text:
    Estate of Thomas Nester v. Carney Brothers Co.
    i. Amendments — Of Records, Not to be Made from. Personal Recollections. — It is a well settled general rule that an amendment of a record can not be made from the personal recollection of the judge alone, nor unless there is some paper, minute or memoranda made and preserved as part of the record, on which to base the amendment.
    3. Bills of Exceptions — Signing and Settling Can Only be Performed by the Judge When Sitting as a Court. — The settling and allowing of a bill of exceptions is a judicial act. The judge of the court can not perform such an act as an individual.
    3. Same — When the Bill is a Nullity. — Where a judge extends the time for filing a bill of exceptions at a time and place when and where he is not holding his court his action is a nullity..
    4. Judges — No Judicial Power Outside of the Courts in Which They Officiate. — A judge of a court has no judicial power outside of the court in which he officiates.
    5. Appellate Court Practice — When a Bill of Exceptions is Eliminated from the Record. — Where a bill of exceptions is stricken from the files and eliminated from the record of a case pending in the Appellate Court, there is nothing for the court to consider, except such matters as arise upon the common law record and are assigned for error.
    6. Same— Where a Bill of Exceptions is Necessary. — In order to assign error upon the action of the court below in striking a plea of other paper from the files an exception to the action of the court must be taken and preserved by a bill of exceptions.
    7. Attachment — Designating Defendants by Reputed Names. — It is sufficient, in all cases of attachment, to designate defendants by their reputed names, by surnames, and joint defendants by their separate or partnership names, or by such names,- styles, or titles as they are usually known.
    Attachment Proceedings. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanbcy, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 23, 1901.
    Statement toy the Court. — Appellee brought an attachment September 12, 1900, against “the estate of Thomas Hester, and George Hester, as executor of the estate of Thomas Hester, defendants,” the affidavit stating that the defendants were not residents of Illinois. The writ of attachment was levied upon a large amount of personal property, and certain garnishees were summoned. Parties in whose possession the property was found gave a forthcoming bond to the sheriff, who thereupon returned the property to them. The defendants entered a special appearance October 13, 1900, limiting it for the purpose of a motion to dissolve the attachment, having the garnishee dismissed and the suit dismissed for want of jurisdiction, and on November 12,1900, filed a plea to the jurisdiction, in substance to the effect that at and before the commencement of the action said George Nester was executor of the estate of Thomas Nester, deceased, by virtue of the terms of the last will of Thomas Nester, deceased, and of letters testamentary from the Probate Court of Wayne County, Michigan, and that he had never been appointed executor in the State of Illinois nor had letters testamentary or of administration issued to him from any court in Illinois, and that the estate of Thomas Nester, deceased, is in course of administration in the State of Michigan, and not in the State of Illinois. November 11, 1900, appellee filed, by leave of the court, air amended affidavit in attachment and movéd to dismiss the cause as to George Nester as executor of the estate of Thomas Nester. The motion was allowed. The amended affidavit states, among other things, “ that the defendant herein, whose reputed name is ‘ Estate of Thomas Nester,5 is justly indebted to said Carney Bros.,55 etc., and further, “ that the reputed name of defendant herein, and the name, style and title by which the defendant herein is usually known, is ‘ Estate of Thomas Nester,5 as hereinbefore expressed and set forth, and that the defendant herein is now and for more than three years last past has been engaged in the business of buying and selling logs, lumber and like property under the name, style and title of ‘ Estate of Thomas Nester.5 55
    On November 10, 1900, when the motion to dismiss the cause for want of jurisdiction was overruled, the plaintiff, appellee herein, entered its motion for a default, which was continued to the November term. On November 17, 1900, the court ordered that the attachment writ, declaration, affidavit of claim and interrogatories to the garnishees be amended by striking out the following eleven words, viz.,' “ and George Nester, as executor of said estate of Thomas Nester,” wherever said eleven words appear in said papers or either of them.
    Service by publication was had upon the defendant “ Estate of Thomas Nester,” pursuant to the terms of the statute in that regard, and on December 1, 1900, without any leave from the court, so far as appears from the record, “ the defendant, by Charles E. Kremer, its attorney,” filed a plea of the general issue and moved to withdraw its plea to the jurisdiction of the court. When this motion Avas made does not appear from the abstract, but on December 8, 1900, such a motion Avas continued by agreement of the parties, as well as a motion of the plaintiff for a default, to January 12, 1901.
    January 12, 1901, the court allowed the motion to Avithdraw the plea to the jurisdiction, and struck the said plea of the general issue from the files, entered a default against the defendant “ Estate of Thomas Nester,” assessed the plaintiff’s damages at $8,641.70, and entered judgment against “ said Estate of Thomas Nester, defendant herein,” for that amount and costs, and aavarded execution against the property attached. Erom this judgment the appeal herein is taken.
    C. E. Kremer and C. W. Greenfield, attorneys for appellant.
    Nkavman, Nortiirup & Levinson, attorneys for appellee; Harry Goodman and Arthur B. Schaffner, of counsel.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

A preliminary question is presented by two motions made in this court, one by the appellee to strike the bill of exceptions from the record, and another by the appellant to strike from the record the amendment to the bill of exceptions.

The original record, Avhich was at that time a full and complete transcript, and was filed in this court on the 6th day of March, 1901, contains no bill of exceptions. A bill of exceptions in the cause was settled, signed and sealed by the judge of the Circuit Court on March 11,1901, at the February term of the court (which was within the time allowed for filing the same in that court), and was filed in this court on April 4,1901, by leave of this court.

April 15, 1901, also by leave of this court, the appellee filed herein an amended or supplemental record made by the Circuit Court on April 10, 1901, at the March term of the court, which purports to be a certificate and an order by that court amending the bill of exceptions filed therein on March 11, 1901. The motion of appellee to strike the bill of exceptions from the files is based in part upon this supplemental record, and the appellant, by its motion, asks that this supplemental record be stricken from the files. We will consider the latter motion first.

For appellant it is contended that by this amended or supplemental record, the Circuit Court seeks, after the lapse of the term, to impeach its own record by a finding of the judge of that court based on his own recollection entirely. In this we think the learned counsel are not supported by the record. It appears from the amendment that it was made upon “ a full and careful inspection and examination of all the records and files of the Circuit Court of Cook County, and of the paper purporting to be a bill of exceptions filed in this cause on, to wit, the 11th dajr of March, 1901, having been duly made by Elbridge Hanecy, the judge of said Circuit Court.” Counsel say there is absolutely nothing in the record, files or bill of exceptions upon which the court can make this finding, and there are no memoranda of any kind therein which indicate that the bill of exceptions wás filed in an improper place, or where it was in fact executed. This, so far as we have been able to ascertain from an inspection of the record and bill of exceptions in this court, is true, save what is above quoted as being the basis of the amendment. In the absence of any showing as to what records and . files of the Circuit Court were examined, we must presume there was sufficient to justify the action of the court. Gebbie v. Mooney, 121 Ill. 255-8, and cases cited; R. R. Co. v. Wingler, 165 Ill. 634, and cases cited.

The amendment states, in substance, that on March 6, 1901, the branch of the Circuit Court in which the Hon. El bridge Hanecy was then sitting was held and adjourned on that day, and “ that he did not again sit in, or preside over or convene, or hold said branch of the Circuit Court of Cook County, or any other branch of said Circuit Court of Cook County, or any other court, after said 6 th day of March, A. D. 1901, and until the 5th day of April, A. D. 1901.” From an inspection of the records of the Circuit Court, which would necessarily show the times of adjournment and convening of the branch of that court presided over by Judge Hanecy, and which would be properly a part of the record in this cause, we can perceive no reason why Judge Hanecy should not be able to determine when he adjourned the branch of the Circuit Court presided over by him, and when it was again convened, and that in the meantime he did not preside over, convene or hold any branch of that court. If the records and files of the Circuit Court examined by Judge Hanecy failed to afford this information, it was incumbent upon the appellant to make such fact appear in the amendment to the bill of exceptions by having inserted therein what was in fact examined by the judge. Ho case cited by appellant’s counsel holds that the trial court is confined to the records and files of the particular case under consideration at the time of making the amendment. It is a well settled general rule that such an amendment can not be made from the personal recollection of the judge alone, nor unless there is some paper, minute or memoranda made and preserved as part of the record, on which to base the amendment. C., M. & St. P. Ry. v. Walsh, 51 Ill. App. 584, affirmed in 150 Ill. 608: Gebbie v. Mooney, 121 Ill. 255-8; Dougherty v. People, 118 Ill. 160-4; R. R. Co. v. Wingler, 165 Ill. 634.

It was held, however, in Dunham v. South Park Comrs., 87 Ill. 185-9, that the judge who tried a cause may allow an amendment of the record after the term had elapsed to show that he alone presided at the trial upon his own personal knowledge of the fact, and without anything appearing of record by which to make the amendment. The court say :

“ It was a matter of conscience with the judge, and of his own consciousness also, and an amendment like this, made under such circumstances, is all-sufficient.”

In this case, however, it is unnecessary, in order to sustain this amendment, that it should be based upon the judge’s recollection, in view of the certificate made and the failure of appellant to preserve in the record what the court did in fact examine. -

When the bill of exceptions, as modified by the said amendment or supplemental record, is considered, it appears that on the 11th day of March, 1901, when the bill of exceptions appears to have been settled and allowed, signed and sealed, Judge Hanecy, who presided at the trial of the cause, was not holding any session of, nor sitting in, nor presiding over the Circuit Court of Cook County or any branch thereof, and that when said bill of exceptions was so settled and allowed, signed and sealed, the same was done at a time and place when and where he, the said judge, was not holding, sitting in, nor presiding over said Circuit Court, or any branch thereof, and at a place other than the court house of said county of Cook.

