author: Mr. Chief Justice Mulkey

text:
    William Young & Co. v. Samuel Ward et al.

      Filed at Ottawa November 14, 1885.

    1. Fraudulent conveyance—facts in the particular case, as showing a fraudulent purpose. In this case the court state and discuss facts and circumstances in evidence, from which it holds that certain conveyances, and an assignment of a debtor’s interest in lands, and a sale of goods, were fraudulent as to creditors, reversing the decree of the trial court.
    2. Same—removal of prior incumbrance by fraudulent grantee—right of subrogation. A debtor in failing circumstances fraudulently conveyed his interest in lands, upon which were bona ficle incumbrances and liens, to his sons-in-law, who were cognizant of the intent to defraud creditors, some of whom, after such conveyances, having satisfied and discharged some of the incumbrances, in whole or in part: Held, that the court, in setting the conveyances aside, as having been made in fraud of creditors, should refer the cause to the master to state an account of the rents and profits, and ascertain what, if any, part of the incumbrances had been discharged since the making of the fraudulent transfer, and also the date and amount of all payments for such purpose, and the name or names of the persons making such payments, and report the same, and in the final decree subrogate the parties so paying to the rights of the parties holding such incumbrances paid.
    3. Same—rights of creditors of fraudulent assignor—declaration of forfeiture by vendor. A party holding a contract for the sale and conveyance of land, providing for certain payments in the future, fraudulently assigned the same to a son-in-law, to defraud creditors, the assignee paying nothing for the assignment. Shortly after such transfer, creditors of the assignor attached the land, when the vendor declared a forfeiture of the contract for non-payment of an installment of the purchase money, in violation of his agreement with the assignee to give further time: Held, that after the rights of the creditors had attached, the vendor could not declare a forfeiture without a reasonable notice to the attaching creditors.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellants.
    Messrs. Htt.t, & Dibell, for the appellees Small and Finch.

      Mr. S. C. Stough, for the appellee Thos. Walsh.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The present appeal brings before us for review a judgment of the Appellate Court for the Second District, affirming a decree of the circuit court of Grundy county, denying relief upon a bill in the nature of a creditors’ bill, filed by the appellants, Wm. Young & Co., against the appellees, Samuel Ward and others.

The record is very voluminous, and has cost us much labor in endeavoring to arrive at a clear apprehension of the true merits of the controversy. The difficulty we have encountered in trying to accomplish this object has resulted mainly from the unsatisfactory character of the testimony of two or three of the most important witnesses. Some of their statements are obscure and meaningless, while others, sufficiently clear and explicit, are inconsistent and contradictory. The vast amount of testimony which has been taken in the cause, and its peculiarities in the respects stated, absolutely forbid any attempt on our part, even if it were otherwise desirable, to discuss it in detail. We shall therefore content ourselves with giving a general outline of the case as we have been able to gather it, under the circumstances stated, together with such special details as may be deemed necessary to a correct understanding of the conclusion we have reached with respect to the rights of the parties.

It appears from the record, that in the month of April, 1878, Samuel Ward and William Scott Pierce, merchants and dealers in live stock, lumber, etc., at Verona, Grundy county, this State, with a view of transferring their Chicago commission business from the house of E. Hopkins, with whom they were then doing business, to that of Wm. Young & Co., delivered to the latter a written statement touching their financial condition. From this statement, which purported to set forth specifically the assets and liabilities of the firm of Ward & Pierce, it appeared the assets aggregated $36,629, and the liabilities $14,200, leaving a balance of $22,429, assets, in their hands, in excess of -all liabilities. Of the liabilities specified, there was an item of $7000 due the said E. Hopkins, secured as follows: Judgment note, signed by Ward & Pierce, principals, and William Pierce, Thomas Walsh, Rudolph Hill and Wilson Small, sureties, for $3000, dated January 24, 1878, and payable to E. Hopkins, nine months from date, with interest at ten per cent per annum. The remaining $4000 was secured by bill of sale in the nature of a chattel mortgage upon five cribs and 20,000 bushels of corn, in the town of Verona, dated March 29, 1878, and acknowledged before a justice of the peace, and recorded in the proper office of the county. Upon this favorable showing, appellants, on the 7th of May following, advanced to Ward & Pierce $1000 cash, taking from them a judgment note therefor, secured by a crib-receipt for 4000 bushels of corn. This transaction was conducted, on the part of Ward & Pierce, by Ward himself, who assured appellants, at the time, that he was individually worth from $18,000 to $20,000. On the 14th of the same month, appellants, at the request .of Ward & Pierce, took up the two claims above mentioned, held by Hopkins against them, and took an assignment of them to themselves. The principal and interest of these two claims, —that is to say, the $3000 note of the 24th of January, 1878, and the $4000 secured by the bill of sale of the 29th of March, 1878,—amounted in the aggregate to $7443.83.

The statement of Ward & Pierce to appellants, above mentioned, respecting their financial condition, and upon which their subsequent business transactions were based, is clearly shovm to have been false in many essential particulars, and to such an extent as to leave no doubt that it was intended to deceive and mislead appellants; and that the latter were thereby so deceived and misled to their injury, is also equally clear. In the list of assets contained in the statement, there is an item of two hundred and ninety acres of land, valued at $45 an acre, making $13,000. The truth is, as partners they owned no land at all, nor was Pierce individually, or otherwise, the owner of any real estate, except, as he states, about twenty acres, not mentioned in the statement. Ward himself owned in fee, at the time, subject to certain incumbrances, two hundred and one and one-half acres, consisting of two tracts,—one of eighty-eight and one-half acres, and the other of one hundred and thirteen acres. He also was the equitable owner of another tract of sixty acres, originally purchased by him of one Boberts, for $1800. Of this amount, Ward paid out of his own means $800 cash, and borrowed the remaining $1000 of James Seamark to complete the payment, and by arrangement between the parties, the deed was made to Seamark to secure the loan to Ward. The latter took possession of the land, and enjoyed the rents and profits for about ten years, without anything having been paid on the principal, and even the interest was in arrears. The matter stood in this condition until the 1st of March, 1878, when it seems to have been settled up by the execution of another instrument in the form of a contract of purchase and sale, by which Ward agreed to pay to Seamark, for the land, the principal sum of $1000, as follows: $100 November 1, 1878, $300 November 1, 1879, $300 November 1, 1880, and a like sum November 1, 1881, upon the payment of which sums Seamark was to convey to Ward.

On the first of September, 1878, Samuel Ward executed to Wilson Small a mortgage on lot 1, block 2, Pinch’s addition to the town of Verona, to secure $390, for which Ward gave a note at the time. Ward himself testifies, in respect to this transaction, that all Wilson Small claimed to be due him was between $150 and $250, and that he (Ward) did not know, of his own knowledge, that Ward & Pierce owed him anything. He further says, in explaining why the note was given for $390, that there was something said about indemnifying Small as security on the $3000 Hopkins note, which was subsequently paid by William Scott Pierce, though Thomas Walsh claims to have advanced $1500 of the money.

On the 10th of September, 1878, Ward, for the expressed consideration of $1000, executed a deed to appellee Thomas Walsh, for the eighty-eight and one-half acre tract of land above mentioned, which, for convenience, will be called the Walsh tract. It was, at the time, subject to a mortgage known as the Hyde mortgage, amounting originally to $1500. This mortgage was given on the 27th of October, 1873, and is considered to have been a bona fide transaction. By another deed, executed at the same time, for the expressed consideration of $560, Ward also conveyed to Walsh a part of lot 13, block 1, Kinsley’s plat to the town of Verona. On the same day Ward executed to Millard Small a deed for the one hundred and thirteen acre tract above mentioned, known as the Small tract, for the expressed consideration of $760. This tract w'as also subject to a mortgage,’ originally given to the Morris Bridge Co., for $3000, and is conceded to have been a bona fide claim. Ward, at the same time, assigned,—or, rather, attempted to assign,—to Small the Seamark contract above mentioned. Through inadvertence he omitted to attach his signature to the written assignment, and it was recorded in that condition. In the following month, Ward added his signature to the instrument, and it was re-recorded. The three deeds above mentioned, as well as this assignment, were, at the request of Ward, prepared by and acknowledged before Scott Pierce, who was a notary public, at the office of Ward & Pierce, no other persons being present. Walsh and Small, the grantees in these deeds, and Pierce, who took the acknowledgments, were all sons-in-law of Ward, and the latter declined to acknowledge them before a justice living near by, for the reason, as he stated at the time, he wanted the matter kept a secret. After the execution and acknowledgment of these deeds, Ward took possession of them, and carried them away with him.

