text:
    Ernest W. Ladd v. William Pigott.

      Filed at Ottawa June 13, 1885.

    1. Fbaud and deceit—false representations in respect to lands remote from, place of making contract—how far a party may rely upon them. Where a party effects an exchange of real estate situate in another State, with, a person residing in this State, for property here, by means of false representations as to the quantity of his land, the location thereof, and the character of the improvements thereon, with a knowledge of the falsity of his representations, he will be liable to the injured party in an action on the case for fraud and deceit. Under circumstances like these, the person with whom the exchange is sought may rely upon the statements as being true, without being guilty of such negligence as to preclude a recovery by him for the fraud practiced on him. It might be different where the property is situated conveniently near, so as to permit an examination to be readily made.
    2. Amendments and jeofails—defeat in pleading cured after verdict. In an action for fraud and deceit in the exchange of land with the plaintiff for a leasehold interest in a building, and the goods therein, if the declaration fails to aver the assignment of the lease by-the plaintiff, which was sold with the stock of goods, it will be too late to object to this defect in the pleading after trial and judgment.
    3. Practice—time to object that evidence is not admissible under the pleadings. If a declaration contains no averment to authorize the admission of evidence to prove a particular fact, objection should be specifically made to the introduction of such evidence 'at the time it is offered, so that the objection may be obviated by an amendment of the declaration. If not so-made the objection will be deemed to have been waived.
    4. Same—directing a nonsuit. Where there is evidence tending to prove-the averments of the declaration put in issue, a motion for a nonsuit will be properly refused.
    5. Instructions—whether assuming facts. Where the propositions in an instruction are all made to rest upon what the jury shall believe from the evidence, or when it states a hypothetical case, which, if the jury believe, from the evidence, existed, they may consider, it will not be liable to the objection it assumes there is evidence of the fact, or indulges in presumptions that there is evidence to prove such propositions.
    6. Same—whether to be construed as limiting the proof required. In an action on the ease for fraud and deceit in the exchange of property, the-defendant asked the court to instruct the jury that the plaintiff was not entitled to recover unless they should find, from the evidence, that the defendant made the representations alleged in the declaration. The court gave the-instruction, but added thereto, “or some material part thereof:” Held, that as modified it did not mean that the plaintiff might recover if he proved some of the material representations alleged, but that ho must prove all that were material of such representations, which, strictly speaking, is the law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    The declaration in this suit is in case, to which the general issue was pleaded. The action was brought by William Pigott, against Ernest W. Ladd, to recover for deceit and fraud practieed by defendant in the sale and exchange of property. On the trial in the Superior Court plaintiff recovered a judgment for $1250, against the defendant, which judgment was after-wards affirmed in the Appellate Court for the First District.
    Mr. E: K. Smith, for the appellant:
    False representations as to the condition, situation and value of real estate are not actionable, unless purchaser has been fraudulently induced to forbear inquiry, and then the means must be stated in the declaration. Brown v. Bledsoe, 1 Idaho, 76; Crown v. Garriger, 66 Ala. 590.
    The representations should be stated in substance, their falsity averred, and that they were made with intent to deceive the plaintiff, and induce him to make the trade or purchase in question, and that they did induce such trade. Barber v. Morgan, 51 Barb. 116.
    In an action for deceit, a scienter is necessary to be alleged and proved. Moore v. Noble, 53 Barb. 425; 36 How. Pr. 385; Homer v. Fellows, 1 Doug. 51; Terrell v. Bennett, 18 Ga. 404; Woothan v. Callahan, 26 id. 366; 32 id. 382; Hepper v. Lisk, 1 Ind. 176; Gaffing v. Newell, 9 id. 572; Holmes v. Clark, 10 Iowa, 423; Courtney v. Carr, 11 id. 295; Hallam v. Tidhunter, 24 id. 166 ; Pattygrew v. Chellis, 41 N. H. 95; Taylor v. Frost, 49 Miss. 328 ; Morton v. Scull, 23 Ark. 289; Young v. Scovell, 8 Johns. 23.
    The false representations must not only be calculated to-deceive, but they must be made with intent to deceive. Stafford v. Newsom, 9 Ired. L. 507; Munro v. Garidner, 3 Brev. 31; Gibbs v. Odell, 2 Coldw. 132; Breed v. Clark, 55 Vt. 577.
    The intent must be proven. Micon v. Montgomery Bank, 104 U. S. 530; Lewiston Bank v. Dwelley, 72 Me. 223; North River Bank v. Schumann, 63 How. Pr. 476.
    In actions for fraudulent representations, which defendant is alleged to have known to be false, such knowledge is an essential ingredient, and must be proved. Merwin v. Arbuckle,
      81 Ill. 502; Bartholomew v. Fort, 4 Blackf. 293 Massie v. Crawford, 3 T. B. Mon. 218; Tipton v. Triplett, 1 Metc. 570; McLoud v. Tutt, 2 Miss. 288; Ross v. Mather, 47 Barb. 582; Vanleer v. Earle, 26 Pa. St. 277.
    Representations of value, quality, situation and excellency, made by the owner, pending negotiations, are mere matters of opinion, for which no action will lie. Schram v. O’Connor, 98 Ill. 539; Bantin v. Palmer, 47 id. 99; Miller v. Craig, 36 id. 11; Vernon v. Keyes, 12 Bast, 632; Hartman v. Flaherty, 80 Ind. 472; Saunders v. Halterman, 2 Ired. L. 32; Lyttle v. Bird, 3 Jones’ L. 222; Crown v. Corriger, 66 Ala.. 590.
    Statements of this kind do not relieve the purchaser from the responsibility of investigation. Noetling v. Wright, 72 Ill. 390; Kerr on Fraud, 84.
    The law will not assist him unless deceit has been practiced against which ordinary care could not protect, (Van-Horn v. Keenan, 28 Ill. 448,) and there must be some means used to deceive or circumvent. Railway Co. v. Rice, 85 Ill. 406; Fauntleroy v. Wilcox, 80 id. 481; Walker v. Hough, 59 id. 375; Sims v. Klein, Breese, 302.
    The rule of law in transactions between strangers is caveat ■emptor. If the purchaser has equal means of information, and may rely on his own judgment, founded on actual examination, an action will not lie for misrepresentations. Hill v. Bush, 19 Ark. 522; Bell v. Henderson, 7 Miss. 311; Strong v. Peters, 2 Root, 93.
    When a purchaser, with full means of knowledge within his reach, relies upon his own judgment, he can not recover. Post v. Williams, 6 Ind. 219; Veasey v. Dotin, 3 Allen, 380.
    Messrs. Monroe & Tewkesbury, for the appellee,
    discussed the evidence at some length, to show that it sustained the •declaration and the yerdict of the jury, and also examined the instructions objected to, insisting that they properly stated the law of the case.
   Mr. Justice Scott

delivered the opinion of the Court:

As this case comes before this court on appeal from the Appellate Court, of course no controverted questions of fact can be considered.

It is objected the evidence does not sustain the case as stated in the declaration, and for that reason the motion for a non-suit should have been sustained. It is seen, on looking into the record, there is evidence tending to sustain the averments of the declaration, and that is sufficient to sustain the judgment, since, under the statute, the finding of the trial and Appellate courts precluded any inquiry as to the weight pf the ■evidence. That would be to investigate controverted questions of fact, which is not allowable. The representations made by defendant as to the property situated in Kansas, which he was about to exchange with plaintiff, were much more than mere expressions of opinion as to its value and •desirableness. Falsely stating the quantity of land contained in a certain tract, and the size and character of the improvements situated thereon, is quite a different thing from expressing a mere opinion concerning them. That is what the evidence in this case tends to show was the character of the representations made by defendant to plaintiff which are alleged to be false. Assuming the representations were false, as must be done, there is quite enough in the evidence to show the guilty knowledge on the part of defendant. There was, therefore, no ground for granting a non-suit.

It is said it is an elementary principle the purchaser of real éstate can not rely on the mere statement of the vendor, and relieve himself in that way from the responsibility of an investigation. Under some circumstances, no doubt, the rule insisted upon should control; but in this ease the land defendant was about to convey to plaintiff was situated in another State, many hundred miles away, and it would be unreasonable to apply the rule with any degree of strictness. Defendant well knew it was not practicable for plaintiff to examine the property without subjecting himself to considerable expense and travel, and under the circumstances he was guilty of no negligence in relying on the statements of defendant as to the quantity of the land to be conveyed to him, the relative situation of the property, and the size and character of the improvements upon it. Had the property been conveniently situated, no doubt the omission to make the usual investigations might have been attributed to plaintiff as negligence, against which the law would not relieve him. It was distinctly told defendant by plaintiff that if the property was as he represented it to be, the trade would be consummated, as was done, and relying on the truth of such representations, as plaintiff might reasonably do, he was greatly overreached in the transaction.

It is insisted the declaration is not sufficient, because it, does not aver the assignment of the lease of the building, which was sold with the stock of goods. At most, the objection taken rests on a defective pleading, which, at common law and under our statute, is aided by verdict. (Barnes v. Brookman, 107 Ill. 317; 1 Chitty's Pleading, 14th Am. ed. 673.) The rule on this subject, as stated by Chitty in his work cited, is, “that where there is any defect, imperfection or omission in any pleading, whether in substance or inform, which w7ould have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict. ” That is precisely the case here, and the doctrine stated must control. It is averred in the declaration the lease was to be assigned, and proof was, in fact, made of the assigning of the lease,—hence the vérdict on the evidence will be regarded as aiding the defective pleading insisted upon. It may be added that in all cases where a defective or imperfect pleading will be aided by the verdict, if a party wishes to have any advantage from it he must make the objection at the trial, otherwise all advantage will be lost. In this case, as has been seen, the proof shows the lease was, in fact, assigned to defendant; and if the declaration contained no averment that would warrant the giving of the testimony, objection should have been made for that reason. Had that been done, plaintiff might have obtained leave from the court, under the statute, to amend his declaration on such terms as the court might deem equitable. Failing to obtain leave or amend his defective pleading, the objection, no doubt, would prevail.