Under this state of facts it seems clear that the bill of exceptions as amended is a nullity. The settling and allowing of a bill of exceptions is a judicial act, and can only be performed by a judge when sitting as a court. The judge can not perform such an act as an individual, but only when he is acting as a court. Hake v. Strubel, 121 Ill. 321; Ling v. King, 91 Ill. 573; Schlesinger v. Allen, 69 Ill. App. 141, and cases cited; Mailers v. Whittier M. Co., 170 Ill. 435; People v. Chytraus, 183 Ill. 191; U. S. Life Ins. Co. v. Shattuck, 159 Ill. 617.

In the Mailers case, supra, the court say:

“A determination of what shall be incorporated in a bill of exceptions is a judicial act to be determined by the exercise of judicial power.”

In the Shattuck case, supra, the court say : “ Settling the bill of exceptions is a judicial act; ” and in the same case it was held that in discharging the judicial functions of the court, a judge has no judicial power outside of the court in which he officiates, or, in other words, a judge, as an individual, has no power to hear and determine any matter involving the exercise of judicial power,” and that where a judge of the Superior Court attempted to extend the time for filing a bill of exceptions at a time and place when and where he was not holding a branch of that court, his action was a nullity. So here, we are of opinion that the act of the circuit judge in settling and allowing the bill of exceptions under the circumstances stated, Avas a nullity, and it folloAvs that the bill of exceptions must be stricken from the records of this court.

The bill of excéptions being eliminated from the record, Ave have remaining no question to consider except what may arise upon the common law record. It is argued that the court erred in striking from the files the defendant’s plea of the general issue. This question can not arise in the absence of the bill of exceptions. In order to assign error upon the action of the court striking a plea or other paper from the files, an exception to the court’s ruling in this regard must be preserved by a bill of exceptions. Reed v. Horne, 73 Ill. 598; Snell v. Trustees, 58 Ill. 290; Fanning v. Russell, 81 Ill. 398; Van Cott v. Sprague, 5 Ill. App. 99.

It is also said that the court erred in entering judgment by default. We think not. There appears to have been service by publication, according to the statute, upon the defendant, in proper time to justify the default and judgment, and the defendant, when its plea of the general issue Avas stricken from the files, so far as appears from the record .did not ask to be permitted to make any further defense.

It is also argued that the court was without jurisdiction in the cause, but we think this contention is not sound. Sec. 3 of Ch. 11, Rev. Stat., relating to attachments, is as follows :

“ It shall be sufficient in all cases of attachment to designate defendants by their reputed names, by surnames, and joint defendants by their separate or partnership names, or by such names, styles or titles as they are usually known; and heirs, executors and administrators of deceased defendants shall be subject to the provisions of this act in all cases in which it may be applicable to them.”

By the amendments allowed by the trial court November 17, 1900, the defendant,. “ George Hester as executor of said estate of Thomas Hester,” was dismissed out of the case, and section 28 of the attachment act provides that in the event of an amendment being allowed “ the cause shall proceed as if such proceedings had originally been sufficient.” While it may be true, as contended by counsel for appellant, that the court had no jurisdiction of the estate of Thomas Hester, deceased, which is unnecessary for us to decide, that does not deprive the court of jurisdiction of the estate of Thomas Hester, the other defendant in the case, it being served by publication, in accordance with the statute, and having also entered a general appearance by its attorney, who filed on its behalf the plea of the general issue. The amended affidavit of attachment shows that the reputed name of this defendant and the name, style and title by which it is usually known, was “Estate of Thomas Hester,” and that this defendant was at the time of filing the affidavit, and for more than three years then last past had been, engaged in the business of buying and selling logs, lumber and like' property under that name. See U. S. Ex. Co. v. Bedbury, 34 Ill. 459.

There being no error shown by the common law record, the judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Adams

license: Public Domain

text:
    Seal Lock Co. v. Chicago Manufacturing and Optical Co.
    1. Account Stated — Evidence Sufficient to Warrant the Jury in Finding. — Where a manufacturing company had a quantity of manufactured goods ready for shipment and delivery, presented a bill for the same to its customer, who paid to it on the same the sum of §250, without objection, such action on the part of the customer was held sufficient to warrant the jury in finding that there was an account stated between the parties.
    . 2. Appellate Court Practice — Objection to the Form of a Verdict Must be Made in the Court Below. — Where a written verdict is signed by persons as jurors, and some of the names signed to it do not correspond with the names of the persons impaneled, no objection not made to it when rendered, can be made in the Appellate Court.
    3. Verdicts — When the Recorded Verdict Prevails. — Where the roc- . ord shows that the identical jurors impaneled to try a case signed the verdict as shown by the record, such recorded verdict will prevail, and is to be regarded as the true verdict rather than the paper signed and returned by the jurors.
    Assumpsit, for goods sold. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 23, 1901.
    Douthart & Brendecke, attorneys for appellant.
    Jesse A. Henry E. Baldwin, attorneys for appellee.
   Me. Justice Adams

delivered the opinion of the court.

Appellee recovered judgment against appellant, in an action of assumpsit, for the sum of $502, from which judgment this appeal was taken.

The declaration contains the common counts, including a count on account stated.

The following letters were written by appellee to appellant :

“ Chicago, April 23, 1900.
Chicago Meg. & Optical Co.,
18-30 W. Eandolph St., City.
Gentlemen — We hereby desire you to make for us a duplicate of our previous order for 25,000 parts for our O. K. lamp, called the O. JL 1900, same to be subject to our Mr. John Schumacher’s supervision and approval, and if he should desire some light changes in same it is understood that you will do so without extra charge.
Tours very truly,
Seal Lock Company,
By Charles S. Wilcox.”

The previous order was as follows :

“ Chicago, December 13, 1899. Chicago Mfg. & Optical Co.,
18-30 W. Randolph St., City.
Gentlemen — Your favor of the 12th inst. containing proposition to make us 25,000 sets of valve material as per sample submitted, each set to consist of one valve stem, one valve seat and filler cap, for three cents per set, or $750 for 25,000 is hereby accepted.
Yours very truly,
Seal Lock Company,
By Charles S. Wilcox, Sec’y.”

The goods mentioned in the letter first quoted were manufactured by appellee under the direction of Mr. Schumacher, an officer of appellant, and were approved by him. He said they were all right. Appellant boxed them ready for delivery, presented a bill to appellant for $752.50 about June 19,1900, which included $2 for other work, and appellant paid to appellee $250 on the bill, without objection, so far as appears from the evidence. Subsequently, appellee received from appellant the following letter:

“ Chicago, August 17, 1900.
Chicago Mfg. & Optical Co., Chicago, 111.
Gentlemen — It is my unpleasant duty to notify you that owing to the fact that there is no demand for lamps, and not likely to be in the near future, and owing to the further fact that the Seal Lock Company has manufactured and has on hand a very large number of lamps which it finds impossible to sell, it has become insolvent, and that all creditors may be treated alike, I would ask you to meet the other creditors and the officers of the company at the office of its attorneys, Douthart & Brendecke, 1222 Unity Building, on Monday, the 20th of August, 1900, at ten o’clock a. m., and oblige,
Yours truly,
Seal Lock Company,
By Charles S. Wilcox.”

Mr. Fred B. Smith, appellee’s secretary and treasurer, attended the meeting mentioned in the letter, at the place therein indicated. Mr. Douthart, appellant’s attorney, was at the meeting, as appellant’s representative, and read for the information of those present, a list of appellant’s liabilities, among which was the following: “ Chicago Manufacturing and Optical Company, $502,000.”

We think the evidence sufficient to warrant the jury in finding that there was an account stated between the parties. The facts that the bill was rendered June 19, 1900, that appellant, without making any objection to it, paid $250 on it, and that appellant, by its attorney, Mr. Douthart, stated, at the meeting of the creditors, the liability of appellant to appellee to be the sum of $502, are strong evidence of an account stated between the parties. 1 Green-leaf on Evidence, Sec. 197; 2 Idem, 226.

Appellant’s counsel object that on a written verdict signed by persons as jurors, some of the names signed do not correspond with the names of persons impaneled as jurors. This objection was not made in the trial court, when the verdict was rendered, and therefore can not be made here. Brewer & H. B’g Co., v. Herman, 187 Ill. 40.

The record proper ghows that the jurors who were impaneled rendered the verdict, and this, the recorded ver: diet announced in open court, must be regarded as the verdict, and not the paper signed as aforesaid. Griffin v. Larned, 111 Ill. 432; Auerbach v. Arquelles, 80 Ill. App. 167, 170, and cases there cited.