According to Pierce this transaction commenced on the morning of the lOfch, at the office of Ward & Pierce, in Verona. Pierce states that when Ward requested him to prepare the deeds, he asked him, “What are you doing this for?” to which Ward replied, “I don’t see, after thinking things over, how in the world we are going to pay our debts, and I am old and can not work, and am going to save something if I can. ” Small testifies that he first learned that Ward had made a deed to him, on the 16th, the day before it was put on record, although he claims to have had a conversation with Ward about the Seamark tract on the 14th. Just when Walsh’s deeds were delivered does not satisfactorily appear, though all three of the deeds, together with -the Seamark contract, were taken by him to Morris, and filed for record on the 17th. Small, in speaking of his first interview with Ward, in respect to the purchase made by him, says that he met him on the 10th, in the forenoon, at Ward & Pierce’s office, and that Ward “wanted him to buy the place,” and assigned as a reason that “corn was low, and they had a good many expenses, and he wanted to sell it to take off some of the expense, so that it would pay Small what he owed him. ” Not stopping to comment upon the logic or perspicuity of this statement, it will not be improper to call attention here to the fact that Small’s statement, to the effect that he visited the office of Ward & Pierce on the 10th, and had an interview with Ward on the subject of the purchase of the land, is not altogether in accord with the statement of Pierce in his account of what occurred at the office on the morning pf that day. Pierce, in that connection, says: “Neither Thomas Walsh nor Millard Small were present. They nor either of them were in Verona that day, to my knowledge. They did not come to the office that day. ”

In the afternoon of the 17th, and subsequent to the filing for record the instruments above mentioned, Ward & Pierce confessed a judgment in the Grundy circuit court in favor of William Pierce, an uncle of Scott Pierce, for $3137.79, including an attorney’s fee of $285.25. This judgment was confessed in vacation, upon a promissory note, with a regular cognovit attached, purporting to have been executed by Ward &- Pierce to the said William Pierce, on the 2d day of September, 1878, for the sum of $2878, payable one day after date, with interest at ten per cent per annum, and if not paid at maturity, twenty-five per cent per annum as liquidated damages. At four o’clock in the afternoon of the same day an execution wras issued on this judgment, and on the following day was levied on the warehouse, office and scales at Verona, and also upon about 3000 bushels of corn, together with a large amount of other goods and effects, as the property of the defendants in the execution. In the meantime important events had transpired at Verona. Walsh claims that before going to Morris on the 17th, he had agreed with Ward & Pierce to purchase their stock of goods at $2000, provided he could raise the money, and if his statements are to be credited, his trip to Morris was altogether successful. ' He not only got his own deed, and that of his brother-in-law, recorded in advance of all other liens, but he also succeeded in making up the $2000 to,complete his purchase of the stock of goods, which he promptly paid over to Ward & Pierce on his return to Verona, and took formal possession of the store, thereby obtaining precedence over William Pierce’s execution, possession having been taken perhaps about an hour before the execution was delivered to the officer. The appellants, were kept in total ignorance of what was going on at Verona from the 1st to the 16th of the month, during which time, as we have just seen, all the available means of the firm of Ward & Pierce had been fully administered and divided out between the sons-in-law of Ward and the uncle of Pierce. But this is not all. During the very time all this was being done, Ward & Pierce were almost daily drawing money from the appellants, just as though nothing unusual had taken place. The several sums so obtained between the 1st and 16th, aggregated $34-58.59, $548.53 of which amount was obtained from appellants on the day last mentioned. We doubt whether the history of business transactions affords a more striking illustration of an utter disregard for the principles of honor and honesty that ordinarily obtain among business men.

On the 19th of the month, appellants, with a view of saving something out of the general wreck, entered up a judgment by confession against Ward & Pierce, for $1086.66, on the $1000 note executed by them to appellants on the 7th of May, as heretofore stated, and caused an execution to be issued thereon, which, on the following day, was levied on the Walsh, Small and Seamark tracts of land, and also on certain lots in Verona. A like judgment was also entered up by appellants on the $3000 Hopkins note, which was taken up by them at the request of Ward & Pierce, as heretofore stated. But as Walsh was a surety on that note, and consequently a party defendant to the judgment, it became necessary for his protection that it should be paid, and it was accordingly paid about three days thereafter. One-half of the amount, it is conceded, was paid by Ward and Pierce, and Walsh claims to have paid the balance. This last judgment was entered on the 23d, and on the same day appellants brought an action of replevin against the sheriff and his deputy to recover the goods and effects held by them under the William Pierce execution, and the property was accordingly replevied on that day. At the same time, appellants commenced an action of assumpsit against Ward & Pierce, and on the 25th, sued out an attachment in aid of the suit, which was also levied upon the lands above mentioned. Pending these suits, the present bill was filed, for the purpose of having the whole matter in controversy settled in one suit.

Millard Small, having got possession of the Seamark contract, failed to make the first payment, which, as we have seen, became due on the 1st of November, 1878. Small swears that he went to Seamark a day or two before the payment became due, and told him he could not raise the money for a few days, and asked him if it would make any difference to him. He said it would not—that he did not want to hurry-anyone—that it would be all right. Nevertheless, on the 2d of November, but a day or two afterwards, Seamark delivered to Ward an instrument in writing, declaring the contract forfeited. When asked shortly afterwards by Small why he had declared a forfeiture after making the statement to him he had, Seamark replied “that it would be all right. ” As an evidence of Small’s confidence in this promise of Seamark, on the 21st of March, 1879, he generously released upon the record all his interest in and to the land in question; yet he admits, himself, that he afterwards lived upon it without any understanding with Seamark as to how much rent he was to pay him for it. Not long after this entry was made upon the record, Seamark, true to his promise that it would be all right, conveyed the land to Martin Finch, another son-in-law of Ward. The land being again in the Ward family, Ward himself, in a short time thereafter, moved upon it, claiming to have purchased a homestead in it, and was living upon it when he died, in 1883, and so far as this record shows, one of his sons is still in the occupancy of it. As Small never paid anything for this land upon the transfer to him, he held it in trust for the benefit of Ward’s creditors, subject to the incumbrance of $1000 held by Seamark. The levy of appellants’ attachments created liens upon it, subject to the incumbrance, which were not defeated by Seamark’s attempt to declare a forfeiture.

Waiving the view that the original conveyance to Seamark was, in law, a mere mortgage, and that the right to redeem could not be barred by a mere change of the form of the security, it is clear Seamark was in no position to declare á forfeiture. He had promised Small, who was then the holder of the equitable title in trust, that he would extend the time, and he could not thus suddenly cut off the right to redeem or make payment under the contract; and although Small, for reasons quite apparent, attempted to ratify what Seamark had done in that respect, yet neither the individual nor joint action of these parties could affect the rights of creditors which had already attached to the land. Under the circumstances of this case, before a forfeiture could have been declared as against them, conceding it could have been done at all,— about which we express no opinion,—they would have been entitled, in any event, to reasonable notice. The Wilson-Small mortgage is confessedly a fraud, and is but a fitting commentary upon the manner in which the business of the firm was closed out. As to the judgment note of William Pierce, which was given by Ward & Pierce when the partnership concern first commenced collapsing, it need not be considered now, except so far as it throws light upon the conveyances of the real estate, and except so far as it may constitute a part of a general scheme to defraud the .creditors of the firm. In this view, William Pierce’s testimony is important, but we can not stop to analyze it. The note is claimed to have been given almost exclusively for borrowed money. Pierce testifies that he kept no account with the firm. In this particular he is like Walsh and Small. Neither of them kept any accounts. But when the crash came.vouchers were readily furnished by the failing firm. It is hardly necessary to remark that money lenders do not usually do business in this way. These parties all lived in the immediate neighborhood of Ward & Pierce, and, from their own testimony, were constantly brought in business contact with each other. This, when taken in connection with the fact that they were close relations, affords almost irresistible evidence that they must have known that Ward & Pierce were deliberately trying to defraud their creditors, and turn over all their available effects into the hands of their relations. The evidence shows, beyond all controversy, that Thomas Walsh, with the assistance of Ward and his employes, between the 1st and 16th of September, 1878, shipped frdm the pens of corn covered by appellants’ bill of sale, between 3000 and 4000 bushels of corn, when, at the same time, Ward & Pierce, as we have already seen, were receiving, day by day, remittances from Wm. Young & Co., amounting in the aggregate to thousands of dollars. It would be a reproach to the law and the courts of the country if such transactions as these could be sustained. If Walsh did not know Ward & Pierce were trying to defraud their creditors, why in such a hurry to run off the corn ? What was it that so suddenly quickened his movements on the subject? The only pretence for taking it was an old claim against Ward & Pierce for corn delivered in their warehouse'in 1876, which seems to have been opportunely resurrected as a thin covering for the manifest trespass upon appellants’ rights.

Though half has not been said that might be on this subject, we must forbear to pursue it further.

The decree in this case, so far as it affects the appellants, both upon the original and supplemental bills, we regard as essentially erroneous.

The conveyances and assignment made by Ward to his sons-in-law on the 10th of September, 1878, we hold to be fraudulent and void as against appellants, and the decree as to this property, both upon the original and supplemental bills, is consequently erroneous, and must be reversed and set aside. The property so transferred and assigned, subject to the bona fide incumbrances heretofore indicated, continued liable for Ward’s debts. On re-docketing the cause in the circuit court, it should be referred to the master to state an account with respect to the rents, profits, etc., with directions, also, to ascertain what, if any, part of the incumbrances above mentioned as valid liens upon the property in question, has been discharged since its transfer to Small and Walsh-on the 10th of September, 1878, and also the date and amount of all payments for such purpose, and the name or names of the person or persons making such payment or payments, and when so ascertained, to report the same to the court. And if, upon the coming in of such report, it shall be made to clearly appear that Walsh, Small or Finch paid the same or any part thereof, then either of said parties so paying is to be subrogated to the rights of the party or parties holding the incumbrance so paid. In taking this account with respect to the Seamark tract, the balance of $1000, with legal interest, alone, is to be treated as an incumbrance, taking the contract assigned to Small on the 10th of September as the basis of the computation.

The decree of the circuit court, and the judgment of the Appellate Court affirming the same, are reversed, and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion, and in conformity with such directions as are therein contained.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Roxana Shelton v. Daniel Blake.