It is made a point in the case that the instructions given for plaintiff do not present the case fairly, and are misleading. The criticism made upon the first instruction is, it assumes there is evidence the Kansas property could not be examined by plaintiff. This, it is thought, is not a correct reading of the instruction. It does not, in fact, assume anything, but simply assumes a hypothetical case, which, if the jury believe, from the evidence, existed, they were at liberty to consider,—and that is clearly allowable. The same objection is said to lie to the second instruction, and in addition thereto it is said it indulges the presumption there is evidence to show defendant knew the property in Kansas was not worth over $250,—that he told plaintiff he knew its value; that he induced Martin to make representations to plaintiff, and that plaintiff believed such representations. The latter objection to the second instruction is certainly not well taken. The propositions submitted by that instruction are all made to rest upon what the jury shall believe from the evidence, and by it no presumptions whatever are indulged. No objection is taken to the third instruction, other than those pointed out to the first and second of the series given, and which are found, on examination, to have no existence. Nor is the objection to the fourth instruction tenable. Like the objection taken to the other charges, it rests upon a mistaken view of the meaning of the instruction.

The court was asked by defendant, in the third proposition submitted, to instruct the jury that plaintiff is not entitled to recover in this case unless the jury believe, from the evidence, that the defendant made the representations alleged in the declaration, which it did, but the court added to the words quoted, “or some material part thereof.” The objection taken is broader than a correct reading of the instruction will fairly warrant. It does not mean that plaintiff may recover if he proves some of the material representations-alleged in the declaration, but that he must prove all that-is material of such representations,—and, strictly speaking, that is the law. Plaintiff is, perhaps, not bound to prove the representations precisely as alleged, but he must prove the-substance or the material parts of such representations, and more strictness than that the law does not require. It might be conceded this modification of the instruction was not entirely accurate, and still it seems impossible the jury could have been misled by it, for the law is stated precisely as-defendant insists It is, in the context. In the first paragraph of the same instruction the jury were told it must appear, by a preponderance of the evidence, defendant intended to commit, and did commit, a fraud upon plaintiff in manner and form as charged in the declaration, otherwise he could not-recover, and the jury should find for defendant. The law on this branch of the case was given to the jury as favorably by the court as defendant could ask to have it done, and it is improbable the jury could have been misled in the slightest degree by the modification made to the third instruction. This court has had frequent occasion to say it is not every trivial error that may appear in a record that will constitute ground for the reversal of the judgment, otherwise perhaps few judgments would be permitted to stand. Only such errors as-materially affect the merits of the case will justify a reversal of the judgment.

There is no just ground for any complaint the court refused proper instructions asked by defendant. The jury were fully instructed as to every phase of the case. Other instructions would have answered no good purpose, if given. Indeed, it seems that all that was contained in the refused instructions was comprised in those that were given, and the court did right to refuse to give the same propositions a second time, although couched in slightly different phraseology.

On the whole record considered, no error is discovered that seriously affects the merits of the case, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Daniel A. Walsh v. Patrick J. Walsh et al.

      Filed at Ottawa November 14, 1885.

    1. New trial—absence of counsel—negligence. On account of the sickness of defendant’s counsel, the cause in which he was employed was set at the foot of the September calendar by consent, and after the death of the counsel so employed, the defendant employed other counsel in February following, who, supposing the cause was placed at the foot of the February calendar, in which case it would not be called for trial at that term, so informed the defendant, and directed him to wait for notice, and while such attorney was absent trying a cause in another county, the case was tried, and a verdict rendered against the defendant, and the court refused to set aside the verdict and allow a new trial: Held, that as the defendant was chargeable with some negligence, it could not be said the court abused its discretion in refusing to open the case and allow a new trial.
    2. Practice in the Superior Court of Cook county—hearing before different judges in the same case. A'cause being called for trial in the Superior Court of Cook county, the presiding judge transferred the same into the branch of that court held by another judge, where it was tried, and a motion made by the defendant to set aside the verdict and allow him to defend. The judge of the branch court refused to consider the motion in respect to the regularity of the call in the other court and of the transfer, and directed the parties to appear before the other judge in respect to that matter, who overruled the motion.in respect to the matters in his court, and on a further hearing the judge to whom the cause had been transferred, overruled the motion on the merits: Held, that there was no error in each judge passing upon so much of the proceeding as took place before him, and in the final overruling of the motion by the judge who tried the case.
    3. Practice—of a second trial while a former verdict is still standing. In 1881 a verdict was rendered in a cause in favor of the plaintiff, and afterward, in 1884, without its being set aside, another jury was called which rendered a verdict for the same amount in favor of the plaintiff, upon which judgment was rendered: Held, that as a mere verdict could do the defendant no harm, and as the court would render but one judgment, the irregularity worked no injury.
    4. Ebrob will not always reverse—as, where defence is availing under other issues. Where all matters set up in special pleas are available in defence under the general issue, an error in sustaining a demurrer to the special pleas will not require a reversal of the judgment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. John Lyle King, and Messrs. Gary, Cody & Gary, for the appellant.
    Mr. P. McHugh, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought to recover upon a contract for the construction in part of a block of dwelling houses in Chicago. On December 12, 1881, a trial was had, and the jury rendered a verdict against the defendant for $1261.85. The next step appearing by the record is, that on March 25, 1884, the cause came on in its order on the calendar, and being called for trial, the plaintiffs came by their attorney, and the defendant being called and coming not, nor any one for him, a jury was called, evidence heard, and a verdict rendered for $1261.85, against the defendant, upon which judgment was entered. On the next day, March 26, the defendant filed a motion to vacate the judgment and for a new trial, which motion the court overruled on April 5, 1884. On appeal to the Appellate Court for the First District the judgment was affirmed, and defendant took the present appeal to this court.

The circumstances under which the default occurred of the absence of the defendant and his counsel, were, that the late Judge Williams was defendant’s attorney, and being in bad health in the last of October, 1883, by agreement between Mr. Woodbridge, representing him, and the plaintiffs’ attorney, and by order of the judge, the cause was placed at the foot of the September calendar. Judge Williams died February 24, 1884, and soon after, the defendant took his papers away from the office of Judge Williams, and spoke of employing another attorney, and did so. This attorney appears to have labored under a mistake in supposing that the case had been placed at the foot of the February calendar instead of the September calendar, in which ease, of the cause being at the foot of the February calendar, he considered it as equivalent to a general continuance until in April or May, and so informed defendant, and told the latter to await notice from him. On the 25th of March,—the day the case was called and tried,—this attorney was absent, at Wheaton, DuPage county, trying a case in the circuit court.

There certainly was more or less of negligence on the part of the defendant or his attorney in not knowing the situation of his cause as to when it would come on, in its order on the calendar, for trial, and we do not feel prepared to say there was in this case such abuse in the exercise of the discretionary power of the court in refusing to set aside the default, as to call for the interference of this court to disturb the decision in that regard.

Objection is taken to there being the action of two judges of the Superior Court in the decision of the motion. Separate bills of exceptions, signed by the two judges, respectively, recite that in the branch of the Superior Court presided over by Judge Anthony, 'the cause came on in its order on the calendar, and was called for trial, and thereupon, by order of said judge, the cause was transferred for trial into the branch of said court presided over by Judge Gary ; that the cause was there tried, and the motion to set aside the default made; that the latter judge declined to consider the motion in respect of the circumstances of the regularity of the call in Judge Anthony’s court, and of the transfer of the ease to Judge Gary’s branch of the court, and directed the parties to appear before Judge Anthony in respect to that matter, and that Judge Anthony hearing the motion in respect of said circumstances, overruled the motion to that extent, and on further hearing before Judge Gary he considered the motion in the further respects bearing upon the merits of the case, or of the motion for a new trial, and overruled the motion. We perceive nothing improper in this course. Each judge appears to have passed upon so much of the proceeding as took place before himself, the result whereof was the final overruling of the motion by Judge Gary, before whom the trial was had.

Complaint is made that the prior verdict rendered on December 12, 1881, was standing in force, never having been set aside. It does so appear by this record. But it is not • seen how this makes error in the judgment. Its being supported by two verdicts, instead of one, should not detract from its force. The mere verdict, of itself, does the defen dr ant no harm. It is not to be supposed the court will enter a further judgment on that verdict.

It is urged there was error in' sustaining a demurrer to the second, third, fourth and fifth pleas. Whether the demurrer was correctly sustained or not, the general issue was pleaded, under which the matters set up in the special pleas might have been given in evidence, and so the court’s .ruling did the defendant no harm, and was not material error, as this court has often held in.such cases.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Louise Eames Mather v. The City of Ottawa.

      Filed at Ottawa November 14, 1885.

