author: Mr. Justice Scholpield

text:
    Ebenezer T. Gallaher et al. v. Thomas Herbert.

      Filed at Ottawa May 15, 1886.

    1. Deeds—rule of construction—as, whether a covenant or a condition. In the construction of deeds, courts will always incline to interpret the lan-. guage as a covenant, rather than as a condition.
    2. Same—whether a condition subsequent. A father conveyed a tract of land to his son, in consideration of love and affection, and the payment by the latter to the former of $200 a year as long as the grantor should live, payable on the first day of March of each year, and the further consideration that the grantee should not, during the grantor’s life, sell or convey the premises; and the grantee released all his interest in the estate as prospective heir, etc. These matters were all set forth in the deed itself. The son failed to make the annual payments, and incumbered the land by mortgage and by suffering judgments to go against him, when the grantor filed his bill to have the conveyance set aside for non-performance by the grantee, as for the breach of a condition subsequent: Held, that there was no condition subsequent, and that the grantor was not entitled to have his deed set aside, but only entitled to the money therein provided for, with interest, and to have a lien declared in his favor for the payment of the $200 annually. The words “upon condition,” or other words of equivalent meaning, did not occur in the deed; nor was there a clause providing that the grantor might re-enter in any event, and these are the usual indications of an intent to create a condition subsequent.
    3. Forfeiture—for breach of condition subsequent—1he doctrine in equity. A court of equity, as a rule, will never lend its aid to divest an estate for a breach of a condition subsequent, but where a compensation can be made in money, it will relieve against such forfeiture, and compel the party to receive a reasonable compensation in money.
    4. Notice—from registry of deed. The record of a deed to a party for land will be notice to all persons thereafter dealing with him, or acquiring judgments against him, of all the reservations contained in the deed in favor of the grantor. If such deed obligates the grantee to pay the grantor a yearly sum of money during his life, it will constitute a lien on the land prior to that of others holding claims against the grantee.
    Appeal from the Circuit Court of La Salle county; the Hon. George W. Stiff,- Judge, presiding.
    This was a hill in equity, in the circuit court of LaSalle county, hy Thomas Herbert, in which he alleged that, being enfeebled by age, he was induced, by the persuasions of his son, Patrick Herbert, to execute and deliver to him a deed, of which the following is a copy:
    “This indenture, made this 21st„day of August, A. D. 1871, between Thomas Herbert, of the county of LaSalle, and State of Illinois, party of the first part, and Patrick Herbert, of the same county, party of the second part, witnesseth: That said party of the-first part, for and-in consideration of the .love and affection which he has and bears towards the said Patrick Herbert, as well as the sum of one dollar in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and the further consideration of the payment of $200 by the party of the second part to the party of the first part, on or before the first day of-March in each and every year, commencing on the.first day of March, A. D. 1872, and continuing thereafter during the natural life of said Thomas Herbert, and the further consideration that the said party of the second part shall not, during the lifetime of the said party of the first part, bargain, sell and convey any part of the lands, tenements or hereditaments hereinafter mentioned, hath granted, bargained and sold, and by these presents doth graiit, bargain and sell unto the said party of the second part, his heirs and assigns, all the following described lot, piece or parcel of land situated in the town of Allen, in the county of LaSalle, and State of Illinois, to-wit: The north-east quarter of section 2, town 31 north, range 5, east of the third principal meridian, containing 16OT8057 acres, more or less, and subject to all public easements now on the same, together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, c-laim and demand whatsoever of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances, to have and to hold the said premises above bargained.and described, with the appurtenances, unto the said party of the second part, his heirs and' assigns forever: And the said Patrick
    Herbert, party of -the second part, hereby expressly waives, releases and relinquishes unto the said party of the first part, his heirs and assigns, executors and administrators, all right, title, claim, interest and benefit whatever, either in law or equity, in and to the entire estate, both real and personal, of the said party of the first part, which he may or can have • by reason of his relation of son and heir to the said party of the first part. And the said party of the first part, for himself, his heirs, executors and administrators, does covenant, bargain and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivering of these presents he is well seized of the prem7 ises above conveyed, as of a good, sure, perfect, absolute and indefeasible estate of inheritance in law, and in fee simple, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form aforesaid, and that the same is free and clear from all other and former grants, bargains, sales, liens, taxes, assessments and incumbrances, of what kind or nature soeyer, and the above bargained premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all and every person or persons lawfully claiming, or to claim, the whole or any part thereof, the said party of the first part shall and will warrant and forever defend.
    “In testimony whereof said parties hereunto set their hands
    and seals, etc.
    Thomas Herbert, [Seal.] Patrick Herbert. [Seal.] ”
    The deed was properly acknowledged, and on the next day duly recorded in the proper record of La Salle county.
    The bill then alleges “that said Patrick Herbert induced your orator to execute and deliver said contract or deed to biin by reason of false and fraudulent representations that he, Patrick Herbert, would fully, fairly and honestly fulfill and perform the terms and conditions of said contract or deed to be by him fulfilled and performed; that your orator executed said contract or conveyance to said Patrick upon the reliance that said Patrick would fairly, fully and honestly perform his part thereof, and with the belief and expectation that said Patrick would so do; but now, so it is, said Patrick has not performed or lived up to said contract or conveyance, or to any of the terms or conditions by him to be performed; that said Patrick accepted said conveyance upon the day of the date thereof, and immediately thereafter entered upon and took possession of said premises, and ever since has held and still holds the same; that said Patrick Herbert has for several years last past wrongfully failed and refused to pay your orator said yearly sum of $200, nor has he paid the taxes levied against said premises; that by a pretended deed of mortgage, dated October 1,1878, he bargained, sold and conveyed said premises to one William S. Jackson, all of which acts were in violation of the terms and conditions of said contract or conveyance, and a gross fraud upon your orator; that said pretended mortgage to said Jackson was executed by said Patrick Herbert, and Kate, his wife, to secure to said Jackson a pretended sum of $1000, due in three years from date of said pretended mortgage, with interest at ten per cent, payable annually, which pretended mortgage was recorded in book 191, at page 572, of records, in the recorder’s office of said La Salle county; that your orator now believes said Patrick fraudulently induced your orator to execute to him said contract or conveyance, with the intention and design, on his part, of never performing or complying therewith, and simply for the unconscionable purpose of getting control of said premises, and thereafter defeating and defrauding your orator in all your orator’s rights reserved in said conveyance, and that it would be unconscionable longer to permit said conveyance to exist or said Patrick to retain said premises; that said Patrick now owes your orator said yearly sum of $200 for and during several years last past, and has suffered to become delinquent the taxes upon said premises during several years last past, and, although requested by your orator to pay said yearly amounts and said taxes, said Patrick has neglected and refused to pay the same, to the wrong and injury of your orator and in violation of the spirit and terms of said conveyance; that said pretended mortgage to said Jackson was and is absolutely, without authority upon the part of said Patrick, and is in violation of the spirit and expressed letter of said conveyance, and is a fraud upon the reserved rights of your orator, and a cloud upon the title of said premises; that said Patrick is a man of no pecuniary responsibility whatever, and any suit at law brought against him for the recovery of any annual payments aforesaid, would be unavailing; that said Jackson had notice of said contract or conveyance prior to the making of said pretended mortgage, and has acquired no rights by virtue of said mortgage; that said Patrick has not for years, and does not now, work said premises in a husbandlike manner, by reason whereof said premises have become greatly lessened in value; that said deed was taken by said Patrick for the purpose of defrauding your orator, and to further such purpose said Patrick has fraudulently failed to comply with the terms thereof, wherefore said deed has become forfeited, and your orator is entitled to have the same set aside, and said pretended mortgage declared null and void.- Said Patrick Herbert, Kate Herbert and William S. Jackson are made parties defendant, oath to answers waived, and prayer that said deed to said Patrick may be decreed forfeited and set aside, and that said mortgage may be sef aside as a cloud upon your orator’s title, and your orator may have possession of said premises, and for other and further relief,” etc.
    Patrick and Kate Herbert, though duly served with summons, made default, and a decree was entered against them pro confesso. The First National Bank of Marseilles, Hamilton, Holderman & Co., and Ebenezer T. Gallaher, judgment creditors of Patrick Herbert, were made defendants, on their petition, by order of the court.
    The judgment creditors filed answers denying all fraud alleged in the bill against Patrick Herbert, and charging that the bill was not exhibited by the complainant in good faith, but that "he and Patrick Herbert are colluding to have the conveyance set aside for the purpose of defrauding them and other creditors of Patrick, and setting up their respective judgments.