      Filed at Ottawa November 14, 1885.

    1. Sheriff’s deed—held by assignee of certificate of purchase—prerequisites to an assertion of his rights under the deed. On bill by the holder of a sheriff’s deed, made to him as assignee of the certificate of purchase, to set aside certain deeds made by the defendant in the judgment under which the sheriff’s sale was made, as clouds upon the title, it is not essential to the relief sought, for the complainant to prove affirmatively that he paid value for the certificate of purchase assigned to him, and upon which his deed was made. Until his deed should be impeached, in some mode known to the law, it is prima facie sufficient as a basis to the relief sought by such a bill.

      2. A sheriff’s deed for land sold under execution against the owner of the land, is supported by the judgment under which the sale was made, which, in the absence of proof of fraud, is conclusive of the indebtedness of the defendant therein; and the sheriff’s return of the sale and the price paid by the creditor, is sufficient to show that the sale was for value then paid. In such case, the sheriff’s deed to an assignee will be good even though made on an assignment of the certificate of purchase -made by the assignor as a gift to the assignee.
    3. Ebeehold—whether involved—on bill to remove cloud upon title— as affecting the right of ■appeal. A bill by a holder of a sheriff’s deed for land sold under execution, against the holder of an adverse title, alleging the latter to be colorable, merely, and that although it bears date prior to the lien of the judgment under which the sheriff’s deed was made, yet that the date is false, and seeking to set such deed aside as a cloud on the complainant’s title, directly involves a question of freehold, and a writ of error lies directly from this court to the trial court, to review the decree in such case. This case is distinguished from Sawyer v. Moyer, 105 Ill. 192, and other like cases.
    Writ of Error to the Circuit Court of Livingston county; the Hon. -Franklin Blades, Judge, presiding.
    Mr: B. B. Wallace, and Mr. J. ,T. Terry, for the plaintiff in error:
    The land was conveyed to Mrs. Shelton before the liens of the judgments attached, in payment of a loan* she made her husband in 1874. To set aside her deeds as a cloud on complainant’s title, he,must show that he paid a valuable consideration for the assignment of the certificates of purchase. As a mere volunteer he can not defeat a prior unrecorded deed. If he paid nothing for the certificates he is not wronged by not getting the land, while if he does prevail, the plaintiff in error is a sufferer to the extent of what she paid for it. Baldwin v. Sager, 70 Ill. 503; 1 Story’s Eq. Jur. 58, 59; Willard’s Eq. Jur. 608.
    Defendant in error, in taking an assignment of the certificates of purchase without inquiry as to the title to the land, was guilty of gross negligence. He was chargeable with notice of every fact that he could with reasonable diligence have ascertained. Harper v. Ely, 56 Ill. 179; Life Ins. Co.
      v. Ford, 89 id. 252; Heaton v. Prather, 84 id. 330; Coari v. Olsen, 91 id. 273; Henneberry v. Morse, 56 id. 394; Babcock v. Lisk, 57 id. 328; Ogden v. Havens, 23 id. 57.
    It requires the strongest and most convincing evidence to overcome the presumption arising from the certificate of acknowledgment, that these were executed on the day of their date. Calumet Co. v. Russell, 58 Ill. 426; Graham v. Anderson, 42 id. 514; Russell v. Baptist Society, 73 id. 337; Kerr v. Russell, 69 id. 666; Fitzgerald v. Fitzgerald, 100 id. 385.
    Mr. C. C. Strawn, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

It may be well to remark, in limine, that a suggestion made in the argument in regard to the question of jurisdiction, shows that there is some misapprehension in the minds of counsel in that respect. This is not, like Sawyer v. Moyer, 105 Ill. 192, and other like cases, a bill to declare lands subject to the liens of executions, leaving the title where it is when those liens shall be discharged. It is a bill by the holder of sheriff’s deeds to the property, against the holder of an adverse title, alleging that that title is colorable, merely, and that, although it bears date prior to the lien of the judgments under which the sheriff’s deeds wrere executed, that date is false, and that the real date is subsequent to the lien of those judgments, and praying that it may be therefore set aside as colorable, etc.,—and so the question of freehold is directly involved, (Chicago Theological Seminary v. Gage, 103 Ill. 175,) and the writ of error was properly prosecuted from this court.

The deeds of defendant in error were made to him by the sheriff, upon certificates of purchase made to other parties, and assigned to him; and the point is made that it was incumbent on him to affirmatively prove that he paid value for the certificates before they were assigned. Whether the sheriff’s deed should have been made to the purchaser at the execution sale, or to the assignee of that purchaser, concerns only those parties. The holder of the certificate had the right to assign it, and he might have done so as a gift, without any valuable consideration. The sale is supported by a judgment, which settles the question of the then indebtedness of the defendant in the execution, and the return of the sheriff conclusively establishes that the sale was for value then paid. No questions akin to those arising in Baldwin v. Sager, 70 Ill. 504, and Brown v. Welch, 18 id. 343, are presented here. The rights of defendant in error were fixed by the judgment, the levy, and the sale; and a subsequent grantee can not question that they were equitable, if they were in conformity with the statute. It is not a case of a mere volunteer purchasing, where there was an outstanding equity. If the theory of defendant in error be true,—and the court below held that it was,—plaintiff in error had no outstanding equity as against this sheriff’s sale. When the lien of the execution under which it was held, attached, she had no deed to the property, recorded or otherwise, and no pretence of claim to it in any other manner. Until the deed of defendant in error was impeached, in some mode known to the law, it was prima facie sufficient as a basis to the relief which he asked.

The main question is one of fact. The court below held, and decreed accordingly, that the deeds from Charles E. Shelton and wife, to Bichard D. Pai’kin, and by Bichard D. Parkin and wife, to plaintiff in error, were not executed, as they purport, on the 10th of October, 1876, but that they were, in fact, executed in January or February, 1881, and falsely and fraudulently dated back to October 10, 1876, to cheat and defraud creditors, etc. ' We are not prepared to say that the court below erred in so holding and decreeing. There is much conflict in the evidence, but there are some facts about which there is no controversy, that seem to us inconsistent with honesty and good faith in the conveyance by Shelton and wife to Parkin, and Parkin and wife to defendant in error. The property lies in Livingston county, and Shelton and wife resided there. The deeds were executed in the city of Chicago. Parkin was a stranger to Shelton and wife, they having never met until the deeds were executed. When the deeds were executed, they were not placed upon record, and there was no outward visible change in the possession to advise the public of the fact that there had been a change of owners. Why should Shelton and wife go to Chicago to execute their deed ? Why should they convey to an entire stranger? Why should they not be willing, nay, even anxious, to place the deed on record at the earliest possible opportunity ? If the transaction was in good faith,—what they now claim it is,— it will be difficult to furnish entirely satisfactory answers to these questions. Competent persons to write and take acknowledgment of the deed, could, without doubt, have been found in every township in Livingston county. Shelton and wife had then resided there some twenty years, and it appears from circumstances in proof that they had contracted numerous acquaintances and acquired some friends. It would seem that if the transaction would have borne publicity and free discussion, the most natural thing would have been to have made the deed at home, to some old friend, and have had him reconvey, and then, without much delay, have put the deeds upon record. Shelton is shown to have been a trading man, and if, in fact, he made the deed in 1876, to protect his wife, the same motive would have prompted its immediate record, that persons trading with him would have had, thereafter, no pretext for trusting him upon the faith of his ownership of that property. If, however, as Parkin and wife swear, the deeds were not made until in January or February, 1881, and if, as other witnesses swear that Shelton told them, his attorney in Chicago had a notary in his office whom he could get to take acknowledgments of deeds ante-dated as might be desired, and if, as also other witnesses testify that Shelton said, he intended to have the deed ante-dated so as to cut out creditors, a motive is disclosed for- the taking of the acknowledgment at Chicago, the conveying to a stranger there, and the withholding of the deed from the record. If the deed had been made to a citizen known and living in Livingston county, he could have been readily traced out, and, presumably, prevailed upon to state the facts. The recording of the deed would have at once led to investigation, and the longer that could be postponed, if the transaction would not bear investigation, the better.

The evidence abundantly shows the bad faith of Shelton in this transaction. He went into bankruptcy in 1878 or 1879. He did not schedule this real estate. It is proved that after he was discharged he admitted that this land belonged to himself, and when he was informed that his creditors knew of it, he proposed to convey it and date the deed back, saying that inasmuch as the deeds to himself for the land were not recorded, no body would ever find out about the ante-dating of the deed. The reading of the examination of plaintiff in error does not produce an impression in her favor. It is quite clear that she has been much impressed by her husband, and she is circumstantially and materially contradicted as to her being in Chicago in 1876, when she says the deeds were executed. It is true there is some evidence tending to corroborate her, and there are some witnesses swearing that her husband has a good reputation for truth and veracity, although many swear that his reputation in that respect is bad; but upon the whole, as we have before observed, we can not say the court erred in decreeing as it did. It will subserve no useful end to comment upon the evidence of each witness seriatim. It is enough that the record has been carefully read and considered.

The decree is affirmed.

Decree affirmed.


author:
Mr. Chief Justice Mulicey
      Mr. Justice Magruder :

text:
    The People ex rel. John D. Caton v. The Ottawa Hydraulic Company et al.

      Filed at Ottawa November 14, 1885

      Rehearing denied March Term, 1886.

