people have no interest in this matter as a State. All the people do is to grant the writ, and we are of opinion,—at least a majority of the court are of opinion,—that the interest of the State in a cause, in order 'to entitle either party to bring it directly to this court in the first instance,, must be a substantial interest,—as, a monetary interest. Ho such interest as that is involved in this case. We think, therefore, on neither ground can this appeal be maintained. Ho franchise is involved, nor has the State any interest of the sort referred to, in this matter. It is purely a local matter, and all the people do is to grant the writ.

The motion, therefore, to dismiss will be allowed.

Appeal dismissed.


author: Mulkey, J.:

text:
    Albert Hankins v. The Chicago and Northwestern Railway Company.

      At Ottawa, March Term, 1881.

    1. Appeal prom an Appellate Court—as to the sum, or value in controversy. In an action on the case for the recovery of damages claimed for injury to" personal property occasioned by the alleged negligence of the defendant, the damages being susceptible of direct proof, they must exceed the sum of $1000, in order that this court may have jurisdiction of an appeal from an Appellate Court. It is not enough that the damages amount to $1000, but no more.
    2. If the plaintiff were proceeding for damages that are merely speculative in character, not susceptible of direct proof, and amount to $1000, as shown by the judgment, there an appeal or error would lie, whether the form of action be ex contractu or ex delicto; but where the action is in tort, and the damages are not merely speculative in their character, but, being the result of an injury to the property of the plaintiff, are susceptible of direct proof, the damages must exceed $1000, to give the jurisdiction.
    Appeal from the Appellate Court for the First District.
    This was an' action on the case, brought by Hankins, in the circuit court of McHenry county, against the defendant ' company, to recover damages, laid in the declaration at §1500, for the killing of a mare on the defendant’s road, claimed to have resulted from the negligence of the company’s servants in' running a train.
    A trial in the circuit court resulted in a judgment for the defendant. The plaintiff appealed to the Appellate Court, where that judgment was affirmed. The plaintiff thereupon appealed to this court.
    Mr. B. C. Cook, for the railroad company,
    now moves to dismiss this appeal, upon the ground of a want of jurisdiction, the value 'of the property involved not exceeding §1000, citing section 91 of the Practice act.
    Mr. Clarence A. Knight, contra.

   Mulkey, J.:

By an examination of the record we find the proofs tend to show that the value of the mare was §1000,— that is the utmost that can be claimed. It has been decided in a number of cases that in this class of cases the value of the property must exceed §1000. If the plaintiff were proceeding for damages that are speculative in character, and not susceptible of direct proof, and the damages are §1000 or more, as shown by the judgment, there an appeal or writ of error would lie to this court, whether the form of action be ex contractu or ex delicto. But where the action is in tort, as in this case, and the damages are not merely speculative, but susceptible of direct proof, they must, according to the language of the Practice act, and according to a number of decisions, exceed §1000.

The evidence in this case does not tend to show that the damages exceed §1000, therefore the -motion must be allowed.

Appeal dismissed.


text:
    Marion Munger et al. v. Augustus Jacobson, Receiver.

      At Ottawa, March Term, 1881.

      Rehearing—changmg the record. On the filing of a petition for the rehearing of a cause in this court, the parties stipulated that the record in another branch of the same case, not incorporated in the record as originally considered, might be taken as a part of the record on the rehearing, thereby presenting questions other than those previously arising in the case. A rehearing was allowed on the basis of that stipulation.
    Appeal from the Appellate Court for the First District.
    Upon the affirmance of the judgment of the Appellate Court, a petition for a rehearing was filed, and a stipulation by the parties to change the record so as to present a different case for consideration.
    Messrs. Shueeldt & Westover, for the appellants.
    Messrs. Mattocks & Mason, for the appellee.
   Walker, J.:

On the filing of a petition for rehearing, a stipulation was entered into that the record in another case, or another branch of this ease, might be considered as a part of the record in this case. That has changed the record, and will change the consideration of the case. Other questions will be presented that were not in the original record, and for that reason, and as a matter of discretion, the petition will be allowed.

The petition would not have been granted if the parties had not stipulated to change the record.

Rehearing allowed.


text:
    Timothy Moshier v. Henry D. Shear.

      At Ottawa, September Term, 1881.

    Appeal from an Appellate Court—whether the sum of $1000 is irwolved. A claimed that B was indebted to him in the sum of $400, and on the other hand B contended that A was indebted to him in a much larger sum. The matter was submitted to arbitration, and the result was, an award in favor of B for $704. On bill by A to set aside this award, upon the question whether there was $1000 involved in the litigatioh, as affecting the jurisdiction of this court on writ of error to the Appellate Court, it was held, there was not merely the amount of the award involved, for if the award should stand, A will be barred of his claim of $400 against B, and will have to pay B $704, whereas, if the award should be set aside, A will be at liberty to assert his claim of $400, and to resist B’s claim of $704. So there is more than the sum of $1000 involved.
    Writ oe Error to the Appellate Court for the Second District.
    Moshier, the plaintiff in error, in 1874, held against Shear notes upon which, according to the face of the notes and the indorsements, there was due on the 9th of March, 1867, the sum of $400, and this sum was claimed by Moshier to be due from Shear, with interest from March 9,1867. Shear, on the other hand, claimed that Moshier, on a settlement of accounts, would owe him over $1000. They submitted the controversy to an arbitration, which resulted in an award in favor of Shear for $1100. This award was set aside, and another arbitration was had which resulted in another award in favor of Shear for $704.62. Moshier filed his sworn bill in chancery for an injunction, and to set aside this award. This was done by a decree of the circuit court, whereupon Shear took the record to the Appellate Court, and that court reversed the decree of the circuit court and did not remand the ease.