      The note by Patrick Herbert to Jackson, secured by the mortgage, was assigned to Gallaher in 1878, and Gallaher filed a cross-bill in the case praying a foreclosure of the mortgage. Answer was filed to the cross-bill, denying the validity of the mortgage, and replications were filed to the several answers. While the suit was pending, the First National Bank of Marseilles bought one hundred and thirty-one acres of the land, at a sale under a pluries execution issued on the judgment in its favor, and received from the sheriff a certificate of sale.
    On the hearing, the court held the mortgage and several judgments fraudulent as ttf complainant, decreed that the cross-bill be dismissed, and that the conveyance by complainant to Patrick Herbert be set aside. Errors are assigned questioning the rulings of the court in thus decreeing. The ease comes to this court by the appeal" of the First National Bank of Marseilles and Ebenezer T. Gallaher.
    Messrs. Mato & Widmer, for the appellants:
    For a breach of a condition subsequent a court of equity will not lend its aid to divest the estate, but, on the contrary, will relieve against it. 4 Kent’s Com. *130.
    The conveyance is, on the part of appellee, an executed, not an executory, contract; and though the clauses referred to may be covenants on the part of Patrick Herbert, and the contract as to him be executory in part, there can be, for the breach of the covenants, no rescission of such' conveyance by a court of equity, on the application of the covenantee, unless the transaction is tainted with actual fraud. Beebe v. Swartwout, 3 Gilm. 162; Abbott v. Allen, 2 Johns. Ch, 519; Chesterman v. Gardner, 5 id. 31.
    To warrant the court in setting aside a deed on the ground of fraud, the evidence must he clear and satisfactory. Walker v. Hough, 59. Ill. 375; Sisters, etc. v. Catholic Bishop, 86 id. 171; Willemin v. Dnnn, 93 id. 511.

      This case is quite unlike Frazier v. Miller, 16 Ill. 48, and Oard v. Oard, 59 id. 46. There the' circumstances showed that the contracts were entered into by the grantees with a fraudulent intent, and then the grantors conveyed all their property.
    Does the clause in the deed not to alienate, create a condition annexed to the estate granted, or is it a covenant on the part of the grantee ? There is no clause of re-entry, and the deed contains no apt words to make a condition that will work a forfeiture. Shep. Touch. 121.
    Whenever the words can be construed indifferently as a covenant or a condition, courts will always incline to construe them as the former rather than the latter. Board of Education v. Trustees, 63 Ill. 204; Hoyt v. Kimball, 49 N. H. 326; Thornton v. Trumond, 39 Ga. 202; 4 Kent’s Com. *132.
    It is held by good authorities that a condition orrestriction which would suspend all power of alienation for a single day, is inconsistent with the estate granted, unreasonable and void. Mandlebaum v. McDowell, 29 Mich. 78; McCleary v. Ellis, 54 Iowa, 311; De Peyster v. Michael, 6 N. Y. 467; Newkirk v. Newkirk, 2 Caines, 345.
    It is safe to say such a restraint will be confined to the very letter of the deed imposing it. Voris v. Renshaw, 49 Ill. 425. See, also, Brothers v. McCurdy, 36 Pa. St. 407; Lynde v. Hough, 27 Barb. 415.
    Appellee could not lawfully annex to such an estate as he conveyed to Patrick Herbert, a qualification that the property should not be liable to the debts of the latter. (Blackstone Bank v. Davis, 21 Pick. 42; McCleary v. Ellis, 54 Iowa, 311.) Pfor has he attempted to do so. A condition or covenant not to alien, is not broken where it is done in invitum, as by a decree in bankruptcy, or under an execution, or other assignment in law. Voris v. Renshaw, subra; 1 Washburn on Real Prop. chap. 10, sec. 3, p. *317; Dumpor’s case, 1 Smith’s L. C. *21, notes.

      An estate upon condition does not revest in the bargainer on breach of the condition, without entry. Fitzwilliam’s caser 6 Coke, 34; Coke on Littleton, 218 a; 1 Washburn on Real Prop. chap. 14, p. *452.
    No such entry has been made by appellee, and he is not entitled to the aid of a court of equity to divest the estate for breach of a condition subsequent, and thereby enforce a forfeiture to the prejudice of these creditors. 2 Story’s Eq. Jur. sec. 1319; 4 Kent’s Com. *130; Smith v. Jeiuett, 40 N. H. 534.
    Messrs. Duncan & O’Conner, for the appellee:
    As the conveyance in effect provides for the support of the grantor during his life, it comes within the principle announced in Frazier v. Miller, 16 Ill. 48.
    The undertaking of Patrick was, in effect, that he would contribute $200 per year to the support of his father; and his failure to do so, in utter and reprehensible abandonment of his agreement, is enough to warrant a court of equity in finding that he obtained the conveyance, in the first instance, with fraudulent intent and purpose. Oard v. Oard, 59 Ill. 46; Jones v. Neely, 72 id. 449.
    We do not consider it of any moment whether the clauses in the deed to pay the grantor the annuity, and not to alien, are conditions or merely covenants. The Supreme Court of Indiana has hel.d a similar clause a condition subsequent. Leach v. Leach, 4 Ind. 628..
   Mr. Justice Scholpield

delivered the opinion of the Court:

This case is quite different in its facts from Frazier v. Miller, 16 Ill. 48, Oard v. Oard, 59 id. 46, and Jones v. Neely, 72 id. 449, cited by counsel for appellee. In each of those cases the grantor conveyed in consideration that the grantee undertook to furnish a home for the grantor, and take care of him and support him during life. t The consideration could not be measured by dollars and cents. The personal kindness and numerous delicate attentions demanded by the age and condition of the grantors in those cases, and that they might expect from the affections of the grantees, are not marketable commodities, and it was therefore impossible, by mere money compensations, to make the grantors "whole. What they had given their property for they had not received and they could not receive, and the circumstances justified the conclusion that the grantees, when they obtained the deeds, did not intend to perform the contracts. In this case the grantor contracted for nothing but the payment of money,— $200,—on the first day of March in each and every year, commencing on the first day of March, A. D. 1872, and thereafter during the natural life of the grantor, and the release by the grantee of the interest he otherwise would have in the estate of the grantor, upon his death, as one of his heirs at law. This release was conclusive upon the grantee, (Kershaw v. Kershaw, 102 Ill. 307,) and the payment to the grantor of $200 on the first day of March in each and every year, from the designated period, during his natural life, would give him all that he bargained for and ever expected to receive. As to the payments now over-due, interest "will, in legal contemplation, compensate for their non-payment.

In the construction of deeds, courts will always incline to interpret the language as a covenant, rather than as a condition. Board of Education v. Trustees, 63 Ill. 204.

There is nothing in the form of the language here employed to indicate that it was intended the conveyance was upon a condition subsequent. The words, “upon condition,” do not occur, and there are no other words of equivalent meaning. There is no clause providing that the grantor shall re-enter in any event, and these are the usual indications of an intent to create a condition subsequent. Sheppard’s Touchstone, (6th ed.) 118. The rule is, a court of equity will never lend its aid to divest an estate for a breach of a condition subsequent. 4 Kent’s Com. (8th ed.) 134, *130. But where a compensation can be made in money, courts of equity will relieve against such forfeitures, and compel the party to accept a reasonable compensation in money. 2 Story’s Eq. ¡Tur. secs. 13, 15, et seq.

The language here is reasonably susceptible of the construction that the parties only intended to secure the payment of the $200 during the lifetime of the grantor, and it is clear that much was intended. That was the only pecuniary interest the grantor had in the question of whether the land should be alienated or not during his lifetime. If alienated, the grantee might not be able to pay the $200 per annum; but if it could not be alienated during his "lifetime, it was ample security for the payment of the $200. The duty to pay the $200, and the inability to alienate, go together. It accomplishes the same result, does injustice to no one, and is more in harmony with the general rules governing the alienation of real property to hold that the grantor here retained a lien on this land for the payment of’the $200 annually, on the first day of March, during his lifetime. The appellants took whatever rights they may have, with notice, by the record of the deed, of all its reservations in favor of the appellee, (Willis v. Gay, 48 Texas, 463,—26 Am. B. 328,) and so theirs are subordinate to his.

There is' no proof of mental weakness in appellee, that he was overreached in any way, or unduly persuaded to execute the deed. From his own.testimony, the grantee did not solicit the making of the deed, dictate its provisions, or to the slightest extent control or influence the transaction, by word or deed. It is of appellee’s own invention, as he says, just as he intended it to be, and the wrong of the grantee is in not doing what he obligated- himself to do by accepting the deed.

The decree below is reversed, and the cause remanded, with directions to that court to enter a decree, in favor of appellee, against the land in controversy, for the several unpaid annual installments, of $200 each, with interest thereon from the time they were severally clue, at the rate of six per cent per annum, and that the payment of $200 hereafter, annually, on the first day- of March, during the life of appellee, be a lien on said land; and that in default of payment of such sums, the master in chancery proceed to make sale of the land, and that all interests and claims of appellants in said lands are junior and subordinate to the lien of appellee.