    1. Corporation—waiver of ground of forfeiture by subsequent legislation. Although a corporation organized under the general act of 1849, failed and neglected to carry out the object of its creation, and engaged in another and entirely different business than that contemplated in the articles of association, so that a forfeiture of its franchise might have been declared, yet if the legislature, during the existence of such grounds of forfeiture, passed a law amending the act under which it organized, in which its corporate existence is clearly recognized, its acquisitions confirmed, its powers enlarged and new ones conferred so as to embrace its business as then being carried on, such amendatory act will in effect constitute a new charter, and operate as a waiver of any ground of forfeiture, and the corporation may afterward engage in any business authorized by such subsequent and amendatory act.
    2. Constitutional law—private law, as embracing more than one subject. In 1853 the legislature passed an act .entitled “An act to amend the act incorporating the Ottawa Hydraulic Company, and the La Salle County Manufacturing Company of Ottawa, both incorporated under the general law approved February 10, 1849, ” by which those corporations were recognized and legalized, and their powers enlarged, and the rights claimed by them confirmed. This act authorized-these companies to acquire and hold real estate, by condemnation or otherwise, and relieved- them from the burden imposed by the act of 1849, whereby their stockholders were individually liable to creditors to the amount of their stock: ITeld, that the act of 1853 was not in violation of section 23, article 3, of the constitution of 1848, which provides that “no private or local law which may be passed, etc., shall embrace more than one subject, and that shall be expressed in its title.”
    3. Quo WARRANTO—sufficiency of the information to put the respondent upon his defence. Where a number of individuals assume to act as a corporation, an information containing a general denial of their right to do so will be sufficient to put them to their plea of justification.
    4. But where the information attempts to set out their title, which, when taken in connection with a public law, discloses such additional facts as make their title good, the information will be bad, and obnoxious to-a, demurrer.
    5. Pleading a public law—whether necessary. It is never necessary to plead a public law, and there is no difference in this respect between a public law, strictly so called, and one merely declared to be so by the legislature.

      Appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard,' Judge, presiding.
    On the 28th of November, 1884, the State’s attorney filed in the circuit court of LaSalle county an information in the nature of a quo warranto, charging that on the 15th day of November, A. D; 1851, William H. W. Cushman, John Y. A. Hoes, Lorenzo Leland, George H. Norris, George E. Walker, William Hickling and A. H. Howland pretended to organize, and went through the forms of organizing, a joint stock company or association, under the law of the State of Illinois approved February 10, 1849, under the name of the Ottawa Hydraulic Company, specifying the business to be done by said company as “to lease, use and occupy, and to sub-let water-power, lots and land, to build mills and factories, and, generally, to carry on a manufacturing and mechanical business, ” in the city of Ottawa, in said county. And the court is further informed that said pretended shareholders never paid in any of the capital stock of said company, or, at most, not more than a merely nominal amount thereof. And the court is further informed that the statement in the articles of association filed by the pretended incorporators, that the purpose of the proposed corporation was “to build mills and factories, and to carry on a manufacturing and mechanical business, ” was false and fraudulent, and merely colorable, and for the purpose of giving said corporation the appearance of legality, and not with the bona fide intention of ever carrying on any business which it was lawful for it to carry on under the said statute; and that the said company has never built any mills or factories or carried on any manufacturing or mechanical business pursuant to said declared purpose, but that the sole object of said company or organization was to carry on the business of speculating in water-power in and about the city of Ottawa, by renting water-power at a low price or rental, and sub-letting it at a much higher rental to other parties, and dividing the profits thus accrued, which is the only business ever carried on by said pretended company from the date of its organization to the present time. And the court is further informed that one Douglas Hapeman, professing to act as president, and Lorenzo Leland, professing to act as secretary, of said pretended Ottawa Hydraulic Company, and sundry other people, are still carrying on the business of speculating in water-power, as aforesaid, under said pretended organization, and usurping the power and franchises of the State as aforesaid, ■ all of which actings and doings were fraudulent, and by reason of said fraud, both in law and in fact, the said pretended organization of the said Ottawa Hydraulic Company was wholly void and of non-effect, and the carrying on of said business of speculating in water-power and the lands adjoining thereto, and the dividing the profits which accrued from said business, and all other business carried on by said pretended Ottawa Hydraulic Company, was in the exercise of a power usurped from the People of the State of Illinois, and without any legal authority for the exercise of said usurped power, by means of which the said pretended acts of incorporation were of no effect, and the incorporation under the laws of the State did not take place, by reason of the false and insincere statement of the purposes of such incorporation. And the court is further informed that said corporation, if any such exists, has forfeited its charter and corporate existence by the prostitution of the power of the State, to the damage and prejudice of said people and against the peace and dignity of the same. Wherefore the said State’s attorney for the said people, and in the name and by the authority thereof, at the relation of the said John Dean Catón, prays the consideration of the court here in the premises, and due process at law against the said pretended organization and- the said Douglas Hapeman and Lorenzo Leland, to make them answer to the said people by what warrant they claim to hold and execute the franchises aforesaid, so usurped from the People of the State of Illinois, and that upon a final hearing hereof the said act of incorporation may be declared to have been null and void, and that the said Hapeman and Leland, and all others claiming to act under and by virtue of said organization, may be ousted of all power and authority to exercise any franchise or power under and by virtue of said pretended act of incorporation. The court sustained a demurrer to the information, and entered an order dismissing the same. From that order an appeal is prosecuted to this court.
    Mr. C. Beckwith, for the appellant.
    Mr. Lorenzo Leland, and Mr. Hiram T. Gilbert, for the appellees. ■
    Messrs. Bull, Strawn & Ruger, and Mr. L. W. Brewer, in reply.
   Mr. Chief Justice Mulicey

delivered the opinion of the Court:

The question presented for determination is, whether the court ruled properly in sustaining a demurrer to the information. It will be perceived the averments in the information, when stripped of all unnecessary verbiage, are, in substance and legal effect, that the company organized for the alleged purpose of establishing and carrying on a certain specified business, when, in truth and in fact, it intended to do nothing of the kind, but, on the contrary, intended to carry on altogether a different business, which it has alone pursued from the date of its organization to the present time, and that only a nominal portion of the capital stock, if any, has ever been paid in. In the case thus made, the company, as a corporate body, is assailed on three distinct grounds: First, that its organization was effected by false representations in its original statement; second, that it has failed to perform the duties which the law of its organization imposed upon it; and third, that it is and has been, from the date of its organization, engaged in a business not warranted by its articles of association,—or, more shortly expressed, the company is assailed on the grounds of fraud, mis-user and non-user. To this it is answered: First, that whatever cause of forfeiture of the company’s franchises may have originally existed, the State has subsequently waived it, both by legislative recognition and by acquiescence in its exercise of corporate functions for a period of over thirty years; second, that by the act of 1853, entitled “An act to amend the act incorporating the Ottawa Hydraulic Company, and the LaSalle County Manufacturing Company of Ottawa, both incorporated under the general law approved February 10, 1849,” the legislature not only recognized the legal existence of the defendant as a corporate body, hut that it expressly authorized it to do the very acts now relied on as a ground of forfeiture of the company’s franchises.

That the act referred to is an unequivocal recognition of the defendant’s corporate existence is too plain to admit of serious question. Such recognition distinctly appears both in the title and body of the act. We also think it equally clear that the leasing and sub-letting of water-power by the company, as charged in the information, are fully justified by the act in question. By the first section of the act it is authorized “to hold, lease, transfer, use and enjoy all of the property and privileges leased to it by the trustees of the •Illinois and Michigan Canal, and all such property'and privileges the use and enjoyment of which have been granted to it by the president and trustees of the said town of Ottawa, and all such property and privileges as may hereafter be granted to it by said canal trustees, president and trustees, or any other corporation, or by any person. ” By the second section the defendant and the LaSalle County Manufacturing Company, are authorized, jointly and severally, “to procure and hold all such real estate as may be deemed necessary or proper for the construction of races to conduct the water from the works of said companies, or either of them, of their or either of their leases or transfers, to the Illinois or Fox river, or both. ” By the third section the defendant is given an action of forcible detainer against any person .who shall withhold the possession of any property so leased to it by the canal trustees, or the use and enjoyment of which were granted to it by the president and trustees of the town of Ottawa, for the recovery of the same. Thus it substantially appears from the face of the act itself, that at the time of its adoption the defendant then held leases and water privileges from the canal trustees and the town of Ottawa, and the manifest purpose of the act was to confirm the defendant in the rights which it had assumed under said leases, and to protect it in the business in which it was then engaged.

We agree with counsel for the defendant that the act in question is, in legal effect, a new charter. It recognizes the corporate existence of the defendant, confirms its acquisitions under its articles of association, enlarges its powers, and confers on it new and independent powers. To this it is replied, first, that the act of 1853 is unconstitutional; and secondly, conceding it is not, that the defence which it affords can not be availed of by demurrer to the information, but should have been presented-by plea. We will consider these positions in the order stated.

