author: Mr. Justice Craig

text:
    Frederick Aholtz v. The People of the State of Illinois.

      Filed at Springfield September 27, 1887.

    1. New trial—on the evidence. On the trial of one for the alleged forgery of the name of another to an injunction bond, the person whose name was signed to the bond, testified that he never signed the same, and never authorized the defendant or any one else to sign it for him. On cross-examination he was asked, if, at a certain time and place named, he did not state to a person named that he had given the defendant authority, “at one time,” to sign the bond. He answered that he never had any such conversation. The person to whom the statement was claimed to have been made was called, and testified that he did say he gave the defendant authority “at one time.” The defendant testified that to the best of his recollection the prosecuting witness, at a time and place named, said he could “use his name to the bond,” which was all the evidence on the point. The jury found the defendant guilty: Held, that the jury, who saw the witnesses and could judge of their credibility, having rejected and disbelieved the defendant’s testimony, this court could not reverse the judgment.
    2. It is the peculiar province of a jury to pass upon the credibility of witnesses where there is a conflict in the evidence, and the fact that the testimony of a witness interested in the result of the trial may be rejected or disbelieved by the jury, forms no ground to disturb the verdict and judgment.

      3. Same—on contradictory statement of witness after the trial. The mere statement of a witness, after a trial, in conflict with some portion of his testimony, is no sufficient ground for a new trial. If the witness should admit that his testimony was false, it would present a different question.
    Writ of Error to the Circuit Court of Macon county; the Hon. G. B. Smith, Judge, presiding.
    Messrs. Crea & Ewing, Mr. H. Pasco, and Mr. B. I. Sterrett, for the plaintiff in error.
    Mr. Edward P. Vail, State’s Attorney, for the People.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment in the circuit court of Macon county, against Frederick Aholtz, for forgery." The indictment contained three counts: First, for forging the name of George Stare to an injunction bond in a certain cause, wherein Frederick Aholtz was complainant and James H. Durfee and others were defendants; second, for causing the same to be forged; third, for uttering as true and genuine an injunction bond with the name of George Stare forged thereto. On a trial of the cause the defendant was found guilty in manner and form as charged in the third count of the indictment, and his term of imprisonment was fixed at one year in the penitentiary.

It is not claimed in the argument that the court erred in its ruling on questions of evidence during the trial, or that there was error in giving or refusing instructions, but it is insisted that the judgment should be reversed on the ground that the evidence was not sufficient to establish the guilt of the defendant.

It is a conceded fact that George Stare never executed the bond which is alleged to have been forged, and it is plain, from the evidence, that the signature of George Stare to the bond was written by the defendant, and the bond was used by him to obtain an injunction in a- cause which he had instituted in the circuit court of Macon county. The question, then, for the jury was, whether the defendant had authority from George-Stare to sign his name to the bond.

On behalf of the People, George Stare was called as a witness, and testified that he never executed the bond, and never authorized the defendant, or any one else, to sign it for him. For the purpose of overcoming the case thus made by the-People, the defendant was called as a witness in his own behalf, and testified that he had a conversation with Stare at-the National Bank corner, in Decatur, in relation to giving a. bond in the “Durfee case.” The following question was then asked: “If, in that conversation, he gave you any authority to use his name, state what he said.” Answer: “The best of my recollection, he said I could use his name to the bond.’” While Stare was on tite stand, he was asked if, on a certain time and at a certain place, he stated to one Darius Sipe that he had given defendant authority, “at one time,” to sign the-bond. The witness stated that he never had any such conversation. In addition to the evidence of the defendant on the question of authority to sign the bond, Darius Sipe was. called, and testified that Stare did tell him, at the time and place mentioned, in reply to the question, “Didn’t you give him authority to sign your name ?” “I did at one time.”

In brief, the foregoing was the evidence before the jury on the question of defendant’s authority to place Stare’s name on the bond,—Stare, on the one hand, testifying that defendant., had no, authority whatever to place his name on the bond, while, on the 'other hand, the defendant, in a weak and unsatisfactory manner, testified, to the best of his recollection, that Stare said he could use his name to the bond. The contradiction of Stare on one point, by Sipe, had no bearing on the case except so far as it might affect his credibility. It was-therefore a question for the jury to determine who told the truth,—the witness Stare, or the defendant. They had the two men before them, heard them testify, and could see their conduct on the stand, and the fact that they gave credit to the evidence of Stare, a disinterested witness, rather than the defendant, whose liberty was at stake, forms no ground for a reversal of the judgment. It is the peculiar province of a jury to pass on the credibility of witnesses, and where there is a conflict in the evidence, as was the case here, the fact that the o testimony of a witness interested in the result, as the defendant was, may he rejected or disbelieved by the jury, forms no ground to disturb the judgment.

On the motion for a new trial, an affidavit was read, to the effect that the next day after the defendant was convicted, the witness Stare said, in the presence of Budd Flory, “that if Sipe had not come on the stand and sworn to a bare-faced lie, he might have sworn, on the trial, that he did at one time give the defendant authority to sign his name.” The court disregarded the affidavit and overruled the motion. We are not aware of any case where it has been held that a mere statement of a witness, after a trial, in conflict with some portion of his evidence, is ground for a new trial. Had the witness made a statement that his evidence given on the trial was false, a different question might arise; but such was not the case. Suppose Stare had at one time given defendant authority to use his name to a bond, that by no means establishes the fact that defendant was authorized to use his name in this particular instance. He may have given authority five years before this transaction to sign his name to a particular bond, but that fact would not reheve this transaction of its criminal character.

We have carefully examined all the evidence introduced on the trial, and we are not prepared to say that it raises such a doubt as to the guilt of defendant as would authorize us ,to interfere with the judgment.

The judgment will be affirmed.

Judgment affirmed„

Mr. Justice Shops, dissenting.


source: Caselaw Access Project

author: Mr. Justice Mulkey delivered

license: Public Domain

text:
    John Shevalier et al. v. Elizabeth Seager et al.

      Filed at Springfield September 27, 1887.

    !• Hew trial—on verdict of jury in contested will case—rule as in suit ai iaW' The verdict of a jury in a contested will case stands upon the same footing as a verdict in a common law case, when it is sought to impeach or set it aside on the ground it is not sustained by the evidence.
    2. Same—on the evidence. A verdict will not be set aside when there is a contrarietv of evidence, and the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict returned, notwithstanding it may appear to be against the strength and weight of the evidence; nor when the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the finding.
    3. Where the evidence as to the mental capacity of a testator to make a ^11 is hopelessly conflicting, many of the witnesses and acquaintances of deceased testifying that he was not competent, and an equal or greater number testifying that he was competent, and the trial court sanctions a verdict finding the testator incompetent, by refusing a new trial, this court will not have the power to reverse on the ground that the verdict is not sustained by the evidence.
    4. Evidence—weight and credit, how determined. In the case of a conflict in the testimony of witnesses as to a fact in issue depending on their judgment, based on knowledge and circumstances, the weight of the evideuce will not depend upon the number of the witnesses. The testimony A A v a sinSl®i honest, intelligent witness, respecting a matter of judgment, is entitled to more weight and credit than the testimony of many ignorant and unscrupulous witnesses.
    Appeal from the Circuit Court of McDonough county; the jjon_ Qharijgs J- Sooeield, Judge, presiding.
    Mr. Byron Pontius, and Mr. C. P. Wheat, for the appellants :
    As to the mental capacity to make a will, see Rutherford v. Morris, 77 Ill. 409 ; Irish v. Newell, 62 id. 196 ; Yoe v. McCord, 74 id. 33; Meeker v. Meeker, 75 id. 260; Lilly v. Waggoner, 27 id. 395.

      As to what is undue influence which will avoid a will, see Rutherford v. Morris, 77 Ill. 409; Carmichael v. Reed, 45 id. 108; Brownfield v. Brownfield, 43 id. 147; Roe v. Taylor, 45 id. 485; Kinney v. Johnson, 50 Barb. 70; Tyler v. Gardner, 35 N. Y. 610; Tyson v. Tyson, 37 Md. 567; Eddie v. Sampson, 26 N. Y. 11; Miller v. Miller, 3 S. & R. 269; Mountain v. Bennett, 1 Cox, 355; Rabb v. Graham, 43 Md. 9; Sturtevant v. Sturtevant, 116 Ill. 354; Dickie v. Carter, 42 id. 379; Allmon v. Pigg, 82 id. 149.
    The court erred in giving and modifying instructions and in refusing a new trial.
    Messrs. Prentiss & Bailey, Messrs. Tunniclife & Tunnicllff, and Messrs. Voss & Sherman, for the appellees:
    That the verdict of a jury upon an issue of this kind is not merely advisory to the court, as ordinary issues out of chancery are, but is to have the same force and effect as verdicts in trials at law in determining whether a re-trial should be had or not, is no longer an open question in this court. Bible Society v. Price, 115 Ill. 623; Meeker v. Meeker, 75 id. 260; Long v. Long, 107 id. 210; Calvert v. Carpenter, 96 id. 63; Carpenter v. Calvert, 83 id. 62; Brownfield v. Brownfield, 43 id. 147.
    As to the rule in granting new trials where the evidence is conflicting, see Johnson v. Moulton, 1 Scam. 532; Roney v. Monaghan, 3 Glim. 85; O’Reilly v. Fitzgerald, 40 Ill. 310; Railroad Co. v. Vosburgh, 45 id. 314; DeClerq v. Mungin, 46 id. 112; Young v. Rock, 48 id. 42; National Bank v. Mansfield, 48 id. 494; Railroad Co. v. Terhune, 50 id. 151; Calvert v. Carpenter, 96 id. 63.
    As to the capacity requisite to make a valid will, see Meeker V. Meeker, 75 Ill. 260, and Carpenter v. Calvert, 83 id. 66.
    The jury may infer testator’s incapacity from facts proved, anterior and subsequent to the testamentary act. Irish v. Smith, 8 S. & R. 573; Davis v. Calvert, 5 Gill & Johns. 269.