Decree reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Mulicet

license: Public Domain

text:
    Lyman Sanderson v. The Town of La Salle.

      Filed at Ottawa May 15, 1886.

    1. Attorney at law—authority to bring suit in the name of a town—■ how to be shown. The mere absence from the record, in an action by a town, under section 230 of the Revenue act, to recover taxes owing it by the defendant, of proof that counsel for the plaintiff were employed by a vote of the town to bring the suit, affords no ground for" the reversal of the judgment.
    2. Practice—time to o bject—as to authority of attorney to sue in the name of a town. The question of an attorney’s authority to institute an action in the name of a town, against an individual, can not be raised for the first time in an appellate court.
    3. Personal action for taxes—when it will lie. In all cases-where there has been a forfeiture of land for the taxes due thereon, an action of debt lies against the owner, under the statute, notwithstanding omissions or irregularities have occurred in the tax proceedings which would be fatal to a tax title founded thereon.
    4. A forfeiture, in fact, of delinquent land at a regular tax sale, for the taxes legally due thereon, is sufficient to charge the owner personally, in an action against him for such taxes. In such action, irregularities in the prior proceedings to collect the taxes will not be inquired into.
    Appeal -from the County Court of LaSalle county; the Hon. C. B. G-arnsey, Judge, presiding.

      Mr. E. D. McDonald, for the appellant:
    The record nowhere shows that the attorneys who represent appellee were authorized by the town to bring the suit. Such authority was necessary before bringing suit. Town of Kankakee v. Railroad Co. 16 Bradw. 542; 115 Ill. 88; Williams v. Town of Roberts, 88 id. 11.
    The notice required by the 182d section of the Revenue act is jurisdictional, and before a recovery can be had in an action of this kind the plaintiff must show that such notice was published the required length of time. The notice takes the place of process. Mix v. The People ex rel. 106 Ill. 425; Fortman v. Ruggles, 58 id. 207; McKee v. Champaign County, 53 id. 477; Smith v. The People, 3 Bradw. 380; Vetter v. The People, id. 385; Brown v. Hogle, 30 Ill. 137.
    This notice, like other process, confers jurisdiction, and is the foundation of the judgment. Charles v. Waugh, 35 Ill. 315; Spellman v. Cortenius, 12 id. 409.
    The newspaper containing this notice to delinquent taxpayers, as required by section 186 of the Revenue act, should be filed in the clerk’s office as part of the records of the court, and is an “essential part of the necessary foundation for the judgment sought. ” This alone is fatal to this judgment. Thompson v. McLaughlin, 66 Ill. 407; The People ex rel. v. Lands, etc. 82 id. 408.
    Proceedings to obtain judgment against lands for delinquent taxes are in rem, and the record should recite everything that pertains to the jurisdiction of the court over the subject matter to be reached by the judgment. This is elementary, and it would seem no authorities need be cited in support of it. We cite, however, the following: Pigeon v. The People, 36 Ill. 249; The People v. Dragstran, 100 id. 286.
    The record should recite the fact that sections 196 and 201 were followed by the collector and clerk, before a forfeiture can legally be declared against this property. Scott v. The

      People, 2 Bradw. 642; Vetter v. The People, 3 id. 385 Blackwell on Tax Titles, 460.
    Mr. S. P. Hall, and Messrs. Bull, Strawn & Buger, for the, appellee:
    The supervisor of the town was- authorized by law to prosecute suit for the recovery of the taxes, and to employ counsel. (Rev. Stat. chap. 139, sec. 103.) But if he were not, the authority was not questioned in the court below, and it comes now too late. Breckinridge v. Ostrom, 79 Ill. 71; Miller v. Metzger, 16 id. 390; Fry v. Calhoun County, 14 id. 132; Reed v. Gurry, 35 id. 536.
    The question as to the attorney’s authority should have been raised in the court below, by motion, supported by affidavit. Williams v. Butler, 35 Ill. 544; The People v. Supervisor, 100 id. 332; Rawson v. Jones, 1 Scam. 291.
    This is not an action to 'take from Sanderson a valuable piece of land by forfeiture, because he has not paid his town taxes on it, which is looked on with disfavor, and in which strict proof is required. Since 1873, errors and informalities in the proceedings, not affecting the substantial justice of the tax, are not allowed to vitiate the proceeding. Thatcher v. The People, 79 Ill. 597; Fischer v. The People, 84 id. 491; Beers v. The People, 83 id. 493.
   Mr. Chief Justice Mulicet

delivered the opinion of the Court:

The town of LaSalle recovered a personal judgment, in the county court of LaSalle county, against Lyman Sander-son, the appellant, for $95.96, on account of taxes alleged to be due the town on a certain lot assessed in his name, and which appears on the tax books to have been forfeited to the State for the non-payment of said taxes. The present appeal is from that judgment.

The’recovery was had in an action of debt, founded upon the 230th section of the Revenue act, which is as follows: “The county board may, at any time, institute suit in an action of debt, in the name of the People of the State of Illinois, in any court of competent jurisdiction, for the whole-amount due on forfeited property; or any town, county, city,, school district, or other municipal corporation to which any such tax may be due, may, at any time, institute suit in an action of debt, in its own name, before any court of competent jurisdiction, for the amount of such tax due any such-corporation on forfeited property, and prosecute the same to-final judgment.”

A reversal is asked, first, because the record does not affirmatively show that the attorneys conducting the suit forth e town were authorized by a vote of the town to do so-Without stopping to inquire whether a formal vote of the-town is necessary to employ counsel in a case like this, (about which we express no opinion,) it is very clear that-mere absence of proof that counsel for plaintiff were thus, employed, affords no'ground for a reversal of the judgment. A question of this kind can not be successfully raised for the-first- time in an appellate tribunal, as is now sought to be-done.

It is next objected that the record of the proceedings in the-county court fails to show that the collector published a list of the delinquent lands and lots, and gave notice of his intended application for judgment against the lot in question, as required by the 182d section of the Revenue act. We do-not regard it important to inquire whether this claim is well founded or not. It must be borne in mind the present suit wras not instituted for the purpose of ascertaining whether-the proceedings in the county court, culminating in the judgment against the lot charged with the taxes now sought to be-recovered, strictly conforms to all the requirements of the-statute, as in a case where the validity of a tax title is involved. On the contrary, this is simply a common law action of debt, to recover the town taxes due on the lot in question, for the years 1875,1877,1878 and 1879. . In all cases where-there has been a forfeiture of land for the taxes justly due upon it, this action will lie against the owner, notwithstanding omissions or irregularities have occurred in the tax proceeding which would be fatal to a tax title founded thereon. We have no doubt that one of the chief objects the legislature had in view in adopting this act, was to afford a safe and simple remedy for the collection of taxes, where, by reason of defects in the proceedings against the land itself, purchasers, would be deterred from buying at tax sales. We hold, therefore, that it is sufficient to charge the owner, in any case of this character, where there has been a forfeiture, in fact, of delinquent land at a regular tax sale for the taxes legally due thereon.

All the evidence considered, we think this case is clearly brought within the rule here laid down, and are also of opinion that none of the objections urged as a ground of reversal are well founded.

It is not deemed necessary, nor, indeed, proper, to enter into a discussion of the details of the evidence for the purpose-of demonstrating the correctness of the conclusion reached. Ordinarily such discussions are of but little interest or utility to those who have occasion to consult our Beports; hence, as. a general rule, they should be avoided. We perceive nothing-in this case to require a departure from the rule suggested. It is the facts as found, and the conclusions of law arising; thereon, that the profession are interested in.

The conclusion reached in this case is supported with more- or less directness in the following cases: Biggins v. People,, 106 Ill. 270; Douthett v. Kettle, 104 id. 356.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Soholfield

text:
    Carlos Gore et al. v. Emanuel Kramer et al.

      Filed at Ottawa May 15, 1886.