The constitutionality of the act is assailed on the alleged ground that it is in conflict with so much of section 23, article 3, of the constitution of 1848, as declares: “No private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in its title.” The defendant and the LaSalle County Manufacturing Company were both located at and doing business in the town of Ottawa, in 1853, when the above act was passed. They were severally incorporated under the general Incorporation law of 1849, and were alike interested in the water privileges afforded by the canal at that place. One of the purposes of the act, as is apparent upon its face, was to enable the two companies to procure and hold real estate for the purposes already stated, and to authorize them to acquire it by condemnation proceedings, if it could not be otherwise obtained. It was also desired by the legislature to relieve these two companies thus similarly circumstanced, from the burdens imposed by the 10th, 11th and 12th sections of the act of 1849, under which they were incorporated. These sections, among other things, made the stockholders individually liable to the company’s creditors to the amount of stock subscribed by them, respectively, until the whole of the stock was paid in, etc. Now all this could well be accomplished by amending the general law of 1849, so far as it affected these two companies, and the legislature having adopted this course, we see no impropriety in it. The general law, taken in connection with the several statements made by these companies for the purposes of incorporating, constituted their charter. The subject of the act of 1853 therefore was the amendment of the act of 1849, or of “the act incorporating” these two companies, and the additional powers conferred on the two companies were clearly germane to the amendment of the charter. It can hardly be that this objection is founded upon the fact that the legislature has, by a single act, conferred certain powers and privileges on two distinct corporate bodies. It would be just as reasonable to say that the legislature, by reason of the constitutional provision in question, could not make a joint grant to two separate persons, and no one, we presume, would contend for that for a moment. The provision of the constitution in question has often been before this court, and we have no hesitancy in saying there is no good reason for the claim that the act of 1853 is unconstitutional on the ground suggested. O’Leary v. Cook County, 28 Ill. 534; Prescott v. Chicago, 60 id. 121; City of Virden v. Allan, 107 id. 505; Potwin v. Johnson, 108 id. 70.

As to the claim that the act of 1853 should have been specially pleaded, little need be said. The question thus raised is so elementary in its character that it hardly admits of serious discussion. Where a number of individuals assume to act as a corporation, an information containing a general denial of their right to do so will be sufficient to put them to their plea of justification; but if the information attempts to set out their title, as was done here, and the facts disclosed for that purpose, when taken in connection with other facts appearing upon the face of a public statute, make the title good, the information will be necessarily bad. Such was the case here. It is a fundamental mistake to suppose that it is ever necessary to plead a public law; and there is no difference in this respect between a public law, strictly so called, and one merely declared to be so by the legislature. Sometimes such a law, as mere matter of composition, is specially pleaded, particularly in chancery proceedings; but there is no rule of law requiring it, and in proceedings at law it is regarded as violative of the principles of good pleading. The only charges contained in the information, affecting the original organization of the company or its subsequent right to act as a corporation, we regard as cured by the act of 1853, and this act is expressly declared to be a public act, hence there was no necessity, or even propriety, in pleading it specially. As to the failure of the stockholders to pay in the stock, we have already seen they are relieved from the performance of that duty by section 4 of the act of 1853.

This view of the case renders it unnecessary to discuss the defence of “lapse of time.”

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Sheldon, dissenting.

Mr. Justice Magruder :

A petition for rehearing in this case has been considered by the court since I became a member of it. I dissent from the opinion. In my judgment a rehearing should have been granted.


author: Mr. Justice Craig

text:
    Loren M. Whitney et al. v. Bradley Burr.

      Filed at Ottawa November 14, 1885.

    1. Specific performance—of parol contract to assign interest in letters patent. Specific performance of a parol agreement for the transfer of a party’s interest in letters patent may be decreed when the rights of innocent bona fide purchasers have not intervened, and also as against a purchaser having notice that his vendor had made a verbal sale of his interest.
    2. Although it may be that a writing is necessary to pass the legal title to letters patent, yet an equitable title or interest in the same may be conferred by a parol agreement of the holder of the legal title, which, as between the parties thereto, where the rights of innocent purchasers do not arise, a court of equity will sustain and enforce. Section 4898 of the Revised Statutes of the United States has reference only to the legal title in letters patent.
    3. Notice to agent—whether notice to principal. If an agent has notice, at the time of his purchase for his principal, of the equitable rights of another, and of the claim of the latter to have previously purchased the subject matter of the sale, this will be notice to the principal.
    4. Interest—on the contract price of a sale of one partner's interest to the other. Where one partner sold his interest in the partnership for a certain sum, there being no agreement to pay interest, and it was understood that this sum was to be paid out of the moneys realized by sales of the partnership assets, and the partner selling failed to take any steps to have the firm assets converted into money or make any demand for the sum agreed to be paid him, it was .held, that the court, on bill by the purchaser for specific performance, properly refused to allow interest on the contract price.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

      Messrs. Coburn & Thacher, for the appellants.
    Mr. David Fades, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Bradley Burr, against Loren M. Whitney and J. B. Birdsell, to compel a conveyance of certain letters patent, and for an accounting against Loren M. Whitney, of assets in his hands belonging to the late firm of Burr & Whitney.

It is alleged in the bill that in January, 1874, complainant, Burr, and defendant Whitney, entered into a co-partnership at Batavia, Illinois, for the manufacture of wagon bodies under letters patent, of which Burr was the patentee; that Burr assigned a half interest in the patent to Whitney; that the co-partnership continued until July, 1878, when it was dissolved by mutual consent, when Burr agreed to take all assets of the firm and the interest of Whitney therein, and pay the firm debts, and pay Whitney $2100 for his interest. It is also set up in the amended bill that Whitney’s interest in the letters patent, and all improvements thereon, under a contract of January 13, 1874, passed to complainant, and were embraced in the agreement. It is also alleged in the bill that Burr arranged with Whitney to dispose of the firm assets and pay the liabilities; that any surplus, after the payment of debts, was to apply on the amount complainant had agreed to pay Whitney; that Whitney was to retain his half interest in the patent as security for the payment of $2100, until that gnm should be paid. It is also alleged in the bill that Whitney, without the knowledge of Burr, made a sale of the one-half interest in the letters patent retained by him as security, as aforesaid, to J. B. Birdsell. The bill charges that Birdsell knew that Whitney’s interest in the patent was held by him as security for the payment of such sum as should be found due after the settlement of the partnership liabilities by Whitney, and not as owner. The defendants, Whitney and Birdsell, put in their several answers to the bill. Whitney, in his answer, admitted the co-partnership set up in the bill between Burr and himself, but denied that he sold complainant his interest in letters patent No. 142,989, or his interest under the contract of January 13, 1874, but admits that at the time of the dissolution he agreed that if Burr would pay him $2300, in monthly installments of $75, he would convey to Burr his interest in the patent and contract. The answrer then sets up that Burr made no payments under the contract, and on the 23d day of January, 1883, he (Whitney) sold to Birdsell his interest in the patent and all his rights under the contract of January 13, 1874. Birdsell, in his answer, sets up that on January. 23, 1883, he bought of Whitney all his interest in the letters patent and in the contract of January 13, 1874, and paid therefor $1800, and took an assignment in writing from Whitney; that at the time of the purchase he had no notice of any rights of Burr therein.

The questions involved in this record are mainly questions of fact, which the circuit court found against the defendants in the bill, which finding was affirmed in the Appellate Court. We have carefully examined the evidence upon which the decree was rendered, and we perceive no substantial ground upon which the decree can be reversed. The complainant, Burr, and the defendant Whitney, do not agree in their evidence in regard to the principal points in controversy, but the complainant’s version of the main point in dispute is sustained by other testimony. In regard to the contract upon the dissolution of the firm, which was one of the main points in dispute, the complainant testified substantially as follows: That he had talked the matter up with Whitney previous to the dissolution, in regard to selling out and making a change, and he said he would sell out; that witness asked him if he would, and he said he would think the matter over and let the witness know; that after the witness came back from Chicago he had a conversation with Whitney, in which he asked Whitney if he had made up his mind what he would take for his interest in the concern, including the patents and the business, and step out, and he said he would take $2100,—that wouldn’t make him whole, but he would take it,—and the witness told him he would give it. If the evidence of the complainant is credible, and to be relied upon, it is plain that he purchased from Whitney all the interest which he had in the patents at the time the firm dissolved, in 1878. Upon this point, then, it will only be necessary to see whether his evidence is sustained by other credible evidence in the case.

Charles Burr, a witness for the complainant, testified substantially as follows: That he was the son of the complainant, and knows L. M. Whitney; knew of the existence of the firm of Burr & Whitney between 1873 and 1878; was in the firm’s employ; knows of the dissolution of the firm; heard conversations between Burr & Whitney relative to the disposition of the assets of the firm; heard his father, Mr. Burr, ask Whitney one day what he would take for his interest in the patent and factory; Whitney said he would think the matter over, and witness’ father went to Chicago, and after returning he said Loomis & Avery wanted him to work for them, and he asked Whitney if he had made up his mind; Whitney said he would take $2100 for his interest in the factory and patent, and step out;' it would not make him whole, but he would take that, and they closed it up with that agreement; that he afterwards heard a conversation when the goods were shipped to Chicago; Mr. Whitney said he would not let all the property go out of his hands; he wanted security, and Burr told him that he could have his half interest in the patent as security, and Whitney seemed to be satisfied. The evidénee of this witness, who stands unimpeached, fully sustains the complainant’s statement of the terms and conditions of the sale upon the dissolution of the firm. It is true the defendant Whitney denies the contract as stated by the complainant and his son, but in this he is doubtless mistaken. At all events, the evidence clearly preponderates upon this point in favor of the complainant, and we are of opinion that the court was fully warranted, from the evidence, in finding that Whitney sold complainant, upon the dissolution of the firm in 1878, all his interest in the firm, and all interest which he held in the letters patent and contract of January 13,1874.

