author: Mr. Justice Mulkey Mr. Justice Scott : Mr. Justice Walkeb,

text:
    Madelaine Roth v. Amalie Staehle Roth et al.

      Filed at Ottawa May 12,1882

      —Rehearing denied September Term, 1882.

    1. Conflict of laws—habbiagkb and divobce—marriage in this State of foreign born persons. A marriage solemnized in this State between subjects of a foreign country domiciled here at the time, in strict conformity with our laws, and between parties competent under our laws to contract the relation, is valid and binding here, notwithstanding such marriage is in violation of the positive law of the country of which they are subjects.
    2. Same—acquiring domicile in the foreign country after a valid marriage here—effect of foreign decree annulling the marriage—as to subsequent rights of the parties in this State. A marriage in this State of subjects of a foreign country, valid by our laws, upon the return of the parties to their own country, and their acquiring a new domicile there, may be annulled by the proper courts of such foreign country in accordance with its own laws, for causes not recognized by our laws.
    3. A subject of the king of Würtemberg, while domiciled in this State, entered into the marriage relation in strict accordance with the laws of this State, but in violation of an ordinance or law of the kingdom of Würtemberg, declaring all such marriages in a foreign State, without the license of the sovereign, absolutely null and void. After the return of the parties to that kingdom, and they had acquired a domicile there, a suit was brought by the husband to annul and declara the marriage void, and the proper court, having jurisdiction by the laws of that country of the subject matter and of both parties, rendered a decree declaring the marriage absolutely null and void, the effect of which there was not only to establish the nullity of the marriage, but also to annul and terminate the status of the parties arising from a defacto as well as a de jure marriage: Held, that such decree was conclusive upon the late wife in this State, and deprived her of all rights as widow or heir of her former husband.
    4. Same—“marriage and inheritance contract” made in a foreign country—of its effect as a transfer of title in this State. A “marriage and inheritance contract” between a husband and wife, after their marriage in the kingdom of Würtemberg, confirmed by the proper court of that country, whereby each was to hold the property belonging to him or her during their joint lives as common property, with right of survivorship, will not, upon the death of the husband, pass the legal title of his real estate in this State to his widow, but such agreement, on his death, operates as an equitable assignment of the estate to the widow, which may be enforced in a court of equity.
    5. Same—citizens or subjects in a foreign country—how far affected by laws of their home government. Every State has the power to enact laws which will personally bind its citizens or subjects when sojourning in a foreign jurisdiction, provided they in terms profess to so bind them. It is true, such laws have no extra-territorial effect, so as to authorize their enforcement in a foreign country; but upon the return of the parties violating them, they may be enforced in the same manner and to the same extent as if their infraction had occurred in the State enacting them.
    6. Same—status of the individual on a change of domicile. Ordinarily when a person, upon a change of domicile, goes into another State or country, the personal status which he carries with him will be recognized by the courts of the latter country; hut this rule is subject to certain" exceptions. H, for instance, such status has been acquired by a violation of an express provision of the x>ositive law of the State in which its recognition is asked, or if it be contrary to the spirit and genius of its institutions, as a title of nobility would be here, or if it is opposed to its settled policy, or to the good order and well being of society, or to public morality and decency, in all such cases the status will not be recognized by the courts of the latter State.
    7. Fobeign judgment—how far conclusive on the parties here. Where the court of a foreign country has jurisdiction of the parties and subject matter of a suit, and this affirmatively appears, its judgment or decree will be conclusive on the par-ties, their legal representatives and privies, in all countries where the matters litigated are again drawn in question; and this is particularly so with respect to judgments or decrees affecting the status of a person, they being in the nature of judgments in rem, which are binding on the whole world.
    8. The limitation to this rule is, that it may be shown such judgment or decree was obtained by means of fraud, or gross abuse of the process of the court, or flagrant departure from the ordinary course of judicial procedure, as, for instance, that a party in interest sat as a judge in the cause.
    9. Fbaud—general allegation not sufficient. It is not sufficient for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally, but the complaining party must state in his pleading and prove on the trial the specific acts or facts relied on as establishing fraud. . '
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    The record in this case shows that John George Both, a subject of the kingdom of Wiirtemberg, came to this country, and settled in Chicago at an early day, and there accumulated a large amount of property, consisting chiefly of real estate, which is the subject of controversy in this suit; that in 1855 he married, in Chicago, Madelaine Moser, a native and subject of France, who had a short time before accompanied him bn a return visit from that country to this; that in 1856 they returned to Europe, and on their arrival in that country, or shortly afterwards, owing to certain difficulties and misunderstandings, a, separation took place, resulting in her returning to reside with her father, in Alsace, France, her former domicile and residence, and in his establishing a new residence in Schorndorf, in the said kingdom of Würtemberg, where he continued to reside until the time of his death, which occurred on the 12th of July, 1876 ; that in 1862 his wife returned to this country and instituted proceedings for a divorce, where she was shortly afterwards followed by her husband, and through his influence induced to abandon the divorce suit and return with him to Schorndorf, where they again resumed marital relations, which were continued until October, 1870, when he commenced legal proceedings in the proper c.ourt, at their domicile in Würtemberg, to procure a decree of nullity of their marriage on the ground it had been; entered into on his part in violation of the laws of the kingdom of Würtemberg, of which he was at that time a subject; that on the 24th of April, 1873, the cause was brought to a final hearing, both parties being present, and represented by their respective counsel, resulting in a decree declaring the marriage a nullity, on the ground just stated; that the court in which the decree was rendered had jurisdiction, both of the parties and the subject matter of the suit, and under the laws of Würtemberg had full power and competent authority/ to enter the decree; that on the 9th of September following, in consideration of $8000 in United States bonds paid to her . by Both, Madelaine, his former wife, released to him all her interests, whatever they might be, in the property in controversy; that on the 27th of November following, Both contracted a second marriage with Amalie Staehle, who now claims the estate in controversy; that after the marriage of Amalie and Both, on the 28th of March, 1874, they entered into an agreement’ known to laws of Würtemberg as a “marriage and inheritance contract, ” by which it was provided they were to hold the property belonging to them respectively during their joint' lives as common property, with the right of survivorship to the longer liver, subject to the payment of their debts, the education and marriage portions of their children, and to the payment by her, in the event she survived him, of certain legacies to his relations, amounting altogether to 80,000 florins, which contract was duly approved and confirmed by the proper court of that country; that immediately before his death, and with a view of enabling his wife to carry out the contract just mentioned, Both conveyed, or attempted to convey, the property in controversy to her brother, Albert Staehle, but that whatever interest passed by it was subsequently reconveyed by him to Amalie; that after Both’s death, on the 25th of September, 1876, Madelaine visited Schorndorf, and while there spent much of her time with Amalie, and accepted of her various presents, etc.; that on the 26th of the -same month, Madelaine, in consideration of 10,000 marks, released to Amalie all claims to and upon her late husband’s estate, and on the 3d of October following, executed to her a deed to the property in controversy; that Both, at the time of his death, left no child or children, or descendants thereof.
    Under these circumstances, in 1878, the present bill was filed by Madelaine, in the Superior Court of Cook county, against Amalie and the heirs at law of Both, in and by which she claims that the marriage between her and Both was a legal and valid marriage; that the decree of the Wiirtemberg court, and all the proceedings upon which it is based, were and are null and void, and that she is therefore the lawful widow and heir of her said husband, and as such entitled to a partition and division of his estate, under the statute. Amalie answered the bill, and also filed a cross-bill, setting up the facts above recited, and relying on them to establish her rights, as the survivor and lawful widow of Both, to the property in dispute. A cross-bill was also filed by the heirs of Both, setting up their rights in the premises. The court found the equities with” Amalie upon' her cross-bill, and entered a decree dismissing the original bill, and directing the heirs of Both to be paid the amount due them under the