      Undue influence will be inferred from the nature of the transaction alone. Fraud and undue influence are not ordinarily susceptible of direct proof. Harvey v. Sullens, 46 Mo. 147; 2 Am. Rep. 491; Tyler v. Gardner, 35 N. Y. 594; Sears v. Schafer, 2 Selden, 272; Delafield v. Parish, 25 N. Y. 95; Eelbeck v. Granberry, 2 Am. Dec. 648.
    When confidence is reposed in one who afterward becomes a beneficiary under a will, it raises the presumption of undue influence, especially where the beneficiary writes, or procures to be written, the alleged will in question, when the testator is worn down by disease and ready to sink into the grave, and is himself present at every stage of the proceedings. In such cases the proof should be of a clear and satisfactory character that the transaction is free from impropriety. Delafield v. Parish, 25 N. Y. 9; Cases cited in note 10, 1 Jarman, 69, 70, 137; In re Van Horn, 7 Paige, 46; Tyler v. Gardiner, 35 N. Y. 592; Lake v. Ranney, 33 Barb. 49; Bergen v. Udall, 31 id. 9 ; Crispell v. Dubois, 4 id. 397; Duffield v. Robeson, 3 Harr. 384.
   Mr. Justice Mulkey delivered

the opinion of the Court:

On the 23d of January, 1886, Charles Shevalier, at his residence in McDonough county, executed an instrument, in due form, as and for his last will and testament, whereby he-disposed of his entire estate, real and personal. At the time of its execution he was greatly prostrated, and suffering intensely from cancer of the stomach, of which he died on the 12th of the following month. Seven days later the instrument in question was duly probated, in the county court of McDon.ough county, as his will. Certain of his heirs, the appellees herein, being dissatisfied with the dispositions of the will, filed, in the circuit court of McDonough county, the present bill, for the purpose of contesting its validity. The bill charges, in substance, that the testator, at the time of making the instrument in question, was of unsound mind and memory, and that its execution was procured through the improper and undue influence of his brother John, one of the appellants herein, and residuary legatee under the will. The court, as required by the statute, caused an issue at law to be made up, submitting to a jury, for its determination, whether the said instrument was the will of the deceased or not. . A vast ■amount of testimony was heard by the court and jury on both sides of this issue, most of which was addressed exclusively to the inquiry, whether the deceased was of sound mind and memory at the time of making the alleged will. The jury, upon consideration of all the evidence before them, found that the instrument in question was not the will of the deceased, and the court, after considering and overruling a motion for a new trial, entered a final decree in conformity with the verdict of the jury. From that decree the proponents •of the will have prosecuted an appeal to this court.

As to the charge of undue influence, the utmost that can be truthfully claimed is, that there is a bare scintilla of evidence tending to establish it. This charge in the bill has clearly not been proved.

"With respect to the testamentary capacity of the deceased, the ease is altogether different. Here we find quite an array of witnesses on each side of the question, and a hopeless conflict in their testimony. Many of these witnesses included physicians of high respectability, against whose character for truth nothing is, or probably can be, justly alleged, who were intimately acquainted with the deceased, and who, so far as we are able to judge, had equal opportunities of correctly ■determining the mental condition of the deceased at the time of making the alleged will. Nevertheless, we find them divided into two classes, who have come to directly opposite conclusions from one another on the subject. In this state of the testimony, 'it was the peculiar province of the jury to determine which set of these witnesses was right and which was wrong. This the jury did, and the conclusion reached by them has received the sanction and approval of the judge who presided over the trial, and in whose presence and hearing these witnesses gave their testimony. Notwithstanding this, we are asked to set aside the verdict of the jury, sanctioned, as it is, by the judge who heard the cause, and reverse the decree of the lower court, mainly on the ground that the verdict of the jury is not sustained by the weight of the evidence. That we have no right to do. This is abundantly settled by the authorities. In the first place, it has long been the settled doctrine of this court that the verdict of a jury in a contested-will case like the present, stands upon the same footing as a verdict in a common law case, where it is sought to impeach or set it aside on the ground that it is not sustained by the-evidence. Brownfield v. Brownfield, 43 Ill. 147; Meeker v. Meeker, 75 id. 260; Calverts, Carpenter, 96 id. 63; Long v. Long, 107 id. 210; American Bible Society v. Price, 115 id. 623.

The question then recurs, What is the rule in common law eases in respect to granting new trials on. the ground that the-verdict is contrary to the evidence ? The question stated has been frequently answered by this court, under various circumstances, and in language, though often differing in form of expression, yet always practically amounting to the same thing. This is fully shown by the following cases, cited in appellees’ brief: Johnson v. Moulton, 1 Scam. 532; Roney v. Monaghan, 3 Gilm. 85; O’Reily v. Fitzgerald, 40 Ill. 310; Chicago and Great Eastern Railway Co. v. Vosburgh, 45 id. 311; DeClerq v. Mungin, 46 id. 112; Young v. Rock, 48 id. 42; St. Louis, Jacksonville and Chicago Railroad Co. v. Terhune, 50 id. 151; Illinois Central Railroad Co. v. Gillis, 68 id. 317. The case last mentioned contains, perhaps, as clear and apt a statement of the rule, if not more so, than any of them. It is there said: “If any rule of court can be so well estab lished as to be neither questioned nor require the citation of authorities to support it, it is that a verdict will not be set-aside whenever there is a contrariety of evidence, and the facts and circumstances, by a fair and reasonable intendment, "will authorize a verdict, notwithstanding it may appear to be against the strength and weight of the testimony.” In the later case of Calvert v. Carpenter, 96 Ill. 63, which, like the present, was a contested will case, the' rule is formulated in fewer words, though in substance it amounts to the same thing. In that case, as in this, there was a direct conflict in the testimony as to the testator’s capacity to make a will, and it was there said: “This court will not reverse the judgment of the trial court where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.”

The truth is, the rule could not be otherwise, without invading the province of the jury to determine the credibility of witnesses, and to say which of them are to be believed in case of a conflict. To do this would be to dispense with the essential functions of a jury, and thus destroy its utility altogether. This case illustrates the principle as well as any that could be suggested. All the medical witnesses agree that the testator, at the time of making the will, was gradually starving, as well as sinking, under the terrible disease that was preying upon his vitals. The patient fully realized the fact that death was rapidly approaching, and the concurrent testimony of all is, that he was so greatly excited and deeply affected by it that it was constantly present in his mind, and was the chief topic of his conversation. Evidently his attachment to life was unusually great, and he gave no evidence of that calm resignation we should expect to find, under the circumstances, in one of his advanced age. Just what effect or bearing these undisputed facts, and many others that might be mentioned, had upon the testator’s mental condition at the time of making the alleged will, was a question for the jury.

In the light of these facts, taken in connection with the personal knowledge of the deceased, before and after the time in question, seven or eight of the witnesses examined on the trial gave it as their opinion, under the sanction of an oath, that he did not have the requisite capacity to make a will. It is true that a greater number of the witnesses arrive at just the opposite conclusion. Here was a conflict. Who was to determine it ? Manifestly the jury. How were they to do it ? Certainly not according to the number of witnesses, without regard to their intelligence, means of information, integrity, etc. The testimony of a single, honest, intelligent witness, respecting a matter of judgment, is entitled to more weight and credit than the testimony of many ignorant or unscrupulous witnesses, and, as before observed, it is the peculiar province of the jury to say, within certain reasonable limits, just how much credit shall be given to each witness. Such i being the case, it is not perceived upon what principle we could reverse the judgment, on the ground that the verdict is not sustained by the evidence, without invading the province of the jury to determine the credibility of the witnesses.

With respect to the instructions of the court, we find no substantial objections to them. Taking them as a whole, we think the law, as applicable to the evidence, was properly laid down to the jury. The great and controlling question in the case was one of fact, namely, whether the deceased was of sound mind and memory at the time of making the instrument in question. As we have seen, the jury have answered this question in the negative, and under the law, as we understand it, this decision of theirs must be accepted as conclusive upon the parties.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magbudee

text:
    Anne G. Paddock et al. v. Atlas S. Stout et al.

      Filed at Ottawa September 26, 1887.

    1. Mechanic’s men—character of proceeding to enforce the same. A "bill or petition to enforce a mechanic’s lien is a chancery proceeding, and is not strictly a proceeding m rem.

    2. Same—to what premises the lien will attach. A mechanic's lien for work and material for a mill upon a lot will not extend to and embrace lots across a street not appurtenant to the mill property. The fact that a corn-crib had been built upon such other lots for storing corn to be ground in the mill, or because a shed may have been located on them where the delivery ¡horses and wagons of the mill sometimes stood, will not affect the question.
    3. Same—from what time the lien attaches—subsequent destruction of the building. The lien given by the statute to a mechanic or material-man for work done or materials furnished in the erection or repair of a building, will attach from the date of the contract, and such lien will not be affected by the subsequent destruction of the building by fire.

      4. Same—time for completion of the work—a contract construed. On . June 30,1883, the owners of mill property entered into a contract with a millwright to remodel and change their mill into a roller mill, the latter to furnish materials, for which the owners were to pay $6600, as follows: $2500 on July 10, and a like sum when.the mill was “finished and started to satisfactory results,” and the balance of $1600 in six, nine and twelve months, for which notes were to be given, bearing seven per cent interest. The contract provided that the mill was to be completed and started in successful running ■ order by September 15,1883: Held, that the time when the work was to be completed and the time when the mill was to be started in running order, were one and the same time, and when the owners agreed to pay the balance •of $1600 by giving their notes, payable in “ six, nine and twelve months from the date of starting the mill,” they agreed to give notes payable in six, nine ;and twelve months from the date of completing the work.
    5. Same—time of performance—waiver■—and herein, of an extension of the time. Where the owner of a building allows the contractor, who has engaged to remodel and repair the same, to proceed with the work after the tirria fixed for its completion, and, on completion, accepts the work, and makes payments and gives his notes for the balance due on the contract, this will amount to a waiver of the time of performance fixed by the contract.