      1. Chancery—remedy at law—generally. A party can have no standing in a court of equity who has a plain and adequate remedy or defence at law.
    2. Same — creditor’s bills — how far remedy at law must be pursued. Before creditors can maintain a bill for the administration of the assets of an insolvent firm, they must acquire an equitable lien by exhausting their legal remedy, or in some other way. A creditor at large has no standing in a court of equity upon such a question.
    3. Same—as to goods obtained upon credit by fraud—remedy at law. The creditors of a failing firm filed their bill seeking to cancel their contracts for the sale of goods to the firm, on the ground of fraud, and then for a decree for the payment of the value of the goods,—not for a restoration of the goods, and not seeking to enjoin the fraudulent disposition of the goods until a judgment at law could be recovered, and failing to show any ground of equitable cognizance: Held, that the bill was properly dismissed for want of equity.
    4. If goods are bought, and obtained upon long credit by means of false and fraudulent representations of the purchaser’s financial condition and ability, with intent to defraud, the vendor may sue the vendees, in an action at law, for the value of the goods, and the contract so fraudulently obtained, can not be interposed to bar a recovery.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    This was a hill in equity, by appellants, against Emanuel Kramer, Nathan Kramer and Samuel Loebstein, composing the firm of Kramer Bros. & Co., in which it is alleged that said firm of Kramer Bros. & Co. was formed on or about November 1, 1882, for the purpose of conducting a wholesale hat business, and was to continue for three years; that they started with an alleged capital of $76,000, of which Nathan Kramer put in $18,000, Samuel Loebstein $25,000, and Emanuel Kramer $33,000; that they transacted during the first year a profitable business, and in January, 1884, had increased their capital stock to $86,000; that having done a successful business, paid their bills promptly and established a large credit with the trade generally, they conceived and concocted the fraudulent scheme to use their said credit for the purpose of a gigantic swindling operation, and to that end they did, during the summer of 1884, buy of dealers in New York City and elsewhere, an amount of goods and merchandise largely in excess of the legitimate demands of their business, and amounting in the aggregate to upwards of $125,000; that they obtained said goods by false and fraudulent statements and misrepresentations, they stating that they had a net capital of $86,000, and were worth three dollars to every dollar that they owed; that by reason of such false and fraudulent statements and representations they obtained a long term of credit, and settled with their creditors by giving them their promissory notes, due in four, five and six months from date; that after fraudulently obtaining said goods, as a next step in their scheme they sent out their agents all through the Western States, and sold and disposed of a large portion of said goods on short time and at greatly reduced prices, and for figures below the purchase price of said goods; that they received therefrom a large amount of money, which they have kept and concealed, and intend to keep and conceal, from their creditors ; that there are still a large number of accounts due and owing by various parties to said firm, and that many of said parties reside in other States, and are unknown to complainants, and that said firm keep the names of their said debtors,the amounts they owe, and where they reside, from the knowledge of their creditors, and are collecting, discounting and compromising said claims and converting them into money as rapidly as possible, for their own use and benefit, and with intent not to pay any of said money to their creditors; that said notes given by them to their various creditors are not yet due, but that only time is needed to make said obligations absolute, but by reason of the fraud practiced upon them by said firm they have a right to have said contracts rescinded by delivering up said notes, and recover 'the value of their goods so converted ; -that as .the next step in their scheme, and to prevent creditors from getting any part of the proceeds of their said goods, Emanuel and Nathan Kramer did on November 29, 1884, confess three pretended judgments, amounting in all to $29,077.50, and costs, of which $1600 was for attorney fees; that said judgments were confessed in favor of the First National Bank of Chicago, for $19,000, in favor of J. T. Baldwin, cashier of Manhattan Company Bank, for $8500, and in favor of Charles Glanz, for $1577.50, on notes dated November 28,1884, but which complainants charge were made November 29, 1884, and ante-dated; that said suits were commenced and judgments entered against Emanuel -and Nathan Kramer alone, when in truth' and in fact Samuel Loebstein. was at that time a member of said firm; that executions immediately issued upon said pretended judgments against the property of Emanuel and Nathan Kramer, and were on the evening of said 29th day of November, 1884, levied by the sheriff upon the stock of goods and merchandise, safe, office furniture; etc., of said firm of Kramer Bros. & Co., of which firm Samuel Loebstein was then a member, and that the sheriff had advertised to sell the same December 11,1884, at eleven o’clock A. M., to satisfy said executions; that said judgments were entered in the afternoon of the last day of the November term of the Superior Court, and execution given to the sheriff after court adjourned for the term; that the said banks have collateral security for their debts, to which complainants can not resort; that there is in the hands of the sheriff $40,000 to $50,000 wrorth of property of said -firm, which in equity should be applied to the payment of the partnership debts; that if the sheriff is allowed to sell the same under the said executions, the partnership property will be exhausted to satisfy the pretended individual debts of Emanuel and Nathan Kramer; that on December 1,1884, Samuel Boebstein pretended to sell his store in Beecher, Illinois, to one ■ S. Myer, and also pretended to assign three mortgages owned by him and give a trust deed on another piece of real estate, thus attempting to place all his individual property beyond the reach of creditors; that defendant firm has no other property save said property levied upon by the sheriff, and complainants know of none owned by the members except the" above mentioned property of Boebstein; that by reason of said fraudulent transactions complainants are in imminent danger of losing their demands, unless the sheriff be enjoined from proceeding with said sale, and said property be turned over to a receiver to protect the same for the benefit of the creditors of said firm; that if the sheriff is allowed to sell said stock, the same will he sacrificed, and sold at a great loss; that the debts of said firm largely exceed their .assets; that complainants would not have sold said goods to said firm but for their false and fraudulent representations, which at the time complainants believed; that said defendants knew.them to be false, and made them for the purpose of defrauding, and never intended to pay for said goods; that complainants had no knowledge of the fraud practiced upon them until the said pretended judgments were entered, executions issued, and the sheriff had made his levy, and that they file this bill on behalf of themselves and all other creditors of said firm; bill prays for an injunction, and receiver to take charge of all assets of said firm, and collect its debts for the benefit of the creditors of said firm; that the contracts made between said firm and complainants he declared void for fraud, and complainants be allowed to recover the value of their goods; that an accounting be had between said firm and all its creditors, and that the partnership property be first subjected to the payment of the partnership debts ; that said judgments against Emanuel and Nathan Kramer be postponed until after the partnership debts are paid, and that the conveyances made by Samuel Loebstein may be declared fraudulent and void as to creditors, and be set aside, etc. A preliminary injunction was granted, which, upon a hearing, the court, on motion, dissolved.
    The defendants demurred to the bill for want of equity. The court sustained the demurrer, and the complainants electing to stand by their bill, the court decreed that it be dismissed. From that decree the complainants appealed to the Appellate ' Court for the First District," and that court affirmed the decree of the Superior Court. The case is,here by the appeal of the complainants from this affirmance.
    Messrs. Weigley, Bulkley & Gray, for the appellants:
    The bill is sustainable on two grounds,—fraud, and as a bill to administer the assets of an insolvent partnership.
    In all cases of fraud not penal, a court of equity has a concurrent jurisdiction with courts of law, with the single exception as to fraud in obtaining a will. Kerr on Fraud, 44; 1 Story’s Eq. Jur. sec. 440.
    If necessary, the court will declare the perpetrators of the fraud trustees for the benefit of the defrauded, and compel them to account as such. 2 Story’s Eq. Jur. sec. 1265; 1 Perry on Trusts, 187; Bigelow on Fraud, 323.
    The following are some of the cases which hold that equity has concurrent jurisdiction. Cott v. Wollaston, 2 P. Wms. 156; Stent v. Bailis, id. 220; Sowerby v. Warder, 2 Cox, 268; Chesterfield v. Jamesen, 2 Ves. Sr. 155; Cockrell v. Warner, 14 Ark. 545; Smith v. Griswold, 6 Ore. 440; Durrell v. Haley, 1 Paige, 492; Bradbury v. Keas, 5 J. J. Marsh. 446; Waters v. Mattingly, 1 Bibb, 244; White v. Clark, 3 T. B. Mon. 391; Cheney v. Gleason, 117 Mass. 557; Coke v. Harrison, 6 Munf. 184; Ramsden v. O’Keefe, 9 Minn. 74; Jones v. Bolles, 9 Wall. 364; Cohen v. Myers, 42 Ga. 46; Wachtel v. Wild, 58 id. 50; Whitney v. Roberts, 22 Ill. 383; Jones v. Neeley, 72 id. 449; Nelson v. Rockwell, 14 id. 375; Truitt v. Wainwright, 4 Gilm. 418; Henshaw v. Bryant, 4 Scam. 97; Haggarty v. Pittman, 1 Paige, 298; Rosenberg v. Moore, 11 Md. 376.
    Whenever a person has obtained the property of another by fraud, he is a trustee ex maleficio for the person so defrauded. He is not a trustee for the title, for that he never acquired, but of the thing which he has in his possession. Christy v. Sill, 95 Pa. St. 380; Smith v. Wright, 49 Ill. 403. If this view be correct, it confirms our position that no judgment is required before filing the bill in equity based on fraud, as equity has jurisdiction in cases of trust, although there be a complete remedy at law. Miller v. Davidson, 3 Gilm. 522; Marlow v. Marlow, 77 Ill. 633.
    The bill may be sustained as a bill for the administration of the assets of an insolvent firm. The creditors of a partnership have an equitable right to payment out of the partnership effects in preference to creditors of the individual partners. Deveau v. Fowler, 2 Paige, 400; Rainey v. Nance, 54 Ill. 29; Newhall v. Buckingham, 14 id. 405.
    This is a right that can be enforced only in a court of equity. The levy of the executions against Emanuel and Nathan Kramer dissolved the partnership of Kramer Bros. & Co. Story on Partnership, secs. 311, 360.
    That the bill lies as one for the administration of the assets of an insolvent partnership, see 2 Barbour on Chancery, 149; Wait on Fraud. Con. note to sec. 68; Jackson v. Sheldon, 9 Abb. Pr. 127; Innas v. Lansing, 7 Paige, 583; Levy v. Ely, 15 How. Pr. 395; Dillon v. Horn, 5 id. 35.
    Mr. W. B. Cunningham, for the appellees the Kramer Bros.
    The bill fails to show that complainants are creditors of Kramer Bros. & Co., or the insolvency of that firm, or that any of the confessed judgments are not bona fide.