      “marriage and inheritance contract.” That decree has been performed as to the heirs of Both, and Madelaine Both alone brings the case by appeal to this court for review.
    Mr. C. M. Habéis, for the appellant :
    . Penal laws are strictly local, and those of one country, can not be regarded in another. Folliott v. Ogden, 1 H. Bl. 135; Ogden v. Folliott, 3 Term, 733; Warrender v. Warrender, 3 C. La. & Pin. 538; Commonwealth v. Green, 17 Mass. 548; Story’s Const. 16, secs. 91, 104; Dicey on Domicile, 160.
    Statutes restricting the liberty of marriage are penal. Hodgkinson v. Wilkheir, 1 Hagg. Const. 262.
    Thai; the validity of a marriage depends on the law of the country'where it is celebrated, see Bishop on Marriage and Divorce, sec. 371; Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485; Ruding v. Smith, id. 371, id. 551; Middleton v. Janverin, id. 437, id. 582; Scrimshire v. Scrimshire, id. 385, id. 565.
    A foreign decree has no extra-territorial force, save through comity. Woolsey on International Law, sec. 75; Story’s Conflict of Laws, 603-607. •
    If it conflicts with reason and justice, or if the court has proceeded upon false premises or inadequate reasons, or mistake of local or foreign law, it will not be enforced elsewhere. Simonin v. Mallac, 2 Sw. & Tr. 67; Simpson v. Fogo, 32 L. J. Ch. 249; Parsons on Contracts, 606; Wharton on International Law, 747; Don v. Lipman, 5 Cl. & Fin. 20; Novelli v. Rossi, 2 B. & Ad. 757; Reimers v. Druce, 23 Beav. 145.
    Such decree will not be enforced when it will directly or indirectly give effect to an act which infers a scandal on-society or a breach of national morals and decency, or when it would be detestable or pernicious, as, the enforcement of a contract with a prostitute for her prostitution, although valid when made. Birthwhistle v. Vardill, 5 B. & C. 455; Fenton
      v. Livingstone, 3 Macq. 537; Bank of Augusta v. Earl, 13 Pet. 518; Greenwood v. Cartes, 6 Mass. 358.
    A marriage settlement made in a foreign country does not of itself affect real estate here, and can, if at all, only by suit under the laws of this State. 73 Ill. 285; 15 La. Ann. 317.
    Executory contracts do not transmit title. Olney v. Howe, 89 Ill. 556.
    An executory agreement, or imperfect conveyance upon a merely voluntary consideration, will not be enforced or aided in equity. 64 Ill. 548; 1 White & Tudor’s Leading Cases, 420, 427; 1 Select Cases, (Ala.) 535.
    Messrs. Bosenthal & Pence, for the appellee Amalie S. Both s
    Where a contract to marry is executed, its nature as a contract is merged in the higher nature of a status, and the contract no longer exists. This status travels with the spouses wherever they go, and becomes subject to the laws of the State where the parties may become domiciled, and is there under control of the sovereign power. 1 Bishop on Marriage and Divorce, secs. 3, 667; Story’s Conflict of Laws, secs. 228-230; Barber v. Root, 10 Mass. 265; Strader v. Graham, 10 How. 82; Maguire v. Maguire, 7 Dana, 181; Cheever v. Wilson, 9 Wall. 108; Harrison v. Harrison, 19 Ala. 499; Harvie v. Farnie, L. R. 5 P. D. 153; 43 L. T. R. 738;
    It is clearly eonrpetent for every nation to say that certain marriages of its subjects or citizens shall be invalid, wherever they may be contracted. Story’s Conflict of Laws, secs. 114 d, 117; Foote’s Priv. Int. Jur. 272, 273; 1 Burge on Colonial Law, 188, 195, 196; Wharton’s Conflict of Laws, sec. 161; Lawrence’s Wheaton, 172; 4 Phillimore’s International Law, 29; Piggott’s Foreign Judgments, 167,168; Maxwell on Stat. 119; Fenton v. Livingstone, 5 Jur. N. S. 1183; 3 Macq. 497; Sussex Peerage case, 11 Cl. & F. 85; Sottomayer v. De Barros
      L. R. 3 P. Div. 5; Mette v. Mette, 1 Sw. & Tr. 416; Brook v. Brook, 3 id. 481; Warrender v. Warrender, 2 Cl. & F. 529.
    If an incapacity to marry exists in a State of which the parties are citizens or subjects, and if the marriage of persons possessing such incapacity is declared by the statute of their State to be null and void wherever the same may be contracted, and if such persons go to another State where such incapacity does not exist, and there marry, and then return to their own State, such marriage will be held null and void in the latter State. Kinney’s case, 30 Gratt. 858; Williams v. Oatis, 5 Ired. 535; State v. Kennedy, 76 N. C. 251; Dupree v. Boulard, 10 La. Ann. 411; Commonwealth v. Lane, 113 Mass. 458; Commonwealth v. Hunt, 4 Cush. 49; Medway v. Needham, 16 Mass. 157.
    Where, by the positive law, consent of government is required to marry, such want of consent will invalidate the marriage. Sussex Peerage case, 11 Cl. & F. 85; Sottomayer v. De Barros, L. R. 3 P. Div. 5; Fenton v. Livingstone, 5 Jur. N. S. 1183; Story’s Conflict of Laws, sec. 114 d.
    Every country must be permitted to judge of the policy of its own law, and to enforce the same. This is a maxim of international law. 1 Bishop. on Marriage and Divorce, sec. 368; Story’s Conflict of Laws, secs. 18, 19, 21, 22, 23, 25; Savigny, note a, 38, 40; Bank of Augusta v. Earle, 13 Pet. 518; Cin. Mutual H. A. v. Rosenthal, 55 Ill. 91; Wharton’s Conflict of Laws, (2d ed.) secs. 65, 207.
    The status of all persons is controlled by the law of the nation to which they belong, and in which they are domiciled. Westlake’s Private International Law, p. 24, et seq. 80; Story’s Conflict of Laws, secs. 223, 224, 228-230 ; Wharton’s Conflict of Laws, secs. 211, 213, 220, 800; 1 Bishop on Marriage and Divorce, secs. 367-369; Guthrie’s Savigny’s Private International Law, 248; 2 Kent, 107, note; Hubback on Succ. 335; Bigelow on Estoppel, 159, 160; Piggott on Foreign Judgments, 167, 168; Shaw v. Gould,
      L. R. 3 H. L. 56; Kinnier v. Kinnier, 45 N. Y. 535; Hunt v. Hunt, 72 id. 228; Barber v. Root, 10 Mass. 260; Cheever v. Wilson, 9 Wall. 108; Strader v. Graham, 10 How. 82; Dorsey v. Dorsey, 7 Watts, 349; Ditson v. Ditson, 4 R. I. 87; Udney v. Udney, L. R. 1 Scotch App. 441.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In the view we take of this ease we do not deem it necessary to follow counsel in the wide range their exhaustive and elaborate arguments have taken, but shall confine ourselves to one or two of the topics discussed in the briefs, which we regard as conclusive of the controversy, whatever may be our views with respect to the other issues in the case.

So far as the marriage between Roth and Madelaine Moser is concerned, we have no hesitancy in saying that for all purposes, in this State, it was a legal and valid marriage, notwithstanding Roth, at the time, was a subject of the kingdom of Wiirtemberg, and had not obtained a license authorizing such marriage from the sovereign of that kingdom, as required by the laws thereof. As both the parties were domiciled here at the time of its celebration, it is not important to determine whether the validity of a marriage depends upon the lex domicilii or the lex loci contractus, for whatever conclusion might be reached upon that question, the result would be the same, so far as this case is concerned. Both laws being identical, if the marriage was in conformity with either it must necessarily have been with the other also, and as it seems to have been solemnized in strict conformity with our statute regulating the subject, and as the parties were manifestly competent, under our own laws, to contract the relation, it follows, as before stated, the marriage was valid and binding.

While this marriage was clearly valid here for all purposes whatsoever, it does not follow that upon the return of the parties to the country of their nativity, and of which they were still subjects, it would or ought to be held equally valid there, for it is clearly settled by the decided weight of private international law, so called, that every State has the power to enact laws which will personally bind its citizens or subjects when sojourning in a foreign jurisdiction, provided such laws in terms profess to so bind them when thus circumstanced. It is true, such laws have no extra-territorial effect so as to authorize their enforcement in a foreign country, and may, therefore, so far as their execution is concerned, be said to remain dormant till the return of those violating them, when they will be enforced in the same manner, and to the same extent, as if their infraction had occurred within the State enacting them. Story on Conflict of Laws, secs. 114 d, 117, 244, 22; Wharton on Conflict of Laws, sec. 161; Lawrence.’s Wheaton, p. 172; 4 Phill. Int. Law, 29, sec. 34; Piggott on Foreign Judgments, 167,168; Dicey on Domicile, p. 215; 1 Burge on Col. Law, 188, 195, 196; 1 Bishop on Marriage and Divorce, see. 368; Sussex Peerage case, 11 Cl. & Fin. 85; Brook v. Brook, 9 H. L. Cases, 193; Fenton v. Livingston, 3 Macq. 497; Mette v. Mette, 1 Sw. & Tr. 416; Van Voorhis v. Brintnall, 86 N. Y. 18; Commonwealth v. Lane, 113 Mass. 458.

Nor does it follow the status or relation created by the marriage could only be annulled by our own courts, or that it could only be annulled by other courts for such causes as would be recognized as sufficient for that purpose under our own laws. When the parties returned to Würtemberg and acquired a new domicile there, so far as their personal rights and relations are concerned our laws and government ceased to have any power over them or concern with them. Personally the State had no claims on them, an'd they owed it no allegiance or duty. Barber v. Root, 10 Mass. 260; Hunt v. Hunt, 72 N. Y. 228; Kinnier v. Kinnier, 45 id. 535; Cheever v. Wilson, 9 Wall. 108; Ditson v. Ditson, 4 R. I. 87; Harvey v. Farnie, L. R. 5 P. D. 153; same case affirmed, L. B. 6 P. D. 35; Story on Conflict of Laws, secs. 211, 213; 1 Bishop on Marriage and Divorce, secs. 367, 368; Wharton on Conflict of Laws, sec. 211; Guthrie’s Savigny on Private Internat. Law, p. 248. Whether the kingdom of Wurtemberg, on their return and acquiring a new domicile there, would recognize the status or relation which they had con-, tracted here, depended upon its own laws, and not upon ours. That kingdom, in 1808, adopted an ordinance or law, which was in full force at the time of the marriage in Chicago, declaring all such marriages in a foreign State, without the license of the sovereign, absolutely null and void. It was, therefore, according to the general current of authority on the subject, entirely competent for the courts of that kingdom having jurisdiction of such matters, to give effect to that law by annulling and setting aside-the marriage, upon a proper application for that purpose, which was done in this case. 1 Bishop on Marriage and Divorce, secs. 367, 368; Story on Conflict of Laws, secs. 18, 19, 21-23, 25; Wharton on Conflict of Laws, (2d ed.) sec. 207; 4 Phill. on Int. Law, secs. 3, 11, 12, 13, 16, 24, 25; Guthrie’s Savigny on Private Int. Law, 248.