      6. A mere extension of the time of performance of a contract does away with none of the stipulations of the contract, and an agreement to extend the time waives nothing more than the time of performance.
    7. Where suit is brought for the enforcement of a mechanic’s lien within, six months'of the time when the last payment is required to be made by the-terms of the original contract, a subsequent incumbrancer can not object that the time for the performance of the work had been extended, as he can. not be injured thereby.
    8. Same—time of payment—subsequent extension. The third section of' the Mechanic’s Lien law, which provides that where the contract is expressed no lien shall be created if the time of payment is fixed beyond one-year from the time stipulated for the completion of the work or the furnishing of materials, relates to the original contract. The lien depends upon the provision which the contract makes as to the time of payment, and not upon the notes which may afterward be given.
    9. So when a contract for work on a mill, and the supply of materials therefor, provides that the owner shall give a note for a part of the contract price, payable in twelve months after the completion of the work, this will amount to a contract to pay in one year from the time fixed for the completion of the work; and the fact that after the note shall be given the maker will have three days of grace in which to pay it, makes no difference. The-terms of the contract will not be enlarged by a subsequent extension of time-for the payment of the note.
    10. Same—talcing promissory note for the price—whether a waiver of the■ lien. A mechanic or material-man, by taking the note of the owner of the-property, who incurred the debt, will not thereby waive his lien. Such a. note merely serves to liquidate the demand.
    11. Same—assignment for benefit of creditors by owner, and proving■ claim before the assignee—effect upon the lien. The circuit court is not divested of its jurisdiction to enforce a mechanic’s lien by the voluntary assignment of the owner of the property, subject to the lien, for the benefit of creditors. All that the assignee takes is the equity of redemption.
    12. A party holding a mechanic’s lien on the property of his debtor does not lose the same by proving his debt against the assignee of his debtor under a voluntary assignment for creditors, and receiving a dividend, but the amount of such dividend is to be applied as a credit on his demand, pro tanto.

    13. Insolvent Debtob’s act—jurisdiction in chancery to enforce a mechanic!s lien. The remedy by bill or petition in chancery, under the Lien law, for the enforcement of a mechanic’s lien, will not be defeated by a subsequent voluntary assignment by the debtor for the benefit of creditors.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Dorrance Dibell, Judge, presiding.
    Messrs. Skinner Bros., for the appellants:
    A mechanic’s lien, given by statute, is in derogation of the common law, is secret in its nature, and the statute should therefore receive a strict construction. Brady v. Anderson, 34 Ill. 110.
    The lien should not be extended to cases falling within the reason, but not provided for by the language, of the statute. It is opposed to common right, and should be strictly construed. Brady v. Anderson, 24 Ill. 110; Stephens v. Holmes, 64 id. 336.
    The statute which gives a mechanic a lien is in derogation cf the common law, and must be strictly construed, and no person can obtain a lien under it unless a clear compliance is shown with the provisions of the statute. Canisius v. Merrill, 65 Ill. 67; Carney v. Tully, 74 id. 375; Belanger v. Hersey, 90 id. 70.
    Mortgagees, and others acquiring interests in property against which a mechanic’s lien is sought to be enforced, have a right to call for strict proof of all that is essential to the creation of the lien. Davis v. Alvord, 94 U. S. 545.
    In this statutory proceeding the appellants can not divide then claim, and institute separate and distinct suits to enforce hens as the notes respectively become due. Had they taken notes on longer time than stipulated in the contract, they could not maintain a petition for a mechanic’s lien until the last note was due. Cox v. Reiser, 15 Bradw. 432.
    The last note of twelve months', having three days of grace, was not due within one year. Edwards on Bills, sees. 517, 518; Bank v. Wager, 2 Cow. 712; Reese v. Mitchell, 41 Ill. 365; Arnold v. Stock, 81 id. 407; Coffin v. Lorin, 5 Allen, 153.

      After the assignment for the benefit of creditors, all the-property of the assignor is in the custody of the law and under the sole jurisdiction of the county court. Freydendall v. Baldwin, 103 Ill. 325; Merginger v. Yager, 16 Bradw. 260; Colby v. O’Donnell, 17 Bradw. 474; Hanchett v. Waterbury, 115 Ill. 220.
    “The appearing and proving their claim in the county court-gave that court jurisdiction over their persons, and they were-thereafter bound, at their own peril, to take notice of all orders-made by it affecting the fund for distribution, or their rights-as distributees.” Field v. Ridgely, 116 Ill. 424.
    In proceedings in bankruptcy, the Federal courts hold that a secured creditor who proves his claim without reference to his lien or security, and without apprising the bankrupt court of its existence, thereby waives his lien and relinquishes it to the assignee. Stewart v. Isador, 5 Abb. Pr. 68; In re Bloss, 4 Bank. Reg. 157; In re Stansell, 6 id. 183; In re Granger & Sabine, 8 id. 30; In re Jaycox & Green, 8 id. 241; Hoadley v. Cawood, 40 Ind. 239; Briggs v. Stephens, 7 L. R. 281.
    Mr. Egbert Farwell, for the appellees :
    The lien attaches from the time of making the contract.. Secs. 2, 17, 21, of chapter relating to liens; Clark v. Morse, 64 Ill. 279; Thielman v. Carr, 75 id. 385.
    The lien is not affected by the burning of the mill. Gaty v. Casey, 15 Ill. 198.
    Nor by the fact the contract was not completed in the time-stipulated, if there is a waiver as to the time of performance. Nibbe v. Brauhm, 24 Ill. 279; Eyster v. Parrott, 83 id. 517.
    The circuit court has jurisdiction of all causes of law and equity. (Const, art. 6, sec. 12.) The county court has not general chancery jurisdiction.
    Sower Bros, could only assign what they had,—the equity of redemption,—and that was all the assignee took. Colburn v. Shay, 17 Bradw. 292.
   Mr. Justice Magbudee

delivered the opinion of the Court:

This is a petition for a mechanic’s lien filed on March 13,, 1885, in the circuit court of Bureau county, by appellees Stout, .Mills and Temple of Dayton, Ohio, against Sower Bros., Eliza ' J. Skinner and the appellants Anne G. Paddock, George S. Skinner and Eugene C. Bates, assignee. Default was entered against Daniel, Eliza, George and Morris Sower, composing the firm of Sower Bros. Eliza J. Skinner filed a disclaimer. Eugene C. Bates, assignee of Sower Bros., answered, and Anne G. Paddock and George S. Skinner filed their joint and-several answer, and, subsequently," an amendment thereto.. The petitioners filed replications. After hearing, the circuit court dismissed the petition for want of jurisdiction. Upon appeal to the Appellate Court the latter court reversed the decree of the circuit court and rendered judgment against the appellants there for costs. The case is brought here by appeal from the Appellate Court.

Sower Bros, owned a flour and feed mill and the lot, on which the same was situated, in Princeton in Bureau county» The building stood upon lot 29 in Stoner’s addition to Princeton. Sower Bros, also owned parts of lots 7 and 8 in subdivision of lot 13 of Stoner’s first addition to said town.

The petition alleges, that on June 30, 1883, appellees and Sower Bros, made a written agreement,"by which appellees were to remodel and change the mill of Sower Bros, into a roller mill, were to furnish all the material, mill-wright work and. complete the mill, were to have the right to use all the old shafting, gearing, pulleys, etc., all the machinery and mill furnishings and work to be first-class, appellees guaranteeing that the mill should do as good work in yield and quality of flour as any roller mill from same quality of wheat; the mill to be completed and started in successful running order by September 15, 1883, for $6600; that Sower Bros, were to-pay $2500 July 10, 1883, and $2500 “when the mill is finished and started to satisfactory results,” and, to use the exact words of the contract, “the balance of $1600 Sower Bros, agree to give their notes bearing seven per cent interest payable in equal payments of six, nine and twelve months from date of starting of mill;” that Sower Bros, were to take out all the old machinery and put the building in proper shape to receive the new work, and send such old machinery as might be necessary to the shop of appellees in Dayton, Ohio, to be refitted, and to pay all freight and deliver the machinery in the mill; that appellees have done the work and furnished the materials and performed the contract; that Sower Bros, have paid the $5000 and failed to pay the $1600; that there was delay in completing the work, for which appellees were not responsible; that Sower Bros, permitted the work to go on after September 15,'1883, and accepted the same on October 14 or 15, 1883, when it was completed and the mill was started; that the $1600 should have been due and payable in six, nine and twelve months from October 15, 1883, and that the installments are all now due; that Sower Bros, made their three notes for the $1600, dated November 1, 1883, and payable in six, nine and twelve months from that date; that, in April, 1884, the mill was destroyed by fire; Sower Bros, became insolvent and made an assignment for the benefit of creditors to Eugene G. Bates, who has taken possession of the property under the assignment, and converted a pair of scales (built partly on lot 29 and partly in the street) and the iron or remains of the machinery into money; the petition prays for a lien upon the lots and the money in the assignee’s hands.

The answers aver, that on July 2, 1883, Sower Bros, made a trust deed to George S. Skinner upon lot 29 with appurtenances and the mill building to secfire certain notes to Anne G. Paddock and Eliza J. Skinner, which trust deed was recorded July 7, 1883; that more than $1000 are due Paddock upon her notes; that the notes for $1600 were turned over by appellees to the assignee, and that the latter paid appellees a •dividend, thereon before the petition was filed; that appellees did not perform contract and are entitled to no lien; that ap- ' pellees were responsible for delay; that machinery and mill were not first-class and did not do good work; that the time stipulated in the contract for payment for the work and materials was beyond one year from the time stipulated for the ■completion thereof, etc.