    1. Municipal corporations—constitutional limitation of taxing power to corporate purposes. Section 5, article 9, of the constitution of 1848, providing that the corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes, was a limitation upon the taxing power of the State, and under it taxation can not be imposed by such corporations except for corporate purposes.
    2. Same—municipal aid to a merely private enterprise. A municipal corporation is prohibited by that clause in the constitution from levying a tax in aid of a merely private enterprise, although the purpose may be one which will add to the wealth and prosperity of the municipality. Such a body can not incur a liability, and levy and collect taxes on the property of the citizen to aid in the development of mere private enterprises.
    3. Same—municipal bonds in aid of that which was not a “corporate purpose. ” In this case, bonds of the city of Ottawa were issued under an ordinance submitted to a vote of the people, and adopted thereby, which authorized the mayor to borrow, in the name of the city, the sum of $60,000, “for the use of said city, to be expended in developing the natural advantages of the city for manufacturing purposes,” and provided for the issue of bonds therefor. The bonds, when issued, were given to" an agent of a private corporation, to be by him expended in the improvement of the water-power upon certain rivers within the city, and he negotiated the same to a person’ then residing in the city: Held, that the bonds so issued were void for want of power in the eoiporate authorities to issue them, the purpose for which they were issued not being a corporate purpose.
    4. Same—inhabitants of municipality chargeable with notice of the'contents and purposes of its ordinances. All residents of an incorporated city are chargeable with notice of the contents of all ordinances passed for the government and welfare of the city. So when an ordinance shows the purpose for which city bonds are issued, if a resident of the city buys them he will be held chargeable with notice df the purpose and object of their issue.'
    5. Same—municipal powers—generally. A municipal corporation, being the creature of law, possesses only such properties and powers as its charter confers upon it, either directly or as incidental to its very existence. So long as it acts within its corporate powers.it may bind the people within its limits, but when it transcends its powers, its acts are nugatory.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. George W. Stipp, Judge, presiding.
    Mr. Charles B. Towne, for the appellant.
    Mr. M. T. Moloney, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was’an action brought by Louise Barnes Mather, in the circuit court of La Salle county, against the city of Ottawa, upon one hundred and twenty coupons, which were attached to certain bonds executed by the mayor and city clerk of Ottawa, under the authority of an ordinance passed by the city council of Ottawa, on the 15th day of June, 1869, and also an ordinance adopted on the 29th day of July, 1869, to carry out the ordinance of June 15th. The city of Ottawa was incorporated by an act of the legislature on the 10th day of February, 1853, and under the act of incorporation the city was intrusted with such powers as are usually conferred upon incorporated cities for the government of the people within the limits of such a corporation. Among the powers conferred may be found the following:

Article 5, section 1: “The city council shall have power and authority to levy and collect taxes upon all property, real and personal, within the limits of the city, not exceeding one-half of one per cent per annum upon the assessed value thereof, and may enforce the payment of the same in any manner to be prescribed by ordinance not repugnant to the constitution of the United States and of this State.”

Article 5, section 3: “The city council shall have power * * * to establish, support and regulate common schools, to divide the city into school districts, to borrow money on the credit of the city, and to issue bonds therefor, and pledge the revenue of the city for the payment thereof: Provided, that no sum or sums of money shall be borrowed at a greater interest than at ten per cent per annum. ”

Article 10, section 20: “No money shall be borrowed by the city council until the ordinance passed therefor shall be submitted to and voted for by a majority of voters of said city attending an election held for that purpose.”

On the 15th day of February, 1851, the legislature passed an act creating a corporation known as the Ottawa Manufacturing Company. The act is entitled “An act to authorize certain persons to construct a dam across Fox river for hydraulic and manufacturing purposes." Section 2 of the act is as follows:

“Section 2. The said company, when formed, are hereby authorized to build a dam across Fox river, on section 11 or 12, in township 33 north, of range 3 east, in LaSalle county, for the purpose of creating a water power, and the said company may use, lease or otherwise dispose of the same, and may construct such other works, buildings and machinery as may be deemed necessary or proper to use such water, and to promote the interests and objects of the company.”

On the 16th day of February, 1865, the legislature passed an act enlarging the powers conferred by the act of 1851, under which the company was empowered to build a dam across the Illinois river at such point as the company might elect, with the right to construct a race or races, for the purpose of introducing the water of the Illinois river into the pool of the dam authorized to be erected across Fox river. On the 16th clay of June, 1869, the city of Ottawa passed an ordinance, section 1 of which is as follows:

“Section 1. Be it ordained by the city council of the city of Ottawa, that the mayor of the city be and he is hereby authorized to borrow, in the name of the city, at a rate of interest not exceeding ten per cent, the sum of $60,000, for the use of said city, to be expended in developing the natural advantages of the city for manufacturing purposes, and that bonds of the city be issued therefor in the sum of $500, with interest payable annually, said bonds- to be payable one-third in five years,; one-third in ten years, and one-third in fifteen years after the date thereof: Provided, that no application shall be made of the proceeds of said bonds except for the purpose aforesaid, and in pursuance of an ordinance to be passed for that purpose by the city council, nor until the faithful application of the proceeds of such bonds to the purpose aforesaid shall be fully secured to the city. ”

Section 3 required the- ordinance to be submitted to the voters of the city for rejection or adoption at an election to be held for that purpose.

On the 30th day of July, 1869, an ordinance was passed by the city of Ottawa to carry into effect the ordinance of June 15, 1869; in which it was provided “that bonds of the city for the sum of $60,000 be issued by the mayor in accordance with the terms and conditions of said ordinance of June 15, 1869, and that he deliver the same to William H. W. Cushman, to be used by him in developing the natural resources and surroundings of the city, and that the said Cushman is authorized and directed to expend the same in the improvement of the water-power upon the Illinois and Fox rivers within the city and in the immediate vicinity thereof, under the franchises and powers which have been granted for that purpose by the legislature 'of the State, or which may hereafter. be granted for that purpose, in the manner in which his judgment shall best secure the practical and permanent use of said water-power in the city and its immediate vicinity: Provided, that said Cushman shall execute and-deliver to the mayor an agreement from him to the city of Ottawa, that he will, without unreasonable or unnecessary delay, cause a good, substantial and sufficient dam to be constructed across the Illinois river above the city, to bring into use all the available water-power of said river at Ottawa, and will construct sufficient head and tail races to make such water-power available. ” The ordinance also contained a provision that Cushman should bind himself that if the work was not constructed as provided by the ordinance, he would return the bonds or their value, and save the city harmless from all loss on account of interest. No money was borrowed by the city on the faith of the bonds, but on the 2d day of August, 1869, the bonds for $60,000 were issued and delivered to Cushman as a donation to aid in securing the water-power contemplated by the constructing of the dams and races heretofore mentioned. The coupons sued upon are a part of those attached to the bonds when they were issued, which provide for the payment of annual interest. The bonds upon which the coupons were attached were purchased by Lester H. Barnes, agent for the plaintiff, in 1871. It also appears that Bames and the plaintiff were residents of the city of Ottawa at the time the ordinances were passed, and at the time the bonds were issued-and delivered to Cushman.

All residents of an incorporated city are chargeable with notice of the contents of all ordinances passed for the government and welfare of the city. The ordinances under which the bonds were issued expressly state that the bonds were to be used “in developing the natural advantages of the city for manufacturing purposes.” Appellant is therefore chargeable with direct notice of the object and purpose for which the bonds were issued and placed upon the market. There is therefore no question of innocent purchaser considered in the record.

The sole question here involved is one of power,—whether the city of Ottawa, under its charter and the constitution of the State, had authority to issue the bonds for the purpose for which they were issued. Municipal corporations are institutions designed for the local government of towns and cities; or, more-accurately, towns and cities, with their inhabitants, are, for the purpose of subordinate local administration, invested with a corporate character. (Dillon on Mun. Corp. sec. 9.) Chief Justice Mabshall’s description of a corporation is in these words: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.” So long as corporations act within their corporate powers they may bind the people within their corporate limits; but when they transcend these powers, their acts are nugatory. The sections of the charter relied upon as conferring the power are comprehensive in their terms, but they must be considered in connection with that portion of the constitution of the State in force at the time the charter was enacted, which relates to the same subject. Article 9, section 5, of the constitution of 1848, which was in force when the bonds were issued, provides : “The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes.” This court has held, in a number of cases, that the clause of the constitution supra, is a limitation upon the taxing power of the State,—that taxation can not be imposed by a corporation except for corporate purposes. (Johnson v. Campbell, 49 Ill. 316; Harward v. St. Clair Drainage Co. 51 id. 130; Madison County v. The People, 58 id. 456; The People v. Dupuyt, 71 id. 653.) Cases may arise where it is difficult to determine whether a tax to be imposed may or may not be for a corporate purpose, but in this case, under our decisions, it is manifest that a tax imposed to raise money to pay the bonds or the interest thereon, which were issued by the city of Ottawa, could not be for a corporate purpose.

As early as 1860, in Johnson v. Stark Coimty, 24, Ill. 75, this clause of the constitution was considered, and in discussing what was and what was not a corporate purpose, the court said: “All will perceive that the building of our court houses, jails, poor houses, the opening and keeping in repair of common highways, -and the erection and maintenance of bridges by which they are rendered useful to the people, are ‘county purposes,’ for which the people of the county may be taxed, and that the erection of hotels, mercantile, manufacturing, trading and banking houses, although of great importance to the prosperity of the community, are not such purposes as were contemplated by the framers of the constitution. These are properly regarded as matters of individual enterprise, and can not, in any reasonable or just sense, be regarded as public or county purposes.” In Bissell v. City of Kankakee, 64 Ill. 249, where the city had issued certain bonds to the Douglas Linen Company, to enable it to embark in the manufacture of linen fabrics in that city, under a charter which gives the city “power to borrow money on the credit of the city, and pledge the revenue of the city for its payment, and issue bonds therefor, ” it was held that the bonds were issued without authority of law, and were void. In English v. The People, 96 Ill. 566, the question arose as to the validity of a tax levied to pay the principal and interest of certain bonds issued by a city to aid a private manufacturing company. It was held that a city tax levied for the payment of the principal and interest of bonds issued by the city, in aid of a private manufacturing corporation, can not be enforced, as such bonds are void, even in the hands of innocent purchasers. The same rule has beeen declared in other courts, when a similar question has arisen. See Ohio Valley Iron Works v. Menardsville, 11 W. Va. 1, and Land Association v. Topeka, 20 Wall. 655.