/Ordinarily, where a party, upon a change of domicile, goes into another State or country, the personal status which he carries with him will be recognized by the courts of the latter country. This is certainly the general rule, but it is subject to certain well recognized exceptions. If, for instance, such status has been acquired, as in the present case, by a violation of an express provision of the positive law of the State in which its recognition is asked, or if it be contrary to the genius and spirit of its institutions, as a title of nobility would be here, or if it is opposed to its settled policy, or to the good order and well being of society, or to public morality and decency, in all such cases the status would not and should not be recognized by the courts of the latter State. 2 Kent, *p. 458; Wharton on Conflict of Laws, (2d ed.) secs. 207,165 ; Story on Conflict of Laws, secs. 98, 244; 4 Phillimore on Int. Law, (ed. 1861,) p. 529; Brook v. Brook, 9 H. L. Cas. 193; Cincinnati Mutual Health Ass. v. Rosenthal, 55 Ill. 91; Forbes v. Cochrane, 2 B. & C. 448; Melle v. Mette, 1 Sw. & Tr. 416; Commonwealth v. Lane, 113 Mass. 458; Van Voorhis v. Brintnall, 86 N. Y. 18.

Assuming the compromises of appellant with Amalie and Both, respectively, relating to her interest in the latter’s estate, were made by her in ignorance of her rights, and that they were effected through the fraud and misrepresentation of them, and others acting in concert with them, as is claimed by her, of which we express no opinion, at least for the present, it follows the result of this case must depend chiefly upon the legal effect which must, under the circumstances stated, be given by the courts of this State to the decree rendered by the Wiirtemberg court annulling the marriage, and this we regard as the vital question in the case. The general rule unquestionably is, where it affirmatively appears the court of a foreign State has jurisdiction of the parties and subject matter of the suit, its judgment or decree will be conclusive on the parties, their legal representatives and privies, in all countries where the matters litigated are again drawn in question, and this is particularly true with respect to judgments or decrees affecting the status of a person, for they are in the nature of judgments in rem, which are binding on the whole world. Wharton’s Conflict of Laws, secs. 800, 801, 802, 815, 816, 817, 822, 835; Bigelow on Estoppel, 170, 178; Freeman on Judgments, sec. 528; 2 Bishop on Marriage and Divorce, see. 755; Foote on Private Int. Jur. 473, 474; Guthrie’s Savigny on Private Int. Law, sec. 373, note c; Harvey v. Farnie, L. R. 5 P. D. 153; Gould v. Crow, 57 Mo. 200; Rose v. Himely, 4 Cranch, 162; Hobbs v. Henning, 17 C. B. (N. S.) 821; Doglioni v. Crispini, L. R. 1 Eng. & Irish App. 301.

The .above rule is also fully recognized by this court. (Baker v. Palmer, 83 Ill. 568.) The limitation to this rule is, that it may be shown that such judgment or decree was obtained by means of fraud, or some gross abuse of the process of the court, or flagrant departure from the ordinary course of judicial procedure, as, for instance, that a party in interest sat as a judge in the cause. Foote on Private Int. Jur. 456, 472; 2 Story’s Eq. Jur. sec. 1582; Piggott on For. Judgments, 116; Westlake on Private Int. Law, (last ed.) secs. 309, 310; Crowley v. Isaacs, 16 L. T. (N. S.) 529; Ochsenbein v. Papelier, L. R. 8 Ch. App. 695.

While it is claimed by counsel for appellant, in general terms, that the court rendering .the decree in question acted without jurisdiction, and that the same was obtained by fraud, yet we fail to discover anything in the record to warrant either- 0of these charges. It is not sufficient, as it has often been held by this court, for the purpose of successfully assailing a transaction on the ground of fraud, to charge fraud generally; but the complaining party must state in his pleading, and prove on 'the trial, the specific acts or facts relied on as establishing fraud. That has not been done in this case. So far as we are able to discover, the trial was perfectly regular, and conducted with the utmost fairness, and we see no ground to question the jurisdiqtion of the court. The depositions of persons learned in the law of that country have been taken in this cause, and they clearly show the, several courts through which that case passed during its pendency, were, by the laws of that country, the proper tribunals to take cognizance of cases of that character in the manner it was done. And it is further shown that both parties appeared in the cause, by themselves and counsel. Hence, as before'stated, we see no ground for questioning the jurisdiction of those tribunals. We are of opinion, therefore, the decree of nullity must be given in the courts here the same effect which w'ould be given to it by the courts of the country in which it was rendered. The effect of the decree there, as we understand it, was not merely to establish conclusively the nullity of the contract of marriage, or of the marriage itself, but also to annul and terminate the status or marital relation of the parties which arises from a de facto as well as a de jwre marriage, so as to leave them in precisely the same condition as if no marriage had ever taken place between them. This being the effect of the decree there, it must be given the same effect here. Barber v. Root, 10 Mass. 260 ; Ross v. Ross, 129 id. 243; Kinnier v. Kinnier, 45 N. Y. 535; Hunt v. Hunt, 72 id. 228; Harvey v. Farnie, L. R. 5 P. D. 153; Roach v. Garan, 1 Ves. Sr. 159; Collington’s case, 2 Swanst. 326, note; 2 Kent’s Com. *p. 107; 2 Bishop on Marriage and Divorce, see. 754; 1 id. secs. 354, note, 355; Wharton on Conflict of Laws, (2d ed.) secs. 1-3, 213, 671; Story on Conflict of Laws, secs. 37, 595, 597; 4 Phill. on Int. Law, (new ed.) secs. 836, 839; Freeman on Judgments, sec. 579; Foote on Private Int. Jur. 473, 474.

Such, then, being the legal operation of the decree, it follows that the appellant was not at the time of Both’s death his wife, either de facto or de jure, and hence she is not his widow, for no one answers that description who was not his wife at the time of his death, and consequently she has no right, as such, to succeed to his estate. (Hood v. Hood, 110 Mass. 463.) For the same reasons it follows that the subsequent marriage between Both and Amalie was lawful and valid, and that relation having continued up to the time of his death, it results that she, and not appellant, is his lawful widow, and as such is entitled to his estate. It is true the “marriage and inheritance contract” did not, upon his decease, have the effect of clothing her with legal title to the real estate in controversy, as his survivor, as it doubtless would have done had the property been situated in the kingdom of Wiirtemberg instead of here; for it is not competent for parties, here or elsewhere, by mere agreement, to change the manner of transferring real property in this State, but the agreement in question, upon his decease, operated as an equitable assignment of the estate to her, which was properly enforced by the decree in this case. Story on Conflict of Laws, secs. 143, 159,-184; Westlake on Private Int. Law, (new ed.) secs. 34, 35, 205; ibid, (old ed.) secs. 99, 371; Decouche v. Savetier, 3 Johns. Ch. 190; Basse v. Pellochoux, 73 Ill. 285.

Having reached the conclusion stated with respect to the decree of nullity, it is therefore unnecessary to discuss the effect of the compromise above alluded to, and relied upon as an estoppel by appellee. Whatever our views might be with respect to that matter, we are of opinion the law is with the appellee, on the grounds already stated.

Decree affirmed.

Mr. Justice Scott :

I do not concur in this decision.

Mr. Justice Walkeb,

dissenting:

The parties were domiciled in this State when the marriage was consummated. Under our laws they were competent to enter into the contract, and they did in strict conformity to all of the requirements of the laws of this State,' and it is on all hands conceded that it was valid according to our laws. All contracts lawfully made confer rights that must be enforced by our laws. Among the rights conferred by that contract was the right of the wife to dower in her husband’s real estate, and to become his heir to one-half of the real estate of which he might die seized, leaving no children living, or descendants of such children. These were the vested rights she acquired by this contract, and she can not be divested of them by the contract being declared void but by the tribunals of this State. The foreign court had no power to construe and give authoritative judgment against the validity óf contracts made under our laws, and we are not bound by the decree of nullity. Had any court having competent' jurisdiction granted a divorce, then by abrogating the marriage contract she would have lost her rights to dower and heirship, because the contract was destroyed in all of its parts, and the parties absolved from its performance, and all rights under it destroyed and ended. But in this case there, was no divorce, but it was decreed, in the very teeth of our never doubted laws, to have been void. The tribunals of this State are not bound by the decree of the foreign tribunal. That government, has no pretense of power to control the title to, or the descent of, property in this State. ■ As to power of controlling the rights of, and descent of, property by that kingdom, it is absolutely wanting, and it can not, under, any circumstances, control rights of persons in this State, under our laws. As well contend that had the laws of that kingdom been that none of its subjects should purchase or hold real estate without the consent of the king, and deceased had purchased this property as he did, and had died, his heirs could not inherit his property because he had not procured" the consent of his king. I apprehend no one would contend for such a doctrine, and the effect of this case is to so hold. I am, therefore, unable to concur in the conclusion reached in this case.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    In the matter of the petition of William T. Johnson, Collector.

      Filed at Ottawa May 12,1882

      —Rehearingd denied September Term, 1882.