Paddock and Skinner, in an amendment to their joint and several answers, set up the assignment to Bates, dated April 26, 1884, and recorded on that day in the recorder’s office of Bureau county and in the county clerk’s office, the filing of the inventory including this property by the assignee on April 30, 1884, and claim that the county court obtained jurisdiction before this petition was filed» on March 13, 1885.

The first objection, made by appellants to the enforcement of the lien in this case, is that the work was not completed by September 15,1883, as required°by the terms of the contract, and that the delay in its completion was the fault of the appellees here, the petitioners in the court below. Looking at it as a mere question of fact, we think the weight of the evidence is in favor of the position that appellees were not at fault in this regard. Sower Bros, were to take the old machinery out of the mill and send it to appellees at Dayton; Ohio, to be refitted. Three witnesses swear, that the delay was caused by the failure of Sower Bros, to ship this old machinery to Dayton. The last shipment of it was not made from Princeton until September 15, 1883, and was not received at the freight depot in Dayton until September 20, 1883.

But it makes no particular difference under the facts of this case whether the delay was the fault of Sower Bros, or of the appellees. Sower Bros, permitted appellees to proceed with the work after September 15, 1883, and accepted the work when it was finished a month later on October 15, 1883. They also made partial payments of the $5000 after September 15, 1883. A payment of $521.06 was made on December 17,1883, and another of $521.07 on January 16,1884. After the default, they also gave their notes for the $1600. Under the decisions of this court, these circumstances amounted to-a waiver of the time of performance fixed by the contract. “A mere extension of time of performance does away with none of the stipulations—an agreement to extend the time waives-nothing more than the time of performance.” Nibbe v. Braulin, 24 Ill. 268; Eyster v. Parrott, 83 id. 517.

The next objection urged against the existence of the lien is-that the time of payment is extended beyond one year from the -'time stipulated in the contract for the completion of the work. The third section of the Lien law (Hurd’s Eev. Stat. 1885, chap. 82) provides, that “when the contract is expressed, no lien shall be created under this act if the time stipulated for the-completion of the work or furnishing materials is beyond three-years from the commencement thereof, or the time of payment 'beyond one year from the time stiptilated for the completion thereof.” The contract here is expressed and is in writing. By its terms the mill was “to be put up and started in successful running order” by September 15, 1883. The second sum of $2500 was to he paid “when the mill is finished and started to successful and satisfactory results.” It is plain from this-language, that the time when the mill was to be finished, or, in other words, when the work was to be completed, and the time when the mill was to be started, were one and. the same. The mill was to be finished and to be started in running order at the same time. Therefore, when Sower Bros, agreed to pay the balance of $1600 by giving “their notes bearing seven per cent interest payable in equal payments of six, nine and twelve months from date of starting of mill,” they agreed to give’ notes payable in six, nine and twelve months from date of completing the work.

But appellants claim, that the note to be made payable in twelve months would he entitled to three days of grace, and that, therefore, the time of payment, by the contract, was one yean- and three days from the time stipulated for the completion of the work. The contract itself must, by its terms, provide for a time of payment, which shall not be beyond one year from the completion of the work. The question is not whether the parties do or do not agree, after the execution of the contract, to an extension of the time for performance. The question is as to the terms of the contract. The lien depends upon the provision which the contract makes as to the time of payment. Cook v. Vreeland, 21 Ill. 431; Beasley v. Webster, 64 id. 458; Cook v. Heald, 21 id. 425; Belanger v. Kersey, 90 id. 70.

By the contract in this case, Sower Bros, agree to give a note for one-third of the $1600 “payable in twelve months from date of starting of mill.” The time of payment as thus fixed is just one year from the time stipulated for the completion of the work, and not more than one year therefrom. The fact that, after the note should be given, the maker would be entitled to have three days of grace, in which to pay it, makes no difference. The terms of the contract are not enlarged by the subsequent extension of time for the payment of the note, and we think that those terms conform to the requirement of the statute.

Whether or not the notes were taken in discharge of the lien was matter of defence. Appellants charge in their answer* that they were so taken. There is no proof, however, that the notes for the $1600 were taken in absolute payment of the debt. By taking the note of the owner of the premises, who. incurred the debt, the petitioner does not waive his lien. Such a note merely serves to liquidate the demand. Van Court v. Bushnell, 21 Ill. 624; Brady v. Anderson, 24 id. 110; Meeks v. Sims, 84 id. 422.

The bill in this case offers to surrender the notes to the makers, and, on the trial, the offer was repeated in open court.

The appellants, Paddock and Skinner, are incumbrancers. Whether the last payment is regarded as having become due "and payable on September 15, 1884, or on October 15, 1884, "this petition, having been filed on March 18, 1885, was filed 'within the six months after the last payment, as required by ¡section 28 of the Lien law. Appellants have, therefore, sufifered no injury from any arrangement for the extension of time. Brown v. Moore, 26 Ill. 421.

As above stated, the building, in which the machinery was placed by appellees, stood upon lot 29. Lots 7 and 8 were separated from lot 29 by a street thirty feet wide. They were not appurtenant to it, merely because a corn crib had been built on them for storing corn that was to be ground in the mill, or because a shed was located on them where the delivery horses, and wagons of the mill sometimes stood. No part of the mill structure was on lots 7 and 8 or touched them. (Parmelee v. Hambleton, 19 Ill. 615 ; Tracy v. Rogers, 69 id. 662.) Hence, the lien of the appellees did not extend to lots 7 and 8, as the Appellate Court very properly held.

The next point made by appellants is that the circuit court had no jurisdiction to entertain this proceeding for the reason that the jurisdiction of the county court, as is claimed, had already attached. Before this petition was filed, Sower Bros, had made their assignment to Bates; the assignee had filed his inventory and given notice to creditors, etc. It also appears that the appellees had filed their claim with the assignee and had received from him, on February 6, 1885, a dividend of $197.58. It is claimed that they thereby submitted themselves and their rights to the jurisdiction of the county court. "We are of the opinion that the circuit court had jurisdiction in the premises.

The lien of the appellees attached at the date of the contract, rto-wit: on June 30, 1883. "When they agreed to furnish and •did furnish the machinery and place it in the mill, their claim -,for the price became a lien upon the property from the time of ¡making the contract. (Clark et al. v. Moore et al. 64 Ill. 273.) ilt, therefore, had priority over the trust deed of appellants, which was not made until July 2, 1883, nor recorded until July 7, 1883. (Thielman et al. v. Carr et al. 75 Ill. 385.) Nor was the lien of appellees affected hy the burning of the mül. It attached to the money realized from the sale of the remains of the machinery just as it did to the mill and machinery before the fire. Gaty et al. v. Casey et al. 15 Ill. 189.

It follows, that, when the deed of assignment was afterwards made on April 26, 1884, the mill property passed to the assignee subject to the existing liens of the material-men and of the mortgagees. The lien of the appeHees was not assigned to the assignee; it existed before the rights of the assignee accrued. All that passed to him was the equity of redemption. Having the right under the statute to enforce their lien in the circuit court as soon as then: debt matured, appellees could not be deprived of that right because the owners of the equity of redemption had made an assignment.

The machinery for the enforcement of a mechanic’s hen is the creation of the statute. It has aU the elements of a chancery proceeding. Section 4 provides that the hen may be enforced by a bill or petition. Section 5 directs what that bill or petition must state. Section 6 provides for the issuance of a summons “as in suits in chancery.” Section 7 specifies the mode of giving notice to non-resident defendants “as provided in suits in chancery.” Section 8 directs that suits instituted under the act “shall be placed upon the chancery docket and stand for trial as other suits in chancery.” Section 28 provides that no creditor shall enforce the lien as against any other creditor or incumbrancer or purchaser, unless suit be instituted within six months after the last payment shall have become due and payable. All persons, claiming an interest in the property and against whom a priority of hen is claimed, must be made parties. (Dunphy v. Riddle, 86 Ill. 22.) To establish the hen as superior to that of a trust deed, not only the trustee, but the cestui que trust must be a party to the proceeding. (Clark v. Manning, 95 Ill. 580.) The court entertaining the petition must adjust 'the equities between the liens given by the act and the liens of other incumbrancers. Hence the proceeding is a chancery proceeding and not strictly in rem. Dunphy v. Riddle, supra.

The county court has no such chancery jurisdiction as is here indicated. None such is conferred by the act in regard to assignments for the benefit of creditors. The latter act provides no machinery for furnishing such relief or such adjustment of conflicting rights, as the Lien law makes provision for.

The cases of Freydendall v. Baldwin, 103 Ill. 325, Hanchett v. Waterbury, 115 id. 220, Field v. Ridgely, 116 id. 424, and Farwell v. Crandall, 120 id. 70, have no application to the ease at bar. Those cases expressly state, that there may be “special circumstances” under which courts of equity will intervene to entertain the jurisdiction there decided to be in the county courts.

The fact that appellees received a dividend upon their notes from the assignee can have no other effect than to require the amount of such dividend to be applied as a credit in fixing the sum decreed to be due in the lien suit.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    The Pitts Sons’ Manufacturing Company v. The Commercial National Bank of Chicago.

      Filed at Ottawa September 26, 1887.

    1. Pleading—pleas in abatement and in ban-—of their respective qualities. Pleas in actions at law are divided into two classes,—in abatement and in bar. The former, without disputing the justness of the plaintiff’s demand, objects to the place, mode or time of asserting it, and therefore requires that, pro hae vice, judgment may be in favor of the defendant, leaving the plaintiff free to sue again, while those in bar present a defeúce to the merits. The former are required to be certain to every intent.