We find no reversible error in the record, and the judgment will be affirmed.


author: Mr. Presiding Justice Windes

text:
    Warden Coal Washing Co. v. Robert Meyer et al.
    1. Contracts— When Not to be Considered as Unilateral. — The court holds that the contract under consideration in this case, consummated by correspondence and contained in the statement, is not unilateral.
    2. Same — Doubtful Expressions to be Construed, in the Light of Surrounding Circumstances. — Contracts are to be construed in the light of the circumstances surrounding the parties and of the objects which they evidently had in view. The objects which both parties had in view at the time of making the contract, may be referred to for the purpose of determining the meaning of doubtful expressions.
    8. Appellate Court Practice — New Points Not to be Raised in the

      Reply Brief. — The Appellate Court will not consider points raised for the first time in the reply brief.
    Action on Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook County; the Hon, Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 23, 1901.
    Statement by the Court. — Appellant brought suit in a justice court, where judgment was rendered for defendants, the appellees, and it appealed to the Circuit Court, where, on a trial without a jurj7, there was a finding for the defendants and judgment thereon, from which this appeal is taken.
    This cause was tried upon the "following stipulation of facts, to wit:
    That during the months of March and April, A. D. 1900, the plaintiff delivered to the defendants coal of the value of $124.90, for which the plaintiff has received no pay. That by virtue of two certain letters, one dated September 7, 1899, from plaintiff to defendants, and the other dated September 5, 1899, from defendants to plaintiff, (copies of which letters are hereto attached marked exhibits “ A ” and “ B ” respectively, and made a part hereof), the defendants claim, to have an offset against plaintiff by reason, as claimed by-defendants, of plaintiff’s not having lived up to its undertaking in said letter of September 7th, to furnish defendants with coal. And it is conceded that defendants ordered between September 15, 1899, and May'l, 1900, coal which the plaintiff failed to deliver, whereby and by reason of said failure said defendants were obliged to and did buy coal from other parties than the plaintiffs between September 15, 1899, and May 1, 1900, for which they, defendants, paid $124.90 more than the price which plaintiff quoted in said letter of September 7, 1899.
    Exhibits “A” and “B” above referred toare as follows:.
    Exhibit A.
    •“Chicago, Sept. 7, 1899.
    Jacob Meyer & Co., Franklin St., Chicago.
    Gentlemen: Confirming conversation you had with our Mi'. Green yesterday, whereby he made you the following prices on our Oarterville washed coal:
    Mo. 1 at $2.10.
    Mo. 2 at $1.95.
    Prices to remain same, with the understanding that you give us your trade until May 1, 1900, quality of coal to average as good as sample delivered.
    Yours truly,
    Warden Coal Washing Co.”
    Exhibit B.
    “Chicago, III., 9-15, 1899.
    The Warden Coal Washing Co., City. .
    Dear Sirs: We have your favor of the 7th inst., and note contents as correct and accept contract herewith.
    Yours truly,
    Jacob Meyer & Bros.”
    Sidney B. Smith and Maurice II. Mugent, attorneys for appellant.
    Bulkley, Gray & More, attorneys for appellees.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The suit was to recover for coal delivered by appellant to appellees during March and April, 1900. For appellant it is claimed that the letters, exhibits “ A ” and “ B,” copied in the statement, can not be considered a contract between appellant and appellees because it is unilateral, and too uncertain and indefinite to constitute a valid contract. 1

Many cases cited by appellant’s counsel in jurisdictions outside of Illinois seem to support their contentions in the respect claimed, but we are of opinion that the case of Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, is conclusive against the contentions of appellant. The contract there under consideration was to buy appellant’s “ requirements of anthracite coal for season of 1886-1887 of said Wbitebreast Coal Co., which is to furnish the same as ordered,” at prices named and upon conditions not questioned in the case. It was claimed that the contract was void for uncertainty and for want of mutuality. The contention was overruled, and the court say:

“ Contracts should' be construed in the light of the circumstances surrounding the parties, and of the objects which they evidently had in view. The circumstances which both parties had in view at the time of making the contract, may lie referred to for the purpose of determining the meaning of doubtful expressions. Courts will seek to discover and give effect to the intention of the parties, so that performance of the contract may be enforced according to the sense in which they mutually understood it at the time it was made; and greater regard is to be had to their clear intent than to any particular words which they may have used to express it.”

The court held that the word “requirements” evidently meant the amount or quantity of coal which appellant would need in its business for the specified season, and that the appellees agreed to furnish that amount of coal as it should be ordered by the appellant during that season. So here it is reasonable to presume, as was said by the court in the above case, that the parties here dealing with one another were practical business men. They were no doubt familiar with each other’s business, and appellant knew with reasonable certainty what the trade of appellees was. Appellant’s letter shows that its Mr. Green had a conversation with appellees and the correspondence was an outcome of that conversation. We think, in the light of the decision cited, supra, the contract as it appears from the correspondence is in substance that appellant proposed to appellees to furnish them Carterville washed coal, No. 1 at $2.10, and No. 2 at $1.95 per ton, in sufficient amount to supply appellees’ trade to May 1, 1900, and that appellees agreed to take that kind of coal at the prices named to the extent of their trade until May 1,1900. We think appellant, by its undertaking, was bound to furnish to appellees the amount of coal their trade required, but no more, at the prices named, and appellees were bound to take the same at said prices. It appears that appellees, between September 15, 1899, the date when the proposition of appellant was accepted by them, and.May 1, 1900, ordered coal of appellant, which it failed to deliver, and that by reason thereof appellees were obliged to and did buy other coal between said dates, for which they paid $124.90 more than the prices which appellant proposed to furnish it to them for. We think these facts present a complete defense by way of recoupment to appellant’s claim. See also the following cases upon similar contracts: Nat’l Fur Co. v. Keystone Mfg. Co., 110 Ill. 427; Cooper v. Lansing Wheel Co., 54 N. W. Rep. (Mich.), 39; Wells v. Alexandre, 130 N. Y. 642; Crane v. Crane, 105 Fed. Rep. 869; Smith v. Preston, 82 Ill. App. 285-93.

The contention of appellant, for the first time made in its reply brief, that the stipulation of facts does not show' that appellees ordered from appellant Carterville w'ashed coal, comes too late. It has been frequently decided by the Supreme Court that it wfill not consider points raised for the first time by the reply brief. Indiana, etc., Co. v. People, 170 Ill. 474; Town of Big Grove v. Town of Fox, 89 Ill. App. 84, and cases cited.

Even if the point were properly before us for consideration, we think it without merit. No such claim appears to have been made in the trial court, and it is evident that only Carterville washed coal was in the contemplation of the parties, and no doubt that was the coal ordered by appellees.

The judgment is therefore affirmed.


author: Mr. Presiding Justice Freeman

text:
    Albert Palenzke v. Henry F. Bruning et al.
    1. Coboners — Do Not Aet in a Judicial Capacity When Holding an Inquest. — In this State, under the present constitution (1870), the coroner and his jury do not constitute a court and are not clothed with judicial powers.
    2. Same— Right to Hold’Inquest — Powers and Duties — The right of a coroner to hold an inquest in accordance with the provisions of the statute is not open to question, but his right and power to do so is to be exercised in pursuance of the statutory authority. His office gives him no general right to enter the house of mourning at his mere option or caprice and take with him a doctor to perform an autopsy. He can only do this in case the deceased person is supposed to have come to his or her death by violence, casualty or undue means, and he is then required to summon a jury forthwith to inquire into the cause and manner of the death.
    3. Eights of Property — Jra Dead Bodies. — While it is true there is no right of property in a dead body in the ordinary sense, it is also true that the nearest relatives of the deceased are, and have been in all ages so far as known, except under ecclesiastical law, recognized as legally entitled to the custody of such body and as having the right to lay it away in burial. It is the duty no less than the right of such relatives to protect it from unnecessary violation, and any infringement upon such right, except where made necessary for the discovery and punishment of crime, violates the tenderest sentiments of humanity.
    ' 4. Same — In Dead Bodies Defined — Bights of Action. — The rights of the next of kin in the body of a deceased relative is the right to the custody of what remains when the breath leaves the body, and not merely to a hacked and mutilated corpse, such as some stranger may choose to turn over to them, and an invasion or violation of this right furnishes a ground for a civil action for damages.
    5. Burial — Exclusive Rights of. in the Next of Kin. — In the absence of testamentary direction on the part of the deceased, the exclusive right of burial or of designating the place in which human remains shall be interred is with the next of kin.
    6. Same — Dead Bodies, Under the Statute of This State. — The right to the remains of deceased kindred is recognized by the statute (R. S. Chap. 91, Sec. 1,) of this State, which requires all state, county, town and city officers in whose custody the body of a deceased person, required to be buried at public expense, maybe, to surrender such bodv f'or interment to the next of kin instead of turning it over to a medical school for the advancement of science.
    Trespass on the Case, for the mutilation of a dead body. Appeal from the Circuit Court of Cook County; the Hon. Jesse Holdom. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 26, 1901.
    Emil A. Meyer, attorney for appellant.
    The right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect, and any violation of it will give rise to an action for damages. Larson v. Chase, 47 Minn. 307; Foley v. Phelps, 1 N. Y. App. Div. 551; Renihan v. Wright, 125 Ind. 536; Hale v. Bonner, 82 Tex. 33; Bessemer Land, etc., Co. v. Jenkins, 111 Ala. 135.
    Where the rights of one legally entitled to the custody of a dead body are violated by mutilation of the body or otherwise, the party injured may in an action for damages recover for the mental suffering caused by the injury. Larson v. Chase, 47 Minn. 307; Hale v. Bonner, 82 Tex. 33; Renihan v. Wright, 125 Ind. 536.
    It is, the duty of the father to bury the body of his deceased child, and he is bound to provide for the funeral of his child if he can in any lawful way procure the means of so doing. Keg v. Vann, 8 Eng. L. and Equity, 596.
    D. K. Thomas, attorney for appellee
    Henry F. Bruning, and Abito & Amro, attorneys for appellee Louis Hacker, contended that the statute makes it the duty of a coroner to hold an inquisition over a dead body, citing Hurd’s Stat., Chap. 31, Sec. 10.
    A coroner may cause a post-mortem in the nature of an autopsy to be made where a superficial view of the body is insufficient to determine the cause of death and where the circumstances, in his discretion, warrant a thorough investigation. In such cases he may employ an expert to examine the body. 7 A. & E. Enc. of Law, 2d Ed., Yol. 7, page 608, and cases cited.
    The employment of a physician to make an autopsy rests in the sound discretion of the coroner and may be exercised whether the jury deem such employment requisite or not. St. Francis County v. Cummings, 55 Ark. 419.
    In Illinois it is held that at common law, as well as under the statute of Edward I. and our statute concerning coroners, which are but declaratory of the common law, the coroner holding an inquest super visum corporis, is in the performance of functions judicial in their character — so distinctly judicial that he is protected under the principles which protect judicial officers from responsibility in a civil action brought by a private person. U. S. Life Insurance Co. v. Vocke, 129 Ill. 557; see page 566.
    Coroners have powers to hold inquests and order autopsies to be made when in their judgment an autopsy is an appropriate means of ascertaining the cause of a person’s death, and in such case a coroner may lawfully order an autopsy to be made without the consent of the family of the deceased. A physician who makes a post-mortem examination in the usual manner and in pursuance of authority of the coroner is not liable in an action to the family of the deceased for the mutilation of his body without their consent. Young v. College of Physicians and Surgeons, 81 Md. 358.
    At common law the office of coroner was one of great dignity. Its jurisdiction was quite extensive, the limits of which have been the subject of conflicting opinions. The statute de officio coronatoris, 4 Edw. I. (in affirmance of the common law), defined the powers of the coroner, and this statute is the basis of his modern jurisdiction. In holding inquisitions he acts judicially, but in performing the duties of sheriff he acts ministerially. 7 A. & E. Enc. of Law, 602, and cases cited.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an action brought by appellant against George Berz, coroner of Cook county, Henry F. Pruning, a physician, and Louis Hacker, an undertaker, to recover damages for pain and anguish of mind, and injury to property caused by an alleged wanton, malicious and wrongful mutilation of the body of appellant’s deceased minor son. The declaration charges, in substance, that the defendants took the body of the deceased, which had been prepared and coffined for burial, from the parents’ possession, against the will of the latter, and conducted, at a wholly improper time, a postmortem examination, which it then became the duty of the defendants to conduct in a decent and respectable manner, and to return the body to the plaintiff, without unnecessary mutilation, in a lit and proper condition for burial; but that the defendants nevertheless proceeded, wantonly and maliciously, to “ cut open, hack, tear and disfigure the body, bespattering the clothing and the house, furniture and premises; that the brain, liver and spleen were removed, and in the presence of friends and relatives were conveyed to and thrown into a privy or water-closet; that the plaintiff was thus deprived, of the right of burial of the parts so removed, and that the decent and proper burial of the deceased was by the conduct of the defendants prevented.