    1. Taxes—assignee of tax debtob—petition by the collector that the assignee be compelled to pay the taxes. A petition by a collector, of taxes for an order to compel an assignee -of the tax debtor to pay taxes due from the person who made the assignment, out of funds in his hands, which fails to show that any property went into the assignee’s hands to which a lien could attach in any event, and simply charging that he has funds in his hands sufficient to pay the assignor’s taxes, without stating from whom the fund is derived, is wholly insufficient, and is properly dismissed for want of equity,
    2. Transcript of record—what regarded as a part of the record. This court can not notice a deed of assignment transcribed into the record by the clerk, which is not made an exhibit in the case or made a part of the record in any manner known to the practice.
    Writ of Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Consider H. Willett, for the plaintiff in error:
    In voluntary assignments taxes are a paramount lien superior to the claims of general creditors. Rev. Stat. chap. 120, secs. 5, 254, 255; Cooley on Taxation, 306; Dunlap v. Gallatin County, 15 Ill. 7; Dennis v. Maynard, id. 477; Hill v. Figley, 23 id. 418; Almy v. Hunt, 48 id. 45; Schaeffer v. The People, 60 id. 179; Binkert v. Wabash Ry. Co. 98 id. 205; Belleville Nail Co. v. The People, id. 399.
    The assignee stands in the shoes of his assignor as to all liens upon the property received through a voluntary assignment. Jenkins v. Pierce, 98 Ill. 646; Hardin v. Osborne, 94 id. 576; Yeatman v. Savings Institution, 95 U. S. 764; Hill v. Harding, 93 Ill. 77; Wales v. Bogue, 31 id. 464.
    Messrs. Tenney, Flower & Cratty, for the defendant in error:
    The county court has no jurisdiction in the premises. Rev. Stat. chap. 10 a, secs. 5, 6, 7, 12, 14; The People v. Biggins, 96 Ill. 481.
    The proceedings to collect taxes must show a strict compliance with the statute. The People v. Winkleman, 95 Ill. 412; Biggins v. The People, 96 id. 381; Scott v. The People, 2 Bradw. 642; Smith v. The People, 3 id. 380; Vetter v. The People, id. 385.

      Personal property taxes are no lien upon land until some specific tract is selected and charged, as the statute provides. Rev. Stat. chap. 120, sec. 183; Cooley on Taxation, 305; Schaeffer v. The People, 60 Ill. 179; Belleville Nail Co. v. The People, 98 id. 399.
    There is no lien upon personal property for any taxes except by virtue of the warrant in the collector’s hands, and then only upon property then owned by the tax debtor. Rev. Stat. chap. 120, secs. 254, 255; Hill v. Figley, 23 Ill. 418; Hill v. Figley, 25 id. 156; Garr v. Hurd, 92 id. 315; Binkert v. Toledo, Wabash and Western R. R. Co. 98 id. 206; Belleville Nail Co. v. The People, id. 399.
    The assignee is vested with the title to the assigned property, and he 'takes it free from all liens or incumbrances, except such as existed at the date of the assignment. Rev. Stat. chap 10 a, secs. 1-11; Burrill on Assignments, pp. 250, 252, 396; Willis v. Henderson, 4 Scam. 13; Wilson v. Pearson, 20 Ill. 81; Pike v. Bacon, 21 Maine, 280.
   Mr. Justice Scott

delivered the opinion of the Court:

William T. Johnson, treasurer of the county of Cook, and ex officio collector of taxes, presented his petition to the county court of that county, in which he represented that on the 10th day of March, A. D. 1881, there came to his hands a warrant for the collection of taxes for the year 1880, and prior years; that personal property taxes were assessed against the firm of Eliel, Danziger & Co., by the assessor of the towns of South Chicago and North Chicago, for the year 1880, on personal property of the firm, amounting in the aggregate to the sum of $420.21; that the taxes due from the firm for that and prior years, which he was commanded to collect by a warrant in his hands, amounted to the sum of $469.80, and that the firm of Eliel, Danziger & Co. made an assignment to Lambert Eliel, on the 30tti day of June, 1880, and that such assignee has a fund in his hands suf-' ficient to pay such taxes. Petitioner asked for an order that the assignee pay such taxes out of any money in his hands as such assignee, within a short time, to be fixed by the court. Substantially this is all the petition contains, and to it the assignee ihterposed a demurrer, which was by the court sustained, and the petition dismissed. The collector now brings the case to this court on error, to reverse the order of the county court.

Without expressing any opinion on the question raised whether the county court has jurisdiction in cases of this kind to decree the relief asked in the petition, the decision may be placed on the ground the petition, admitting it to be true, as the demurrer does, makes no case that would warrant relief in a court of competent jurisdiction. It is not shown that any property, either real or personal, of the tax debtors went into the hands of their assignee, to which a lien could attach in any event. The deed ' of assignment is transcribed on the transcript, but how it came there does not appear. It is not made an exhibit to the petition, nor is it made a part of the record in any manner known to the practice in such eases. Narrowing the inquiry, then, as must be done, to the facts stated in the petition, it does not appear that any of the property upon which the taxes were levied, or indeed any articles of property of the tax debtors, went into the hands of the assignee under the assignment. The allegation of the petition in this regard is, the assignee has a fund in his hands sufficient to pay the taxes due from the assignors, but whence that fund was derived is' not made known by any averment in the petition. It would seem clear if no property of the tax debtors wrent into the possession of their assignee, there would be absolutely nothing to which a lien for such taxes could attach in favor of the State or any one else. It is certain no lien for such taxes would attach to a fund in the hands of the assignee derived from any other source. It is for the obvious reason the statute has not so declared. . No lien for taxes exists in any case except under the 'provisions of the statute.

The petition failing to state facts sufficient to warrant the relief sought, the demurrer to it was properly sustained, and the decree dismissing it will be affirmed, which is done.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Sarah A. Hickling et al. v. Robert Wilson et al.

      Filed at Ottawa June 21, 1882

      —Rehearing denied September Term, 1882.