      2. Whether a plea is in abatement or in bar, is to be determined, not from the subject matter of the plea, but from its conclusion. The prayer ■of the plea determines its character.
    3. A plea beginning in bar and ending in abatement, is in abatement, and "though beginning in abatement and ending in bar, is in bar; and so a plea beginning and ending in abatement, is in abatement, though its subject matter be in bar, and a plea beginning and ending in bar, is in bar, though its subject matter is in abatement.

      i. A plea to an action on the defendant’s promissory notes, that the plaintiff and other creditors had agreed to an extension of the time of payment, and not to sue on the notes until the extension had expired, and •praying judgment, commencing and concluding as a plea in bar, must be held a plea in bar, though the subject matter is in abatement, and is bad on demurrer.
    5. Actions and defences—matters in ba/r or in abatement, generally. Where the matter to be pleaded is to the effect that the plaintiff can not •maintain any action at any time, it must be pleaded in bar; while matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should be pleaded in abatement.
    6. Same—action prematurely brought. A contract for an extension of the time of payment of a note or debt can not be pleaded in bar of an action brought before the time, as extended, has expired.
    7. Composition with cbeditobs—extension of time of payment. An .agreement of a debtor’s creditors to extend the time of payment of his several debts to them, is not a composition of the debts or displacement of the ■original contracts.
    Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit ■Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Plaintiff in error made and delivered to Meeker & Co. its three promissory notes, which the payees assigned to defendant in error, who brought suit thereon. The defendant pleaded, specially, three pleas; hut reliance was placed upon the second amended plea, which was as follows:'
    “Now comes the said defendant, by its attorneys, and by leave of the court, etc., and defends, etc., and says actio non, ■etc., because, it says, that the causes of action set forth in the special counts, and in the common counts of said plaintiff’s-declaration, are one and the same, and not other or different that the only demand said plaintiff has against said defendant is upon the promissory notes, copies of which are attached to-the said declaration, and which are declared upon in the special counts thereof. This defendant further says, that the plaintiff was not a Iona fide holder, hut held the notes in trust for Meeker & Co.; that on the day named, defendant was in embarrassed circumstances and unable to meet its financial obligations; that Meeker & Co., then the owners of the notes, were threatening suit thereon; that defendant was then indebted to Meeker & Co. on the notes, and also was indebted upon debts due to certain other creditors, (naming them,) which last named creditors also threatened suit; that Meeker & Co., at the request of the defendant, and in consideration that the other creditors, aforesaid, of defendant, would withhold suits against defendant and give further day of payment,, then and there agreed with defendant, and with the other creditors of defendant, aforesaid, to withhold suit against defendant, and to extend the time and give further day of payment, as follows, (naming such time,) and not to sue defendant upon either of said notes until default had heen made in the-said payments upon the said further days, as aforesaid; that Meeker & Co. and the creditors named, in consideration that, each should withhold suit and give further days of payment, as aforesaid, then and there mutually agreed to, and did, withhold suits, and did give further day of payment, as aforesaid, and then and there mutually agreed not to bring suit until default had been made in the payments upon said further days of payment, as aforesaid. And this, defendant is-ready to verify; wherefore it prays judgment,” etc.
    This suit was commenced and plea filed before either of the-installments became due according to the agreement set up in the plea. A demurrer to the plea was sustained. The defendant stood by its plea, and final judgment for plaintiffs-was rendered, which the Appellate Court for the Second District affirmed. The record is brought here by writ of error to that court.
    Messrs. Bull, Strawn & Ruger, for the plaintiff in error r
    A simple agreement between a debtor and creditor to extend the time of payment is no bar to an action; but when made between a debtor and his creditors mutually, as a composition agreement, it presents equities of third persons, which courts-of law have never refused to enforce, though presented by the debtor; and it can make no difference that the creditors are to be paid in full. Boothby v. Sowden, 3 Campb. N. P. 174; Good v. Cheeseman, 2 B. & Ad. 328; Tatlock v. Smith, 6 Bing. 339.
    The cases of Guard v. Whiteside, 13 Ill. 7, Archibald v. Argall, 53 id. 207, and Culver v. Johnson, 90 id. 91, relied on by the AppeUate Court, belong to the first class, and do not apply in this case.
    The rule in those cases is extremely technical/ and courts-have departed from it on slight distinctions. Brooks v. White, 2 Metc. 283; Harper v. Graham, 20 Ohio, 105; Murray v. Snow, 37 Iowa, 410; Pierce v. Hasbruck, 49 Ill. 23; Bishop on Contracts, sec. 55.
    Composition agreements may be pleaded in bar by the debtor to protect the rights and interests of third persons. Perkins v. Lockwood, 100 Mass. 249; Farrington v. Hodgdon, 119 id. 453; Eaton v. Lincoln, 13 id. 424; Sage v. Valentine, 23 Minn. 102; Paddleford v. Thatcher, 48 Vt. 574; Fellows v. Stevens, 24 Wend. 294; Mellen v. Goldsmith, 47 Wis. 573 Pontius v. Durflinger, 59 Ind. 27; Renard v. Tuller, 4 Bosw. 107; Browne v. Stackpole, 9 N. H. 478; Pierson v. McCahill, 21 Cal. 122; Tatlock v. Smith, 6 Bing. 339; Austey v. Marden, 4 B. & P. 124; Wood v. Roberts, 2 Starkie, 417; Norman v. Thompson, 4 Exch. 755; Bradley v. Gregory, 2 Campb. 383; Butler v. Rhodes, 1 Esp. 236; Good v. Cheeseman, 2 B. & Ad. 328; Boyd v. Hind, 1 H. & N. 938; Steinman v. Magnus, 11 East, 390; Cockshott v. Bennett, 2 T. R. 763; Reay v. White, 1 Cr. & Mees. 748; Boothby v. Sowden, 3 Campb. 174; Belshaw v. Bush, 11 C. B. 190.
    Mr. D. B. Snow, for the defendant in error:
    The plea was a plea in bar, and in no sense a plea in abatement, and was obnoxious to the demurrer. If the rule is technical, this court has recognized it. Guard v. Whiteside, 13 Ill. 7; Perkins v. Gilmer, 8 Pick. 229; Central Bank v. Wildard, 17 id. 120; Winans v. Huston, 6 Wend. 461; Thimbleby v. Baron, 3 Mees. & Wels. 120.
    The agreement set up was in no sense a composition agreement. Perkins v. Lockwood, 100 Mass. 249; Gillifan v. Farington, 12 Bradw. 101.
   Mr. Justice Shops

delivered the opinion of the Court:

The common law system of pleading has prevailed in this State, and, from time to time, such modifications have been made by statute as seemed to be required, removing arbitrary and artificial distinctions, and, by the allowance of amendments at any and every stage of the proceeding, and to every reasonable extent, doing away with its purely technical and objectionable features. As a system of pleading, and as ■existing in this State, it is clearly defined, easily understood :and certain. With the general, logical arrangement of the .■system, as at common law, there has been no interference by statute. The order of pleading, and the structure and office of pleas of different character, remain substantially unchanged. Without entering into an extended discussion, a statement of some of the principles of pleading seems necessary.

Pleas are divided into two general classes, viz., dilatory and peremptory, otherwise designated as pleas in abatement and pleas in bar, A plea in abatement is defined to be, a plea that, without disputing the justness of the plaintiff’s claim, ■objects to the place, mode or time of asserting it, and requires that therefore, and pro hac vice, judgment be given for the defendant, leaving it open to renew the suit in another place ■or form, or at another time; while to the second class belong .all those pleas having for their object the defeating of the plaintiff’s claim. Hence, a plea in bar of the action may be ■defined as one which shows some ground for barring or defeating the action, and makes prayer to that effect. Pleas in :bar and pleas in abatement have, therefore, this marked dis¡tinction: Pleas in bar are addressed to the merits of the ■claim and as impairing the right of action altogether, whereas pleas in abatement tend merely to divert, suspend or defeat the present suit. 1 Saunders’ PL and Ev. 1, 2; Comyns’ Digest, .title “Abatement1 Chitty’s Pl. 441.

Owing to the nature and effect of pleas in abatement, they .■are required to be certain, to every intent. (Comyns’ Digest, 'title “Abatement,” 1,11.) Whenever the subject matter to be pleaded is to the effect that the plaintiff can not maintan any ■action at any time, it must be pleaded in bar; while matter ■which merely defeats the present proceeding, and does not .show that the plaintiff is forever concluded, should be pleaded .in abatement. 1 Chitty’s Pl. 445.

Whether a plea is in abatement or in bar is to be determined, not from the subject matter of the plea, but from its conclusion. The advantage or relief sought by the plea,— "the prayer of the plea,—determines its character. (Jenkins v. Pepoon, 2 Johns. Cas. 312; 1 Tidd’s Pr. *637.) It would be •both illogical and absurd in a plea in bar to pray, as in a plea in abatement to the count or declaration, “judgment of the ■.said writ and declaration, and that the same may be quashed;” •and as only the relief asked can be awarded, a mistake in this regard is fatal to the’plea. And, hence, the rule that a plea beginning in bar and ending in abatement is in abatement, and though beginning in abatement and ending in bar is in bar, so a plea beginning and ending in abatement is. in abatement, though its subject matter be in barf and a-plea beginning and ending in bar is in bar, though its subject matter is in abatement. (Comyns’ Digest, title “Abatement, b. 2.) With respect to all dilatory pleas, the rule requiring them to be framed with the utmost strictness and exactness, is founded in wisdom. It says to the defendant: If you will, not address yourself to the justness and merits of the" plaintiff’s demand, and appeal to the forms of the law, you shall, he judged by the strict letter of the law. And so it has been held that a plea in abatement concluding, wherefore he prays-judgment if the said plaintiff ought to have or maintain his aforesaid action against him, etc., (a conclusion in bar,) is-bad. Jenkins v. Pepoon, 2 Johns. Cas. 312; Isley v. Stubbs, 5 Mass. 280.