It is also claimed that the sale made by Whitney to Burr is invalid because made by parol. It may be true that a writing is necessary to pass the legal title to letters patent, and we are satisfied that section 4898 of the Revised Statutes of the United States has reference to the legal title, and to that alone. This seems to be the view of Curtis on Patents, sec. 179. But conceding that the legal title .might not be passed by parol, it is evident that an equitable title may be. Any contract which might confer a beneficial interest in a patent right, as between the parties to the contract, where the rights of innocent purchasers do not arise, may be sustained and upheld. Of course a purchaser without notice of such equitable title would be entitled to protection, but the purchase made by Birdsell was not of that character. This purchase was made for Birdsell by and through his agent, Spear, and Whitney testified that at the time of making the trade he explained to Spear that Burr and himself had “a talked-of sale, ” and that he stated to Spear the conditions as he understood them. In addition to this, Burr testified that in the spring of 1880 Spear wished to buy his interest in the patent, and he then told him that he had bought out Whitney’s half interest,—that Whitney retained it for the balance that witness owed him. From this evidence it is plain that Spear had notice when he purchased of Burr his rights in the patent, and notice to the agent was notice to his principal.

It is also claimed that the court erred in refusing to allow Whitney interest on the balance found to be due him. There was no agreement to pay interest, and under the evidence we do not think a case was made in which the allowance of interest was demanded. Had Whitney, who had the assets of the firm in his hands, proceeded at once and converted the same into money, and called on Burr for the balance due him, after the assets were all properly applied, then he might justly claim interest; but this he failed to do. There was much delay in closing up the business, and no demand was ever made of Burr for the balance due from him to Whitney. Under such circumstances we think the court properly refused to allow interest.

It is also claimed the decree is erroneous in refusing to allow Whitney’s individual claim. The contract of purchase, when Burr bought out Whitney for the sum of $2100, covered all of Whitney’s demands.. In other words, as we understand the contract, Whitney’s rights in the patent and subsequent inventions, and all his interest in the firm, individual or otherwise', were sold to Burr for the sum of $2100.

In our judgment the decree of the circuit court was in all respects correct, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Pennsylvania Company v. Max Eberhardt et al.

      Filed at Ottawa September 21, 1885.

      Appeal—as to amount involved. Where the Appellate Court reverses a decree of the circuit court made on a bill for injunction, when less than $1000 is involved in the suit, this court has no jurisdiction to review the judgment of the Appellate Court on appeal or by writ of error.

      Writ oe 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.
    Messrs. Willard & Driggs, for the plaintiff in error.
    Messrs. Kraus & Mayer, for the defendants in error.
   Per Curiam :

The plaintiff in error filed its bill in the Superior Court of Cook county, to restrain the defendant in error,- a justice of the peace, from entering any judgment against the plaintiff in error as a garnishee in an attachment suit before the justice. The plaintiff in error had been summoned as a garnishee in the attachment suit, and a judgment had been entered in such suit against the debtor, the defendant in the suit, for the sum of $38.83. The ground upon which the injunction was asked, was, that at the time of the service of the garnishee summons there was not paid to the plaintiff in error the sum of one dollar and the requisite mileage, as required by section 4, chapter 62, entitled “Garnishment.” (Laws of 1881, p. 84.) The Superior Court granted the relief prayed, and the Appellate Court for the First District, on appeal, reversed the decree.

This writ of error, prosecuted from the judgment of the Appellate Court, must be dismissed for the want of jurisdiction in this court to entertain the writ, the sum or value in controversy being less than $1000.

Writ of error dismissed.


author: Mr. Justice Soholfield

text:
    Philip A. Woolley v. Thomas R. Lyon.

      Filed at Ottawa November 14, 1885.

    1. Appeal—as to amount “involved"—as affecting the right of appeal. An appeal was taken from a judgment of the circuit court, in an action of assumpsit, for $1832.06, exclusive of costs. On being ruled to give a new appeal bond, the appellant withdrew the record, and the Appellate Court thereupon assessed $96.66 damages against appellant for want of prosecution of his appeal, and rendered judgment therefor in favor of the plaintiff: Held, that a writ of error would lie to review the judgment of the Appellate Court in respect of the damages so assessed, alone, although the amount so brought in question was less- than $1000, there- being -more than $1000, exclusive of. costs, involved in the record, the judgment for damages being but an incident to the entire judgment appealed from.
    2. The right of appeal from the Appellate Court, or to sue out a writ of error to review the judgment of that court, is not limited by the amount by the error assigned, but by the amount involved in the suit. So a party may-even prosecute an appeal or writ of error in a case where no ground exists for claiming error in the record at all.
    3. Same—damages on abandonment of appeal in the Appellate Court. Where the appellant in the Appellate Court for any cause withdraws the record, this is practically an abandonment of his appeal and a failure to prosecute the same, and will justify that court in entering judgment against him for not less than five nor more than ten per cent damages on the amount recovered in the trial court.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Frank Crosby, and Mr. J. W. Banstead, for the plaintiff in error.
    Mr. B. N. Botsford, and Mr. B. M. Ireland, for the defendant in error.
   Mr. Justice Soholfield

delivered the opinion of the Court:

In an action of. assumpsit upon a promissory note, judgment was rendered by the circuit court for the plaintiff, for the sum of $1832.06. The defendant appealed to the Appellate Court for the Second District, but before the cause was reached for hearing, by permission of the court he withdrew his record from that court. Thereupon, on motion of the plaintiff, the court assessed damages against the defendant to the amount of $96.66, for failure to prosecute his appeal, and rendered judgment therefor. On a subsequent day, the defendant moved to set aside that judgment, but the court overruled the motion. The writ of error sued out by the defendant in the circuit court, brings before us the entire record of both courts.

A motion was made, before the cause was submitted, to dismiss the writ of error for want of jurisdiction. The decision of that motion was reserved until the final hearing, and it must now be passed upon before proceeding to consider the question presented by the assignment of errors.

The statute provides: “In all cases determined in said Appellate Courts, in actions ex contractu, wherein the amount involved is less than one thousand dollars ($1000), exclusive of costs, * * * and the judgment is affirmed or otherwise finally disposed of in the Appellate Court, the judgment or decree of the Appellate Court shall be final, and no appeal shall lie or writ of error be prosecuted therefrom. * * * In all other cases appeals shall lie, and writs of error may be prosecuted from the final judgments, orders or decrees of the Appellate Courts to the Supreme Court.” The action in the circuit court was ex contractu. The amount involved was the amount due upon a promissory note, whereby more than $1000 was promised to be paid, and wre have seen the judgment thereupon was for more than $1000. The appeal from the circuit to the Appellate Court carried the record of that case before the Appellate Court, and hence there was then lawfully pending in that court for determination, a case wherein the form of action was ex contractu, and wherein the amount involved, exclusive of costs, was more than $1000, so that if the judgment of the circuit court had been’ affirmed by the Appellate Court, there could be no reason for questioning the right to appeal to this court, or to sue out a writ of error from it, to bring that action.of the Appellate Court before us for review. But the judgment for the $96.66 is not an independent judgment. It is only incidental to the judgment for $1832.'06. The withdrawal of the record was an abandonment of the appeal, and the judgment rendered resulted because of that act. It was, obviously, as much one of the steps taken in the case as was the judgment in the circuit court, and a complete record must necessarily include both judgments. Although the judgment of the circuit court was not affirmed by this judgment of the Appellate Court, the case was then finally disposed of, and so the record is, in that respect, within the requirement of the statute.

The right of appeal and to sue out a writ of error is not limited, it will be observed, by the amount affected by the error assigned, but by the amount “involved” in the action. It could not, therefore, be questioned that a party might appeal or sue out a writ of error in a case where no "ground would exist for claiming error in the record. An appeal or writ of error undoubtedly could be prosecuted where there was a judgment for more than $1000, on a promissory note for the amount of the judgment, although the record might be perfect. Here, it happens that the error assigned relates only to the $96.66. It might, however, have related to the question whether the court had jurisdiction either of the person or the subject matter to docket the case, or to make any order whatever in it, for the right to assign error is not dependent upon the question of whether it shall be held, on final determination, that error really existed in the respect pointed out by the assignment. Had the appeal simply been dismissed, and error sued out on the record, and the only error assigned here been that the court erred in dismissing the appeal, it is apprehended none would have contended there was any want of jurisdiction, for the action would have been ex contracta, the amount involved more than $1000, and the judgment final. But the addition to the judgment of the $96.66, because of the failure to prosecute the appeal, can not possibly change the previous record. It can not change the fact of what was the amount “involved” in the case. The motion must be overruled.

The only question presented by the errors assigned is, did the court err in rendering judgment for $96.66 damages for not prosecuting the appeal.

Section 73 of the Practice act of 1877 (Laws 1877, p. 150,) provides, that “when appeals from judgments, orders or decrees for the recovery of money are dismissed by the Supreme or Appellate Court for want of prosecution, or for failure to file authenticated copies of records, as required by law, the court shall enter judgment against the appellants for not less than five (5) nor more than ten (10) per cent damages on the amount recovered in the inferior court.” The withdrawal of the record is certainly a failure to prosecute the appeal, and so is within the letter of this section, if, indeed, it might not be treated as, in principle, coming within the clause which authorizes the assessment of damages for a failure to file the record. It is unimportant, in our opinion, that the withdrawal of the record may have been necessitated by the order of the court requiring a new appeal bond. That order was lawful, but if it had not been, the proper way to question it was to except to it, and let the court dismiss the appeal because of non-compliance with it. The withdrawal of the record was a voluntary abandonment of the appeal, and clearly authorized the conclusion that it had not been taken in good faith. Toles v. Montague, 53 Ill. 384, cited by counsel for plaintiff in error, is not analogous. In that case the appeal was not abandoned. Errors were assigned and argued, and the case was disposed'of on its merits. The only ground upon which it was there-claimed the appeal was not prosecuted in good faith, was the want of merit in the reasons urged for reversal; but the court did not deem them so frivolous as to demonstrate that they were not urged in good faith. Here no errors were argued in the Appellate Court. The appeal was voluntarily abandoned before that point was reached.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Tunnicliff Mr. Justice Scott:

text:
    The Illinois Central Railroad Company v. William Haskins.