    1. Chancery—-joinder of parties—when several creditors may join in one suit. Two or more creditors of an insolvent corporation, after having •recovered judgments for their several demands, and the return of executions issued thereon nulla bona, may unite in filing a creditors’ bill against the corporation and its stockholders to reach unpaid subscriptions to the company, and such bill is not multifarious, as in such case there is an identity of interest in the question involved and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful acts, and also because it prevents multiplicity of suits, which is of itself a distinct source of equity jurisdiction.
    2. Subscription—not defeated as to third persons by any conditions not in written contract. The legal effect of subscriptions to the capital stock of a private joint stock company, which are absolute and unconditional on their face, can not be qualified or limited by any general understanding among the subscribers that the same should be abandoned and not collected unless a given amount was subscribed, as against creditors of the company, for debts incurred after a permanent organization of the corporation by the election of directors, and engaging in the enterprise contemplated by the charter and organization.
    3. Same—when stockholders are estopped to deny validity of their subscriptions. Where subscribers to the stock of a private corporation meet, and elect a board of directors, and thereby effect a permanent organization, and engage in the corporate enterprise for several years, by which debts are incurred, voting and acting as bona fide subscribers, they will not be allowed to dispute the binding effect of their subscriptions, or the legality of the organization of the corporation as against third persons who give credit to the company on the faith of its being legally organized, but will be required to pay their subscriptions as to creditors who are entitled in equity to be subrogated to the rights of the company.
    4. Creditor’s bird—may reach proceeds of donation to corporation in hands of subscribers. Where a private corporation was organized to build dams across the Illinois and Fox rivers, for manufacturing purposes, and the city of Ottawa made a donation of §60,000 in its bonds, to be applied in building- such dams, delivering the same to one of the corporators on his personal obligation to make the improvement or return the bonds or their value, and he turned the same over to the company, which was to indemnify him against his liability to the city, and such bonds were used as intended, and the dams completed so as to relieve the corporator from his personal obligation to the city, and the company then issued stock to the several subscribers in respect of such donation, for which they paid nothing, some of which stock they sold and converted into money: Held, that the money and stock so received by the subscribers could be reached in equity on creditor’s bill, and applied to the payment of debts incurred by the corporation in erecting the dams.
    5. Same—of the decree against stockholders of insolvent corporation as to unpaid subscriptions. Where a creditor of an insolvent private corporation has exhausted his remedy at law against the company for labor and materials, he will be entitled in equity to be subrogated to its rights against its debtors, as subscribers for unpaid subscriptions, and in such case it is no error to find the amount due the company from a subscriber, and award an execution against him for the amount so found. It is not necessary to make an apportionment of the pro rata share of each subscriber necessary to discharge the company’s indebtedness to such creditor. The creditor stands in the same position as would the company if suing for the subscriptions.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. Josiah MoEoberts, Judge, presiding.
    It appears from the record in this case, that at the January term, 1875, of the LaSalle circuit court, Bobert Wilson and William F. Whetmore severally recovered judgments against the Ottawa Manufacturing Company, the former for §888.40, the latter for $622.57; that executions having been sued out on said judgments, and returned nulla bona, the plaintiffs therein, on the 29th day of September, 1875, filed in said court a creditor’s bill against the company and certain other parties, including the appellants, alleged to be stockholders of, and indebted to, the company on account of unpaid subscriptions to its capital stock, and of moneys and effects in their hands belonging to the company, which the complainants seek by their bill to subject to the payment of their judgments; that the company was incorporated under a special act of the legislature, approved February 15, 1851, and an act amendatory thereof, approved February 16,1865, authorizing the company to construct dams across the Illinois and Fox rivers, in or near the city of Ottawa, in the county of La Salle, for manufacturing purposes; that the company, during the year 1866, was duly organized by the election of officers and a' board of directors, who caused books of subscription to its capital stock to be opened, as provided by its charter; that William H. W. Cushman subscribed • one hundred shares, of $100 each, to the capital stock of the company, John Y. A. Hoes ten shares, Lorenzo Leland ten shares, William Hickling twenty shares, Alexander M. Brown fifty shares, Charles Delano five shares, and Charles H. Force five shares; that these were all the subscriptions ever made; that no part of them has ever been paid, except one per cent thereof, which was paid by the subscribers, respectively, about the time the subscriptions were made; that these several subscriptions, less the one per cent paid, are still due the company from the subscribers, respectively, or their legal representatives, except the subscription of Brown, which, by reason of certain conditions annexed to it, never became binding upon him ; that the city council of the city of Ottawa, having the requisite power for that purpose, on or about the 15th of June, 1869, issued in the name of the city $60,000 in bonds, which were delivered to the said William H. W. Cushman, to be by him expended in the improvement of the water power afforded by the Illinois and Fox rivers, by building dams across the same, the city taking from him at the time an indemnity contract, by which he bound himself to either construct the dams within a reasonable time, or refund the bonds or their proceeds, or otherwise save and keep the city-harmless with respect to their issue; that Cushman, on or about the 2d of February, 1871, with the assent of the city, delivered the bonds in question to the Ottawa Manufacturing Company, and the company thereupon entered' into a bond, by .which it assumed the performance of Cushman’s contract with the city; that upon the delivery of these bonds to the company, or shortly thereafter, the directors of the company issued stock representing the same, to the following named persons, namely: to Cushman $16,00.0, Hoes $14,000, Cameron $9000, Leland $9000, Force $5000, Easton $4000, and Nash, $4000; that the issuing of the stock last above mentioned was in fraud of the creditors of the company; that the company built the dams in question, using only the'proceeds of the city bonds for that purpose; that the judgments of appellees were Obtained on account of work and labor done by them for the company in constructing said dams; that after the construction of said dams, in 1872, Hoes, Leland, Cameron, Nash and Easton sold their part of the stock so fraudulently issued, as above stated, at twenty-five per cent of its face value, and received payment therefor in money or its equivalent; that Cushman, Easton and Force are insolvent; that there is due the company, on account of the proceeds, of their respective shares of the stock received by Hoes, Leland and Cameron, last above mentioned, the following additional sums of money, namely: from Hoes $3500, from Leland $2250, and. from Cameron $2250; that there is also due said company on same account, from Nash and Easton, respectively, the sum of $1000.
    The circuit court, upon this state of facts, decreed that the complainants were entitled to have their respective judgments paid out of the said several sums of money so found to be due from the defendants to the company, on either of the accounts above mentioned, and ordered the parties, respectively, to pay the same within thirty days, and that in default of such payment the clerk of the court was required to issue separate executions against each of the defendants liable in his own right for the amount due from him to the company, and such of the defendants as were found liable in their representative capacity were directed to pay the several amounts due from them, respectively, in due course of administration.
    Mr. E. F. Bull, for part of the plaintiffs in error.
    Messrs. Leland & Gilbert, also for the plaintiffs in error.
    Mr. G. S. Eldbedge, and Mr. J. B. Rice, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The decree in this case, so far as it-relates to the parties now before the court, was affirmed by the Appellate Court for the Second District, and a reversal of the judgment of that court is earnestly urged on several grounds. First, it is insisted there is no community of interest between the complainants with respect to the claims sought to be enforced by the bill,—that they are totally distinct, having no connection whatever with each other. Hence it is claimed the bill is multifarious, and that the circuit court should have sustained the objection taken to it on that ground, and that its failure to do so was error. This objection is not tenable. We understand the doctrine to be well settled that two or more judgment creditors may join in a bill of this character. In such cases there is an identity of interest in the question •involved and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful acts. Moreover, the direct effect of joining several creditors in one bill is to prevent a multiplicity of suits, which of itself is a distinct source of equity jurisdiction. These several elements appearing in the case, we are of opinion they are sufficient to sustain the jurisdiction.

1 Pomeroy’s Equity. Jurisprudence, see. 269.

The objection which seems to be entitled to the most consideration, and which is urged with the greatest pertinacity, is, that the evidence does not, in several respects, warrant the decree. First, it is claimed there was never any valid organization of the company until after Cushman’s contract with the city to build the dams,—that the subscriptions prior to that time were, to use counsel’s own terms, mere experimental subscriptions, which were intended at the time to be abandoned if a satisfactory amount should not be subscribed, and were, in fact, subsequently so abandoned. And it must be confessed the testimony of Leland and others would, if there was no other evidence hearing on the subject, give color to this view, yet we do not think, when their testimony is considered in connection with other uncontroverted facts in the case, it sustains it, but on the contrary, when thus considered, it rather strengthens the opposite conclusion. The decided weight of testimony shows that after the temporary organization of the company in April, 1866, a subscription hook was provided and subscriptions made in it by Leland, and others specified in the decree. By way of impeaching these-subscriptions, Leland testifies as follows: “So far as I know all the subscriptions obtained in the spring of 1866 were abandoned, and the parties never afterwards recognized or called upon as stockholders. It was generally understood that unless a certain amount was subscribed we would not go on, and the amount was -never made up. Afterwards Cushman made a contract with the city to build the dam, and he proposed to reorganize the company. I don’t think there was anything said about the old company, and thereupon we organized a new company under the old charter, and ignored all except those Cushman designated. There were a great many that were not asked to come into the new company, and never did come into it. ”

It will he observed, in the first place, that the fact that the subscriptions were made is not denied by Leland, but, on the contrary, it is distinctly admitted, and while he claims there was an understanding—and this we do not question—that if a satisfactory amount was not obtained the subscriptions were to be abandoned, there is no pretense or claim that any such condition was annexed to the subscriptions themselves, and it is clear the legal effect of those subscriptions, as to third parties, could not be qualified or limited by any general understanding between the subscribers. The form of the subscriptions, as set out in the record, shows they were absolute and unconditional. It also appears, from the records of the company, the subscribers, so far from abandoning their subscriptions, as is claimed, on the 20th of August, 1867, held a formal meeting, at which a permanent organization was effected, by the election of a board of directors, and by re-adopting existing by-laws. The introductory part of the minutes of the meeting is as follows: “Pursuant to a call published in the Ottawa papers, the subscribers to the capital stock.of the Ottawa Manufacturing Company met at the office of the company, in Ottawa. Present, W. H. W. Cushman, L. Leland, J. V. A. Hoes, D. F. Cameron, W. S. Easton, and Charles H. Force. ” On motion, all of the above named persons, together with J. F. Nash, were elected a board of directors of the company. On the same day, at a called meeting of the board of directors so elected, a resolution was adopted by the board directing the secretary to notify the commissioners of the city the “company was organized, and prepared to receive the city’s subscription, ” etc. Subsequently, and before the supposed reorganization in 1871, the company, by resolution, adopted a seal, with the words, “Organized in 1867, ” upon its face. In addition to this, there is nothing to be found in the proceedings of the company, flom the time of its permanent organization in 1867, down to the time of the trial, showing a reorganization of the company, or even an attempted abandonment of the subscriptions to the capital stock of the company; but on the contrary, the record of those proceedings clearly and beyond all reasonable doubt establishes the contrary.

It is highly probable that some of the subscribers, after the handsome donation of $60,000 on the part of the city towards the enterprise, concluded they would never be called upon for their subscriptions, and this was probably talked round among them to such an extent as to give color to the hypothesis the subscriptions had been abandoned, but nothing more. That this view was not general among the subscribers, is clearly shown by the fact that several of them have declined to testify on the subject. But even if all had shared in a general understanding of the kind, it would not at all affect or change their liability on their subscriptions. Moreover, if these were not valid and binding subscriptions, the present case furnishes the very remarkable instance of a private joint stock corporation effecting a permanent organization of the company, and successfully carrying on its corporate business for a number of years, without a single dollar of its capital stock having ever been subscribed; for since the evidence clearly shows these were the only subscriptions ever made, it follows, if they were invalid, in contemplation of law no stock was ever subscribed. As none but subscribers to the stock were authorized to permanently organize the company, it follows, if the position of appellants is correct, there never has been any valid organization of the company. In the light of the facts before us, we can not for a moment sanction this view of the matter. The very parties who claim these subscriptions were abandoned, were active participants in the management of the company’s affairs for a number of years, attending its business meetings and voting upon all questions affecting its interests. If they were not bona fide subscribers to the company’s stock, by what right did they vote and participate in the management of the company’s affairs?