It may be, and probably is true, that the contemplated improvement of the water-power on the Illinois and Fox rivers in the city of Ottawa, if it had been judiciously and properly carried out, might have built up the city, and added greatly to its general growth, welfare and prosperity; but the establishment of any kind of manufactures which employed capital and labor within the city might have produced the same result, and yet the city would have no power to impose taxes to raise money to be devoted to such.purposes. Whenever the tax is levied to aid in any private enterprise, it is prohibited by the constitution, although the object may be one ivhich may add to the wealth and prosperity of the city. A municipal corporation can not incur a liability and levy and collect taxes on the property of the citizen to aid in the development of mere private enterprises; but the corporation may become indebted, for corporate purposes, where the purpose is one pertaining entirely to the interest of the public. Then the corporation may properly act, and the acts will be binding.

But aside from the authorities heretofore cited in support of the views here expressed, we have additional authority bearing directly on the validity of the bonds. A part of the bonds issued by the city were before the Supreme Court of the United States, in Ottawa v. Cary, 108 U. S. 110, and the court, after a careful review of the authorities, held that the bonds were void. .

From what has been said, it follows that the evidence offered by appellant for the purpose of proving that the erection of the proposed water-power would have been of great benefit to the city of Ottawa and its business interests, increasing the value of taxable property, etc., was properly rejected by the court. Whether the proposed improvement would or would not have been of great benefit to Ottawa and its citizens was a matter of no moment. If the debt was not created for a corporate purpose, as wre have seen it was not, the city had no power tb" incur the debband issue the bonds.

The ruling of the circuit court in giving and refusing instructions was in harmony with the views herein expressed, and it will serve no useful purpose to consider the objections in detail made to the instructions.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Julia Burley v Mary A. McGough.

      Filed at Ottawa November 14, 1885.

    1. Evidence as to mental capacity—opinions of experts—of their weight, as against evidence of a different character. A person aged about seventy-three years, made his will on the 7th of March, 1883, and died on the 12th of the same month. On a contest of -the will, a physician testified that he saw the testator on the 3d, 6th and 9th days of March, 1883, and stated that the testator was physically very weak, and did not think he was able to walk; that he was the same as a man in a dying condition, and that he did not think any man in his condition was capable of transacting ordinary business. On the other hand, it was shown that on the 3d of March the testator walked three blocks to a barber shop, and got shaved, and that up to two days before his death he arose from his bed every morning to admit a neighbor, and kept up the fire, and walked around the room, and went into the kitchen, and was capable of attending to his business affairs, and dictated his will without any breaks in his directions or conversations. Other physicians were called as experts, and gave their opinions that he was not capable of making a will, based on the statements of the first named physician: Held, that such mere opinions of witnesses as experts, founded on such a basis, were entitled to but little weight as against proof of facts showing mental capacity.

      2. The testimony of witnesses, neighbors of a testator, consisting of facts and circumstances, and a detail of what he actually did and said, showing his mental competency, with their opinions based upon such facts, is proper, and entitled to much greater weight than the opinions of witnesses not based on facts and actual observation, on the question of his capacity to make a will.
    Writ of Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Mr. George B. Foster, for the plaintiff in error:
    The introduction of the will, with its probate, made a prima facie case, and shifted the burden of proof to show mental incapacity, upon the complainants. Holloway v. Galloway, 51 Ill. 159.
    Mere weakness of understanding is not of itself sufficient to invalidate a will, if the testator is capable of understanding the subject. Abraham v. Wilkins, 17 Ark. 202; Weir v. Fitzgerald, 2 Brad. (N. Y.) 42; Elliott’s will, 2 J. J. Marsh. 340.
    It is not necessary that the testator, at the time of making the will, should be capable of managing business generally, if he understands what he is then doing. Kinne v. Kinne, 9 Conn. 102; Stubbs v. Houston, 33 Ala. 555.
    A man will be held to have had capacity to make a will, if he understood what lie was about when he made and executed it; that he had a family, (if such was the case,) and the relations in which he stood to it, and that he had property, and what it was, and had a desire to bequeath his property as it is disposed of. Cordrey v. Cordrey, 1 Houst. 269; Hall v. Hall, 1S Ga. 40; Convers v. Convers, 21 Vt. 168 ; Hawthorne v. King, 8 Mass. 371.
    Mr. George A. Wilson, and Messrs. Puterbaugh & Puterbaugh, for the defendant in error, discussed the evidence of the witnesses at some length, bearing upon the mental capacity of the testator.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed by Mary A. McGough, against Julia Burley, to set aside the last will and testament of Cornelius Powell, deceased.- The will was made March 7, 1883, by which the testator gave to said Mary A. McGough five dollars, only, to his wife $500, and to his step-daughter, said Julia Burley, the residue of his property. On March 12, 1883, five days after the making of the will, the testator died, aged about seventy-three years.

It appears that Cornelius Powell had for many years been a resident of Peoria, and was twice married. Mary A. McGough was his daughter, and by his first wife, and his only child. His first wife died many years ago. Some twenty years prior to testator’s death, his daughter, Mary A. McGough, was married, left her father’s house and wrent to the State of New York, where she has ever since resided. Some years before his death testator married one Catharine Powell, (who was the mother of Julia Burley,) and lived with her up to the time of her death. The said Catharine appears to have become disabled and crippled, and the evidence shows her to have been confined to her bed, and that during the last sickness of the testator he and his wife were cared for by Julia Burley, who brought to them their daily food from her own house. The amount of the estate left by the testator does not appear, further than that the will describes the lot devised to Julia Burley, viz: lot 3, in block 9, in Brotherson’s addition to the city of Peoria, as being all his real estate, and it might be inferred there was not very much property besides, from the mode of living of testator and his wife, shown by the evidence, and the want of money having been assigned as the reason for not employing help to take care of him and his wife.

Under the bill an issue of fact was submitted to a jury, as to whether or not the alleged will was the last will and testament of Cornelius Powell, deceased. The jury found that it was not. A motion for a new trial was overruled, and a decree entered, in accordance with the finding, for the complainant, and the defendant brings this writ of error. The ground of attack on the will is, that the testator was not of sufficient mental capacity- to -make a will.

On the trial, Dr, Stewart was ■ called as a witness for the complainant, who testified that he visited the testator professionally on the 3d, 6th and 9th of March, 1SS3, during his last illness, and after a particular description of his physical condition, stated testator was weak physically; did not think he could walk, but might, possibly, two or three steps; that he was much the same as any man in a dying condition; that he judged his mental from his physical condition; did not think any man in that state capable of transacting business,—of making a will; that his reasons were, that body and mind are internally connected,—that when the body is dissolved the mind is gone. Yet, notwithstanding the witness’ opinion of the physical condition of the testator, and from which he judged his mental condition, the proof shows that on that very 3d day of March, when the witness made his first visit, the testator actually walked some three blocks to a barber’s shop and got shaved, and that during all the intervening time, to a couple of days before his death, on the 12th of March, he got up every morning and went to the door and opened it, to admit a neighbor woman who attended to his room; that he went from his bed to the stove and put in coal; walked around his room; would go out into the kitchen, and out on the porch. An array of seven other physicians, none of whom had seen the testator in his sickness, was produced, and a hypothetical question was propounded to them as to what would be the mental condition of the testator upon the hypothesis of his physical condition being as described by the witness Stewart, and they generally answered that the mind would correspond with the body, and testator would not have mental capacity to transact ordinary business. Such mere opinions of witnesses, as experts, founded on such a basis, are entitled to but little weight, as against proof of facts which show mental capacity. All the other testimony on complainant’s part consisted mostly of opinions of witnesses not resting on facts, on what the testator did or said, and they not appearing to be deserving of much consideration as opinions.

Tlie evidence on the part of the defendant was of a very different character, not being principally opinions, but consisting in facts and circumstances, a detail of what the testator actually did and said, showing his mental competency, with opinions based upon such facts. Mr. Yates; who drew the will, who was county judge of Peoria county, and had. been for seventeen years, testifies that having been sent for by the testator, he came to his house. The testator said he wanted him to draw his will; that the testator first told him what be wanted in the will, and then the witness sat down and wrote it. Testator said he wanted $500 to go to his wife; that he had a daughter who had been absent nineteen years; that she had not assisted him in making the property, and that he would give her the sum named in the will to remember him by; he said Mr. or Mrs. Burley had helped him a great deal, and would take care of the “old woman;” that testator 'gave him the description of the. lot by the number of the lot, block, and the name of the addition, from memory, while witness was writing the will; that testator did not fall asleep or have to be aroused while witness was there; that he made no. break in his conversation about the will or any thing else, that witness observed; that while he was there testator got up and moved around the room without assistance. This was on the 7th of March, and the will was executed on that day.

The witness O’Brien was at testator’s house the last six or seven days before his death, all the while, day and night, feeding his hogs and doing his “chores” about the house. He testifies that they talked frequently together, and testator told him what he wanted done, and he did it for him; that he told witness several times, during the last week of his life, that he must get rid of a sow that he had, as it would not pay to keep her, and that on March 10 testator sold the hog to the butcher; that the testator could walk around the room until the day before he died; that he went into the kitchen and out on the porch a great deal; that a great many neighbors came in every day, and testator 'knew every one, and would talk with them.