The trial court sustained a general demurrer to the declaration, which consisted of three counts. HSTo specific defect in any of the counts is pointed out, and the demurrer was sustained on the broad, general ground that no cause of action exists, under the facts as stated, against the coroner, and the physician and undertaker, his assistants. Unless the declaration is defective in substance the demurrer was not properly sustained. A general demurrer admits the facts well pleaded. Arenz v. Weir, 89 Ill. 25.

It is contended on the part of appellees that the coroner in holding an inquisition, acts in a judicial capacity, and that “ he is protected under the principles which protect judicial officers from responsibility in a civil action brought by a private person.”

Section 10, Chap. 31, E. S., is as follows : “ Every coroner, whenever and as soon as he knows oris informed that the dead body of any person is found or lying within his county supposed to have come to his or her death by violence, casualty or any undue means, shall repair to the place where the dead body is, and take charge of the same, and forthwith summon a jury of six good and lawful men of the neighborhood where the body is found or lying, to assemble at the place where the body is, at such time as he shall direct, and upon a view of the body to inquire into the cause and manner of the death.”

Section 21 provides : “ After the inquisition the coroner may deliver the body of the deceased to his friends, if there be any, but if not, he shall cause him to be decently buried, the expense to be paid from the property of the deceased, if there is sufficient, if not, by the county.”

In the case of United States Life Ins. Co. v. Vocke, 129 Ill. 557, 562-3, will be found a review by the court of the powers and duties of coroners. Appellees’ attorneys cite the case as authority for their claim that the coroner in holding an inquisition acts in a judicial capacity. The case does not so hold. It decides only., in the language of the opinion (p. 664), “ whether a coroner’s inquisition should be used as evidence ” in a case of that character. In the separate but concurring opinion of Mr. Justice Baker, the conclusion is reached that while “ at common law, and in this State until the adoption of the constitution of 1848, a coroner and his jury holding an inquest postmortem, constituted a court with judicial powers,” it is nevertheless “ certain in this State, and under its present constitution, the coroner and his jury do not constitute a court, and are not clothed with judicial powers, as was the case at common law.” T.his, because article 6 of the constitution of 1870 “ disposes of all the judicial power of the State, and completely exhausts the subject, and a coroner’s inquest is not provided for therein.”

The right of a coroner to hold an inquest in accordance with the provisions of the statute is not open to question. But his right and power so to do is to be exercised in pursuance of the statutory authority. His office in this State gives him no general right to enter any house of mourning at his mere option or caprice, and take with him a doctor to perform an autopsy. He can do this only in case the deceased is “ supposed to have come to his or her death by violence, casualty or undue means,” and he is then required to summon a jury “ forthwith to inquire into the cause and manner of death.”

It may well be questioned whether he has authority to proceed to violate the dead body by an autopsy, without the advisability being made apparent by some preliminary inquiry of the jury. If it should be made plain upon such inquiry that the death was purely from accident or natural causes, no reason for an autopsy would exist, and the coroner and his assistants would have no more right to dissect the remains against the wishes of the relatives entitled to possession of them, than any mere interloper. If, on the other hand, it became apparent on preliminary inquiry that an autopsy was necessary or advisable to ascertain the facts, such autopsy would no doubt be justified.

While it may be true there is no right of property in a dead body, in the ordinary sense, it is also true that the •nearest relatives of the deceased are and have been in all ages, so far as known, except under ecclesiastical law, recognized as legally entitled to its custody, to lay it away in ■burial. It is the duty no less than the right of such relatives to protect it from unnecessary violation, and any infringement upon that right, except where made necessary for the discovery and punishment of crime, violates the tenderest sentiments of humanity. In Pierce v. Proprietors of Swan Point Cemetery, 10 Rhode Island, 277, p. 242, the court says: “ Although, as we have said, the body is •not property in the usually recognized' sense of the word, yet we may consider it as a sort of §"ií»s¿.property, to which certain persons may have rights, as they have duties to perform toward it, arising out of our common humanity.” In Foley v. Phelps, 1 N. Y. Appellate Division Supreme Court Reports, 551 (p. 553), it is said: “It has- been stated in general terms in several cases that in the absence of testamentary direction on the part of the deceased the exclusive right of burial, and of designating the place in vrhich human remains shall be interred, is with the next of kin.” In this last mentioned case, the action was brought to recover damages for unauthorized dissection of the remains of the plaintiff’s husband, in that State an unlawful act; and it is further said by the court: “ Irrespective of any claim of property, the right which inhered in the. plaintiff as the decedent’s widow, and in one- sense his nearest relative, was a right to the possession of the body for the purpose of burying it. * * * It is the right to what remains when the breath leaves the body, and not merely to such a hacked, hewed and mutilated corpse as some stranger, an offender against the criminal law, may choose to turn over to an afflicted relative. If this right exists, as we .think it clearly does, the invasion or violation of it fur-nishes a groutid for a civil action for damages.”

The right to the remains of deceased kindred is recognized by the statute of this State, which requires all state, county, town and city officers in whose custody the body of any deceased person required to be buried at public expense may be, to surrender such remains for interment to such kindred, instead of turning them over to medical schools for advancement of science. (R. S. Chap. 91, Sec. 1.)