It is also insisted that the $60,000 in bonds, given by the city to Cushman, belonged to Cushman, subject only to his personal contract with the city to either make the improvements in question, or, in case of failure, to indemnify the city, and that he therefore had a right to make any disposition of the bonds he pleased; and having used them in the purchase of an equal amount of the company’s stock, and having divided it in the manner he did, no one has a right to complain or call on those receiving it to account ■ for the proceeds. This view of the transaction is so palpably unreasonable and inconsistent with the admitted facts, as not to merit serious consideration. It certainly never was intended by the city to donate these bonds to Cushman. They were clearly given to him to be expended, as they subsequently were, by the company in building the dams across the two rivers. His liability, under his contract with the city on account of the bonds, was merely contingent, and absolutely ceased when the bonds were thus used and the dams completed. Cushman turned over the bonds to the company, to be used in the manner they were, in consideration that the company would indemnify him against all liability on account of his contract with the city, which the company did. If the $60,000 in bonds was simply given in exchange for a like amount of stock, the bonds then ought to, * and would, have belonged absolutely to the company, to be used in any manner it might think proper, for upon that hypothesis they were paid for by the stock. Yet the company was required, as we have just seen, to expend them in the building of the dams, and also to release Cushman from all liability on account of them. The actual transaction between the parties, when relieved of the little mist which the argument of counsel throws around it, is simply this: The city of Ottawa made a donation of $60,000 in bonds, to be applied in building dams across the Illinois and Fox rivers, and these dams were built by the company and the funds faithfully applied to that purpose, and Cushman and his confederates have received the value of the bonds in the company’s stock, for which they have never paid a single cent—some of which they have' sold and converted into money, which they are now called upon to apply in the discharge of appellees’ claims against the company for labor and services performed by them in the building of said dams. This is all there is of it, and justice and equity alike say the money thus received should be so applied.

The remaining objection to the decree which we deem necessary to notice, is, that it is erroneous in awarding executions for its enforcement. It is said the court having all the parties before it should have made an equitable disposition of the case, and not have left it so that the whole claim might be collected from one and nothing from the others. We do not understand the law required the court to marshal the assets of the company in the hknds of the defendants, and apportion the amount of appellees’ claims among them. This is not the ordinary ease of several persons being called on to pay a common indebtedness for which all are jointly and severally liable, whence a court of equity will apportion the burden equally between them, but it is the case of several debtors owing distinct and independent claims to a common creditor, where each, in equity and good conscience, is bound for the full amount of his own claim, and where neither is required to pay anything more than what he owes himself. The complainants having exhausted their remedy at law against the company, are in equity subrogated to its rights against its debtors, and the present proceeding is in the nature of an equitable attachment, by which such claims of the company may be made available in the payment of its own debts. If the company was now suing one of these defendants for the amount of the claim against him, it would clearly be no defence to show it had failed to collect a similar claim against one of the others; and if all were proceeded against and judgments recovered, executions might be sued out against all at the same time, or only against one or any number less than all, as the company might think proper, and the adoption of either course suggested would afford no ground for complaint; and as appellees are subrogated to the company’s rights in this respect, and they are by means of the decree in question doing nothing which the. company might not rightfully do in its own name, we perceive no just ground of complaint. No defendant under the decree will in any event be required to pay more than he justly owes, and this is not only legal, but just and equitable. Moreover, the decree in this .respect is fully sustained by the authorities. Hatch v. Dana, 101 U. S. 205.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    George W. Shaw v. Erastus C. Moderwell.

      Filed at Ottawa June 21, 1882

      —Rehearing denied September Term, 1882.

    1. Contesting wills—in the circuit court—constitutionality of act of 1872. Section 7 of the “Act in regard to wills,” in force July 1,1872, which provides for contesting the will of a deceased person by bill in chancery in the circuit court, at any timé within three years after its probate, is not unconstitutional, but is a valid enactment.
    2. The circuit court, in hearing a bill to contest the validity of a will, after it has been proved by the subscribing witnesses and admitted to probate, does not exercise original probate jurisdiction.
    3. The statute has not made the probate of a will in the county court conclusive until after the lapse of three years, whether that court acts ministerially or judicially. In the meantime any one interested may, by bill in the circuit court, contest the validity of the will, and the right of the parties interested to file such bill is not affected by the fact that some or all of them may have appeared in the county court and cross-examined the subscribing witnesses to the will.
    4. Pbobate jurisdiction—in county courts. The constitution does not confer upon the county courts exclusive jurisdiction in all matters of probate. Such courts are simply given original jurisdiction in such matters, and nothing more.
    5. Exeoutob—allowance to him of expenditures on contest of the will. Moneys expended by an executor in defending a suit to contest the validity of a will, in behalf of the personal interests of the devisees named in the will, in which suit the will is set aside, are not proper credits to be allowed against the estate. Bor such expenditures the executor must look to such devisees.
    Appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. George W. Shaw, pro se:

    The circuit court which set aside the will of Mrs. Nandain had no jurisdiction of the subject matter, and all its proceedings were void, notwithstanding this objection was not raised. Where a court has no jurisdiction of the subject matter, no consent, implied or express, can give it. Hoagland v. Creed, 81 Ill. 506; Fleischman v. Walker, 91 id. 321.
    If the circuit court was without jurisdiction, an appeal to this court could confer none. Mills v. Brown, 16 Pet. 527; Ginn v. Rogers, 4 Gilm. 131; Williams v. Blankenship, 12 Ill. 122; Peak v. People, 71 id. 278.
    I maintain, first, that in passing upon this will the circuit court exercised original probate jurisdiction; second, that the constitution neither confers nor authorizes the legislature to confer original probate jurisdiction on circuit courts; third, that it bestows exclusive original probate jurisdiction upon county courts, save in certain counties where probate courts may be established; and fourth, that the statute in question deprives the county courts of probate jurisdiction, and leaves them only ministerial power.

      In Potter v. Potter, 41 Ill. 85, the court remarks: “In a bill of this character it is necessary the will must be probated anew, as though it was presented the first time for proof. ” The jurisdiction of the circuit court is then probate jurisdiction.
    The constitution provides that circuit courts shall have original jurisdiction of all cases in law and in equity. The words cases in equity must be held to mean cases in which relief is sought according to the principles and practice of equity jurisdiction established in English jurisprudence. 2 Story’s Const, sec. 1645; 1 Story’s Eq. Jur. sec. 58; Livingston v. Story, 9 Pet. 656; Maher v. O'Hara, 4 Gilm. 427.
    The court of chancery in England had no jurisdiction of the probate of wills. 2 Story’s Eq. Jur. sec. 1466; Wild v. Sweeney, 84 Ill. 214; 1 Williams on Executors, 476, 484; 2 Redfield on Wills, 47; 1 Story’s Eq. Jur. sec. 440; Gaines v. Chew, 2 How. 619; Fauvergne v. New Orleans, 18 id. 470; Adams’ Equity, sec. 248.
    County and probate courts have exclusive original jurisdiction of the probate of wills, etc. Constitution of 1870, art. 5, sec. 18.
    Mr. Charles Dunham, for the appellee:
    The constitution does not give county courts exclusive original jurisdiction in matters of probate, but only original jurisdiction. If the circuit courts have not jurisdiction of bills to contest the validity of wills under the present constitution, they did not under the constitution of 1848, and all the adjudications under this statute for the last thirty-four years on this question will be overthrown, and the titles to property of vast value destroyed or made uncertain.
    A State constitution is not a grant of power to the legislative department, but a limitation of their powers, which would otherwise be plenary. It has all powers not denied it, expressly or by necessary implication.

      A proceeding by bill in chancery to contest a will is not a matter of probate of such will. It is rather a proceeding to set aside its probate. The record of the proceedings in the county court makes out a prima facie case for the proponent. If the contestant does not succeed in overthrowing the will, the probate of the county court stands. It is not re-probated.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

In the original petition filed herein it was represented to the county court that Erastus C. Moderwell had been duly appointed administrator of the estate of Lydia W. Nandain, deceased; that George W. Shaw, before that time, had what purported to be the last will and testament of decedent probated in that court, and thereupon letters testamentary were issued to him, under which he took possession of the estate, and still retains it. It was further represented, that after-wards, in a proceeding instituted for that purpose, the circuit court declared the will admitted to probate was not the will of decedent, which decree was affirmed in the Supreme Court, and in and by which decree all proceedings had in the county court concerning the probate of such will were declared void. Petitioner represented also that he had demanded the estate of defendant, but he peremptorily refused to deliver any part of it to him, and asks for a citation to defendant to appear and report what he had received of such estate, and for an order upon him to pay the same over to petitioner as the rightful administrator of the estate. On appearing, defendant made answer to the petition exhibited against him. The principal matter alleged in defence is, that the decree of the circuit court, which was afterwards affirmed by the Supreme Court, setting aside and annulling the will of the decedent, inasmuch as it was commenced under section 7 of the “Act in regard to wills,” in force July 1, 1872, was null and void, for want of jurisdiction in the circuit court to pronounce the decree it did. As was his duty, defendant made a report of his receipts as such executor, and of his disbursements on account of the estate. Most of the items of disbursements were on account of expenses incurred in and about the defence of the suit instituted by the heir of the decedent to contest the will. All funeral expenses, and some items of expense other than taxable costs, were allowed on the trial, and were by the court deducted as proper credits from the amounts of receipts, but by far the largest portions of the items of expense included in the account of disbursements on bphalf of the estate were disallowed, and that is a matter of complaint on this appeal.

Elaborate arguments have been made on the constitutionality of the section of the Statute of Wills, under which the bill was filed by the heir to contest the will of the decedént, but the views entertained by this court may be briefly stated. Section 7 of the “Act in regard to wills, ” in force July 1, 1872, provides that if any person interested in the will of any deceased person shall, within three years after the probate of such will in the county court, appear, and by bill in chancery contest the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix, or not; but if no such person shall appear within that time the probate shall forever be binding and conclusive on all parties concerned, with a saving to persons under disabilities, of a like period after the removal of their respective disabilities. A provision for contesting wills, only differing from this in the period of time in which it might be done, has been contained in the Statute of Wills certainly since 1845, and counsel admit it is traceable back to the act of 1829, on the same subject. During all that period courts have entertained bills to contest wills under this section of the statute, and it does not appear the jurisdiction of the circuit court in such matters was ever before called in question.