The witness Holbran was at testator’s house every day for two weeks before his death; she usually went there about seven o’clock A. M.; testator got up and opened the door for her every morning except • the last two; she would make the beds and mop the floor; talked with the testator frequently; he put the coal on and kept up the fire until the last day or two before he died. Particulars of conversations had with the testator by the last two and a great number of other witnesses, neighbors who called in to see the testator, are testified to by all such witnesses, showing the conversations on his part to be entirely rational, and they all concur in saying that he talked as sensibly as before he was sick.

Father W. A. Bock testified that he was a Catholic priest, and was called to attend testator in his last illness, and saw him on the 6th, 7th and 9th of March; was with him about a quarter of an hour each time, and talked with him each time about religious matters; that the first time, they went into the kitchen, to be alone; testator had no assistance in walking; he saw nothing wrong with his mind; that it was a part of his business to know whether his mind was right or not; that he went to administer the last rites of the church, and it would have been wrong to have administered such rites to him if his mind was not sound, and he would not have done so.

■ There is much testimony of many other witnesses on the part of the defendant, who either cared for the testator or called in to see him in his last illness, giving particulars of conversations had with him showing soundness of mind, with their concurring opinions .thereof.

Without going further into details of facts and circumstances showing soundn'ess of mind, testified to by many other witnesses, we will say that the testimony all considered leaves no doubt in our minds of the testamentary capacity of Cornelius Powell, the testator, and we are of opinion the verdict was clearly against the weight of evidence, and should, for that reason, have been set aside.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


text:
    George Smith v. The People of the State of Illinois.

      Filed at Ottawa November 14, 1885.

    1. Criminal law—burglary—as to ownership of building—how it may be laid. In an indictment for burglary, the ownership of the building entered may be laid in the occupant whose possession is rightful, as against the burglar. Booms rented to a person constitute his dwelling house, when they are occupied as such.
    . 2. An indictment for burglary charged that the entry was into the dwelling house of D., and the proof showed that D. did not own the house where he dwelt, but that he rented the first floor of the house in which was his room from which the property was taken, and that the owner occupied the apartments above: Held, no variance, and that the proof sustained the charge in the indictment as to the matter of ownership.
    3. Same—possession of stolen goods as evidence to connect parly with a burglary. Where a larceny of goods is committed at the time of a burglary, and from the same house, the possession of a party, about a month afterward, of some of the stolen goods, is proper evidence of his guilt and participation in the burglary, as well as in respect to the larceny itself.
    4. Evidence—as to statements by one of two defendants in a criminal prosecution. On the trial of A and B for burglary, the statements of B relating to the crime, made to an officer in the absence of A, are clearly admissible against B, and therefore proper evidence to go to the jury on the trial of both together.
    5. Witness—competency—one of two defendants in a criminal prosecution against his co-defendant. Under the statute rendering parties accused of crime competent witnesses, a joint defendant in an indictment is a competent witness against his co-defendant being tried with him.
    6. So where two parties are tried together under an indictment for burglary, and one of them testifies in his own behalf, there is no error in refusing to instruct the jury that his testimony can not be used or considered as against his co-defendant.
    Writ of Error to the Criminal Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Mr. J. E. Anderson, for the plaintiff in error:
    The refusal of the court to direct the jury to acquit plaintiff in error on the ground of variance between the proofs and the allegations as to the ownership of the house burglarized, was and is error. Wharton on Grim. Law, (8th ed.) sec. 798; East’s Pleas of the Crown, 498-500.
    It was the duty of the court to see that the defendant had a fair trial, and a new trial should have been granted. Wharton on Crim. Evidence, see. 680; Commonwealth v. Walker, 13 Allen, 570; Commonwealth v. Kenny, 12 Metc. 235; Commonwealth v. McDermott, 123 Mass. 440; State v. Arnold, 48 Iowa, 556; Patten v. State, 6 Ohio St. 467; Lawson v. State, 20 Ala. 66; Morrison v. State, 5 Ohio, 439; Commonwealth v. Briggs, 5 Pick. 429 ; Commonwealth v. Ingraham, 7 Gray, 46.
    The mere possession of stolen goods, without other evidence of guilt, is not regarded as even prima facie evidence of burglary. The rule in larceny does not apply to burglary. State v. Hayden, 45 Iowa, 11; People v. Beaver, 49 Cal. 57; Rex v. Coots, 2 Cox’s C. C. 188; People v. Gordon, 40 Mich. 716;
      State v. Reid, 20 Iowa, 413; Davis v. People, 1 Parker’s C. R. 447; Jones v. People, 6 id. 126; Commonwealth v. Thompson, 99 Mass. 444.
    There wras error in allowing the co-defendant, Dennis, to testify against plaintiff in error. The statute allowing a defendant to testify in his own behalf does not make him competent to testify against his co-defendant. Wharton on Crim. Evidence, sec. 439; People v. Gerber, T. & M. 647; Noys v. State, 40 N. J. L. (12 Vroom,) 429; 2 Hawkins’ Pleas of the Crown, chap. 46, sec. 90.
    Mr. George Hunt, Attorney General, for the People:
    In an indictment for larceny, property alleged to have been stolen may be laid as being the property of the real owner, or of any person having a special property in it as bailee. Murphy v. People, 104 Ill. 528; Collins v. People, 39 id. 233.
    In burglary, ownership means any possession which is rightful, as against the burglar. 2 Bishop on Crim. Proc. sec. 137, and cases cited; Wharton on Crim. Law, (8th ed.) sec. 804.
    Even the owner may be indicted for burglary in his lodger’s apartments. Wharton on Grim. Law, sec. 805.
    Transient guests’ chambers are to be laid as the landlord’s ■dwellings. It is otherwise with permanent guests. Wharton on Crim. Law, secs. 802-804.
    Any and every settled habitation of a man and his family is his house or mansion in respect to its burglarious entry. Mason v. People, 26 N. Y. 200.
    Whenever a building is severed by lease into distinct habitations, each becomes the mansion or dwelling of the lessee thereof. Mason v. People, 26 N. Y. 200.
    A. room or rooms in a tenant house, rented to separate' families, with a door and entry common to all,- each constituted the dwelling house of the particular occupant, in the sense of the law. Mason v. People, 26 N. Y. 200.

      Any evidence proper as to either of two defendants tried together, is admissible, and its effect may be limited by instruction.
    When a burglary and larceny are both committed at the same time and place, the possession, recently after, of some of the stolen property, is prima facie evidence of guilt as to both offences.
    Either defendant was a competent witness, and his testimony is legal and competent evidence for the jury.
    Mr. Julius S. Grinnell, State’s Attorney, also for the People.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an indictment for burglary, against George Smith, alias George Buckingham, and Thomas Dennis, upon which the latter was acquitted, and the former convicted and sentenced to the penitentiary for fifteen years. The defendant convicted brings this writ of error.

The first point made by plaintiff in error is, that there is a variance between the proof and indictment, in that the indictment charges the burglarious entry was into the dwelling house of Francis Demling, while the proof shows that Dem-ling did not own the house where he lived, but that he rented the first floor of the house, where was his room from which the property was taken, from one Groosheimer, the owner, who lived in the apartments above. In burglary, the ownership may be laid in the occupant whose possession is rightful as against the burglar. (2 Bishop on Crim. Proc. sec. 138.) The rooms rented to Demling constituted the dwelling house of Demling in the sense of the law. (Mason v. People, 26 N. Y. 200.) There is nothing in this point.

It is urged next, that the court below erred in allowing the witness Bannon to give in evidence the statement made to him by the co-defendant, Dennis, at a time when Smith was under arrest. The statement was clearly evidence against Dennis, and was therefore properly admitted to go to the jury on the trial of the two defendants together.

It is insisted that the possession by Smith of a part of the property stolen does not afford evidence to connect him with the burglary. It is admitted that the possession of property recently stolen is prima facie evidence that the person in possession committed the larceny. But it is claimed that there is a distinction in this respect between larceny and burglary. We see no foundation for any such distinction here. The proof shows that the larceny was committed at the same time with the burglary, and that about a month afterward Smith was found in possession of part of the articles stolen. The same person that committed the larceny no doubt committed the burglary, and whatever went to show one to be guilty of the larceny, equally evidenced his guiltiness of the burglary.

The co-defendant, Dennis, offered himself as a witness in his own behalf, and testified, as to a part of the articles stolen which had been in his possession and which he had pawned, that Smith gave him the articles, and hired him to pawn them. Upon the calling out of this evidence, defendant Smith made objection that the statements of the witness Dennis were only evidence in the latter’s own behalf, and could not be used against Smith to convict him of the crime charged, which objection the court overruled. The court also refused to give the following instruction asked by Smith:

“The court instructs the jury, as matter of law, that the evidence of Dennis, the co-defendant of Smith, who is jointly indicted and tried jointly with him, is evidence only against Dennis and not against Smith, and the jury, in arriving at a verdict, can not use the evidence of Dennis to convict Smith on the indictment in this case.”

Such ruling of the court in respect of Dennis’ testimony is assigned for error. The court’s ruling in this respect was justified under the decision of this court in Collins v. People, 98 Ill. 584, where it was held, under the provision of the statute, that “no person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime,” (Rev. Stat. 1874, p. .410,- see. 6,) that a joint defendant in an indictment was a competent witness against his co-defendant.

Finding no error in the record, the judgment must be affirmed.

7 ^ J udgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    William Dewar v. The Bank of Montreal.

      Filed at Ottawa November 14, 1885.