The appellant in this case was undoubtedly entitled to the remains of his son for proper burial. Unless sufficient reason existed for an autopsy he was entitled to the body unmutilated. If such reason did exist, he was, nevertheless, entitled to the whole body, even though necessarily disfigured, unless it proved necessary to remove and preserve some particular organ for further examination, as to whether a crime had been committed, or for evidence. But no one — coroner, nor doctor, nor undertaker — had the right to remove parts of the body and, without the parents’ consent, throw them into a privy vault. Such conduct violates every instinct of propriety, and could not fail to outrage the feelings of the kindred of the deceased. For such violation of the appellant’s rights an action for damages can, we think, be maintained. It follows that the demurrer to the declaration was improperly sustained, and the judgment of the Superior Court must be reversed and the cause remanded.


author: Mr. Justice Adams

text:
    London Guarantee & Accident Co. v. Leonard J. Mosness, for the use of Frank J. Schaub.
    1. Garnishment — Right of the Garnishee to Show that the Judgment upon Which the Proceedings Are Founded Has Become Null and Void. — In garnishment, the judgment upon which the proceeding is based is the very foundation of such proceedings; and it must appear, in order to render a valid judgment against the garnishee, that at the time of the rendition of the judgment in garnishment the judgment upon which the proceeding is based was valid and existing, and it is competent for the garnishee to show that the judgment in question has, by valid proceedings, become null and void, pending such garnishment proceedings.
    3. Same — Garnishee May Show in Defense that the Judgment tipon Which the Proceeding is Based is Null and Void. — In a proceeding by garnishment the garnishee has the right for his own protection to show the nullity of the judgment which is the basis of the garnishment proceeding.
    3. Same — Pendency of Proceedings by, Does Not Affect the Power of the Court to Set Aside the Judgment upon Which the Proceeding is Based. — A judgment by default is subject to vacation, and the mere pendency of proceedings by garnishment upon it does not affect the power of the court to vacate it, or the validity of the order vacating it.
    4. Propositions of Law — Held by the Court upon Its Own Motion. —Where the court of its own motion holds certain propositions to be law, such propositions are as subject to review as instructions given by the court on its own motion. Propositions and instructions held and given at the request of a party are the propositions or instructions of the court, equally with propositions held and instructions given by the court of its own motion.
    Garnishment Proceedings. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed December 12, 1901.
    Statement. — December 18, 1899, Frank J. Schaub filed an affidavit for garnishee process against appellant, on a judgment recovered by him against Leonard J. Mosness, December 6, 1899, for the sum of $302.96, on which judgment execution had been issued and had been returned “no property found.” Summons was served on appellant as garnishee, interrogatories were filed and answered by appellant, a replication to the answers was filed, a jury was waived, and the cause was submitted to the court for trial. The court found the issues for appellee, and that appellee, for the use of Schaub, was entitled to judgment against appellant for the sum of $320.48, and judgment was rendered on said finding.
    The original interrogatories were filed January 2, 1900, answers to which were filed January 8, 1900, stating, in substance, that at the time of service of the garnishee process on appellant, appellant had no property of any kind belonging to Leonard J. Mosness, or any rights, credits or effects of said Mosness in its charge, possession or custody, and was not, at any time, owing any money to said Mosness; that, at the time of service of said process, there was a judgment by default, in favor of Mosness against appellant in the Circuit Court of Cook County, which, since service of said process, had been set aside, and that said judgment has not been paid, compromised or satisfied for any sum.
    January 22, 1900, additional interrogatories were filed. To the additional interrogatories appellant, by A. W. Masters, its general manager, answered as follows :
    “A. W. Masters,- being first duly sworn, deposes and says in answer to the additional interrogatories propounded in the above cases, that on May 22, 1899, a default judgment ■was rendered against the London Guarantee and Accident Company for $500 in favor of Leonard J. Mosness; that on May 24, 1899, a motion was entered to open the default, and said motion was denied on July 27,1899; that an appeal was thereupon taken by the defendant London Guarantee and Accident Company, to the Appellate Court; that after the appeal had been perfected it was dismissed by a stipulation entered into between the attorneys for both parties, and appellant made a motion by the stipulation to dismiss; that there was a stipulation made and entered into by and between the attorneys for both parties, to wit, the London Guarantee and Accident Company and Leonard" J. Mosness, that said judgment be vacated and set aside; that said stipulation was duly filed in the Circuit Court; that there was also an order entered, giving leave to the defendant to file a plea instanter. This affiant further states that the said stipulation to set aside the default judgment is not in the files at the court house, and he is therefore unable to set out in full said stipulation, not having retained a copy thereof.
    A. W. Masters,
    General Manager London Guarantee and Accident Company, Limited, for the United States.”
    After the filing of a replication to the original and additional answers, the court, June IS, 1900, allowed appellant to file the following answer, the replication filed to stand as replication to same:
    “F. J. Canty, being first duly sworn, deposes and says that he is the manager of the law department of the United States branch of the London Guarantee and Accident Company, Limited; that since the commencement of this proceeding in garnishment and since the answers of thedefendant were filed this deponent has learned that the said Leonard J. Mosness, for whose use the above entitled proceedings are brought, has been, by the judgment of the United States District Court for the Northern District of Illinois, declared to be a bankrupt; that he has had full hearing, and on February 26, 1900, has been finally declared discharged by said court from all his indebtedness and from the payment of the judgment referred to in the above entitled proceedings upon which the same are based, and this defendant upon the trial of said action will bring into court the proceedings and judgment in bankruptcy in the case of Leonard J. Mosness, and urge the same as evidence in this case. Deponent further says that he did not learn until Monday, the 30th of April, that said Mosness had been discharged in bankruptcy.
    F. J. Canty.
    Subscribed and sworn to before me this 30th dav of April, A. D. 1890.
    Edwaed W. Haet,
    [Seal.] Notary Public.”
    Answer filed June 19, 1900.
    It is recited in the bill of exceptions that it appeared from the evidence, without dispute, that Leonard J. Mosness did include in his schedules of creditors, as filed in the United States District Court, the above mentioned claim of the above mentioned Frank J. Schaub, giving name, residence, when contracted and where, and the nature and consideration, and the fact that it was in judgment, and also stating the amount of the claim and judgment. January 12, 1900, the court announced its decision in said cause orally in open court, and on the twenty-first day of January, 1901, and before the findings of the court were signed, the defendant moved the court, upon due notice to the plaintiff, to file the ' following additional and supplemental answer of the defendant:
    ' “A. B. Melville, being duly sworn, says that he is the attorney for the defendant above named in this case, and its' agent for the purpose of making this affidavit and answer. Deponent further says that John P. McGrath, one of the creditors of Leonard J. Mosness, a bankrupt, and the person above named, did on January 19, 1901, file a petition in the United States District Court, in the bankruptcy proceedings of said Leonard J. Mosness, number 2548, asking that the proceedings be opened, and that said Leonard J. Mosness be ordered to return as part of his assets the claim against the London Guarantee and Accident Company, Limited, which is mentioned in the garnishment proceedings herein. Deponent alleges that said matter has been referred to a referee and is now pending in the United States District Court for the Northern District of Illinois, U. S. A.
    A. B. Melville.
    Subscribed and sworn to before me this 21st day of January, A. D. 1901.
    Edward W. Hart, ■
    [Seal.] Notary Public.”
    Which motion the court overruled. The defendant therer upon offered in evidence a certified copy of the order of the United States District Court, which offer the court overruled.
    The order is as follows :
    “ In re Leonard J. Mosness, Bankrupt. 2548.
    Now comes John P. McGrath, by his solicitors, and by leave of court files petition herein, praying that the proceedings in said matter be re-opened and the bankrupt required to include the claim of Leonard J. Mosness against the London Guarantee and Accident Company in his schedule as a part of his assets, and the court having heard the statements of counsel, it is ordered that said petition be, and the same hereby is, referred to Referee F. L. Wean, to hear, to take proofs, and report his conclusions and recommendations thereon to this court.”
    On motion made, this evidence was excluded.
    No evidence appears in the bill of exceptions, except as above stated. The findings of the court were as follows :
    “First. That on the 2d day of May, 1899, a judgment upon default was duly entered and made in the Circuit Court of Cook County, Illinois, in an action pending therein, Gen. No. 195,119, wherein said Leonard J. Mosness was plaintiff and said London Guarantee and Accident Company, Limited, was defendant, in favor of said plaintiff and against said defendant for the sum of $500 and costs; that a motion was made in the Circuit Court of Cook County, based upon affidavits, asking to set aside the judgment, upon default, and allow defendant to file plea, which motion was denied, from which judgment and order denying motion defendant appealed to the Appellate Court of the First District.
    “ Second. That on December 6, 1899, in an action pending in the Superior Court of-Cook County, Illinois, Gen. Mo. 201,947, wherein Frank J. Schaub was plaintiff and said Leonard J. Mosness was defendant, a judgment was duly entered and made iro favor of said plaintiff and against said defendant, for the sum of $302.96 and $10.75 costs, and that execution was duly issued thereon- and returned nulla dona December 18, 1899.
    “Third. That after return-of said execution and on the 18th day of December, 1899, suit in garnishment, wherein said Leonard J. Mosness, for the use of said Frank J. Schaub, was plaintiff, was commenced in this court, against said London Guarantee and Accident Company, Limited, as garnishee, interrogatories ijled, answers and supplemental answers made and filed, to which replication was filed.
    “ Fourth. That on the 2d day of January, 1900, on motion of said London Guarantee and Accident Company, Limited, appellant, its appeal from the judgment obtained against it by said Mosness for $500 was dismissed and the cause remanded to the said Circuit Court.
    “Fifth. That on the 2d day of January, 1900, a stipu? lation was filed in said suit, numbered 195,119, that the judgment rendered therein be vacated and leave granted defendant to file a plea instanter. This stipulation was made by the attorney of said Mosness and the attorney for said London Guarantee and Accident Company, Limited, on behalf of said parties, without knowledge, notice or consent of said Frank J. Schaub or his attorneys, and on the same day, January 2, 1900, an order was entered by the court on said stipulation vacating said judgment without knowledge, notice or consent of-said Schaub or his attorneys; a plea was filed by- said defendant and said cause is now pending.
    “ Sixth. That on the 26th day of February, 1900, said Leonard J. Mosness obtained his discharge in bankruptcy in the United States District Court of the Morthern District of Illinois, a voluntary petition in bankruptcy having been filed therein by him on December 23, 1899:
    “ Seventh. That the said claim and judgment of Mosness against said" London Guarantee and Accident Company, Limited,was not scheduled asan asset and'no trustee was appointed in said bankruptcy proceedings.
    “ Eighth. That said Schaub did not file his claim against' Mosness in said bankruptcy proceedings.”
    The court held the following propositions as law :
    “ As a matter of law the court finds that upon the service of the garnishee summons in said action said usee, Frank J. Schaub. acquired rights in and to the judgment garnisheed and referred to in the answers of said garnishee, and that the stipulation and order setting aside the default and vacating said judgment was ineffectual as to the rights and interests of said Frank J. Schaub, which attached to said judgment upon the service of the garnishee summons.
    “ That the discharge of Mosness in bankruptcy can not be availed of as a defense by the garnishee; that Mosness is the only one who can take the benefit of his discharge.”
    A. B. Melville and Frank J. Canty, attorneys for appellant.
    Hirer &■ Waters, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Section 67 of the national bankruptcy act of 1898, contains this provision:

67f. “ That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien, shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment. attachment, or other lien, shall be preserved' for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect; provided, that nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a honafide purchaser for value, who shall have acquired the same without notice or reasonable cause for inquiry.”