An inspection of the plea in question shows that in form, and structure, in its beginning and conclusion, it is a plea in bar to the count and declaration, and upon application off the principles announced it must be held to be ,a plea in bar. Its subject matter, however, is in abatement, and clearly falls-within the definition of matter pleadable in abatement. The justness of the plaintiff’s demand, that the defendant owes the debt evidenced by the notes sued on, is not denied, but the defendant denies that the debt is due. He objects, then, simply as to the time the debt shall be asserted against him. The contract set out in the plea is of an extension of the time off payment, and such a contract, this court has repeatedly held,, can not be pleaded in bar of an action brought before the time has expired. Guard v. Whiteside, 13 Ill. 7; Hill v. Enders, 19 id. 163; Payne v. Weible, 30 id. 166; Archibald v. Argall, 53 id. 307; Culver v. Johnson, 90 id. 91. .

The circuit court did not err in sustaining the demurrer to-the plea, and when the defendant elected to stand by its plea, final judgment was properly rendered against it,—for the rule is, if matter in abatement be pleaded in bar of the action* final judgment shall be against the defendant, if the plea be disallowed. Comyns' Digest, title “Abatement,” 1, 15.

But it is contended that there is a substantial difference between an agreement to extend the time of payment when made simply between the debtor and a creditor, and when made between the debtor and his creditors mutually, as a composition agreement; that while the former has been held no bar even when made upon a good consideration, the latter presents equities of third parties, which courts of law have never refused to enforce, although presented by the debtor, .and in support of this last position a number of authorities are cited. Without expressing any opinion as to whether ■composition agreements may or may not be pleaded in bar by “the debtor in cases where suit is brought before the time of payment fixed in such agreement, it is enough to say, the agreement pleaded is in no sense a composition agreement. A number of the creditors of plaintiff in error agreed with him to extend the time of payment of his several debts to them— this, and nothing more; and we adopt the language of the Appellate Court, that “there is no composition of the debt or displacement of the original contract.” That others besides defendants in error joined in the agreement, may go to the consideration of the agreement for extension, but in no way • changes the character of the contract.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    J. Irving Pearce v. The Bryant Coal Company.

      Filed at Springfield September 27, 1887.

    1. Deed oe trust—to seewre indebtedness—powers of trustee superseded!by a subsequent arrangement—duty of trustee to release on request of oredn0r8m a. trustee in a deed of trust given to secure the payment of bonds1 in which he has no ownership, has no interest in the trust, and when the-bonds so secured are satisfied, in equity, by the giving of a note in their place, secured by another trust deed, and a sale under the latter trust deed,, though the bonds may not be surrendered and cancelled, it will be the duty of the trustee in the first deed, on the request of the holders of the bonds and the makers thereof, to release the property conveyed in that trust deed, from the lien thereof. He can not object that the evidences of the indebtedness are not surrendered or cancelled.
    2. Same—trustee having an interest in the debt secured—not concluded by agreement with other creditors. A trustee in a trust deed may, however, become the owner of a part of the indebtedness secured by the deed, and if he does, he can not be concluded, as to such part of the indebtedness of which he is the owner, by any agreement between the debtor and the holder of the remainder of the indebtedness, to which he is not a party.
    3. Same—burden of proof to show trustee is the owner of part of debt secured. Where a trustee refuses to release the trust deed pursuant to the direction of the other parties thereto, on the ground that he is the owner of part of the coupons given for the interest on the principal debt, the burden is upon him to show that fact, and failing to show he is such owner, a court of equity will require him to release the trust deed.
    4. Same—sale under second deed, as a satisfaction of the prior deed. The taking of a second deed of trust on the same property, for the same indebtedness in a different form, and a sale of the property under the second deed of trust, will, in equity, operate as a satisfaction of the first deed of trust, even though the evidences of the indebtedness, by agreement of the debtor and creditor, may not have been surrendered or cancelled.
    5. Payment by third person, as an extinguishment of the debt. The demand of a creditor, which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.
    6. So where a corporation gave its bonds, with interest coupons, secured by a deed of trust, and the trustee, at the request of an officer of the corporation, paid the first set of coupons and took them up, it was held, that such coupons became extinguished, and could not be enforced by the trustee-so paying the same, and that they ceased to he a lien on the mortgaged property.
    Writ oe Ebbor to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court-of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    Messrs. MoCagg & Culver, for the plaintiff in error:
    If plaintiff in error advanced the money to pay the coupons first maturing upon the bonds secured by the trust deed to him, it was inequitable to decree that he release the security until he should be fairly reimbursed.
    A coupon remains a hen under a mortgage when it is detached from the bond, and is owned by one party while another owns the bond itself. City of Aurora v. West, 7 Wall. 105; Miller v. Railroad Co. 40 Vt. 401; Sewell v, Brainerd, 38 id. 364; Haven v. Depot Co. 109 Mass. 88; Beaver County v. Armstrong, 44 Pa. St. 63.
    Whether the security shall be regarded as extinguished, or be held in force for the benefit of the party making the advance, depends upon the intent of the party making the advance. A superior equity must intervene to prevent the security being maintained. Harbeck v. Vanderbilt, 20 N. Y. 395.
    The fact that Pearce retained the coupons in his possession uncancelled, and presented them on the hearing, is the strongest evidence to show he had no intention to have them treated as satisfied.
    A trustee in a deed of trust has no power to release the same except upon a surrender and cancellation of the bonds secured. Land Co. v. Peck, 112 Ill. 408.
    Mr. W. C. G-oudy, for the defendant in error:
    The coupons produced by Pearce were not sold by the Haskell & Barker Car Company to him. He paid these coupons at the request of Bryant, treasurer of the Forsythe Coal Mining Company. The money advanced by Pearce to pay these coupons was repaid to him.
    It was not necessary that the bonds should be cancelled or paid. Even if Pearce has a claim, it is not covered by the mortgage, and there are no grounds on which he can he subrogated to the rights of the Haskell & Barker Car Company. Brown v. Gadsden, 1 Speer’s Eq. (S. C.) 41; Shinse v. Budd, 14 N. J. Eq. 234.
    A stranger paying the debt of another will not be subrogated to the creditor’s rights, without an agreement to that effect. Leading Cases in Equity, 154, note 1; Swan v. Patterson, 7 Md. 164; Bank v. Merton, 2 Brock. 254; Burr v. Smith, 21 Barb. 262.
    Such payment absolutely extinguishes the debt. Sanford v. McLane, 3 Paige, 117; Douglass v. Fagg, 3 Leigh, 588 ; Banta v. Gavow, 1 Sandf. 384; Wilkes v. Harper, 1 Com. 586.
    When a third person, at the instance of the mortgagor, pays a part of the mortgage debt, but takes no assignment of the mortgage, and no agreement for any, he is not thereby subrogated to the right of the mortgagee, as against a subsequent incumbrance. To effect this, there must be something more than mere payment and silent receipt of the money by the mortgagee. 1 Jones on Mortgages, 877; Virginia v. Canal Co. 32 Md. 501; Swan v. Patterson, 7 id. 164; Collins v. Adams, 53 Vt. 433.
    But if a third person pays the whole of the mortgage debt at the request of the mortgagor, and receives the note and mortgage as security for the money advanced, he is, in- equity, subrogated to the rights of the mortgagee. 1 J ones on Mortgages, sec. 877; Caudle v. Murphy, 89 Ill. 352.
    A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. But if the person who pays the debt is compelled to pay for the protection of his own interests and rights, then the substitution should be made. Hough v. Insurance Co. 57 Ill. 318; Young v. Morgan, 89 id. 199; Beaver v. Slanker, 94 id. 183.
    Cases in which party paying may be subrogated: Bishop v. O’Connor, 69 Ill. 431; Tyrrell v. Ward, 102 id. 29; Powell v. Allen, 11 Bradw. 129; Darst v. Bates, 95 Ill. 493; Bayard v. McGraw, 1 Bradw. 134; Small v. Stagg, 95 Ill. 39.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The Forsythe Coal Mining Company, being indebted to the Haskell & Barker Car Company, for cars purchased, $24,000, and for interest thereon, $1000, on the 15th of June, 1874, executed therefor thirty-five bonds, of $1000. each, payable in three years, with interest at ten per cent per annum, payable semi-annually, on the 15th of June and December of each year, evidenced by coupons attached to the bonds; ,and at the same time also executed a deed of trust to J. Irving Pearce to secure the bonds. The bonds were not paid when due, and on the 15th of June, 1877, the Forsythe Coal Mining Company executed a promissory note for $35,000 to the Haskell & Barker Bar Bompany, due in one year, with interest at ten per cent per annum, payable semi-annually, and at the same time also executed a deed of trust, of the same property as that conveyed by the first deed of trust, to Henry T. Haskell, as trustee, to secure the payment of the promissory note. The car company also retained the unpaid bonds and the first deed of trust as security for the debt. Default was made in the payment of the promissory note when due, and on the 22d of August, 1878, Henry T. Haskell, the trustee in the second deed of trust, sold and conveyed the property described in the deeds of trust, by virtue of and pursuant to the terms of the power in the second deed of trust, to the Haskell & Barker Car Company, for §23,000, and that amount was then credited on the promissory note. The Haskell & Barker Car Company sold and conveyed the property thus conveyed to it, to William C. Cloudy and S. Corning Judd, on the 20th of December, 1878, and at the same time, and as a part of the same transaction, it also sold and delivered to them the thirty-five bonds and the promissory note. Goudy and Judd sold and conveyed the property to the Bryant Coal Company, on the 15th of January, 1879.

On the 6th of July, 1882, the Bryant Coal Company procured the consent of Goudy and Judd, then the holders and owners of the thirty-five bonds, to the release of the mortgaged property, and at the same time said company procured resolutions to be passed by its board of directors, requesting Pearce,, the trustee, to release the property from his deed of trust, in which request the Forsythe Coal Mining Company joined.. Pearce was requested, a number of times, to execute such a release, but he failed to do so, and on the 23d of March, 1883, a certified copy of the resolutions requesting the release, with the consent of the Forsythe Coal Mining Company, and also of Goudy and Judd, were formally presented to Pearce, and the-offer made to pay him his reasonable costs, expenses and charges, and requesting him to execute a release of all of the-property. Pearce refused to make the release.