    Banks and bankers—payment of deposit to other than the owner—■ of circumstances that will protect the bank in so doing. The owner of money intrusted the same with his employer to deposit for him in a bank, at interest, and the employer made the deposit in his own name, the bank knowing whose money it was at the time, and the employer afterward indorsed the certificate of deposit to the owner, who deposited the same in a safe to which his employer had access, but gave no notice to the bank until after his employer had taken the same and drawn the money thereon, and had it placed to his own individual account, when the owner did inform the bank of his rights, but after this he treated the transaction as a loan to his employer for over three years, expecting to have him secure the same, during which time he made no claim on the bank: Held, that under the facts the owner of the money so deposited could not maintain an action of trover against the bank for a conversion of the money, for the reason that he had by his acts clothed his employer with an apparent ownership or control of the money, and had acquiesced in the payment of the money to him for so long a time, and treated the transaction as a loan to him.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.

      Mr. Robert Hervey, and Mr. C. M. Hardy, for the plaintiff in error:
    It is no defence to a suit for negligence that the defendant may not have expected the particular injury complained of, or to show want of evil intent, for where there is evil intent the act becomes willful. Wharton on Negligence, sec. 47.
    The doctrine of ratification, where the relation of principal and agent exists, has no application here. The act of an unauthorized stranger will not be binding unless expressly ratified. Ward v. Williams, 26 Ill. 447; Harris v. Miner, 28 id. 135; Story on Agency, sec. 256.
    It is only where a party fails to make his rights known, when fairness and good conscience require he should do so to protect the interests of others, that he can not be heard, as against them, to assert such rights. Lloyd v. Lee, 45 Ill. 277; Brooke v. Ricord, 47 id. 30; Kane County v. Herrington, 50. id. 232.
    The party claiming an estoppel must have been so far governed and influenced by the subject matter of them, that it would be a fraud on him to regard the same otherwise than as an estoppel. Railroad Co. v. Sherrick, 65 Ill. 233; Ely v. Hanford, id. 267; Flower v. Elwood, 60 id. 438.
    Ratification can only be effectual when the act is avowedly done for the principal, and not when done for or on account of the agent himself. Story on Agency, sec. 251.
    When the act of ratifying the act of an agent is to be implied from the subsequent conduct of the principal, it must appear that the principal had full knowledge of all the facts affecting his interest in the transaction. Farwell v. Meyer, 35 Ill. 40; Manufacturers’ Nat. Bank v. Barnes, 65 id. 69; Kerr v. Sharp, 83 id. 189; Story on Agency, sec. 239.
    “Knowledge of all the facts.” This is essential. Hardeman v. Ford, 12 Ga. 205; Railroad Co. v. Gazzom, 32 Pa. St. 340; Nixon v. Palmer, 4 Seld. 398 ; Caldwell v. Meek, 17 Ill. 220; Billings v. Morrow, 7 Cal. 171; Matthews v. Hamilton,
      23 Ill. 470; Cook v. Hunt, 24 id. 435; Gilman v. Railroad Co. 77 id. 426; Fletcher v. Dysart, 9 B. Mon. 413.
    Ratification is a question of fact for the jury. Goodell v. Woodruff, 20 Ill. 191.
    Messrs. Dexter, Herrick & Allen, for the defendant in error:
    The payment to Warrack was within the scope of the apparent authority conferred by Dewar. A party is bound by the acts of another done in pursuance of an apparent authority from his own acts or conduct. Noble v. Nugent, 89 Ill. 524; Anderson v. Armstead, 69 id. 454; Mixon v. Brown, 57 N. H. 34; McNeil v. Tenth Nat. Bank, 46 N. Y. 345; De Baun v. Atchison, 14 Mo. 543; Doubleday v. Cress, 60 Barb. 182; Bridenbecker v. Lowell, 32 id. 9.
    A payee or indorsee of a check, note or draft, in whose possession it is, is presumptively the owner of it, and entitled to demand payment, although a special indorsement by him to a third person appears on it. Brinkley v. Going, Breese, 366; Palmer v. Gardner, 77 Ill. 143; Best v. Nokomis Bank, 76 id. 608; Leitner v. Miller, 49 Ga. 486; Dugan v; United States, 3 Wheat. 172; Lemon v. Temple, 7 Ind. 556; Bank of Kansas City v. Mills, 24 Kan. 604; Williams v. Dyer, 5 Blackf. 160.
    What facts amount to a ratification, is a question of law. It is only when the facts are doubtful or disputed that it becomes a question for the jury. Proffatt on Jury Trials, sec. 276; Swartwout v. Evans, 37 Ill. 443; Trustees v. McCormick, 41 id. 323; Marine Co. v. Carver, 42 id. 67; Henderson v. Cunmings, 44 id. 325; Paul v. Berry, 78 id. 158.
    If a party after knowledge of the facts ratifies and adopts the unauthorized acts of his agent or unauthorized person, he will be bound by them. Livermore on Agency, 44; Williams v. Merritt, 23 Ill. 626; Evans on Agency, chap. 7, sec. 1; Smith v. Cologan, 2 T. R. 188; Cushman v. Lokes, 2 Mass. 105; Trustees v. McCormick, 41 Ill. 323; Henderson v. Cummings, 44 id. 345.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 16th of May, 1874, William Dewar, the plaintiff in error, received from England his distributive share of his father’s estate, amounting to $7721.80.' Of this sum, he, at the time, loaned $1500 to James Warrack, in whose employ he had been for some fifteen months past. Warrack, at the time, was the British vice-consul at Chicago, and was then apparently prosperous, and was in good financial standing. He, at the time, kept his bank account with the Bank of Montreal, defendant in error, a fact known to Dewar. After having loaned to Warrack the $1500, and retained for his own use $521, Dewar called at the Bank of Montreal to ascertain what interest it would pay him on the balance as a deposit. On being informed that four per cent was all that could be obtained, he returned to the office of Warrack and informed him of the fact, who replied that he could get more, and thereupon sent for Richardson, the manager of the bank, to come over to the office, who accordingly did so, and after some consultation between the three, it was agreed that the bank was to pay on the deposit five per cent interest,—Richardson being informed at the time that the money belonged to Dewar. Shortly afterwards, Warrack took the money into the bank and deposited it in his owm name, for which he received of the bank the following certificate:

No. 93,137.
“$5700.
“Bank of Montreal,
Chicago, May 16, 1871.
“Received of -James Warrack, Esq., the sum of five thousand seven hundred dollars, which sum will be accounted for by this bank to the said James Warrack, and will bear interest at the rate of five per cent per annum, provided that the money remains not less than three months from date of deposit, fifteen days’ notice to be given of its withdrawal, on which notice interest shall cease. This receipt to be given up to the bank when payment of either principal or interest is required. t
“For the Bank of Montreal,
W. Richardson, Mgr.”

On returning to the office, Dewar asked him why he had taken the certificate in his own name, to which Warrack replied that it made no difference, as he would then indorse it to him, which he did, and handed the certificate so indorsed to Dewar, who deposited it, together with other papers, in a safe in the office, belonging to Henderson Brothers, in which Warrack also kept his private papers. On the 4th of August following, Warrack, in the absence of Dewar, and without his knowledge or consent, as Dewar claims, went to the safe of Henderson Brothers, took the certificate of deposit therefrom, and after having striken out the special indorsement to Dewar, went with it to the bank and drew the money on it. Dewar learning, on his return a day or two afterwards, what had been done in his absence, expressed his disapproval both to Warrack and the bank, protesting that it was without his sanction or authority. At the time of the conversion of the certificate by Warrack, the proceeds were transferred to his private account with the bank, and on Dewar’s return, War-rack had a considerable balance to his credit in the bank. Upon Dewar’s complaining to Warrack about the appropriation of the certificate of deposit, the latter thereupon told him he would make it all right, and proposed to secure the amount by giving him a first mortgage on forty acres of land at Washington Heights, which he alleged to be worth $40,000. Dewar agreed to accept this proposition, but the mortgage was not executed at the time, and by various false pretences of one kind or another on the part of Warrack, its execution was delayed until in January, 1878, when Dewar ascertained that the land at Washington Heights belonged to Warrack’s wife instead of to him, and that it was heavily incumbered, so that it was valueless as security for the money. During this period, being an interval of over three years, the indebtedness in question was treated both by Dewar and Warrack as a loan from the former to the latter. This is fully shown by various transactions between the parties, one of which will suffice to show how the parties so understood and treated the matter. On the 1st of January, 1878, Dewar made out a statement of Warrack’s account, and on the following day enclosed it to him in a letter, stating:

“Enclosed please find statement to January 1,1878, showing a balance in my favor of $7199.81, which I hope you will find correct. As it is now over three years since you had the money, I would like a settlement in as short a time as possible, for I have had a good offer in the commission business, which I am confident will pay me better than the small salary I now get. Hoping this will meet your approval, I am, ” etc.

Prior to this time no claim had been made upon the bank by Dewar.

The foregoing statement of the facts is greatly modified by the testimony of "Warrack. According to his version of the transaction, his taking of the certificate of deposit in his own name, and his subsequent appropriation of the proceeds, were authorized by the original understanding between him and Dewar. This contention, however, involves the determination of controverted questions of fact with which we have no concern, as the judgment of the Appellate Court is conclusive on all questions of that character.

On the 11th day of May, 1878, Dewar brought an action of trover, in the circuit court of Cook county, against the Bank of Montreal, for an alleged conversion of the certificate of deposit in question. There waa a trial on the merits, and a verdict for the plaintiff, which, on motion, was set aside by the court, and a new trial granted. In November, 1879, the cause was tried again, with like result, and the court entered a judgment upon the verdict of the jury, in favor of the plaintiff, and against the bank, for $6586.25, which was reversed by the Appellate Court for the First District, and that court being of opinion there was no right of recovery on the plaintiff’s own showing, refused to remand the cause. Dewrar brings the cause from the Appellate Court here, by writ of error, and asks a reversal of the judgment of that court.