December 6,1899, Schaub obtained his judgment against Mosness. February 26, 1900, Mosness obtained his discharge in bankruptcy in the United States District Court for the Northern District of Illinois, on a petition filed December 23,1899. The judgment against Mosness having been recovered less than four months prior to the time of filing his petition in bankruptcy, and Schaub having obtained his discharge February 26, 1900, his judgment against Mosness is within the very words of the act, which declares that such a judgment “shall be deemed null and void, in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other lien, shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt,” etc. There is no fact or circumstance apparent in the record to exempt the judgment in Schaub v. Mosness from the operation of the last quoted provision. Section 67, as to the nullity of judgments recovered within four months next preceding the filing of a petition in bankruptcy, in cases where the petitioner is discharged, requires no interpretation, and the federal courts have applied it in accordance with its plain meaning. In re Kenney,.Circuit Court of Appeals, Second Circuit, 105 Fed. Rep. 897, the court states the facts and the question involved thus :

“ The facts disclosed upon the papers, chronologically stated, are these: On March 6, 1899, Clark recovered judgment against Kenney in the State court for $20,906.66, and execution was issued on the same day. On March 15, 1899, the sheriff sold out defendant’s stock of goods, which he had levied upon, for $12,451.09. On April 13, 1899, petition in involuntary bankruptcy was filed, and Kenney was adjudged a bankrupt on July 12th. The sheriff not having paid over the proceeds of the execution at the time petition was filed, he was temporarily enjoined from doing so, and subsequently, after a hearing in which Clark appeared, presented testimony and was heard, the order appealed from was made and entered. The question presented is, who is entitled to the $12,451.09 — the trustee or the judgment creditor.”

The court, after quoting the provision section 67 f supra, say:

“ There can be no doubt that it was the intention of Congress by this section to prohibit creditors of a bankrupt from obtaining preferences over other creditors, as the result of any legal proceedings against him, during, the period of four months prior to the-filing of the petition; and apt words are used to express that intention. The property of the bankrupt is safeguarded against all such proceedings by the provision that such of them as would ordinarily be liens against such bankrupt shall be deemed null and void, and the property wholly discharged and released from the same. A broad and liberal construction of the section should be adopted if necessary to effect this intent, but no strained construction is necessary in the face of language so comprehensive. Applying it to the concrete case now before us we find that four months before petition the bankrupt had a stock of goods worth $12,000 or more. He did not sell them and, if nothing had happened, they would have been in his possession when his estate passed to the trustee, who might have realized the $12,000 from them to distribute among all thecreditors. How has this amount disappeared ? Because Clark obtained a judgment against the bankrupt, and the sheriff under such judgment made a levy, which removed the goods from the bankrupt’s estate, and turned them, through sale, into money. But, under the provisions of the bankrupt act, the judgment and the levy are to be held null and void.”

See also, In re Richards, 96 Fed. Rep. 935; Bear et al. v. Chase, 99 lb. 920, and St. Cyr v. Daignault et al., 103 lb. 854.

Counsel for appellee do not dispute the proposition that, by the act of Congress, the judgment in favor of Schaub against Mosness having been recovered within four months before filing the petition in bankruptcy, and Mosness having been discharged, was void but contend that appellant can not avail of the nullity of the judgment as a defense, that the privilege of setting up such defense is purely personal to the bankrupt. This proposition is untenable. Section 67 f of the bankrupt law provides that when a judgment shall be deemed null and void for reasons stated in the section, and which exist in the present case, that the property affected by the judgment shall pass to the trustee, as part of the estate of the bankrupt, “ unless the court shall, on due notice, order that the right under such levy, judgment, attachment or other lien shall be preserved for the benefit of the estate.” Ho such order appears in the record before us. The proceeding is garnishment on the judgment in Schaub v. Mosness, under section 1 of chapter 62 of the statutes. That judgment is the very foundation of the proceeding, and it must appear, in order to render valid a judgment against the garnishee, that at the time of the rendition of such judgment the judgment in Schaub v. Mosness was a valid existing judgment. We therefore think that it was entirely competent for appellant to show that the judgment in Schaub v. Mosness had, by valid proceedings, become null and void, pending the garnishment proceedings.

In Bear v. Chase, supra, the question of the validity or nullity of certain attachment levies was raised by creditors of the bankrupt. The judgment being, by reason of the proceedings in bankruptcy, null and void, the judgment against appellant has nothing to rest on. In other words, when that judgment became void, the bottom dropped out of the garnishment proceeding.

Hothing can be more personal to a judgment debtor, who is the head of a family, than the exemption of certain of his property or wages from execution; yet the law is, that if one is garnisheed as being indebted to such judgment debtor, it is his duty to set up the exemption in his answer. C. & A. R. R. Co. v. Ragland, 84 Ill. 375.

We are of opinion that appellant had the right, for its own protection, to show the nullity of the judgment which is the basis of the garnishee proceeding. Suppose it had not done so, and had paid the judgment appealed from; would it be any defense in the pending suit against it by Mosness, that it had paid part of his claim on a judgment against it in a garnishment proceeding based on a void judgment? We think not, and that if appellant had not set up the nullity of the Schaub judgment, he might be compelled to pay the amount of that judgment twice.

We dissent from the proposition contended for by appellee’s counsel and held to be law by the court, that the institution of the garnishment proceeding vested Schaub with an interest in the judgment by default in favor of Mosness and against appellant, and that the default could not, thereafter, be set aside and a trial had on the merits, by the consent of the parties to the judgment, and without the consent of Schaub. The judgment order contains a prayer for an appeal; an appeal was allowed and perfected, and it was entirely competent for the parties to the judgment to consent to a dismissal of the appeal, and, upon the cause being remanded, to a setting aside of the judgment by default. That the court had power to set aside the judgment, by consent of the parties, can not be questioned. Sheridan v. Chicago, 175 Ill. 421.

The judgment by default was subject to vacation, and the mere pendency of the garnishment proceeding. could not affect the court’s power in the premises, or the validity of the order vacating the judgment. Schaub had no interest in the judgment as such. His sole interest was in its use as evidence, had not his judgment against Mosness been nullified by the proceedings in bankruptcy. The latter judgment having been nullified by the bankruptcy proceedings, he could not have used the Mosness judgment as evidence had it remained in force.

Appellee’s counsel suggest collusion and fraud between Mosness and appellant in the setting aside of the Mosness judgment, but there is no evidenpe in support of the suggestion.

It is contended by appellee’s counsel that there are no questions of law presented by the record, because appellant did not present to the court any proposition to be held as law in the case. We do not deem it necessary for such propositions to have been submitted to the trial court, in order to warrant us in passing on the question whether the facts proven entitle the plaintiff to recover. In the present case, however, the court, of its own motion, held certain propositions to be law, and such propositions are as subject to review as are instructions given by the court of its own motion, in a trial by jury. Propositions and instructions held and given at the request of a party, are the propositions or instructions of the court, equally with propositions held and instructions given, of the court’s own motion. Both of the propositions announced by the court as law were erroneous, for reasons hereinbefore stated.

We find no evidence in the record’ to sustain the finding that no trustee was appointed in the proceedings in bankruptcy, nor to support the finding that Schaub did not file his claim against Mosness in said proceedings. We do not, however, regard these findings as important in the decision of the appeal.