    The right to have partnership property first applied to pay partnership debts, is one personal to the partners. Ladd v.
      Griswold, 4 Gilm. 46; Hapgood v. Cornwell, 48 Ill. 65; Rainey v. Nance, 54 id. 29; Goembel v. Arnett, 100 id. 34; Williamson v. Adams, 16 Bradw. 569.
    , Messrs. Peckham & Brown, for the appellee the First National Bank.
    Messrs. Moses, Newman & Beed, for the appellee the cashier of the Manhattan Bank.
   Mr. Justice Soholfield

delivered -the opinion of the Court:

This is not, as was Henshaw v. Bryant, 4 Scam. 97, cited by counsel for appellants, a bill to rescind a contract of sale and restore the property obtained under it. Under the facts alleged here, the property could not be restored, and the primary object of the bill is simply to recover a debt, first cancelling the contract of sale for fraud, and then obtaining a decree for the payment of the value of the goods. It is not contended that this could not be done at law, and it is clear that if the contract of sale was fraudulent, an action at law would lie for the value of the goods, and the fraudulent contract could not- be interposed to bar a recovery. Nor is it sought to restrain the disposition of property until there can be a trial at law. Not a single ground for .purely, equitable, as distinguishable from legal, cognizance, is perceived. The effect of maintaining the bill would be to deprive the defendants of a jury trial on a question'where, by the rules of the common law, they are entitled to such trial. The rule has been often repeated in this court, that a party can have no standing in a court of equity who has a plain and adequate remedy or ■defence at law. Puterbaugh v. Elliott, 22 Ill. 157; Coughron v. Swift, 18 id. 414; City of Peoria v. Kidder, 26 id. 351; Bigelow v. Andress, 31 id. 322; Long v. Barker, 85 id. 431.

Nor is there anything in the situation of the assets of Kramer Bros, justifying a resort to equity before a judgment at law is- obtained. This is conclusively settled by Shufeldt v. Boehm, 96 Ill. 560, and Dormaeil et al. v. Ward et al. 108 id. 216, and cases therein recited. In the last named case, as in this, no judgment at law had been obtained. Numerous fraudulent acts were charged in the bill, and we said: “If a bill of this kind can be maintained at all on the ground that the debtor has been guilty of fraud, and is seeking to defeat the collection of an honest debt by covering up his property, or placing it beyond the reach- of his creditors with a fraudulent intent, enough is clearly shown to maintain this bill. * * * But it is clear, unless we' are prepared to overrule a long line of decisions extending back almost to the time of the organization of this court, a bill of this character can not be maintained upon the ground suggested, and this, of course, we can not consistently do, in face of the fact the rule adopted by this court is supported by the decided weight of authority. As was said in a recent ease, this is no longer an open question.” It was contended that the facts brought that case within the recognized exceptions to the general rule, and in reply to that it was said: “These so-called exceptions, when properly understood, are rather nominal than real, for a bill of this character will not lie in any case where the claim, as it is here, is purely legal. In all cases where such a bill has been maintained, the claim of the complainant has had some i equitable element in it,—such as a trust, or the like. But in the absence of some element “of this character there is a want of jurisdiction to adjudicate upon the ease at all, and it is upon this fundamental doctrine the rule controlling this class of eases rests.”

But counsel contend this bill may be maintained as a bill for the administration of the assets of an insolvent firm. But to enable the complainants to maintain a bill of this character, they must, in the first place, acquire an equitable lien by exhausting their legal remedy, or in some other way. A creditor at large has no standing in court upon such a question. (Crippen v. Hudson, 13 N. Y. 161.) And in Goembel v. Arnett et al. 100 Ill. 42, we held that a creditor of a firm, who had not obtained a judgment at law, could not maintain a bill in equity to set aside a sale on the ground of a fraudulent preference.

We find no cause for disturbing the judgment of the Appellate Court. It is therefore affirmed.

Judgment affirmed.


author: Per Curiam : Mr. Justice Magruder,

text:
    Ozias W. Fletcher et al. v. The People of the State of Illinois.

      Filed at Ottawa May 15, 1886.

    1. Criminal law—in prosecution for murder—evidence hearing on degree of punishment. As the jury trying one on a charge of murder may fix the punishment, in case of a conviction, from fourteen years in the penitentiary to that of death, evidence is admissible to enable the jury properly to fix the degree of the punishment. In such case the defendant has the right to give any evidence which tends to show his conduct was less culpable than shown to be by the prosecution.
    2. New trial— newly discovered evidence—of a cumulative character, or to impeach witness. The general rule that a new trial will not be granted merely for the purpose of admitting cumulative evidence or to impeach a witness, is subject to exceptions.
    3. It can not be objected to granting a new trial on the ground of newly discovered evidence, that it is cumulative, merely, if it is of a different kind or character from that adduced on the trial.
    4. After the trial and conviction of a party for murder, it was discovered by the defendant that one of the principal witnesses for the prosecution, in the expectation of death, had made a statement of the facts attending the homicide, very different, in several important respects, from his testimony on the stand, and which was much more favorable to the defendant, and had been reduced to writing and delivered to the State’s attorney, and it was also made to appear that neither the defendant nor his counsel had been guilty of negligence in failing to ascertain the existence of such new evidence. It was held, error to refuse a new trial in order that such newly discovered.evidence might be produced.

      Writ of Error to the Circuit Court of DuPage county; the Hon. Charles Kellum, Judge, presiding.
    Mr. John Van Arman, and Mr. Charles W. Dwight, for the plaintiffs in error.
    Mr. John A. Russell, State’s attorney, and Mr. Albert H. Gary, for the People.
   Per Curiam :

Ozias W. Fletcher, and Merritt Fletcher, his son, were indicted by the grand jury of Kane county for the murder of Otto J. Hope, in that county, on the 1st day of June, A. D. 1884. On the application of the defendants the venue was changed „to DuPage county, and the defendants were tried in the circuit court of that county, at its March term, A. D. 1885. , The jury returned a verdict finding Ozias W. Fletcher guilty of manslaughter, and fixing his punishment at confinement in the penitentiary for the term of three years, and finding Merritt Fletcher guilty of murder, and fixing his punishment at death by hanging. Motion for new trial was made by the defendants, and overruled by the court, and judgment was then rendered on the verdict.

The homicide occurred on Sunday morning, in a public highway, near the residence of the Fletchers. Hope had in his employ a laborer named Eli Steinbourne, who was born in France, who understood and spoke German, but who did not speak or understand English. Steinbourne, under Hope’s direction, had been pasturing Hope’s cattle in the highway. The Fletchers had also been pasturing their cattle in the same highway. On Saturday, the day before the homicide, Ozias W. Fletcher, Merritt Fletcher, and another son of Ozias, named Frank, had trouble with Steinbourne, resulting in some violence, growing out of the mutual pasturing of Fletcher’s and Hope’s cattle in the same highway. On Sunday morning Fletcher’s cattle were being pastured on the highway, and Hope’s cattle were brought there for that purpose, by Hope and Steinbourne. Ozias W. Fletcher, Merritt Fletcher and Frank Fletcher were in the highway, sitting or standing, near the- Fletcher cattle. Hope and Steinbourne left Hope’s cattle behind them and advanced to the Fletchers. A personal conflict immediately ensued, during which Merritt Fletcher shot and killed Hope and shot Steinbourne twice, seriously wounding him. The only witnesses of the transaction were the parties engaged. There was evidence tending' to prove antecedent malice on the part of the Fletchers, the preparation of arms, threats, etc., and there was also evidence tending to deny this. We deem-it-improper to prejudice another-trial by commenting on the evidence.