      Filed at Ottawa September 23, 1885.

    1. Negligence — a question of fact. In an action against a railway company to recover for a personal injury, on the ground of negligence, the question whether the plaintiff, at the time of receiving the injury, was using due care or was grossly negligent, is not one of law for the court to determine, but one of fact to be ascertained by the jury, under all the evidence. The same may be said in respect to comparative negligence of the parties.
    2. Appeal—reviewing the facts. Where the evidence in a cause tends to prove the existence of a given fact or state of facts, and they have been passed upon by a jury in a civil suit, their finding, unless set aside by the trial court or Appellate Court, is conclusive upon this court; and, in that regard, it is wholly immaterial whether this court thinks such finding is in accordance with the weight of evidence or not.
    3. Witness—credibility—how affected by his relations to the parties— as, employer and employe. In an action against a railway company for negligence, the jury, in determining what weight to give the testimony of a witness for the defendant, may take into consideration the fact that the relation of employer and employe exists between the company and the witness, and from this, and his manner of testifying, judge whether he is apparently influenced by such relation, and to what extent.

      4. In this case, the court was asked to instruct the jury, “that while they are the sole judges of the credibility of witnesses, they have no right to disregard the testimony of an unimpeached witness sworn on behalf of the defendant, simply because such witness is or was an employe of defendant, ”—to which the court added: “But the relation of any witness to a party to the suit, such as employe, is a matter proper for the consideration'of the jury, in the light of all the evidence, and if, after such consideration, it does not appear that the testimony of the witness has been influenced by such relation, then it should be disregarded. What influence, if any, such relation may have had on the testimony of any witness is to be estimated by the jury, in the light of all the evidence:” Held, that although the instruction as asked was proper, there was no error in the modification.
    5. Instruction—as ignoring the question of comparative negligence. The court can not be said to have ignored the question of comparative negligence in an action involving the same, when no instruction is asked by either side upon that question. There is no error in giving an instruction for the plaintiff, stating the law correctly,■ merely because it ignores the question of comparative negligence. The case of Chicago and Northwestern Railway Co. v. Dimich, 96 Ill. 42; does not hold that it is error to give such an instruction.
    6. Same—whether presented within the time prescribed by a rule of court—presumption as to the existence of the rule. Where the bill of exceptions shows that an instruction was refused because not presented within the time required by the rule of practice in such court,—that is, before the commencement of the closing address to the jury,—in the absence of any showing to the contrary in the bill of exceptions, it will be presumed there was such a rule of court, in writing, duly published and spread upon the records, and that the instruction was therefore properly refused.
    7. Bile of exceptions—what should be preserved therein—as, where cm instruction is refused because not presented in time, under a rule of court. If a rule of court requiring all instructions to be handed to the court before the commencement of the closing address to the jury, provides for any discretion in the court, and there is any reason why such discretion should have been exercised and an instruction given, though not presented in apt time, these reasons, as well as the rule itself, should be set out in the bill of exceptions, to enable this court to pass upon them.
    8. Buee of court—requisites to validity. To make a rule of court valid and obligatory upon suitors, it must be in writing, and spread upon the records of the court, and reasonable publicity should be given to it. When this is done, no discretion can be exercised as to its application, unless allowed by the rule itself. Courts have the power to make such, rules when they do not conflict with any statute.

      Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Mr. B. F. Ayer, and Mr. G. S. Eldridge, for the appellant.
    Messrs. Duncan & O’Connor, for the appellee.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The appellee recovered a judgment against appellant, in the LaSalle circuit court, for $7000, for the loss of an arm, and other injuries, sustained by him in consequence of being struck by a car under appellant’s control, while the same was being transferred from one track to another by means of a “running” or “flying” switch. The circuit court overruled a motion for a new trial, and rendered judgment on the verdict, which was affirmed by the Appellate Court for the Second District, and the railroad company has appealed the case to this court.

Appellee was in the habit of shipping sand over appellant’s road every few days, and of applying to the yard-master for a car for that purpose. On the day of the accident he went to see the yard-master to obtain a car, and found him near the south end of the yard, which is several hundred feet long from north to south, and along which, running parallel, are four tracks, and connected by switches in the south as w'ell as north part of the yard. The yard-master was near an engine with which he was about to make the “running switch, ” for the purpose of placing the car w'hich struck appellee, upon the west track, from the south part of the yard. The yard-master, anticipating the wishes of Haskins, (appellee,) notified him, on his approach, where his ear was, and pointed it out, which was some two hundred or three hundred feet north from where Haskins and the yard-master then were, and in the same direction which the west track runs, upon which the car was to be thrown. The yard-master testifies that when he informed Haskins where his car was, he told him to “look out, ” and that Haskins replied, “all right, my boy. ” There is some conflict in the evidence as to whether this was said just at that time or just as Haskins was struck; but there seems to be no question that the yard-master knew they were about to make this “flying switch, ” and throw the car upon the track along or near which Haskins would be likely to go to reach his car. The engine with the car attached, had, in fact, started south to make the necessary run north to accomplish this “flying switch; ” that he gave no express warning to Haskins that it was about to be made, and if in time, the latter did not understand what he meant by the words, “look out, ” and no one was placed upon the switched car, or ahead of it, to warn any one of its approach or danger, nor were any other precautions taken for the safety of those who might be upon the track along which the car was thrown. Haskins was walking on or near this track, toward his car, when struck by the one thus switched, which was moving north in the same direction he was going, at the rate of about five miles per hour. There was a sidewalk on the west side of the track on which Haskins was walking, and had he taken and continued upon that walk he would not have been hurt. Haskins was going to his ear to see if it was in readiness to receive the sand he was intending to ship in it, and to assist his teamster, who was near by with a wagon-load to put in the car.

The above are the main features in the case. There are other matters of detail in the evidence and surroundings, bearing upon the question of care of the respective parties; but as a majority of the court are of opinion that there was some evidence tending to show that, under the circumstances, the appellee did use ordinary care and that the appellant did not, and as we are precluded, under the Appellate Court act, from determining whether that evidence "was sufficient to warrant the jury in finding the verdict they did, or not, it would serve no useful purpose for us to discuss the evidence further.

Counsel for appellant insist, that, conceding all the evidence shows or tends to show, the verdict of the jury is contrary to law, and that upon the incontrovertible facts the evidence utterly fails to show a right of recovery. There was certainly a controversy upon each side as to what facts the evidence established. Appellee contended that it showed that he was using ordinary care when he received the injury, and that appellant’s servants, in the making of this .flying or running switch, were, at the same time, as disclosed by the evidence and surroundings, guilty of negligence and carelessness, whereas appellant’s counsel claim, as we understand them, that, assuming appellee’s own1 testimony as ■ to how the injury came to be inflicted, to be true, and therefore “incontrovertible, ” it was apparent that he was himself guilty of such gross negligence and carelessness as to his own safety, that no recovery could be had or maintained unless the appellant’s servants willfully and wantonly caused the injury, which is not claimed to have been the case. This position is not tenable, for the reason that whether he was using due care or was grossly negligent, is not a question of law to be determined by the court, but one of fact to be ascertained by the jury, under all the evidence, environments and attendant circumstances. Pennsylvania Co. v. Frana, 112 Ill. 398; Pennsylvania Co. v. Conlan, 101 id. 94; Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 id. 220; Chicago and Alton Railroad Co. v. Bonifield, 104 id. 224. As was said in Bonifield’s case, supra: “It is the long settled doctrine of this court that negligence is a fact, the finding of which is clearly within the province of the jury; and it is equally well settled that a question of comparative negligence is as clearly within its province. The legislature has deprived this court of the power of reviewing controverted facts passed upon by a jury. This power has been conferred upon the Appellate Courts, and we have been deprived of its exercise. We are compelled to take them as found by those tribunals, and have no discretion in the matter. In this case it was a controverted fact whether the act of deceased in passing from the train at the time was slight negligence, and the negligence of the company in starting its train as it did, w’hen compared with that of deceased, was gross. These facts have been found by the jury and the Appellate Court, and we have no right to disregard their finding. ” And in the case at bar it was purely a question of fact whether Haskins, having lawful business upon the yard and tracks of appellant, and going on or near to one of its tracks to reach the car that had been assigned him, the only engine at the time about the yard being upon a different track,, was, in any.degree, negligent, and if he was, whether his negligence was slight and that of appellant’s servants in making the running switch in the manner and with the surroundings under which it was done, as compared with his, was gross; and these facts having been passed upon by the jury, and their finding approved by the trial court, and its judgment affirmed by the Appellate Court, we have no power to review their.finding.