The argument made in support of the position taken is, first, that the constitution bestows exclusive original jurisdiction in all matters of probate upon county courts, save in certain counties where courts of probate may be established with concurrent jurisdiction; second, in decreeing whether the instrument propounded was the will of decedent or not,, the circuit court exercised original probate jurisdiction; and third, because the county court has original probate jurisdiction, its order admitting the will to probate must be final, unless reversed on appeal, or other direct proceeding for that purpose. Neither proposition is warranted by any fair construction of the constitution, nor has either proposition any support from the statute or the adjudged cases. It is not true that the constitution bestows on county courts exclusive jurisdiction in all matters of probate. Such courts are simply given original jurisdiction in such matters, and nothing more. Nor is it true that the circuit court, in hearing a case to contest the validity of a will, exercises “original probate jurisdiction.” Contesting the validity of a will after it has been admitted to probate, or,.what is the same thing, after it has been proved in the county court by the subscribing witnesses, is a proceeding authorized by statute to be commenced by a bill in chancery in the circuit court. It is not a proceeding to establish a will, but to impeach it. Unless impeached, the probate of the will becomes binding and conclusive on all parties concerned. Hearing and determining such a case by the circuit court is, in no sense, exercising original jurisdiction in matters of probate. It is a suit which a circuit court has jurisdiction to hear under the statute, as it may hear any other bill in chancery. Whether the county court, in taking the testimony of the subscribing witnesses to a will, acts ministerially or judicially need not be determined. It is a sufficient answer to the position taken in respect to that question, no matter in what capacity the court acts, the statute has not made the probate of a will in the county court final until after the lapse of three years. In the meantime any one interested may appear, and, by bill in chancery, contest the validity of the will propounded, whether ■ it be the will of. the testator or testatrix, or not. The jurisdiction of circuit courts to entertain bills in such cases has befen so frequently admitted in the decisions of this court it is not necessary .now to discuss it further as a new question. Wolf v. Bollinger, 62 Ill. 368; Wild v. Sweeney, 84 id. 213; Tate v. Tate, 89 id. 42.

The right of the parties interested to bring this bill is not affected by the fact some of them, or, indeed, all of them, may have appeared and cross-examined the subscribers to the will when their testimony was taken in the county court. It was not a trial in any such sense as would bar a party interested' from resorting to the remedy given by statute to contest the validity of the will.

By a former decision of this court in this case when pending on a previous appeal, defendant was given leave to apply to the county court in the settlement of the estate of decedent in his hands for an allowance for expenses other than taxable costs. This he did do, and some items of disbursements on account of expenses were allowed, and others disallowed. As the case now comes before this court it is not perceived the circuit court seriously erred in its judgment. Much of what defendant expended in what he terms defending the trust funds in his hands, was expended in behalf of the personal interests of the devisees named in the will. That was annulled and set aside, and he must look to them to be reimbursed for such expenditures.

The order of the circuit court will be affirmed.

Order affirmed.


author: Mr. Justice Walker Mr. Justice Mulkey,

text:
    William Schrœder v. The Merchants and Mechanics’ Insurance Company.

      Filed at Ottawa June 21, 1882

      —Rehearing denied September Term, 1882.

    1. Pbactice—when summons issues, and is not delivered to officer, suit does not'abate. Where summons is sued out in a suit at law and placed in the hands of the plaintiffs attorney, who retains the same until the return day, when he gives it back to the clerk with instructions to issue another, which is issued returnable to the next term of the court, and returned duly served, the suit commenced by the issuing of the first summons will not be thereby abated, but will stand continued by law until the next term.
    2. Commencement of suit—what constitutes. A policy of insurance provided that suit should be brought within one year after a loss, or the action barred. Within the year the plaintiff filed his prceeipe for a summons against the insurance company, and it was issued by the clerk of the court and placed in the hands of the plaintiff’s attorney, who retained the same until its return day, when he handed it back to the clerk, ordering a new writ, which was issued and served returnable to the next term thereafter. The last process was issued after the expiration of the year from the date of the loss. The defendant pleaded the limitation in the policy in bar of the action, and on the trial the court instructed the jury that the suit not having been brought within a year from the loss, the plaintiff could not recover, and a verdict was returned for the defendant: Held, that the court erred in the instruction, and that the suit was commenced when the prceeipe was filed and the first summons was issued by the clerk.
    3. Jurisdiction of the person of the defendant is not essential to the commencement of a suit at law, hut a suit is not commenced until the court has in some manner acquired jurisdiction, either of the person of the plaintiff, or of the subject matter, or both. The court acquires jurisdiction of the plaintiff when he applies, in the form prescribed by law, for its assistance to compel the defendant to render him his rights. This is done where the plaintiff files his prceeipe for the process he desires, and the court also acquires jurisdiction over the subject matter. The court then has power to carry on the case and see that the defendant is brought into court, and if the clerk refuses to issue the summons for that purpose the court may compel him to do so.
    4. Jtjbisdiotion—defined. Jurisdiction in a court is the power to hear and determine a cause. It is coram judice whenever a case is presented which brings this power into action. The filing of a prceeipe for a summons in a suit at law brings this power into action, and it, or the law through the clerk, then acts by the issuing of the summons, and a suit is commenced as soon as there is action, or the law requires action.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.
    Messrs. Rosenthal & Pence, for the appellant:
    As to when and what is the commencement of a suit: Kruse v. Wilson, 79 Ill. 238; Bush v. Hanson, 70 id. 482; Bitmap v. Wright, 14 id. 303; Fowler v. Sharp, 15 Johns. 326; Cheetham v. Lewis, 3 id. 22; Society, etc. v. Whitcomb, 2 N. H. 227.
    The plaintiff, by filing his prcecipe, moved the court for a summons. The court, through the law, acted, and made and issued a summons. The suit so commenced was not discontinued, but being undisposed of, was continued by operation of law to the next term of court. Rev. Stat. chap. 37, sec. 56.
    The defendant entered a general appearance, thereby waiving all objection to the manner it was brought into court. Easton v. Altum, 1 Scam. 250; Crull v. Keener, 18 Ill. 65; Flake v. Carson, 33 id. 518; Dunning v. Dunning, 37 id. 316; Roberts v. Formhalls, 46 id. 66; Baldwin v. Murphy, 82 id. 485; Watson v. Corse,, 86 id. 46.
    Messrs. Jussen & Anderson, also for the appellant:
    In this State the suing out of a summons, even though it be not returned by the sheriff, is the commencement of the suit, if the plaintiff subsequently appear and plead in the action. For is the delivery of the writ to the sheriff essential to the commencement - of the suit. Collins v. Montemy, 3 Bradw. 183; Feazle v. Simpson, 1 Scam. 30.
    Upon the matter of the commencement of actions, and the practice in respect thereto, counsel cited Hurd’s Stat. 1881, chap. 110, sec. 1; chap. 25, sec. 16; Rev. Stat. 1874, chap. 53, secs. 9, 15, 33.

    The return of the writ here is not “of record,” as it was under the former English practice, as is laid down in Tidd, vol. 1, p. 161, and in Bates v. Jenkinson, 24 Geo. 3, quoted in Harris v. Woolford, 6 T. R. 618; 3 Ch. Pr. 139. But now, under the act of Parliament, (2 W. 4, C. 39, sec. 4,) the suing out of the summons is the commencement of the suit for every purpose. Alston v. Underhill, 1 Cromp. & M. 492.
    Mr. P. H. Smith, Jr., and Mr. H. J. Peet, for the appellee :
    A suit is not legally commenced, so as to save the bar of the Statute of Limitations, until the summons, is sued out and placed in the hands of the proper officer to be served, or placed in his office, or transmitted to him for service. Hecla Ins. Co. v. Schrœder, 9 Bradw. 472; Angell on Limitations, sec. 312; Hancock v. Ritchie, 11 Ind. 48; Evans v. Galloway, 20 id. 479; Burdick v. Green, 18 Johns. 14; Ross v. Luther, 5 Cow. 158; Lamkin v. Nye, 43 Miss. 241; Davis v. Duffie, 18 Abb. Pr. 360; Webb v. Peel, 1 Paige, 564; Hayden v. Bucklin, 9 id. 512; Updike v. Ten Brœck, 32 N. J. L. 105; Bronson v. Earle, 17 Johns. 63; Mason v. Cheney, 47 N. H. 41; People v. Clark, 33 Mich. 112.
    Where a party attempts at law to avoid the application of the Statute of Limitations, by showing that the first writ was sued out in time for that purpose, although the subsequent one was after the time, he must show the first writ not only to have been issued, but to have been returned. Prindiville v. Maydwell, 7 B. Mon. 314; Harris v. Woodford, 6 T. R. 617; Barkins v. Wilson, 6 Cow. 471; Davis v. West, 5 Wend. 63; Soulden v. Van Renssalaer, 3 id. 472.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellant sued appellee in assumpsit, to recover for loss by fire on a policy of insurance. The policy contained a clause that no suit or action against the company to recover for loss thereunder shall be sustained, “unless such suit or action shall be commenced within twelve months next after the loss shall occur; ” and if it should be commenced after that time, “the lapse of time shall be taken as conclusive evidence against the validity of the claim, any statute of limitations to the contrary notwithstanding. ” Before the expiration of twelve months after loss plaintiff sued out a summons against appellee. The clerk' docketed and numbered the suit, and handed the summons to plaintiff’s attorney, but he failed to place it in the hands of an officer.for service. At the return term the attorney handed the writ back to the clerk, with directions to issue another to the next term, which he did, and it was duly served, and so returned. Defendant appeared and pleaded the general issue, and pleas that the suit was barred under this clause in the policy. Subsequently a trial was had, and it appeared that twelve months after the loss expired between the dates of the issuing of the two writs, and under an instruction of the court the. suit was not commenced until the suing out of the second summons, and the jury found a verdict ’against plaintiff, and after a motion for a new trial was overruled, a judgment was rendered on the verdict. Plaintiff thereupon removed the case to the Appellate Court, where the judgment was affirmed, and he brings it by appeal to this court, and urges a reversal.