The Fletchers claimed and gave evidence tending to prove that they were lawfully at the place, not anticipating violence; that they were attacked at first,—Ozias W. by Hope, and Merritt by Steinbourne,—and afterwards, that both Steinbourne and Hope were upon Merritt, having him down and beating him, when he fired the fatal shots in self-defence. Steinbourne testified, in substance, that he and Hope, seeing the Fletchers in the road, left their cattle behind and advanced to them, having at the time sticks in their hands, with which they had been driving their cattle; that Hope and Ozias W. Fletcher were soon using bad language, which he could not understand ; that Ozias W. Fletcher raised a stick which he had in his hand, as if to strike Hope, when the witness ran up and interposed his stick, saying “halt! la, ” to prevent Hope being struck; that as he did so, Merritt fired his revolver, striking the witness in the right side; that Hope then sprang for Merritt, and Merritt shot him, and Steinbourne, trying to again interpose on behalf of Hope, was first assaulted by Ozias. W. with a knife, though .not cut, -and he was afterwards again shot by Merritt. He emphatically denied that either he or Hope hit Ozias W. before Merritt shot." He again stated that about a half a second after Hope jumped behind witness to get hold o-f Merritt, Hope was shot.

It wa.s proved by affidavits on the motion for a new trial, that Steinbourne, on the 2d day of Jpne, A. D. 1884, believing that he was then going to die, made a statement under oath, which was interpreted and reduced to writing, which reads as follows:

“Statement of Eli Steinbourne.—I worked for Otto J. Hope. Drove cattle for him. Last Saturday I drove cattle on the cross-road. Fletcher’s boy, Frank, came and drove my cows back. Boy went away. Short time after old man Fletcher and his two sons came back to where I was watching the cattle. They tried to drive my cattle back. I told them to let them alone, then they struck me with clubs, drove me and the cattle back towards home. Sunday morning Hope and I went with the cattle to see the reason why his cattle could not feed on the road. When we got the cattle down on the cross-road we saw the three Fletchers, each one having a club, driving their cattle up the road toward us. Hope said, ‘We’ll go and see what they want.’ We went to them. The young boy was in the middle of the- road, the old man was next to Ingham’s hedge,- the young man was on the fence west of the road. The one on the fence threw a knife to the boy in the road. I told Hope. Hope then went to talk with old Fletcher. Could not understand w'hat W'as said. I was in the middle of the road. Old man Fletcher raised his arm with the club, to strike Mr. Hope, and then I run up and struck old man Fletcher with the stick I had, to keep him from licking my boss. The boy on the fence jumped off, and shot me once in the right hip. He was about six feet from me. Hope w?ent for him, tried to take the revolver from him. Hope threw him on the ground. Then Fletcher shot him, I think twice. Old man Fletcher came with a knife. I held him back so that he could not strike Hope. Hope went off. Young Fletcher shot me again in the right side, and I went away. I heard old Fletcher say to his son who shot me, ‘That’s all right.’ The old man tried to cut me with a knife, while I was holding him to keep him from following up Hope. I make this statement under the full impression and belief that I can not get well—that I am going to die, ” etc.

Affidavit of Theodore Euen—“Interpreted the above correctly. ”

The affidavits showed that neither the defendants nor their attorneys had any knowledge of the existence of this statement until since the trial, when they accidentally learned of it; that they were guilty of no negligence in not having ascertained its existence; that the statement, when made, was placed in the hands of the State’s attorney of Kane county, and kept by him until his term of office expired, when he handed it over to his successor in office, who retained its possession, and did not disclose its existence to the defendants or their attorneys. We think no negligence can, in any respect, be imputed to the defendants or their attorneys, with regard to this statement.

Conceding, for the sake of argument, that the evidence authorized the jury to find that the shooting was with premeditated malice, (but as to the correctness of this we express no opinion,) still our statute provides: “Whoever is guilty of murder shall suffer punishment of death, or imprisonment in the penitentiary for his natural life, or for a term not less than fourteen years. If the accused is found guilty by a jury,-, they shall fix the punishment by their verdict. ” (Sec. 190, Grim. Code, 1 Starr & Curtiss, ..page 795.) The common law recognized no such varying degree of guilt. -All murder, by that law, was the same,—the punishment must be death. But a majority of the court are of opinion, that, in- the contemplation of this statute, there may be every technical element of murder existing, and yet the circumstances be such that the jury would be justified in imposing punishment by confinement in the penitentiary for fourteen years only, and still other circumstances justifying them in imposing different degrees of punishment, up to that of death.

It necessarily follows, that in order to determine the degree of punishment to be imposed for this offence, evidence must be admissible which would not have been admissible, or, if admitted, could have availed nothing, at common law. And so a majority of the court conclude that if Steinbourne’s attention had been called to this statement on the trial, and he had admitted that he had made it, and that it was true, it must have tended to have the effect to put the conduct of Merritt in a less unfavorable light before the jury than it was put by the evidence Steinbourne gave upon the trial. If Merritt, in the first instance, did not shoot until after his father had been struck with a stick by Steinbourne, his conduct, however inexcusable, is certainly, in a moral point of view, in some degree less objectionable than it would have been if he had shot before. And if he did not shoot and kill Hope until after Hope had thrown him on the ground, his act is also, in this respect, in some degree, however slight it may be, less culpable than it would have been if he had shot him before, when he might, without difficulty, have retreated from the conflict. If Steinbourne had denied making this statement, it would have been competent to have contradicted him, and so have discredited his testimony. But the existence of the statement not having been known to the defendants or to their counsel, it has been impossible to avail of it.

The general rule is, that a new trial will not be granted merely for the purpose of admitting cumulative evidence, or to impeach a witness. The rule, however, is subject to exceptions. (Cochran v. Ammon et ux. 16 Ill. 316.) In Fabrilus v. Cook, 3 Burrows, 1771, Lord Mansfield granted a new trial because of the discovery, subsequent to the trial, that the judgment was rendered upon the testimony of a witness whose testimony was suborned. In Peagram v. King, 2 Hawks. 605, (11 Am. Dec. 793,) a court of equity decreed a new trial at law because of the discovery, subsequent to the trial, that the judgment was rendered upon perjured evidence. In Wright v. The State, 44 Texas, 642, where the principal witness for the State, in an affidavit stated that her evidence given on the trial was incorrect, and her mother, by affidavit, stated that she was unreliable, it was held to be grounds for a new trial as subsequently discovered evidence. So in G. F. M. C. Co. v. Mathers, 5 N. H., it was held sufficient" ground for a new trial that one of the witnesses on whose evidence the verdict was rendered, was convicted of perjury in his testi-' mony, on his own confession. In Durant v. Ashmore, 2 Rich. L. 184, a new trial was granted on after discovered written evidence, which might have affected the witness’ credit with the jury. And to the same effect is Ecfort v. Descondres & Co. 1 Mill. 70. It can not be objected to granting a motion for a new trial on the ground of newly discovered evidence, that such evidence is cumulative, if it is of a different kind or character from that adduced on the trial. Wharton on Criminal Pleading and Practice, (8th ed.) sec. 870; Long v. The State, 54 Ga. 564; Guyott v. Butts, 4 Wend. 579. 4

A majority of the court are of opinion that the facts here disclosed, under the peculiar circumstances of the case, exempt this statement from the operation of the general rule referred to, and that a new trial ought to have been granted to Merritt Fletcher. A majority of the court see no cause to disturb the judgment against Ozias W. Fletcher, but they hold there was error in not granting a new trial to Merritt Fletcher.

The judgment against Ozias W. Fletcher is affirmed. The judgment against Merritt Fletcher is reversed, and the cause is remanded for a new trial.

Judgment reversed in part and in part affirmed.

Mr. Justice Magruder,

dissenting.


author: Mr. Chief Justice Mulke-y

text:
    Arthur T. Howe et al. v. E. G. Frazer.

      Filed at Ottawa May 15, 1886.

    1. Practice—rule to file bill of particulars with plea of set-off. A plea of set-off being in the nature of a declaration in a cross-action, section 32 of the Practice act, requiring the defendant to file with his plea a copy of the instrument or account upon which he relies, is governed substantially by the same rules and principles that are applied to section 18 of that act, requiring the plaintiff to file a copy of the instrument or account sued on.
    2. Same—time for applying for a bill of particulars—waiver. Where pleas of set- off are interposed, and issues joined thereon, if the plaintiff desires an account or bill of particulars to be filed to enlighten him as to the character of defendant’s claim, he should apply for a rule therefor before the case is set down for a day certain on the call docket, otherwise he will be regarded as having waived his right to have such a rule.
    3. Either party to a suit, under sections 18 and 32 of the Practice act, has the right to have the account or copy of the instrument filed-upon which his adversary relies. But this right, like most other legal rights, may be waived, and the party entitled to its enforcement must not so act as to lead the other to suppose it has been waived, and until it would subject him to loss or inconvenience to have it then enforced.
    4. After a case had been twice tried in the lower court, and heard twice in the Appellate Court, and the cause had been set for a day certain on the call docket, and was likely to be called for- trial at any time, the plaintiff asked for a rule on the defendant to compel him to file with his pleas of set-off a copy of the instrument or account intended to be relied on, defendant showed; by affidavit, that the cause had been twice tried, and the evidence relied on fully reported; that no notice was given defendant to produce a bill of particulars until the evening before, and that in order to give the dates and details of the several items of-account, it would be probably necessary to send for defendant’s books p.nd papers, then at another place, which would necessitate a continuance: Held, that the court, under the circumstances, properly overruled the motion, as also the further motions to strike the pleas of set-off from the files, and to exclude the evidence offered under them.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hón. Elliott Anthony, Judge, presiding.