The judgment will be reversed.


text:
    Chicago City Ry. Co. v. Orlin B. Morse.
    ' 1. Carriers of Passengers — Required to Use the Highest Degree of Care. — In this State, a carrier of passengers, while not an insurer of the absolute safety of the passenger, must use the highest degree of care to secure his safety, when such passenger is in the exercise of ordinary care, reasonably consistent, in view of the character of the conveyance in use.
    2. Negligence — In the Management of Street Cars— In the management of a street car a sudden and violent stopping of such car, unless it is unusual in degree and caused by some defect in the car or in the track, or by some unusual or dangerous rate of speed, furnishes no evidence of negligence on the part of the company.
    3. Same— When a Presumption of, is Raised. — Where the plaintiff is a passenger on a street car, a prima facie case of negligence is made out by showing the happening of the accident, and if the injury is caused by apparatus wholly under its control, furnished and applied by it, a presumption of negligence on the part of such company is raised.
    4. Presumptions — Of Negligence Raised by an Accident. — The happening of an accident to a passenger on a street car during the course of his transportation, raises a presumption that the street car company has been guilty of negligence.
    5. Damages — Where $2,000 is Not Excessive. — A bookkeeper, thirty-three years of age, while a passenger upon a street car, was injured by the sudden and violent stopping of the car, so as to produce a serious and permanent inguinal hernia; a verdict in his favor for $3,000 and a judgment thereon is not excessive, nor does it follow because the jury gave more by one-half than the trial court would have been disposed to give, that such verdict shows passion or prejudice on the part of the jury.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 12, 1901.
    Statement. — Appellee, a bookkeeper, aged thirty-three years, on January 24, 1899, while a passenger upon one of appellant’s electric cars, claims to have been injured by the sudden and violent stopping of the car so as to produce a serious and permanent inguinal hernia, and brought suit against appellant, a trial of which before the court and a-jury resulted in a verdict in his favor of $2,000 and judgment thereon, to reverse which this appeal is taken.
    William J. Hynes, Samuel S. Page and Watson J. Ferry, attorneys for appellant; Mason B. Starring, of counsel.
    James. C. McShane, attorney for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

No question is raised upon the pleadings nor as to procedure. The first contention of appellant’s counsel is that the verdict is not justified by the evidence; and in this regard it is argued that the proof fails to show that appellant was guilty of negligence. We are unable, after a careful consideration of the evidence in the light of counsel’s argument and the authorities cited, to yield assent to the claim. We think the evidence presents a question of fact for the jury, and a finding that appellant was negligent, as charged in the declaration, in suddenly and violently stopping its car while appellee was riding thereon as a passenger, is justified.

The evidence of appellee in this regard is, in substance, that he boarded appellant’s west-bound car at Forty-seventh street and Champlain avenue, Chicago, and paid his fare; that the seats were all occupied, several people were standing in the aisle of the car, which was about twenty-five or thirty feet long, and that he stood up near the middle of the car, holding on by his right hand to a movable strap immediately over him; that the car filled up quite rapidly, and by the time it reached the vicinity of Halsted street it was very much packed — the people were standing very closely together — as close as they possibly could- be, and tilled the aisle of the car its entire length; that as the car proceeded on its way the stops it made were sometimes sudden; the car was handled roughly; that at every crossing it came up with a jerk; that when the car stopped at Forty-seventh and Halsted streets to let passengers off “it was accompanied by a very violent jerk. It came just like that — very suddenly, and I was standing about midway of car holding onto a strap, facing north and partly in direction car was going, obliquely across the car, and as the car stopped there, there were a great many standing all around, about as thickly as they could possibly stand, and when it came to that stop the people were thrown forward in the car. I was holding onto a strap in this manner (indicating he was holding on with his right hand), and a great many were standing in the car that were not holding onto supports, and when the car came to that stop it threw the weight on my back here. Of course I didn’t want to be thrown off my feet and 1 held onto the strap, and at that time I felt a very sharp pain in right groin. I was facing northwest and standing holding onto the strap, when the car came to a stop, and the weight of the people struck me in the small of the back, and it threw my body in this direction (indicating), bending backward. The people that shoved me were back of me and all around me. I know that the people were thrown, and I got the good bulk of the weight thrown against me.”

Appellee is corroborated by the witnesses Wyatt, Weems and Buclcham, who were passengers on the car, as to the sudden and violent stopping of the car. Wyatt says: “It stopped with a lurch, so much so that people were shaken back and forth in the car. By lurch, I mean it stopped in a manner that would throw back and forth those who were standing.”

Q. “Was there anybody thrown against you? A. They bumped against me, those that were standing, and I felt them push against me as the car lurched back and forth.”

Weems says the car stopped with a very sudden jolt; “ so much so that the crowd — those that were standing— were thrown with the car, swung in the opposite direction.”

Buckham says : “When the car reached Halsted it came to a sudden stop, with a jerk. I was thrown against the motorman. I was on the front platform.”

All these witnesses agree that the car was crowded— people were standing in the aisle, and appellee says that he received the injury for which the suit was brought at the time of this stop at Halsted street, and after leaving the car, which he did a few blocks after passing Halsted street, appellee told Weems of his injury. We think the evidence tending to show negligence in permitting the car to become crowded by passengers standing in the aisle, and as to the manner of stopping the car, was properly submitted to the jury, and can not, as matter of law, be said to be so insufficient as not to justify a finding of negligence. On this point appellant’s counsel rely on the case of Byron v. R. Co., 177 Mass. 303, and Aikin v. Southern Pacific Co., 29 Co. Rep. 1. The latter case we do not regard as applicable here, nor the former as controlling the case at bar. In the latter case the court say, speaking of the handling of a steamboat in approaching a landing at night, that there was nothing to show a want of care in that regard; that instead of the boat being negligently handled, it showed the contrary; that the blows at the pilings which caused the injury were such as were habitually made. In this case there is no evidence of a careful handling of the car, and it tends to show that the violent stopping was not usual nor ordinary. That case, therefore, differs from this case, in which, as we have seen, the evidence tends to show a negligent stopping of the car. In the Byron case the language of the court in speaking of a charge of negligence, by a swaying, jolt or lurch of an electric car as it returned to a main track from a siding, is that “ unless they are unusual in degree and caused by some defect in the car or the track, or by some unusual or dangerous rate of speed, they furnish no evidence of negligence on the part of the carrier;” but it also says in closing the opinion, that “the jar felt by the different witnesses was not so great as to be unusual, or as to justify a finding that it was due to the negligence of the defendant or of its servants.” This last statement we think clearly distinguishes the case from the one at bar. Moreover, we regard the language of the court first above quoted, to say the least, as laying down an extreme rule. It is not supported by either of the cases cited in the opinion of the court, all of which were based upon the contributory negligence of the plaintiff. Had the word “ or” been used instead of “and,” after the word “degree,” so as to read “ unless they are unusual in degree or caused by some defect in the car,” etc., then we could perceive no objection to such a rule.

In this State it is settled law that a carrier of passengers, while not an insurer of the absolute safety of the passenger, must use the highest degree of care to secure the safety of the passenger, when he is in the exercise of ordinary care, that is reasonably consistent in view of the character of the mode of conveyance in use. R. R. Co. v. Byrum, 153 Ill. 134, and cases cited; Springer v. Ford, 189 Ill. 430-4; affirming 88 Ill. App. 530; Field v. French, 80 Ill. App. 78-91, and cases cited.

In the Springer case the court quotes with approval the following language from R. R. Co. v. Blumenthal, 160 Ill. 48, as follows:

“ The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier. Undoubtedly the law requires the plaintiff to show that the defendant has been negligent. But where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier, and furnished and applied by it, a presumption of negligence on its part is raised.”

So here, the evidence shows a prima facie case of negligence which is unexplained or in any way justified by the appellant.

The following cases are somewhat similar in their facts as to the cause of injury, and in each it was held the question was proper to be submitted to the jury, viz.: R. Co. v. Pollard, 22 Wall. 341; Spearman v. California St. R. R. Co., 57 Calif. 432; Dougherty v. R. Co., 81 Mo. 325.

In the first two cases a judgment for the plaintiff was affirmed, and in the last case, the court having taken it from the jury, it was remanded for a new trial.

Under a claim of appellant’s counsel that the verdict is excessive, it is argued that appellee’s injury could not have been produced by the sudden and violent stopping of the car, and that if appellee suffers at all from hernia, it resulted from some other cause than that claimed by him. We have carefully considered the evidence in this regard, and think it presents a question peculiarly for the jury. It is unnecessary to state it in detail. Appellee testifies that prior to this occasion he had nothing of the kind complained of the matter with him; had suffered no bodily injury at all; that at the time of the sudden or violent stopping of the car he felt a sharp pain in his groin, and when he started to walk he noticed a swelling in the groin, and upon examination found that he was ruptured. Soon thereafter, within about three hours, he consulted a physician and surgeon, who examined him and found a hernia in the right inguinal region about the size of a small hen’s egg, w'hich “ extended to external opening of inguinal canal and projected into the neck of the scrotum perhaps three-quarters of an inch. * * * It was an oblique inguinal hernia.” Both the appellee and the surgeon testify in great detail as to the condition of appellee and the circumstances attending the injury, the effect upon the appellee and the treatment given him. Both the attending surgeon and another of wide experience gave it as their opinion that the injury claimed to have been suffered by appellee could have resulted from the cause testified to by him. That appellee claimed to have been injured at the very time he says he was, receives the corroboration of the witness Weems, who was on the car with appellee at the time of the accident. As against this evidence there is the testimony of three expert and experienced surgeons called by appellant, who gave it as their opinion that such a hernia as appeliee is shown to have suffered could not have been caused in the manner he claims it was caused; also the evidence of the motorman that he did not in January, 1899, at the place in question, bring his car all of a sudden to a stop, and of the conductor that he did not remember such a stop on January 2J, 1899, the date of the accident.

All this evidence we have read and carefully considered, and are unable to say that, considered as a whole, appellee’s claim and the verdict are not justified.

It is strenuously argued that the verdict is excessive in amount, and is the result of passion and prejudice on the part of the jury. This claim, while not without basis in the record, is, we think, untenable.

The learned trial court, in passing upon appellant’s motion for new trial, said:

“I will have to overrule the motion for new trial. But,. as I have said before, it is more than I would give, possibly double the amount. But I can not say it is caused by passion or prejudice, except possibly the prejudice that may exist against railroad companies. In that’ regard I am powerless.”