The Bryant Coal Company filed a bill in the circuit court-of Fulton county, on the 29th of March, 1883, against Pearce, Goudy, Judd, and the Forsythe Coal Mining Company, setting up substantially the foregoing facts, and praying that Pearcebe decreed to execute a release of the first trust deed. Pearce, Goudy and Judd filed answers, to which replications were filed, and on the 31st of December, 1883, Pearce filed a cross-bill, alleging that he held the coupons annexed to the bonds secured' by the first deed of trust, falling due December 15, 1874, ■amounting to $1750, and that the same remained unpaid, claiming that all of the bonds and the other coupons had been satisfied. He claimed to be subrogated to the rights of theHaskell & Barker Car Company in those coupons, and prayed for an account, and a decree requiring the payment to him of such sum as was due upon those coupons, and that the bonds- and remaining coupons be declared paid and satisfied. The Bryant Coal Company, and Goudy and Judd, filed answers to the cross-bill, denying that anything was due Pearce upon the coupons in his possession, alleging that if he advanced any money on account of them, he was repaid the amount so advanced, and that if this be not true, still, that if Pearce advanced any money for the payment of the coupons, he did so as a general creditor of the company, without any security or lien therefor. ¡Replication was filed to this answer. On final hearing, on December 22, 1885, the court decreed that the prayer of the cross-bill be denied, and that the prayer of the original bill be granted, and that Pearce execute a release of the deed of trust made to him, and in default thereof, that the master in chancery execute such release. Pearce appealed from that decree to the Appellate Court for the Third District, and that court, at its November term, 1886, affirmed the decree of the circuit court. The record is brought before us on writ of error upon that judgment.

Pearce, simply as trustee, had no interest in the trust. He had only to perform the duty of selling the property upon default in payment of the amount secured, pursuant to the terms of the power; and it results, from the undoubted rights of the debtor and creditor to extend the time of payment, change the form of the indebtedness, and to exchange or wholly release the securities held for its payment, by mutual agreement, that, the taking of the second deed of trust on the same property,, for the same indebtedness, in a different form, (if such was the-fact,) and a sale of the property under the second deed of' trust, operated, in equity, as a satisfaction of the first deed of trust. It can be of no possible concern to the trustee that the-evidences of indebtedness are not surrendered or cancelled,, if the creditor and debtor desire that they shall not be. The-trustee, as such, represents no one but the creditor and debtor,, or those standing in their stead, and there can be no reason why a creditor may not voluntarily release a security that would :not equally prevent his giving away property of any kind.

What was said in Chicago and Great Western Railroad Land Co. v. Peck et al. 112 Ill. 408, cited by counsel for plaintiff in ■error, was upon the assumption, authorized by the facts then under consideration, that the release of the trustee was not requested or authorized by those interested in the ownership of the debt, and, in that view, is undoubtedly correct; but it has no relevancy to a case where the creditor and debtor agree that the security shall be released. A trustee may, however, become an owner of a part of the indebtedness secured by his deed of trust, and when he does so, he can, of course, be concluded as to the indebtedness of which he is owner, by no agreement between the debtor and the holder of the remainder of the indebtedness to which he is not a party.

The only question, then, material to be inquired into here is, whether Pearce is the owner of the coupons maturing on the 15th of December, 1874. He alleges that he is, and the burden is upon him to prove the fact. The lower courts found that the evidence was insufficient to sustain the allegation, and after having given the evidence preserved in the record, careful consideration, we do not feel authorized to say that that conclusion is wrong. Pearce, himself, testifies that he purchased the coupons at the request of Bryant, who was, at the time, the treasurer and business manager of the Forsythe Coal Mining Company. The fact that Pearce furnished the money which was paid to the Haskell & Barker Car Company, the owners and holders of these coupons, is admitted; but there are two answers to the claim of Pearce, either one of which is sufficient: First, that he was repaid the money thus furnished; and second, that instead of purchasing, he simply paid off the coupons, and thereby became a general creditor of the Forsythe Coal Mining ■Company, instead of an owner of the coupons.

First—Pearce denies that he has been repaid the amount he thus advanced, and he is corroborated in this by the possession of the bonds. Bryant testifies, however, equally positively, that he has been repaid the amount, and he shows, that in view of the business, and the peculiar way in which it was transacted between him and Bryant, there is nothing inconsistent with his version in the fact of Pearce’s possession of the coupons. There is, moreover, this strongly corroborating circumstance in favor of the correctness of Bryant’s testimony. The payment of the thirty-five bonds and interest was guaranteed in writing on the back of the bonds, by Henry L. Bryant, William C. Goudy and S. Corning Judd. It is not contended the amount could not have been collected from these guarantors, and it is proved that Pearce never made any claim upon either of them for payment of it, and the proof also further shows that Goudy, in 1878 or 1879, requested Pearce to release two of the lots described in the deed from its operation, which Pearce did without then making any claim that he had any personal interest in the mortgage.

Second—The rule is, that the demand of a creditor which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished. Sheldon on Subrogation, see. 8; Gadsden v. Brown, 1 Speer’s Eq. (S. C.) 41; Sanford v. McLane, 3 Paige, 117; Banta v. Gavow, 1 Sandf. 384; Wilkes v. Harper, 1 Comst. 586; Douglass v. Fagg, 3 Leigh, 588; Hough v. Ætna Life Ins. Co. 57 Ill. 318; Small et al. v. Stagg, 95 id. 39.

Haskell, president of the car company, testified that he did not sell the coupons to Pearce, but that Pearce paid them, and Bryant testified that Pearce paid them for him. The preponderance is clearly that there was simply a payment of the coupons.

We find no sufficient ground upon which to reverse the judgment below. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Ira Lackey v. Elisha B. Steere.

      Filed at Springfield September 27, 1887.

    1. Bankruptcy—disehargein bankruptcy—effect-upon surety amd others liable for the same debt. A discharge in bankruptcy does not release, discharge or affect any person liable for the same debt with the bankrupt, either as partner, joint contractor, surety or otherwise.
    2. Sam®—judgment pending proceeding, and satisfaction out of subsequently acquired property. A judgment obtained against a bankrupt in the State court, pending a proceeding by him in the United States Court for a discharge in bankruptcy, is valid, notwithstanding his subsequent discharge. The bankrupt, after his discharge, may apply for and have a stay of the execution of the judgment. If he suffers execution to be issued and his subsequently acquired property to be sold, the sale will be valid, and operate as a satisfaction both as to the bankrupt and his surety, when the judgment is against both.
    3. Chancery—setting aside satisfaction of judgment—as to one not a party. P ending a proceeding in bankruptcy, judgment was recovered against the alleged bankrupt and his surety. There being no stay of proceedings under the judgment after the discharge, after acquired lands of the bankrupt were levied on and sold in satisfaction of the judgment. Subsequently, the bankrupt, on bill filed for that purpose, to which the surety was not made a party, obtained a decree setting aside the sale and satisfaction of the judgment: Held, that the decree in nowise affected the surety, but that his rights remained the same as if no decree had ever been rendered.
    Writ oe Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of McLean county; the Hon. 0. T. Beeves, Judge, presiding.
    On the 15th day of September, A. D. 1877, John M. Major filed his voluntary petition in bankruptcy, in the United States District Court for the Southern District of Illinois. On the 10th day of October, 1877, Elisha B. Steere, the defendant in error, obtained in the McLean circuit court a judgment against John M. Major and Ira Lackey, for the sum of $2183.33-^-. On the 4th day of December, 1877, E. B. Steere proved his said judgment in the said district court as a claim against the estate of said John M. Major. On the 20th day of August, 1879, said Major was discharged in bankruptcy from debts existing on the 15th day of September, A. D. 1877. December 14,1882, execution was issued out of the McLean circuit court on the judgment obtained therein as aforesaid, and levied on property acquired by Major subsequent to his discharge. A sale was made, and the judgment creditors purchased at that sale, bidding the full amount of said judgment, interest and costs, and said execution was returned by the sheriff satisfied in full.
    A bill in chancery was filed in the McLean circuit court to the February term, A. D. 1883, wherein John M. Major was complainant, and E. B. Steere, H. H. Swaim, sheriff of McLean county, and J. C. McFarland, clerk of the circuit court, were defendants. At the same term of court an amended bill was filed, and subsequently such proceedings were had thereon that at the September term, A. D. 1883, a decree was rendered in favor of said John M. Major, setting aside the sale under the execution, and vacating the satisfaction of the judgment as to him. Lackey was not a party to that proceeding. In December, 1885, Lackey was notified to appear on the first day of the February term, 1886, of the McLean circuit court,—that on that day Steere would make a motion to set aside the sale and to vacate the satisfaction of the judgment. On the 22d day of December, 1885, a scire facias, to revive said judgment, was issued out of the McLean circuit court, against Lackey, alone, which was made returnable to the February term, A. D. 1886. At the last mentioned term such proceedings were had that the court set aside the sale as to Lackey, and also revived the judgment.
    The judgments of the circuit court were affirmed in the Appellate Court for the Third District, and the defendant, Lackey, brings the case to this court on error.