      Upon this decree reversing that of the circuit court, Moshier has brought the case to this court by writ of error. As matters now stand, Shear has an award against Moshier for $704.62, while Moshier claims an indebtedness from Shear of $400, and interest from March 9, 1867. The defendant in error now enters his .motion to dismiss' the writ of error for want of jurisdiction in this court, on the ground, as claimed, that only the amount of the award is involved in .the litigation, which is less than $1000.
    Messrs. McKenzie & Calkins, for the motion.
    Messrs. Lawrence, Campbell & Lawrence, and Messrs. Sanford & Carnet, contra.

   Sheldon, J.:

There is not merely the amount of this award involved here. .If this award stands, Moshier is barred of .his claim of $400 against Shear, and he has to pay Shear $704.62, whereas, if this award is set aside, then Moshier will be at liberty to assert his claim against Shear of $400, and to resist Shear’s claim of $704.62 against him. Therefore in the matter of setting aside this award there is more than the $704.62 involved, the amount of the award. It directly affects Moshier to the extent of $1104.62, as he claims. That is the amount involved,—not merely $704.62, the amount of the award. We think, therefore, that the motion to dismiss should be overruled, the amount involved exceeding $1000.

Motion denied.


text:
    Sarah Pinneo et al. v. Augustus F. Knox et al.

      At Ottawa, September Term, 1881.

    Appeal from, a trial court to this court—bill to foreclose mortgage—freehold. A bill in chancery to foreclose a mortgage upon real estate does not involve a freehold. Therefore in such a suit an appeal does not lie directly from the trial court to this court. The appeal should be taken in the first instance to an Appellate Court.
    Appeal from the Circuit Court of Will county.
    This was a suit in chancery for the foreclosure of a mortgage upon real estate.
    Mr. C. B. Garnsey, for the appellee ' Knox, moved the court to dismiss the appeal for want of jurisdiction, there not being a freehold involved in the suit, and none of the other conditions necessary to give this court jurisdiction of the appeal, existing.
   Walker, J.:

In this case, in the court below, a bill was filed to foreclose a mortgage, and a decree rendered in that court, and an appeal is brought to this court. Motion is now entered to dismiss the appeal. We have frequently held that a bill to foreclose a mortgage does not involve a freehold, and that the appeal should be taken from the circuit to the Appellate Court, and not to this.

The appeal will therefore be dismissed.

Appeal dismissed«


text:
    The People ex rel. Bacon v. Shelby M. Cullom, Governor.

      At Ottawa, September Term, 1881.

    Mandamus against the Governor. The Supreme Oourt will not entertain an application for a writ of mandamus to compel the Governor of the State to call an election. One department of the government has no power to interpose in such way against a coordinate branch of the government. •
    This was an application to this court for leave to file a petition for a writ of mandamus to compel the Governor to call an. election. . .
    Itr. Consider H. Willett, and Mr. B. J. Whitehead, for the motion.
   Walker, J.:

This is an application for a summons in mandamus, returnable to the present term of this court. The substantial facts of the case show that the county judge of Ogle county, in this State, on the 24th of May last, resigned his office. The Governor was notified of the resignation, and on the next day, being the 25th, appointed a judge to fill the vacancy. Afterward a petition was presented to the Governor asking him to order a special election, claiming that under the constitution he had no power to appoint where a vacancy ■ continued for more than a year from its occurrence, and that under the amendment to the constitution the term was extended until December, 1882, and not until the first of December, 1881. The Governor, it seems, refuses to call the election, and this is an application for a mandamus to compel him to do so.

Upon turning to the ease of The People ex rel. v. Bissell, 19 Ill. 229, we find it is there announced and held, that one coordinate branch of the government has no power to interfere and coerce the action of another, and in that case the court refused to issue the mandamus. That case is full, and covers and' is decisive of every point that is presented by this petition.

The petition will therefore be denied, and the writ will not issue.

Mandamus denied.


text:
    Mark A. Devine v. Henry C. Edwards.

      At Ottawa, September Term, 1881.

      Bbiefs—used in the Appellate Court. A party appealing from a judgment of an Appellate Court- may file in the cause in this court the briefs used in the Appellate Court, without asking special leave for that purpose.
    Appeal from the Appellate Court for the Second District.
    Mr. E. N. Botseord, for the appellee,
    asked leave to file in this cause in this court the briefs that were filed in the Appellate Court in the same cause, prior to this appeal.
   Walker, J.:

Under the practice in this court the briefs used in the Appellate Court may be filed without special leave for that purpose, and counsel may, if he choose, file additional or supplemental briefs.


text:
    Commissioners of Highways v. The People ex rel. Walker.