      Messrs. Hodges & Shippbn, for the appellants.
    Mr. John P. Altgeld, for the appellee.
   Mr. Chief Justice Mulke-y

delivered the opinion of the Court:

The appellants, Arthur Howe, and others, brought an action of assumpsit, in the Superior Court of Cook county, against the appellee, E. G-. Frazer, to recover the value of certain goods and effects alleged to have been sold and delivered by the plaintiffs to the defendant. To the declaration, which was in the usual form, the defendant filed several pleas of set-off. For the purposes of the question to be determined, it will not be necessary to notice' more particularly the pléadings in the case, or the character of the respective claims of the parties.

This case was before us at a former term, and is reported in 106 111., commencing on page 563, where a full statement of the facts and pleadings will be found. It has also been twice heard in the Appellate Court, and has been three'times tried in the Superior Court. It was tried the last time in February, 1885.

On the 21st of the month, while the case was on call, and liable to be called up at any moment, the plaintiffs’ counsel “moved the court for a rule requiring the defendant to file with his pleas of set-off in this cause, a copy of the instrument and accounts upon which he intended to rely, and referred to in his pleas.” Counsel for defendant filed an affidavit in opposition to the motion, setting forth, in substance, that the case had been tried .twice before; that the evidence relied on by the defendant had been fully taken down by a short-hand reporter, and that the plaintiffs could not but know the matter relied on in support' of his pleas; that the case had been put upon the call, and set for Wednesday, the 18th, but three days before; that since then both sides had been watching the case, claiming to be ready to proceed as soon as the case was reached; that nothing was said to the defendant about wanting a bill of particulars until the afternoon of the day before; that in order to give exact dates and details of labor performed and money expended, for which the defendant sought to recover, it would probably be necessary to send to Bock Island for defendant’s books and papers relating to those matters, which would necessitate a continuance of the ease. Under these circumstances, the court denied the application for the rule. The plaintiffs then moved the court to strike from the files the defendant’s pleas of set-off, for the reason he had failed to comply with the requirements of section 32 of the Practice act, which provides: “If the defendant shall plead, or give notice of any set-off, he shall file with such plea or notice a copy of the instrument or account upon which he intends to rely.” This motion was also denied. The plaintiffs then asked the court, for the same reason, to rule out and reject all evidence offered in support of the pleas, which the court refused to do.

These several rulings of the court, to which exceptions were taken, present, substantially, the same question, namely, whether the provision of the statute is absolutely imperative, so as to give the court no discretion in any case where it has not been complied with, and an application is made for its enforcement. The question is put in this form for the reason it is too clear to admit of argument, that if the enforcement of this provision is, under any circumstances, a matter of discretion with the court, it was clearly so in this case; and assuming such to be the case, we have no doubt it was properly exercised. The filing of a plea of set-off is the commencement of a cross-action, such plea answering to the declaration in the original action, and the proceeding in the cross-action, so far as the question under consideration is concerned, is governed, substantially, by the same rules and principles that are held to apply to the 18th section of the Practice act, which requires the plaintiff to file with his declaration a copy of the account or instrument sued on. Under either section, the account or instrument upon which a recovery is sought should be filed as therein required. It is a right of the opposite party to have it done. But this right must not be enforced in such a way as to work injustice to the adverse party. Like most other legal rights, it is one that may be waived, and the party entitled to its enforcement must not so act as to lead his adversary to suppose it has been w'aived, until it would subject him to loss or inconvenience to have it then enforced. Such was manifestly the case here, if the allowing of the application would have worked a continuance of the cause, which is quite likely. At the very time this application was first made, the ease was liable to be called up at any moment.

Under all the circumstances, the asking of the rule at that stage of the proceeding looks very much as if it was done for delay, merely. Had the plaintiffs, in good faith, really desired an account filed to enlighten them as to the character of the defendant’s claim, they should have applied for the rule before the case was set down for a day certain on the call docket. By having gone to trial on the merits twice before, and having, without objection, permitted the case to be set for a day certain on the call docket, the defendant was fully justified in considering the right in question as waived, and it would have been unfair te him, under such circumstances, to have enforced it at that stage of the proceeding.

We are therefore of opinion that the several rulings of the court above mentioned were proper, and consequently afford no ground for a reversal. The conclusion here reached, we think, is sustained by the following cases : McCarthey v. Mooney, 41 Ill. 301; Eddie v. Eddie, 61 id. 134; Mastin v. Toncray, 2 Scam. 216.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Cbaig

text:
    Andre Andrews v.The People of the State of Illinois.

      Filed at Ottawa May 15, 1886.

    1. Criminal law—indorsing witness’ names on indictment. The statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose testimony the same was fopnd, is mandatory; and a disregard of this requirement will authorize the court, on proper motion, to quash the indictment.
    2. The statute does not require'that the names of all witnesses who may names of those upon whose testimony the indictment may have been found. be called to testify on the trial shall be noted on the indictment, but only the
    3. Where the names of five witnesses were noted on an indictment by the foreman, after which were the words, “See, for other witnesses, Off. C. and it was held, that it would be presumed the foreman did his duty by noting the names of all the witnesses who testified before the grand jury, and that a motion to quash the indictment for want of an indorsement of other witnesses was properly overruled.
    4. Same—election of counts, when not required. A party was tried upon an indictment, one count being for larceny and the other for receiving stolen goods knowing them to have been stolen. The proof showed that the two offences charged formed parts of a single transaction. At the close of the evidence for the prosecution the defendant asked the court to require the prosecution to elect the count upon which a conviction was sought, which the court denied: Held, that the case was not one in which the court was required to compel an election.
    5. Same—conviction upon admissions of accused. Where the fact of the commission of a larceny is shown by other and direct evidence, the defendant may be convicted of the same by proof of his admissions or confessions, deliberately made.
    6. Where a crime has been committed, the admissions of a party charged therewith, deliberately made, are admissible for the purpose of showing his guilt; and the jury, who are the judges of the weight to be given to all evidence, may convict on such evidence, if they believe it sufficient.
    Writ op Error to the Criminal Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.

      Mr. John Lyle King, for the plaintiff in error:
    The statute requiring the foreman of the grand jury to note on each indictment returned into court “the name or names of the witness or witnesses upon whose evidence the same shall have been found, ” being for the benefit and protection of the defendant, is mandatory, and a failure to observe such requirement is fatal to the indictment. Ray v. State, 1 G. Green, 316; Rex v. Ford, Telv. 90; People v. O’Hara, 2 Mich. 170; Nomaque’s case, Breese, 145; McKinney v. People, 2 Gilm. 540; Scott v. People, 63 Ill. 508; People v. Naughton, 7 Abb. Pr. (N. S.) 430.
    In law and in fact larceny and receiving the stolen goods are separate, substantive and distinct felonies, and repugnant to each other. Therefore the court erred in refusing to compel the State’s attorney, on the close of his evidence, to elect upon 'which count of the indictment he would proceed. Rex v. Flower, 3 C. & P. 413; 14 E. C. L. R. 637; Young v. King, 3 T. R. 106; Bennett v. People, 96 Ill. 202; Tobin v. People, 104 id. 565.
    A person receiving stolen goods does not thereby become guilty of larceny. (People v. Maxwell, 24 Cal. 14.) Proof of one offence will not sustain an indictment for the other. Commonwealth v. Copenburg, 2 Strobh. 273; Regina v. Madden, Ryan & M, 277; Regina v. Galloway, id. 234.
    It is sometimes held that the granting of a motion to compel an election is a matter of discretion, a ruling upon -which is unassignable for error. But the discretion is regulated by judicial rule. 1 Bishop on Crim. Proc. sec. 761; Goodhue v. People, 94 Ill. 37; Lyons v. People, 68 id. 275.
    The court erred in refusing plaintiff’s first instruction, to the effect that the jury should not convict on the uncorroborated alleged confession of the defendant, unless there was other evidence showing that he, -at the time of receiving the goods, knew they were stolen, and the fact that he was informed, after receiving them, that they were stolen, is not evidence of guilt on his part, and, as to the fact of guilty knowledge, the jury must take into consideration all the facts and eircum-. stances of the ease.
    Mr. George Hunt, Attorney General, for the People:
    The statute only requires the indorsement of the names of the witnesses upon whose evidence the indictment was found. It does not require that the names of all witnesses who are called before the grand jury, or who may be called upon the final trial, shall be so indorsed. Other witnesses may be called on the trial whose names are not indorsed. Perteet v. People, 70 Ill. 171; Scott v. People, 63 id. 508; Perry v. People, 14 id. 496; Bulliner v. People, 95 id. 394; Logg v. People, 92 id. 598.
    In Winskip v. People, 51 Ill. 296, a conviction on an indictment without the name of a prosecuting witness, wras sustained.
    The object of indorsing names of witnesses is to notify the defendant, whose testimony he must meet. Scott v. People, supra; Perry v. People, supra.