It is apparent from the record before us, that the rights of the parties to this controversy, both in the circuit and Appellate courts, turned upon two questions: First, did Dewar, by words or acts, clothe Warrack with real or apparent authority to receive payment from the bank, of the certificate of deposit in question ? Second, assuming that he did.not, and that the payment was therefore unauthorized, did he subsequently ratify such payment, or did he act in such a manner as to lead the bank to suppose that he had so ratified it, and thereby lull it into security until its recourse upon Warrack became unavailing by reason of his subsequent insolvency ?

It is equally apparent that at least one of these questions must have been found by the Appellate Court adversely to the plaintiff in error, for otherwise the judgment of the trial court should have been affirmed. If the first question was answered affirmatively, then the other question did not arise, and consequently became unimportant. So far as this court is concerned, it is wholly unimportant upon which question the Appellate Court based its decision, for whether upon the one or the other, the decision of that court is equally conclusive upon this.

We have carefully examined the very able argument on behalf of plaintiff in error, and the only questions of law we find discussed in it are such as arise from conclusions of fact involved in the two propositions above mentioned, one of which, at least, as we have just seen, must have been decided adversely to plaintiff in error, and such finding is, of course, fatal to his right of recovery.

In any view we are able to take of the case, we think the law is with the defendant in error, and the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    William S. Brackett v. The People ex rel. F. D. Weiennett.

      Filed at Ottawa November 14, 1885.

    1. Former judgment—in action prematurely brought—whether a bar to subsequent suit. A judgment against a plaintifl: because the action was prematurely brought, is not a bar to a suit subsequently brought, after the cause of action has properly accrued.
    2. So where application for a judgment upon a special assessment in respect to the improvement of a street in a city is denied, because after confirmation of the assessment the clerk of the court had failed to certify the assessment roll and the judgment of confirmation to the clerk of the city, whereby the warrant issued by the city clerk for its collection was void, the judgment of the county court refusing judgment is no bar to a subsequent application for judgment against the property for the same assessment, after the clerk of the court makes the proper certificate to the city clerk, and. the latter issues his warrant in due form, the objection to the first application being thus obviated. In such case the lien of the special assessment will still continue upon the property asse'ssed.
    3. Judicial notice—as to official character of a person. On application for judgment upon a special assessment against a lot of ground, the court Will take judicial notice of the official character of the person to whom a warrant had been directed for the collection of such assessment.
    4. Special assessment—collector’s return as a basis for his application for judgment. The delinquent list or return of the county collector to the county court as a basis for an application for judgment against lots for unpaid assessments, is prima facie evidence that the amounts are due as therein stated, and the onus is on the objector to show their invalidity.

      Appeal from the County Court of Peoria county; the Hon. L. W. James, Judge, presiding.
    Messrs. Stevens, Lee & Hobton, for the appellant.
   Mr. Justice Scholfield

delivered the opinion of the Court:

. This was an application by the collector of Peoria county, for a judgment against lot 2, in block 44, in Ballance’s addition to Peoria, for judgment for the amount of a special assessment against that lot for the improvement of Depot street. Appellant appeared and filed the following objection to the rendition of judgment as asked by the collector:

“Now comes William S. Brackett, and shows to the court that said collector has given notice that on the first day of said term of court he will apply for judgment against lot 2, in block 44, in Ballance’s addition to the said city of Peoria, in the sum of one hundred and two dollars, claimed to be due for the year-1883 on said lot, as a special assessment for the improvement of Depot street in said city, and also for costs and interest accrued thereon; and the said William S. Brackett further shows that he is the owner of and in possession of said lot, and as such owner thereof he objects to the rendition of said judgment against the owner, for the following reasons, viz: This objector shows that at the May term, 1884, of this court, the said colléctor applied for judgment against said lot for the said special assessment claimed to be then due against said lot for said year °1883; that this objector and one John Herschberger, the then tenant of this objector, at said term of court filed their objections to the rendition of the,judgment against said lot for said assessment, and that afterwards, to-wit, at the June term, 1884, of this court, the said objections were heard .and determined by this court in favor of this objector and said Herschberger, and the said application for judgment denied, as by the record and proceedings thereof still remaining in this court more fully and at large appears, and that the judgment and order of this court thereon still remains in full force and effect, whereby this objector shows that said collector is concluded by the said judgment of this court, and is not entitled to any judgment against said lot for said assessment, or the interest and costs claimed to be due thereon. Wherefore this objector prays the judgment of this court, ” etc.

On the final hearing, evidence was introduced, and the court overruled the objections, and rendered judgment for the amount of the special assessment.

It was stipulated between the parties, on the hearing, that “this application was for the same special assessment made in 1883, for the improvement of Depot street, in the city of Peoria, and for which an application for judgment was made in this court, at the May term, A. D. 1884, thereof, and judgment denied therein at the following June term, upon the objections of said defendant as owner of the property, and of John Herschberger, as lessee thereof. ”

The objections which were thus sustained at the May term, A. D. 1884, were the following:

“First—That after the judgment was rendered in said court, confirming the report of the commissioners appointed therein to make said assessment, the clerk thereof failed to certify said assessment roll, and said judgment, to the clerk of said city of Peoria, wherein said improvement was being made, as required by law, and has not so certified it; that in consequence of the failure of said clerk to so certify said assessment roll and judgment, to said city clerk, the warrant issued by said city clerk to Bichard Voris for the collection of said special assessment was void, and that the return made by said Bichard Voris, as collector of said special assessment, to the county treasurer of said county, of the delinquent list in said assessment, was illegal and void, he having no authority to make said return; that the judgment rendered on said delinquent list, including said lot 2, and all subsequent proceedings thereon, are illegal and void, said court not having jurisdiction of the things embraced in said judgments and applications.
“Second—They show that judgment should not be rendered against said lot in said matter, for the reason that said county treasurer has not now, nor has ever had, proper control of said delinquent special assessment list, nor has the court jurisdiction over said list, as shown before to be void, sufficient to render a judgment against said lot, in said matters.”

The collector was permitted to read in evidence, over appellant’s objection, the assessment roll, and the judgment rendered in 1883, confirming the special assessment, the certificate of the clerk of the court certifying the same to the clerk of the city, bearing date February é, A. D. 1885, a warrant in due form of law thereupon issued. by the city clerk, bearing date February 12, A. D. 1885, directed to John Minor to execute.

Two questions are discussed in the printed arguments on file: First, was the judgment rendered on the application at the May term, A. D. 1884, a bar to the present proceeding? Second, ought the court to have required evidence of the official character of John Minor? Both questions, in our opinion, must be answered in the negative. The objections sustained at the May term, 1884, were applicable to the then condition of the record alone. Those defects were cured by the subsequent proceedings, and have no place in this record. The lien of the assessment was still continued, (1 Starr & Curtiss, p. 505, sec. 51,) and it was the undoubted duty of the officers to take the steps they did for the collection of the assessment. A judgment against a party because the action was prematurely brought, (and that, in effect, was the objection at the May term, A. D. 1884,) is no bar to a suit subsequently brought after the cause of action properly accrued. (See Freeman on Judgments, secs. 268, 269.) The court would take judicial notice of the official character of John Minor. But apart from this, the return made by the county collector to the county court, as a basis for his application for judgment, is prima facie evidence that the amounts are due as therein claimed, and the onus is on the objector to show their invalidity. . Pike v. The People, 84 Ill. 80.

■The judgment is affirmed.

Judgment affirmed.


author: Mr. .Justice Craig

text:
    Charles L. Anderson v. Mary H. Hawhe.

      Filed at Ottawa November 14, 1885.