This, it is argued, amounts to a holding that the jury was actuated by passion or prejudice, and that the verdict is thereby vitiated. We think the court’s language should not be so construed. It does not follow that because the jury gave more by one-half than the court would have been disposed to give, that therefore the verdict shows passion or prejudice. The court in effect says as much, except that it is qualified by the intimation that there might possibly be a prejudice against railroad companies. Before the court would have been justified in disturbing the verdict because of the amount, on account of prejudice, it should have been convinced, not that prejudice possibly existed, but that it certainly influenced the verdict. When so convinced there should be no hesitation in correcting the wrong. We have, however, fully considered the evidence in this respect, and do not think the verdict should be disturbed. The injury is in all probability a permanent one, unless it should be removed by an expensive and serious surgical operation, which might not prove successful, will prohibit appellee from any pursuit of life requiring more than ordinary physical exertion, and will deprive him of the pleasures and benefits of many physical exercises, and unless he should be cured, he would be compelled for life to be subjected to the inconvenience and annoyance of wearing a truss.

The judgment of the Superior Court is affirmed.


author: Mr,. Presiding Justice Windes

text:
    Robert F. Bullen v. Charles E. Morrison, Ex’r, etc.
    1. Guaranty — Of the Payment of Rent — Requisites of the Contract. —When a contract of guaranty for the payment of rent, indorsed upon a lease, is made at the same time as the lease on which it is indorsed, it is a part of the same contract, and needs no further consideration to support it; but when it is made at a different time, and after the lease is fully executed and delivered to the lessee, it is a separate and distinct contract, and it is necessary, before it can become valid and binding, that there should be a new and independent consideration from that of the lease.
    2. Same — Contract XJnder Seal, and Stating it to he for “Value Received.” — The claim that when a contract of guaranty is under seal, and states that it is for value received, it can not be successfully contended that there was no consideration, is not tenable.
    Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    E. A. Sherburne, attorney for appellant.
    John C. Scovel, attorney for appellee.
   Mr,. Presiding Justice Windes

delivered ¡the opinion of th.e court.

This case is assumpsit on a guaranty in ' writing under seal on the back of a lease from Ezekiel Morrison to the Economy Furniture Co., of certain premises in Chicago. The plea was the general issue. The trial before the court and a jury resulted in a verdict and judgment thereon against appellant for $2,154 and costs, from which he has appealed.

The guaranty declared on is as follows:

“For value received, I hereby guarantee the payment of the rent and the performance of the covenants bv the party of the second part in the within lease covenanted and agreed in manner and form, as in said lease provided. Witness mv hand and seal this 10th day of February, A. D. 1887.
E. F. Bullen. [Seal.] ”

After the plaintiff had offered evidence showing a prima facie right of recovery for the amount of the verdict, the defendant offered evidence tending to prove that the guaranty sued on was not signed or executed at the same time as the lease upon which it was written; but that said lease was fully executed, as between the parties to it, and delivered to the plaintiff, and then, several weeks after such delivery, the plaintiff requested Jacob A. Eiffert, the manager of the Economy Furniture Company, to get the defendant to execute the guaranty sued on; that in compliance with such request of the plaintiff, said Eiffert carried the lease to the defendant and asked him to execute said guaranty, and defendant did so; that defendant received no consideration or promise of consideration therefor. The court, upon the objection of the plaintiff, refused to admit the offered evidence, and the ruling of the court in this regard presents the principal question on this appeal.

It was stipulated on the hearing in open court that under the general issue the defendant might give in evidence any matter of defense which would be admissible under special pleas filed.

We are of opinion that the learned trial judge was in error in excluding the proffered evidence. If the guaranty sued on was made at the same time as the lease on which it was indorsed, then it was a part of the same contract and needed no further or other consideration to support it than the lease itself. If, however, it was made at a different time and after the lease was fully executed and delivered to the plaintiff, then it was a separate and distinct contract from the lease, and it was necessary, before it could become a valid and binding contract, that there should have been a new and independent consideration from that of the lease. Judson v. Gookwin, 37 Ill. 286-98; White v. Weaver, 41 Ill. 409; 2 Parsons on Contr., Sec. 2 (n).

But it is said that this guaranty being under seal, and stating that it is “ for value received,” it can not be disputed that there was a consideration. This claim is untenable. Rev. Stat. Ill., Ch. 98, Sec. 9; Rogers v. School Trustees, 46 Ill. 431-4; Gage v. Lewis, 68 Ill. 604; Morris v. Tillson, 81 Ill. 607-615; Crandall v. Willig, 166 Ill. 239; Haven v. Chgo. Sash, etc., Co., 96 Ill. App. 92, and cases cited.

The section of the statute referred to provides:

“ In any action upon a note, bond, bill or other instrument in writing, for the payment of money or property, or the performance of covenants or conditions, if such instrument was made or entered into without a good and valuable consideration, * * * it shall be lawful for the defendant to plead such want of consideration, * * * and if it shall appear that such instrument was made or entered into without a good or valuable consideration, * * * the verdict shall be for the defendant.”

It seems to us too plain for argument that the guaranty sued on is within the language of this statute. It is an instrument in writing not only for the payment of money, but also binds the maker to the performance of the covenants of the lease on which the guaranty is indorsed. This view is supported by the cases of Rogers, Gage and Morris, cited supra.

In the Gage case, which was an action upon a bond under seal, the Supreme Court held that under the statute above referred to, the defense that the consideration upon which the instrument was executed had failed, could be interposed; also that the consideration expressed in the instrument was not the real consideration which induced its execution.

In the Morris case it was held that parol evidence was admissible to show that the consideration named in a lease was different from that stated; that it could be shown what the actual consideration was, the recitals in the lease not working an estoppel.

In the Haven case, sivpra, which was a suit upon a bond guaranteeing the performance of a previous contract between the principals to the bond, we said :

“ The rule in regard to guaranty is that if the guaranty is simultaneous with the execution of the contract guaranteed, the consideration for the contract is a consideration for the guaranty; but if the guaranty is so long subsequent to the execution of the contract guaranteed that it can not be said to be a part of the original transaction, the consideration for the contract will not support the guaranty. In such case there must be a new and independent consideration.”

. We held that the defense of no consideration was a proper one, and that because the bond was executed by the surety after the contract, the performance of which it guaranteed, had been executed and delivered several days prior to the signing of the bond by the surety, and no new or independent consideration being shown, the defense by the surety was complete.

We see no reason wrhy, under the statute, the principle of these decisions should not be applied to the guaranty here in suit.

Counsel for appellee cite and'rely upon, as holding a different view,, the cases of Dunbar v. Bonesteel, 3 Scam. 31, Otto v. Jackson, 35 Ill. 350-9, and Hallberg v. Brosseau, 64 Ill. App. 520. Clearly the Otto case, which holds that a “ lease and the guaranty indorsed upon it must be taken as one entire agreement,” may be distinguished from the case here, because in that case it does not appear but that they were executed at the same time, in which case, of course, the language of the court is strictly accurate. As we have seen, a different rule prevails where the lease and guaranty were made at different times.

In the Dunbar case, sivpra, it was held that the statute then in force, which is similar to the present statute, did not apply to a lease. The statute then under consideration differed from the present statute in that the words “by the obligee or payee thereof,” appear after the words, “covenants and conditions,” and after- the word “defendant,” as it appears in the present statute, there were in the old statute the words, “or defendants against whom such action shall have been commenced by such obligee or payee.” These words are not in that present statute. The court, in deciding the case, seems to lay especial stress upon the words “obligee or payee,” as it says: “ Can there be an obligee or payee as parties to the lease? These terms are understood as applicable only to one of the parties to an obligation, or simple contract.” The case can not, therefore, be considered an adjudication upon the statute as it now is, which omits the words “obligee or payee.” Moreover, the court was then considering a lease, whereas here we have under consideration not a lease, but a separate and distinct contract under seal for the payment of money and the performance of covenants.

The llallberg case is evidently based upon the Dunbar case and the Otto case, both of which are cited. They do not, in our opinion, justify the conclusion that the statute, as it now is, does not apply to a guaranty which is a distinct and separate contract from the lease which it purports to guarantee. An instrument in writing for the payment of money or the performance of covenants or conditions, is as clearly within the statute as is a note, bond or bill. The older cases under the statute,- as it then was, if they are to be considered as in conflict with the later holdings of the Supreme Court, must yield to the later decisions. Independent of the statute, however, we think the evidence should have been admitted. In the Eogers case (p. 434), supra, the court say:

“Under the more stringent and ancient rules of the common law, it was held that relief could only be had in equity to discharge a surety. But under the tendency of modern decisions, substance is more regarded than mere form, and the doctrine seems now to be recognized, that whatever discharges a surety in equity, may be interposed in a suit at law, unless there be such a complication of interests as would prevent a court from affording adequate relief. And although relief may be had in both courts, the chancellor will not send a casé to a court of law to seek his defense.”

The court held in an action of debt on a note under seal against the surety, that it would entertain a defense that the payee of the note had destroyed certain collateral securities in his possession, without the consent of the surety, whereby the latter was discharged.

In the Crandall case, supra, which was an equity suit for the specific performance of a contract under seal that purported to be based upon the nominal consideration of- one dollar, it was held that the real consideration might be inquired into, and that in fact there was no consideration.

To the same effect and affirming the principle laid down in the Rogers case, supra, are the following cases: Phares v. Barbour, 49 Ill. 370-5; Kirkpatrick v. Hawk, 80 Ill. 122-5; Travelers Ins. Co. v. Mayo, 170 Ill. 498; 1 Brandt on Suretyship & Guar., Sec. 243.

The -judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed. Reversed and remanded.