    The doctrine of election, seems to apply only to those cases where the different counts charge different offences growing out of separate and distinct transactions. Bennett v. People, 96 Ill. 202; Tobin v. People, 104 id. 565; 1 Bishop on Crim. Proc. sec. 457, note 9; Goodhue v. People, 94 id. 37; 1 Wharton on Crim. Law, sec. 423; Lyons v. People, 68 Ill. 275.
    The question of election, so far as .applicable here, is one of judicial discretion, (Bishop on Grim. Proc. sec. 454,) and hence not subject to review, unless an abuse of the discretion is shown: Beaty v. State, 82 Ind. 228.
    The first instruction of defendant’s refused, told the jury, in substance, that unless there was some other evidence of Andrews’ knowledge that the goods were stolen when, he received them, besides his confession of such knowledge', he should be acquitted. This is not only not the law, but his admission is the very best character of proof of that fact that can be produced.
    The second refused instruction declared that confessions are rarely sufficient to warrant a conviction unless they are supported by other evidence tending to show that the prisoner committed the crime. Here there is no lack of other evidence tending to show that the prisoner did commit the crime. But it does not state the law. The rule only requires other proof oí the corpus delicti. When that is fully proven aliunde, the confessions may be received, and will sustain a conviction. May v. People, 92 Ill. 343; Williams v. People, 101 id. 382.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was an indictment against Andre Andrews, containing two counts. In the first count the defendant was charged with larceny, and in the second with receiving stolen goods. On a trial before a jury, the defendant was found guilty as charged in the second count of the indictment, and was sentenced to eight years’ imprisonment in the penitentiary. Several alleged errors are relied upon to reverse the judgment.

On the back of the indictment is indorsed: “A true bill.— J. J. Corcoran, foreman of the grand jury. ” And, “Witnesses, Charles P. Crane, Lem. Flershem, Peter Lapp, Off. Cosgrove, Off. Palmer. See, for other witnesses, Off. Cosgrove and Palmer.” “Filed June 19, 1885.—John Stephens, Clerk.” The defendant entered a motion to quash the indictment, on the ground that the foreman of the grand jury failed to note thereon the names of the witnesses upon whose evidence the indictment was found, as required by the statute. 'The court overruled the motion, and this is the first error relied upon to reverse the judgment.

Section 17, chapter 78, of the Revised Statutes, provides that “the foreman of the grand jury shall, in each case in which a true bill shall be returned into court, note thereon the name or names of the witnesses upon whose evidence the same shall have been found.” It is contended that the statement on the indictment, “See, for other witnesses, Off. Cos-grove and Palmer, ” was not a compliance with the statute, and vitiates the indorsement of the names of witnesses required by the law. The statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose evidence the same is found, is mandatory, and a disregard of this requirement would-no doubt be sufficient ground to authorize the court, upon proper motion, to -quash the indictment. (McKinney v. The People, 2 Gilm. 552.) The object of the statute is for the benefit of the accused, who is entitled to know the names of those upon whose evidence the indictment may have been found. It will, however, be observed, that this statute does not require that the names of all witnesses who shall be called to testify ■on the trial of the accused shall be noted on the indictment, but the requirement of the law is confined to the names of those upon whose evidence the indictment may he found. Here the names of five witnesses were noted on the indictment by the foreman of the grand jury, as required by the ¡statute, and the presumption is, in the absence of any "contrary showing, that they were the witnesses, and the only witnesses, upon whose evidence the indictment .was found. It is true there is noted or indorsed on the indictment, “See, for other witnesses, Off. Cosgrove and Palmer, ” but from this statement no presumption can arise that witnesses other than ihose whose names are noted testified before the grand jury. Before this statement appears, the noting of the names of witnesses on the indictment required by statute is full and complete, and that noting is in no manner contradicted or impaired by this statement. The statement may be rejected entirely, as no part of the indictment, or it may be treated as a mere memorandum for the benefit of the State’s attorney in finding other witnesses which were not before the grand jury, which in no manner related to the statutory duty of the foreman of the grand jury in noting the names of the witnesses on the indictment. But however this statement may be regarded, when the foreman of the grand jury had noted the names of five witnesses on, the indictment, he had complied with the requirement of the statute. We are of opinion" that there was no error in overruling the motion to quash the indictment.

As stated before, the indictment contained two counts,— one for larceny, and the other for receiving stolen goods. After the evidence was all in, the defendant entered a motion to compel the prosecution to elect upon which one of the counts of the indictment a conviction would be asked. The court overruled the motion, and this decision is relied upon as error.

In Bennett v. The People, 96 Ill. 602, where a motion was-made to require an election before the trial began, it was held that a count for larceny and one for receiving stolen goods-might properly be joined in one indictment, and a.trial might be had on all the counts; that where the charges all relate to-one transaction, the prosecution would not be required to elect on which count a conviction would be asked. In Goodhue v. The People, 94 Ill. 46, where an indictment contained three-counts, and a motion was made by the defence to require an election, it was held that where two or more offences form part of one transaction, and are such in nature that a defendant may be guilty of both, the prosecution will not, as a general rule, be put to an election, but may proceed under one indictment for the several offences, though they be felonies.- The right of demanding an election, and the limitation of the prosecution to one offence, is-confined to charges.which, are actually distinct from each other, and do not form parts-of one and the same transaction. The doctrine of the cases cited is fully supported in Bishop on Criminal Procedure, sec. 457, where the author says: “When the counts are for different'felonies, really or supposed to be connected with the-one transaction, as, for example, larceny and receiving stolen goods, or embezzlement and larceny,—and, a fortiori, where one felony is set out in various ways in the different counts, to meet the varying forms of proof,—no election of counts will, in ordinary circumstances, be required, but all will be left open for the jury to pass upon. ”

Tobin v. The People, 104 Ill. 566, cited by counsel for the defendant, does not conflict in the least with - the rule indicated in the cases cited. In that ease the joinder of counts was held to be proper, but the judgment was reversed because the jury had failed to determine under which count of the indictment defendant was guilty,—that where there was a count for robbery, larceny, and receiving stolen property, a general verdict of guilty could not be sustained. There was no.motion to require an election in that case, as here, and no ruling on the point involved in this case. Upon an examination of the evidence which was before the court when the motion was denied, it is apparent that the offence charged in the two counts of the indictment grew out of one transaction,—that the two offences charged, formed a part of one transaction. Under such circumstances it is clear that the motion requiring the prosecution to elect was properly overruled.

The court gave for the defendant eight instructions, as asked, and two as modified,—in all ten instructions,—and refused four. The refusal to give the fqur is assigned for error.

The first refused instruction in substance informed the jury that the defendant should not be convicted upon the uncorroborated evidence of an alleged confession made by him to a witness, and, unless there is other evidence showing that defendant, at the time the goods were recived, knew they were stolen, they should acquit, etc. Where a crime has been committed, the admissions of a party charged with the crime, deliberately made, are always admissible for the purpose of showing the guilt of the accused, and the jury, who are the judges-of the weight to be given to all evidence, may convict on such evidence, if they believe it sufficient. We regard this rule well settled, both by the authorities and the well established practice in criminal cases. In a case of this character it was necessary to prove that the goods had been stolen, by evidence independent of the confessions of the defendant. When that fact, which may be regarded as the corpus delicti, was established, then the defendant may be convicted upon evidence of his own confessions. Williams v. The People, 101 Ill. 382.

' As to the second refused instruction, the substance of ftll that is contained in it was given to the jury in defendant’s instruction No. 8, and a repetition in a different form of expression was not required.

As to the third refused instruction, all that is embraced in it proper for the consideration of the jury was given in instruction No. 4 and modified instruction No. 6, and it was not error to refuse the instruction as drawn. Indeed, the jury were fully, and, so far as disclosed by the record, fairly instructed in regard to 'every legal principle involved in the case; and even if it be true that some of defendant’s refused instructions contained correct propositions of law, his case was not injured by their refusal.

So far as appears by the record, the defendant has had a fair and impartial trial. The evidence was sufficient to warrant a verdict of guilty, and we perceive no ground upon which the judgment ought to be reversed. It will therefore be affirmed.

Judgment affirmed.