    1. Creditor’s bill—to enforce payment of a void judgment—entry of judgment without jurisdiction of person of the defendant—appearance by attorney roithout authority. A creditor’s bill can not be predicated upon a void judgment, as, where the court had no jurisdiction of the person of the defendant in the suit in which the judgment was rendered.
    2. In this case, a suit at law was commenced by attachment. There was no personal service on the defendant. Several demurrers were filed to the declaration, however, in the name of the defendant, by an attorney at law, all of which were sustained, and amendments allowed, except the last, which purported to be a “special” appearance, and which was overruled, and defendant ruled to plead. Afterwards, the record states, “ came the said defendant and her attorney, and withdrew their appearance in said cause.” Then a default for want of plea, assessment of damages, and personal judgment entered. The attorney was not authorized by the defendant to appear for her in the suit for any purpose whatever. On creditor’s bill filed to enforce the payment of this judgment, the defendant set up these matters in her answer, and also by way of cross-bill, as showing that in the suit in which the judgment sought to be enforced was rendered, the court had no jurisdiction of her person. The defence was held to be availing as against the creditor’s bill. The judgment at law was rendered without the court having jurisdiction of the person of the defendant, either by service of process upon her, or by any authorized appearance in her behalf, and was therefore absolutely void, and the person against whom it was rendered had the right to question its validity.
    3. On the suggestion that the appearance by the attorney was special, for a particular purpose, and hence the defendant was not in court by the filing of the demurrer so as to authorize the judgment, the court would not stop,to determine whether the appearance was special or general. The attorney having no authority whatever from the defendant to appear in the case, and as his acts were entirely unauthorized, what he did could not be binding on her.
    4. While in such a case the attorney might, in an appropriate action, be held to respond in damages, yet the court is not prepared to hold that a person may have his property taken in satisfaction of a void judgment, and be turned over to an insolvent attorney for redress, which might often be the case if a judgment like the one in'question could be enforced.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    The judgment, the payment of which was sought to be enforced by the creditor’s hill in this case, was obtained under the following circumstances:
    John and Johanna Anderson, on the 3d day of October, 1879, commenced a suit by attachment in the circuit court of Cook county, against Mary H. Hawhe. On June 9; 1880, the following demurrer was filed:
    “And the said defendant, by John W. Waughop, her attorney, comes and says the said declaration, as amended, is not sufficient in law to require the plea of the said defendant, and this she is ready to verify, and prays judgment.
    J. W. Waughop, Att’y for defendant.”
    There were several other demurrers, which were all sustained, and leave given to the plaintiff to amend. The last demurrer which was filed begins“And the said Mary H. Hawhe comes and further specially appears and defends,” etc. On the 14th day of October, 1882, this demurrer was overruled, and defendant ruled to plead within ten days. On the 21st day of October, 1882, the following order "was entered : “This day came the said defendant and her attorney, and withdrew their appearance in said cause. ” On the 30th of October, 1882, the default of the defendant was taken for want of plea. On the 7th day of December, 1882, a jury was called to assess the plaintiff’s damages, and on the 18th day of December, 1882, plaintiff obtained judgment for $1617. An execution was issued, and returned unsatisfied. There was no service of process on the defendant in the suit at law, and she alleges, in defence to the creditor’s bill, that the attor-' ney, Waughop, had no authority to enter her appearance in the cause for any purpose.
    The answer to the creditor’s bill to enforce the payment of this judgment, set up the want of jurisdiction of the person of the defendant in defence, and also by cross-bill the same matters were alleged. Upon a hearing it was decreed “that the amended creditor’s bill be and the same is hereby dismissed for want of equity; further, that the suit in which judgment was rendered against the said Mary H. Hawhe in favor of John Anderson and Johanna Anderson, and by them sold and assigned to the complainants in the creditor’s bill, Charles L. Anderson, upon which the said amended creditor’s bill was based, was an action by attachment, in which land was attached, but in which there was no personal service on said Mary H. Hawhe, and no appearance by her, or by authority from her; that the appearance of John W. Waughop as counsel and attorney for Mary H. Hawhe in that case was unauthorized by said Mary H. Havdie; that the appearance in that case was a special appearance, which was withdrawn before judgment in that case; that the circuit court rendered a general judgment in said attachment suit against Mary H. Hawhe, which judgment was rendered without jurisdiction of the person of said Mary H. Hawhe, * * * and the said judgment was and is void for want of jurisdiction of the circuit court over the person of said Mary H. Hawhe. It is therefore hereby ordered, adjudged and decreed, that the order and judgment of the circuit court of Cook county, in and for the county of Cook and State of Illinois, rendered and entered on the* 18th day of December, 1882, for $1617, in favor of John Anderson and Johanna Anderson, against the said Mary H. Hawhe, be and the same is hereby vacated, set aside, and wholly for nothing esteemed, for want of jurisdiction of the said circuit court, at the rendition of said judgment over the person of said Mary H. Hawhe, to authorize a general judgment in said attachment suit.” Upon a hearing in the Apj)ellate Court, that decree was affirmed.
    Mr. August Marx, for the plaintiff in error:
    The judgment against Mrs. Hawhe, rendered in the circuit court December 18, 1SS2, is conclusive, and can not be collaterally attacked on the ground that the attorney had no authority to appear for her. Hamilton v. Wright, 37 N. Y. 502; Brown v. Nichols, 42 id. (3 Hand.) 26; Ferguson v. Crawford, 7 Hun, 25; Abbott v. Dutton, 44 Vt. 546; Denton v. Noyes, 6 Johns. 295.
    The remedy is against the attorney. Cyphert v. McClune, 22 Pa. 195; Munnikuyson v. Dorsett, 2 H. & G. 374; Heuck v. Todhunter, 7 id. 275; Griggs v. Gear, 3 Gilm. 2. Or by motion to set aside the judgment in the court where rendered. Lyon v. Bolvin, 2 Gilm. 629; Critchfield v. Porter, 3 Ohio, 519.
    Equity has no jurisdiction. Bunton v. Lyford, 37 N. H. 512; Critchfield v. Porter, 3 Ohio, 519.
    The demurrer filed by Waughop amounted to a general appearance in the case, and the court acquired jurisdiction over Mrs. Hawhe thereby. Cropsey v. Wiggenhorn, 3 Neb. 116; Insurance Co. v. Palmer, 81 Ill. 88; Easton v. Altum, 1 Scam. 250.
    ■ An appearance will be taken to be general unless the contrary appears. Flake v. Carson, 33 Ill. 518.
    The parties had a right to presume that Waughop possessed all the general powers implied by law. Cameron v. Stratton, 14 Bradw. 270.
    The court and adverse party had a right to presume that Waughop had authority to appear for Mrs. Hawhe. Williams
      v. Butler, 35 Ill. 544; Martin v. Judd, 60 id. 78; Leslie v. Fischer, 62 id. 119; Weeks on Attorneys, p. 345, sec. 197.
    Can Waughop, by his own unsupported evidence, rebut that presumption in a collateral proceeding ? We submit that his evidence is not sufficient.
    Mr. J. Waughop, for the defendant in error:
    The validity of the judgment may be contested on a creditor’s bill. Higgins v. Curtis, 82 Ill. 28.
    The court did not err in holding that the appearance of Waughop was special, because it was by demurrer, and wTas on the face of the demurrer stated to be a special appearance, and this special appearance was withdrawn, which left the plaintiff in that ease being in attachment, and he, having duly advertised, had a right to his special judgment, instead of which he took a general judgment, which judgment the Superior Court in this case has set aside. Inman v. Alport, 65 Ill. 540; Campbell v. McCahan, 41 id. 45; Jones v. Byrd, 74 id. 115.
    The Revised Statute, chap. 11, sec. 35, says where the defendant appears and answers the action in an attachment suit, the judgment may be in form personal and general. Now, a demurrer is not an answer, but an objection, stating that the party is not bound to answer. At law, the plea or notice going to the merits is the party’s answer to the charge against him.
    Appearing and pleading to the merits will give jurisdiction in attachment of the person where there is no personal service, but nothing short of a plea to the merits is sufficient to authorize a general judgment. Duncan v. Charles, 4 Scam. 561; Palmer v. Logan, 3 id. 56; Johnson v. Buell, 26 Ill. 66 ; Railroad Co. v. Reynolds, 72 id. 487; McNab v. Bennett, 66 id. 158; Jones v. Byrd, 74 id. 115.
    An appearance, wffien held special: Frazier v. Reson, 23 Ill. 87; Abbott v. Semple, 25 id. 107; Flake v. Carson, 33 id. 518.
   Mr. .Justice Craig

delivered the opinion of the Court:

This was a creditor’s bill, brought by Charles L. Anderson, to enforce payment of a judgment rendered in the circuit court of Cook county, on the 18th day of December, 1882, in favor of John and Johanna Anderson, against Mary H. Hawhe, for the sum of $1617. The defendant, Mary H. Hawhe, put in an answer to the bill, and also filed her cross-bill, in which she set up that the circuit court, in which the judgment was rendered against her, had no jurisdiction over the person; that she never was served with process, did not appear in the case, and never authorized any appearance, and that as to her the judgment was void.

It appears from the record, that the suit in which the judgment was rendered was an action by attachment. No service by summons or publicatioli of notice was had on the defendant in the action, but J. W. Waughop, an attorney at law, appeared in court, and in the name of the defendant filed a demurrer to the declaration, and this is relied upon to confer jurisdiction on the circuit court of the person of the defendant in the action. The proof is clear that Waughop was never employed by Mary H. Hawhe to appear in the case, and he had no -authority whatever to act for her or in her behalf.

The attorney, Waughop, as to his authority to appear in the case, testified as follows: “I filed the demurrer in the case of John Anderson et al. v. Mary H. Hawhe. I was the administrator of Arthur J. Hawhe. Saw the case quoted in bulletin, and without having conferred with Mrs. Hawhe, or having any communication or authority from her at all, I put the demurrer in the case. ” On cross-examination he further testified: “I have practiced law thirty-four years. I swear that I had no authority to enter a special or general appearance in the case of Anderson v. Hawhe, circuit court, Cook county.” This evidence was corroborated by the defendant, Mary H. Hawhe, so that the fact remains undisputed that the defendant was not served with process, and authorized no one to appear in the case for her.

Where a judgment has been rendered without the service of process on the defendant, and without an appearance, can a creditor’s bill be predicated upon such a judgment in a court of equity? Where a court renders judgment against a defendant, where the court has no jurisdiction of the person, no argument is needed to prove that such a judgment is void, and a creditor’s bill could not be predicated on a void judgment. Here, an attorney at 'law appeared and interposed a demurrer to the declaration. He claims, in his evidence, that the appearance was special, for a particular purpose, and hence that the defendant was not in court by filing the demurrer so as to authorize the judgment. We shall not stop to determine whether the appearance "was special or general. The attorney had no authority whatever from the defendant to appear in the ease, and as his acts were entirely unauthorized, what he did could not be binding on her. It would be establishing a dangerous precedent to hold a judgment valid where there had been no service, merely for the reason that an attorney had appeared on his own motion, without authority, and filed some sort of a plea in the case. In such a ease the attorney might, in an appropriate action, be held to respond in damages; but what relief would that afford to the injured party ? We are not prepared to hold that a person may have his property taken in satisfaction of a void judgment, and be turned over to an insolvent attorney for redress, which might often be the case if a judgment like the one in question could be enforced. In Higgins v. Curtiss, 82 Ill. 28, where a creditor’s bill was filed to enforce payment of a judgment of the county court allowing a claim against an estate, it was held that the administratrix, who was sole devisee, might show that the judgment was fraudulent and inequitable. In Griggs v. Gear, 3 Gilm. 2, it was held that chancery would afford relief where the party’s appearance had been entered without authority. In the case under consideration we regard the judgment as absolutely void, and the person against whom it was rendered had the right to question its validity.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.