      At Ottawa, September Term, 1881.

    Withdrawing records—/or what purpose allowed. On an appeal from an Appellate Court to this court, the appellee asked leave to withdraw the record from this court, for the purpose of using the same in the Appellate Court upon a motion in that court to tax the costs as to certain unnecessary parts of such record against the appellants. Leave was given, on condition the record should be returned after its use.
    Appeal from the Appellate Court for the Second District.
    Mr. B. F. Herrington, for the appellees, entered a motion for leave to withdraw the record in this casé from the files of this court, for a sufficient length of time to use the same in the Appellate Court in support of a motion in that court to tax certain unnecessary portions of such record against the appellants.
   Scott, J.:

This is a motion for leave to withdraw the record and one copy of the abstract for the purpose of using the same in the Appellate Court for the Second District, on a motion to retax the costs. Leave asked will be given, on condition that the record be returned after its use. The motion is allowed.

Motion allowed.


author: Scholfield, J.:

text:
    John D. McIntyre v. John C. Yates et al.

      At Ottawa, September Term, 1881.

    Appeal from a trial court to this court—foreclosure of mortgage and reforming the mortgage for misdescription—freehold. The rule that a suit to foreclose a mortgage upon real estate does not involve a freehold so as to give this court jurisdiction on writ of error directly to the trial court, is not at all affected by the fact that it-is also sought in the same suit to reform the mortgage in respect to a mistake in the omission of a tract of land intended to be embraced in the mortgage, and that the question of priority as between several mortgages is involved.
    Writ of Error to the Circuit Court of Peoria county.
    This was a suit in chancery to foreclose certain mortgages, in respect to which there was a question as to priority. One of the mortgagees also sought to have his mortgage reformed in respect to the omission of a tract of land which was intended to be included therein. About this alleged mistake there was no controversy.
    Messrs. Puterbaugh & Puterbaugh, and Mr. N. W. Green, for the defendant in error,
    moved the court to dismiss the writ of error, on the ground there is no freehold involved, and therefore the writ should, in the first instance, have been sued out of the Appellate Court.
    Mr. B. S. Prettyman, for the plaintiff in érror, contra.

   Scholfield, J.:

The bill is filed to foreclose a mortgage. Questions are raised by the answer and by cross-bill with regard to the priority of this and certain other mortgages. We have held in several cases that the mere filing of a bill to foreclose a mortgage does not involve a freehold so as to give this court jurisdiction. The only respect in which this case differs from the other cases is, -that in addition to the bill to foreclose, it is sought to correct a mistake (about which there was no "-controversy) in the mortgage. It is impossible to see how this changes the principle. When the mistake is corrected, its only effect is to extend the mortgage to that which was not before included. The writ of error will have to be dismissed.

Writ of error dismissed.


text:
    John Garrick et al. v. Angie P. Chamberlain.

      At Ottawa, March Term, 1881.

      Rehearing—second petition by the same parly. A second petition for a rehearing of a cause'in this court by the same party is not allowable.
    Appeal from the Appellate Court for the First District.
    Upon the rendering of a decision in this case at a former term of this court, the appellee filed a petition for a rehearing, which was fully considered, and denied. Now a second petition for a rehearing is filed by the same party. The appellants move that it be stricken from the files.
   Scott, J.:

There is nothing in the rules, or in any practice that has ever prevailed in this court, that would authorize a second petition by the same paity for a rehearing. A majority of the court are therefore of opinion that the motion made to strike what purports to be a second petition for a rehearing from the files, should be allowed, and it is accordingly done.

Petition stricken from the files.

Dickey, Ch. J.: I do not concur in the opinion of the majority of the court.


author: Craig, Ch. J.:

text:
    Ella B. Hunter v. James M. Hunter.

      At Ottawa, September Term, 1881.

      Alimony—in the Supreme Court. On appeal to this court in a suit for divorce, an application on behalf of the wife for temporary alimony to enable her to prosecute her appeal, will not be entertained here. Such an application should be made in the trial court, if at all.
    Ella B. Hunter brought suit in the circuit court of Kankakee county, against her husband, James M. Hunter, for a divorce. On the hearing, the circuit court refused to grant the divorce, but decreed separate maintenance to the wife. The husband appealed to the Appellate Court for the Second District, where the decree of the circuit court was reversed, and the cause remanded with directions. Thereupon the wife appealed from the judgment of the Appellate Court to this court, and now asks this court to make an order allowing her temporary alimony to enable her to prosecute her appeal.
    Mr. Charles B. Starr, for the motion.
    Mr. Gr. S. Eldridge, contra.

   Craig, Ch. J.:

It has not been the practice, at least for many years, for this court to entertain an application for alimony. That is left to the court from which 'the cause comes to this court.

Application for alimony denied.