      Mr. John E. Pollock, for the plaintiff in error:
    Plaintiff in error was surety, only, on the note which was afterward reduced to judgment. Defendant in error released the surety by proving his claim in bankruptcy. U. S. Eev. Stat. secs. 5105, 5117.
    Any act that operates to the injury of the surety, which would release him before judgment, will release him after judgment. Trotter v. Strong, 63 Ill. 272; Commonwealth v. Miller, 8 S. & R. 452; Potts v. Nathans, 1 W. & S. 155; Bank v. Bank, 7 id. 335; Talmadge v. Burlingame, 9 Bow. 21; Carpenter v. King, 9 Metc. 511; Bangs v. Strong, 10 Paige, 11; 7 Hill, 520; 4 Comst. 315; Moss v. Pettingill, 3 Minn. 217; Smith v. Rice, 27 Mo. 505 ; Crawford v. Gaulden, 33 Ga. 173 ; Sheridan v. Parker, 24 Iowa, 28; Furguson v. Turner, 7 Mo. 497; Brown v. Riggins, 3 Ga. 405; Craig v. Cox, 2 Bibb, 309 ; Sailey v. Elmore, 2 Paige, 497; Smith v. Day, 23 Vt. 656.
    The judgment concludes Major’s defence. Bailey v. Bailey, 115 Ill. 551; Scales v. King, 110 id. 456; Town of Lyons v. Cooledge, 89 id. 529; Kelly v. Donlin, 70 id. 378.
    The sale under the execution was a satisfaction of the judgment.
    Judgments entered subsequently to the filing of the debtor’s petition are beyond the scope of his discharge. Bradford v. Rice, 102 Mass. 472; Kellogg v. Schuyler, 2 Denio, 73; Roden v. Jaco, 17 Ala. 344; Ellis v. Ham, 28 Me. 385 ; Uran v.Houdlette, 36 id. 15.
    Messrs. Kebbick, Lucas & Spenceb, for the defendant in error:
    The proving of the claims against the estate of the bankrupt did not discharge him. The claim was proved against the bankrupt December 4, 1877, while the bankrupt was not discharged until August 20, 1879. So the act of proving the claim did not discharge the bankrupt. The law subsequently released him, and it is a well settled rule of law that the discharge of the principal by the act of the law will not relieve the surety. Alsop v. Price, 1 Doug. 160 ; Garnett v. Roper, 10 Ala. 842; Cowper v. Smith, 4 M. & W. 519; Kane v. Ingraham, 2 Johns. Cas. 403; Seaman v. Drake, 1 Caines, 9; Inglis v. McDougal, 1 Moore, 196; Claflin v. Cogan, 48 N. H. 411; Jones v. Hagler, 6 Jones Law, (N. C.) 532; Moore v. Wallers, 1 A. K. Marsh. (Ky.) 488.
    Where a creditor, pending an action against a surety who contested his liability, proved the debt, under a commission of bankruptcy, against the principal, and by his signature enabled the bankrupt to obtain his certificate, though the surety had given him notice not to sign it, it was held the surety was not discharged. Browne v. Carr, 2 Russ. 600. We also call attention to Phillip v. Solomon, 42 Ga. 192, and Sharpe v. Specklenagle, 3 S. & R. 463.
    Where the execution plaintiff is himself the purchaser, and the sale passes no title, the sale being void, or the property not being subject to sale on execution for plaintiff’s demand, it is proper for the court to set aside the sale, vacate satisfaction of the judgment, if satisfaction is entered, and allow a new execution on the judgment. Borer on Judicial Sales, sec. 1147; Freeman on Void Judicial Sales, sec. 48.
   Mr. Justice Scott

delivered the opinion of the Court:

The record in this case shows two distinct proceedings bathe circuit court. One is a motion to vacate the satisfaction of a judgment as to Ira Lackey, that had previously been rendered against him and one John M. Major, and the other is a scire facias to revive the same judgment as to Lackey. The circuit court vacated the satisfaction of the judgment, as it was asked to do by the motion, and revived it as to Lackey on the scire facias. The errors assigned call in question the correctness of both decisions, and as one is dependent upon the other, they will be considered together as presenting a single question. If it shall be ascertained the order vacating the satisfaction of the judgment was improper as against Lackey, it follows, as a matter of course, it was error to revive it as to him.

As respects the facts, there exists no controversy. Pending a suit by Elisha B. Steere against John M. Major and Ira Lackey, on his own petition Major was adjudged a bankrupt in the United States District Court. Major did not ask for a stay of proceedings against himself, as he might have done under the Bankrupt act. The suit still progressed, and shortly after the filing of Major’s petition in bankruptcy, plaintiff obtained a judgment against both defendants. Subsequently the judgment creditor proved his claim against the estate of the bankrupt, but never received any dividend or money whatever •upon it. Later on, in August, 1819, Major was granted a discharge in bankruptcy. On the 14th day of December, 1882, execution was issued on the judgment against Major and Lackey, and real estate acquired by Major after his discharge in bankruptcy was levied upon and sold to the plaintiff in the execution, in full satisfaction of the judgment, interest and costs. Afterwards, Major filed a bill in chancery to set aside the sale of the property under the judgment, as a cloud upon his title, and a decree was rendered accordingly; but the satisfaction of the judgment as to Lackey still remained until it was set aside in this proceeding.

It is said the judgment against Major, at the time the execution was issued, was an absolute nullity, on account of his previous discharge in bankruptcy, and that the sale on the execution was void for that reason, and being void as to Major, it is void as to Lackey also, and might be set aside on motion, as was done. This raises the direct question whether the judgment against Major, after his discharge, was a nullity. If so, the subsequent sale o'f his property under it would be void also.

There can be no pretence the judgment was void as to Lackey, for the Bankrupt law provides, in express terms, “no -discharge shall release, discharge or affect any person liable for the same debt, or with the bankrupt, either as partner, joint •contractor, surety or otherwise.” (U. S. Eev. Stat. 1878, sec. 5118.) . But was the judgment a nullity as to Major after his ■discharge in bankruptcy? If it was not, it is plain the sale of his property thereunder was a satisfaction of the judgment, both as to him and Lackey. It must not be forgotten in the brief discussion that is to follow, thqt Lackey was not a party to the bill filed by Major to set aside the sale of his property under the execution issued on the judgment against them, and is in nowise affected by the decree rendered. His rights are precisely the same as if the bill had never been filed by Major, .and no decree rendered in favor of Major.

That the judgment against Major, jointly with Lackey, notwithstanding his subsequent discharge in bankruptcy, was valid .as to him, as well as Lackey, not the slightest doubt is entertained. The court had jurisdiction of the subject matter, and of the persons of defendants, by service of process, and the judgment was valid and would remain in force, and might be -executed unless stayed or satisfied in some way known to the .law, by judgment or otherwise. Whether a judgment rendered by a State court is valid, under its laws, is not a Federal question, but whether its further execution might be stayed, after •discharge in bankruptcy, by force and operation of the Bankrupt law, may be, and no doubt is, a- Federal question. What the Supreme Court of the United States has decided as to the effect to be given to the discharge in bankruptcy after the .judgment, must therefore be regarded as controlling.

It will be seen the Supreme Court, in Dimock v. Revere Copper Co. 117 U. S. 559, has held, in conformity with the State courts of Massachusetts, that a judgment rendered against the bankrupt, after his discharge, where he failed to plead such •discharge, was conclusive on the question of his indebtedness, and hence the judgment was valid. In Boynton v. Ball, recently decided in the Supreme Court of the United States, it was said the principle on which Dimock’s case was decided, was-that while the discharge in bankruptcy would have been a valid defence to the suit if pleaded at or before the time judgment ■■ was rendered in the Massachusetts court, it had, in that respect, no more sanctity or effect in relieving defendant of his debt to-plaintiff, than a payment or receipt or release, of which he-could only avail by plea, or otherwise bringing it to the attention of the court; but failing to do so, and showing no good-reason why he did not, it was held the judgment was conclusive, and for that reason plaintiff was permitted to revive the judgment against defendant, notwithstanding his previous discharge in bankruptcy.

It will be seen the Dimock case is not sufficiently analogous in its facts with the one being considered, to be conclusive, one way or the other, upon the question whether the satisfaction of the judgment in this case can be set aside as to Lackey, and the judgment revived as to him. It does, however, support the view taken by the court, that the judgment against Major, notwithstanding Ms discharge in bankruptcy, was not a nullity, and the sequel will show that is an important point in the further consideration of the case. Neither is the case of Boynton v. Ball, supra, sufficiently analogous in its facts to be controlling authority on the principal question in the case being considered. In that case the judgment was rendered against Boynton prior to Ms discharge in bankruptcy, and hence he never had an opportunity to plead such discharge as a defenceto the action against him. The fact he failed to ask for a-stay of the proceedings against Mm, as he might have done under the Bankrupt law, was regarded as a matter of no consequence. As he pleaded Ms discharge at the first opportunity, and asked for a stay of execution against Mm, it was held he was entitled to relief. But that is not tMs case. Here, Major did not ask for a stay of execution on the judgment against, Mm, as he might have done under the rule declared in Boynton. v. Ball, but suffered execution to be issued, and Ms property io be sold in full satisfaction of the judgment, and costs against him and his co-debtor, Lackey.

As has been seen, the judgment as to Major was valid, and it follows, as a matter of course, the execution and sale thereunder were valid, and operated as a full and complete satisfaction of the judgment, both as to Major and Lackey. It is apprehended it is too late, after the judgment against the bankrupt has been executed and his subsequently acquired property sold in satisfaction of the judgment, to ask for relief against such sale. He should have asked for a stay of execution of the judgment before the sale of his property, and failing to do that, and showing no good reason why he did not, the subsequent sale of his property must be regarded as regular and "valid. The case of Dimock v. Revere Copper Co. supra, is a ■strong authority in support of this view of the law.

It would seem, therefore, to follow, as a matter of course, the satisfaction of the judgment, by the sale of Major’s property, was a satisfaction of the judgment as to Lackey, and there is no reason, in law or in equity, why the satisfaction should be set aside and the judgment revived as to him. Whether the sale of Major’s property was properly set aside on his bill, as to him, is a question not involved in the present discussion. As before remarked, Lackey was not a party to that suit, and had no opportunity to assert anything against the decree rendered in favor of Major, and is therefore not bound in any way by the decree. It is plain the sale of Major’s property, as was done, was in satisfaction of the judgment against Lackey, and that is a full defence to the present proceedings against him.

The judgments of the Appellate and circuit courts will be .reversed, and the cause remanded to the circuit court.

Judgment reversed.