The single question presented for decision is, whether the suing out of the first summons was a commencement of the suit, or was it the latter, placed in the hands of the sheriff, and duly served. It is urged, that even if the suit was commenced by issuing the first summons, as it was not delivered to the sheriff, and returned by him, the suit abated, and the bar became complete before the next was issued. This proposition is not maintainable. The 56th section of the chapter entitled “Courts,” provides that .all proceedings pending and undisposed of in any of the enumerated courts at the end of each term shall stand continued until the next term. If this suit was commenced by the first stimmons, it was pending, and if so, it was clearly within the provision of this section, and continued. 0

Then was the suit commenced by issuing the first summons? We think it was. What is the commencement of a suit ? It is not claimed that it is the service of process on the defendant. It is believed that no case can be found that holds the suit is not commenced until service, or appearance of defendant. We may therefore conclude that jurisdiction of the person of the defendant is not essential to the commencement of a suit. But it is apparent that a suit is not commenced until the court has in some manner acquired jurisdiction of something in relation to the controversy. It must, therefore, be over the person of the plaintiff, or the subject matter, or both. The court acquires jurisdiction of the plaintiff when he applies for its power and assistance to compel the defendant to render him his rights under the law; but this aid must be sought according to prescribed forms, and under our practice that form requires that he file with the clerk of the court a prescipe for the process he desires. This is an application, in its nature, to the court to send its process to require the defendant to appear at a subsequent term to defend the action. The court clearly has jurisdiction of the plaintiff when he thus invokes its aid. Whén he thus submits his person to the court, he, by asking its aid, gives the court jurisdiction over the subject matter in controversy, and confers power to adjudicate and determine his rights thus submitted. In this manner the court becomes possessed of jurisdiction of the person of the plaintiff and of the subject matter, and when so possessed it becomes the duty of the court to commence and carry on the power to bring the defendant into the court, that the case may be heard; and the rights of the parties in the matter thus brought before the court may be judicially and conclusively determined. It therefore follows, that when the plaintiff submits himself and the subject matter to the jurisdiction of the court, and the court or law commences acting under his claim for its investigation, he has commenced his suit. When he puts the court or its instruments in motion under his claim, his action is commenced. All done in the case subsequently is but a continuation of the action he thus started, until the final end of the action or suit. .

Jurisdiction has been defined to be: “The power to hear and determine a cause. * * * It is coram judice whenever a case is presented which brings this power into action. ” (Bush v. Hanson, 70 Ill. 480; United States v. Anedando, 6 Pet. 709.) The prcecipe, when filed, brought the power of the court into action, and it, or the law through the clerk, did act by issuing the summons, and the suit waá commenced as soon as there was action, or the law required action. Had the clerk, on the prcecipe, refused to issue the summons, on a proper application the court would have compelled him to act. Now, the court is powerless to act until it acquires jurisdiction, and plaintiff has commenced his suit when he has possessed the court of jurisdiction and power to act in the case.

But the question is not a new one in this court. In the case of Burnap v. Wight, 14 Ill. 303, it was held that where a writ of error and a scire facias to hear errors were sued out within five years of the rendition of the judgment, but the scire facias was not delivered to the sheriff or served until the five years had expired, the issuing of the writ was the commencement of the suit, and a plea of the Statute of Limitations would not bar the action. There the writ of scire facias was not delivered to the sheriff for service, nor was the writ of error placed in the hands of the clerk to whom it was directed, before the expiration of five years after the rendition of the judgment sought to be reviewed. Hence it was there held that it was the suing out of the writ, and not its delivery to the officer for service, that' was the commencement of the suit. We regard that ease as conclusive of this question.

Again, in the case of Feazle v. Simpson, 1 Scam. 30, the question was before the court as to when a suit was commenced. It was there held that “the issuing of a summons is the commencement of a suit.” It is true that the question of the bar of an action by limitation was not under consideration, but the question was whether a suit for malicious prosecution was prematurely brought, the summons in the latter case having been issued before the prosecution had come to an end. It was held the suit was brought too soon, and could not be maintained. Thus it will be seen that the question was presented for determination, and the decision of the case turned upon it.

The legislature has not in terms declared what is the commencement of a suit at law. It, by the first section of the Practice act, provides that the first process in such cases shall be a summons, or, in some cases, a capias; but the chapter-entitled “Chancery,” by the 4th section provides, in terms, that “the mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint. ” This neither requires a summons, nor that it be delivered to the sheriff, nor service, to be the commencement of the suit. This is, in such cases, the expression of the authoritative will of the law-making power, and why should we suppose that body intended that in the commencement of an action at law there should be more than a prcecipe filed and a summons issued? We can not reasonably suppose that body intended that the bar of the statute should be arrested in the one case by merely filing a bill of complaint, and in the other require more than the issuing of a summons. The rule as to the mode of its arrest should be the same in both proceedings.

The ancient common law practice has been referred to as bearing on this question. That has never prevailed in this State. Our practice has from the first been regulated by statute, substantially as it is at present. Moreover, the practice of the English court, until simplified by modem statutes, was intricate, artificial, and highly technical. It had fictions and useless forms that rendered it cumbersome,- that were not adapted to the promotion of justice,—the great purpose for which courts were created and are maintained. But even under that system there are decisions that in principle hold the issuing and return of a writ or latitat arrested the running of the statute. In Harris v. Woolford, 6 T. R. 618, it was held if the writ was issued and returned by the sheriff, the suit was commenced. Afterwards the 2 W. 4, C..39, sec. 12, was adopted, and it, like our statute, required the precise day of issuing mesne process to be inserted therein, and the rule of Hil. Term, 4 W. 4, required the issue and record and writ to state the text of the -writ in those proceedings. (Chitty’s Practice, vol. 3, p. 139.) And these rules require that, in making up the record for nisi prius, the date of the first writ must be inserted.. In Alston v. Underhill, 1 Cromp. & M. 492, it was held, that “since the late act of Parliament there is no doubt that the suing out the summons is the commencement of the suit for every purpose. ”

There are cases in the New York courts which hold that the summons must be issued and delivered to the sheriff for service,—in fact, this seems to be the rule in their courts. But the rule is not inflexible. It is merely a rule of evidence to prove the intention of the plaintiff to implead .the defendant. So, in Beekman v. Satterlee, 5 Cow. 525, where the plaintiff handed the summons to the sheriff, with the direction not to serve it, the court held this manifested the intention to sue, and stop the running of the statute, and it had that effect. So in that State, all that is required is, that the issuing of the writ shall be with the intention to commence the suit. In the case of Gardner v. Webber, 17 Pick. 407, it was held that where the writ was filled up before, but not served until, the time of the bar of the statute had run, the action was commenced in- time. In United States Bank v. Lyle, 10 Gill & Johns. 326, it was held that the docketing of the action, with directions to ■ the clerk to issue process, is the commencement of the action, and saves it from the har 0 of the statute. So it was held in Hail v. Spencer, 1 Angell, R. G. 17, that the issuing of the writ saved the action from the bar of the statute.

There are other courts that hold, with the New York courts, that the writ must be issued, placed in the hands of and returned by the sheriff, to show an action was commenced when the writ was issued; but quite as many and as respectable courts hold that the suit is commenced when the summons is issued, and we think they are supported by better reason, and believing so, we can not overrule the former decisions of this court. We therefore must hold that this action was brought in time to prevent the bar specified in the policy, and the circuit court erred in the instruction given to the jury, and the Appellate Court in affirming the judgment of that court.

The judgment of the Appellate Court is reversed-and the cause remanded.

Judgment reversed.

Mr. Justice Mulkey,

dissenting:

I do not believe a party, by merely taking a summons out of the clerk’s office, without,delivering it to some one authorized by law to serve it, and keeping it under his own control for a while, and then returning it into the clerk’s office, as was done in this case, can thereby -arrest the running of the Statute of Limitations, and-for this reason I respectfully dissent from the opinion of the majority of the court in this case. It is true this court has frequently said that the issuing or suing out of a summons is the commencement of a suit, but I hold the mere writing, signing and sealing of the writ, and placing it in the hands of the plaintiff or his attorney, by the clerk, is not, within the meaning of our limitation laws, the issuing or suing out of a writ. In addition to this, it must, in my judgment, be placed in good faith into the hands of the proper officer for service. To hold otherwise, it seems to me, is to place it in the power of a party to arrest the running of the statute indefinitely, till the defendant’s witnesses die, or remove to parts unknown, and by this means the grossest injustice might be perpetrated. The conclusion of the lower courts being in accord with my own views on the question, I think the judgment of the Appellate Court should be affirmed;