Counsel, to maintain the position that we should reverse the judgment below, if, in our opinion, the evidence that was not disputed or controverted established such a state of facts as did not authorize a recovery, cite the case of Missouri Furnace Co. v. Abend, 107 Ill. 44, Paddon et al. v. People’s Insurance Co. id. 196, and Fitch v. Johnson, 104 id. 111.

In the Missouri Furnace Co. case, the opinion states that “it will be assumed that whatever the evidence tends to prove was found in favor of the plaintiff, and that finding, under the Practice act, is, of course, conclusive on this court. It is said, however, there is an entire want of evidence to sustain the averment of the declaration that deceased ‘used due care and diligence’ for his personal safety, and that this defect is fatal to the present recovery, ” and the court thereupon examined the record, and found that “there were circumstances tending to show that deceased observed ordinary care, and that was sufficient to warrant the giving of the instructions,”—and that question was pursued no further.

In Paddon v. Insurance Co., the court, after stating that “where an Appellate Court fails to recite in their judgment they found the facts different from what they were found by the trial court, it will be understood the affirmance of the judgment implies a finding of the facts the same way, ” adds: “Were it true, as counsel insist it is, the facts of this case are uncontroverted, it would then be a question of law whether, on the facts appearing from the record, plaintiff would be entitled to recover. That question, on the authority of Goodrich v. Lincoln, 93 Ill. 360, would be open for consideration in this court, without the trial coiirt being asked to instruct itself how to find as to the law of the case.” By referring to the case of Goodrich v. Lincoln, supra, ly questions of law arising therefrom were presented for the consideration of the court. The court say: “There is no controversy here in regard to the facts, and this may be taken as obviating the necessity of a special finding of facts by the Appellate Court. ”

In Fitch v. Johnson, supra, the case had been tried by the court without a jury, and no proposition of law had been, in writing, submitted to the court for its opinion, and to be written upon as “held” or “refused,” etc., as provided for in the statute. After commenting upon this omission, the court proceeds to say: “Indeed, no act or ruling of the court which we are permitted to consider is claimed by appellant’s counsel to be erroneous, except the rendering of the judgment, and even that claim, so far as it is based upon the insufficiency of the evidence, we are not, as we have already seen, permitted to consider; but in so far as it is baked upon the legal hypothesis that, admitting the facts charged in the declaration to be true, there is no right of recovery, we are. If, conceding the facts to he true in manner and form as charged in the declaration, there is in law no right of recovery, then the circuit court erred in rendering the judgment, and that error not having been corrected in the Appellate Court, may be corrected here; and whether such error exists, in fact, is directly presented by appellant’s motion in arrest of judgment. ” In this case there is no claim but that' the declaration is sufficient. In fact, no motion was made in arrest of judgment for that cause or any other. There was no agreement as to the facts, and no special finding regarding the same by the Appellate Court.

These cases do not, therefore, sustain the conclusions attempted to be drawn from them by appellant’s counsel, but, on the contrary, confirm the doctrine that where the evidence and circumstances surrounding a case tend to prove the existence of a given fact or state of facts, and have been passed upon by a jury in a civil suit, their finding, unless set aside by the trial court or the Appellate Court, is conclusive upon us, and it is wholly immaterial whether we think such finding is in accordance with the weight of evidence or not. •

It is urged that the two first instructions given on behalf of appellee are erroneous, because predicated upon the hypothesis that plaintiff exercised due care to avoid the injury, whereas it is claimed it affirmatively appears that he was guilty of gross negligence. The instruction itself was correct, and it was for the jury to say, from the evidence, whether he had exercised due care or not. We have carefully examined all the instructions given on behalf of appellee, and are unable to perceive any objection to them.

It is said the court ignores the question of comparative negligence. The court was not asked to instruct upon that question by either side. As well might it be said that the court had erred in allowing the jury to take a case without instructions, where none had been asked by either party.

Counsel mistake the ease of Chicago and Northwestern Ry. Co. v. Dimick, Admr. 96 Ill1. 42, in supposing it was there held that where the evidence tended to show that the plaintiff is guilty of some negligence, so that the question of comparative negligence is involved, it was error to give instructions on the part of the. plaintiff ignoring the question of comparative negligence. In that ease the evidence did tend to show that plaintiff had been-guilty of some negligence, but the first and eighth instructions given for him left entirely out of view whether he had been guilty of any care or caution whatever, and it was held that they were bad for that reason, and were not cured by defendant’s instructions, even if they stated the law correctly, because the jury, not being judges of law, would be unable to tell a good instruction from a bad one.

• It is urged that the court erred in modifying appellant’s second and fifth instructions, and refusing to give its eighth. The second one, as asked, is as follows:

“The jury are instructed, that while they are the sole judges of the credibility of witnesses, they have no right to disregard the testimony of an unimpeached witness, sworn on behalf of the defendant, simply because such witness is or was an employe of defendant. ”

To which the court added: “But the relation of any witness to a party to the suit, such as employe, is a matter proper for the consideration of the jury, in the light of all the evidence; and if, after such consideration, it does not appear that the testimony of the witness has been influenced by such relation, then it should be disregarded. What influence, if any, such relation may have had on the testimony of any witness, is to be estimated by the jury in the light of all the evidence, ”—and gave it as thus modified.

The fifth, as asked, read:

“The jury are instructed that it is their duty to try this suit as fairly and impartially as though it were a suit between two private persons, and it is their duty to disregard all appeals made by counsel to them solely with a view of exciting their prejudice against the defendant because it is a railroad corporation, if any such have been made. That while counsel have a right to criticise the testimony of witnesses, they have no right to denounce the testimony of any witnesses as unworthy of credit, simply for the reason that such witnesses are or may have been in the employ of the defendant, in discharge of its business as a railroad corporation; and such appeals and denunciations, if any such have been made, should be entirely disregarded by the jury in arriving at a verdict in this case.”
—Which, as asked, the court refused to give, but qualified the same by adding thereto the following: “It is the duty of the jury to consider the relation of the witnesses to the parties, as instructed in the second foregoing instruction, ”—and then gave the instruction as modified.

Assuming that the instructions were good law as originally asked, and we think they were, we can not see that the modification was at all improper. It does not, in our judgment, stigmatize the witnesses, because they were employes of the company. It was certainly proper for the jury to consider the fact that the relation of employer and employe existed between the company and the witness, to see if the witness, from his manner of testifying, was apparently influenced by it. If he was not, then such relation should be disregarded, and if he was, then the jury would have the right to determine to what extent that relation had influenced his testimony. This is the substance and effect of the modification, and we think would be so understood by the jury.

The eighth instruction was in these words:

“The court instructs the jury, although the jury find, from the evidence, that the plaintiff, William Haskins, went to and upon the railroad yard of the defendant, in the city of LaSalle, for the purpose of seeing Mr. Joyce, the yard-master, to secure-a car in which to ship sand over the defendant’s railroad, and if the jury so find that he was then notified by Joyce that his car was ready for him near the freight house, and he had no further business to transact with Joyce, it was his duty to pass from the tracks on to the cinder walk, if the jury find there was one on the west side of the west track, upon which he could walk with safety, and after he had reached the walk, if the jury find the evidence shows that he did pass from the track on to the cinder walk, it was his duty to exercise all reasonable care and prudence in walking alongside of the track, to keep far enough away from the track so as to avoid collision with a passing car, if the jury find, from the evidence, that the walk was such that he might have passed along, in the exercise of reasonable care, without having any collision with cars that might be passing upon the west track. ”

The reason assigned for not giving the instruction is thus set forth in the bill of exceptions: “Which said eighth instruction, asked for by the defendant, was refused by the court, because the same was not presented within the time required by the rule of practice in said court, to-wit, that all instructions shall be presented by the commencement of the closing address of plaintiff’s counsel, said eighth instruction of defendant not being presented until within about a' minute of the close of said address, when there was not time to examine it without delaying the business of the court for that purpose, and it was therefore refused by the court without examination, to the refusal of which said instruction, by the court, said defendant, by its counsel, then and there excepted.”

Appellant’s counsel say they can find no such rule among those appearing of record and officially published. We take this as a concession that there are rules of court .appearing of record and officially published, and had the bill of exceptions stated that such was the case, and that this rule in question was not among them, we would have had the right to infer that no such rule had been made and entered,upon the record; but as the bill of exceptions shows that the court has a rule of practice requiring all instructions to be presented by the commencement of the closing address of plaintiff’s counsel, we must presume, in the absence of anything to the contrary, and in favor of the regularity of judicial proceedings, that it was a written rule, and had been duly announced and spread upon the records. Had such not been the case, the judge would undoubtedly have incorporated the facts into the bill of exceptions, had he been requested to do so. To make such a rule valid and obligatory upon suitors, it must be in writing and spread upon the records of the court, and reasonable publicity should be given to it. When this is done, no discretion can be exercised as to its application, unless allowed by the rule itself. (Owens v. Ranstead, 22 Ill. 161.) The power of the court to make such rules, where they do not conflict with the statutes, has been frequently recognized and declared by this court. (Owens v. Ranstead, supra; Prindeville v. The People, 42 Ill. 217.) We see nothing in this refused instruction itself to indicate why it could not have been prepared and handed up with the others before the commencement of the closing argument in the case. If the rule admitted of any discretion in the court, and there was any reason why it should have been exercised and the instruction given, though not presented in apt time, these reasons, as well as the rule itself, should have been set out in the bill of exceptions, to enable this court to pass upon them. We are of opinion, therefore, that there was no error in refusing the instruction.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Scott:

I dissent from this opinion and from the decision made.