text:
    Edward J. Hamel v. The People, etc.
    1. Jury Trials — May be Waived in Prosecutions for Misdemeanors. —In prosecutions for misdemeanors the defendant may waive his right to a trial by jury.
    2. Attorneys — Failing to Pay Over Moneys Collected. — The statute providing that it an attorney fails or refuses to pay over any money collected by him, less his proper charges, on demand by the person entitled to receive the same, or his agent duly authorized, he shall be fined, etc., is highly penal, as on conviction it becomes the duty of the court to forever prohibit such attorney from practicing his profession in the State, and beforea conviction can be justified, aside from other requisite proof there mu-.t be no reasonable question under the evidence either that the attorney’s compensation had been agreed upon, or proof beyond a reasonable doubt as to what his reasonable charges were.
    Prosecution, for a failure to pay over money collected. Error to the Criminal Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed October 24, 1901.
    Statement by the Court. — Plaintiff in error, an attorney of the Chicago bar, was indicted for failing and refusing to pay over certain money collected by him as attorney at law for one líate McGinnis, less his proper charges, and on a trial before the Criminal Court of Cook County, a jury having been waived in writing by plaintiff in error, he was found guilty, and the value of the property was fixed at $20.90. After motions for new trial and in arrest of judgment were respectively overruled, the court entered judgment that the defendant be fined the sum of $53.80, that execution issue therefor, and that defendant also be prohibited from practicing his profession as attorney at Jaw in this State. To reverse this judgment the writ of error herein is prosecuted.
    Ossiam Cameron, attorney for plaintiff in error.
    An attorney who l’etains in his hands money collected for his client, which he claims is due him, not only for services rendered in the collection, but on a balance for services rendered in other proceedings, can not be convicted of embezzlement. Van Etten v. State, 24 Neb. 734.

      It is now well established that on an indictment for felony the accused can not confer jurisdiction upon the court, or dispense with a finding of the fact of guilt by a jury, except by plea of guilty. Harris v. People, 128 Ill. 585; Morgan v. People, 136 Ill. 162; Brewster v. People, 183 Ill. 144.
    In case of misdemeanor the law is not so well settled and the practice in the different States is not uniform. To ascertain the true rule it will be necessary to examine the constitutional and statutory provisions relating to the subject as follows: .
    “Ho person shall be deprived of life, liberty or property without due process of law.” Sec. 2, Art 2, Const. Ill.
    “ The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” Sec. 5, Art. 2, Const. Ill.
    “ In all criminal prosecutions the accused shall have a right to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” Sec. 9, Art. 2, Const. Ill.
    The rule in all criminal cases is, that the proof must be sufficient to satisfy the reason and judgment beyond reasonable doubt, of the guilt of the accused. Anything short of this will not justify a conviction. Bergen v. People, 17 Ill. 428; Porter v. People, 158 Ill. 374.
    C. S. Deneen, State’s Attorney, Harry Olson, Assistant State’s Attorney, attorneys for defendant in error.
    The constitution clearly draws the distinction between felonies and misdemeanors, as far as indictments by grand juries are concerned. Art. II, Sec. 8, Constitution; Brewster v. People, 183 Ill. 149.
    Jury trials in criminal cases at common law followed upon indictment in a common law court. Brewster v. People, 183 Ill. 149; People v. Fisher, 20 Barb. 652; People ex rel. v. Justices, 74 N. Y. 406; State v. Conlin, 27 Vt. 319.
    The right to trial by jury, as guaranteed by Art. II, Sec. 5, of the constitution, refers to the right under the common law and as it existed prior to 1870. Brewster v. People, 183 Ill. 149; In re Ferrier, 103 Ill. 367; George v. People, 167 Ill. 447.

      At common law and by our constitution a jury is an indispensable part of the court for the trial of a felony or offense punishable in the penitentiary,, and can not be waived. Harris v. People, 128 Ill. 590; Morgan v. People, 136 Ill. 161; Cooley’s Const. Lim., p. 398.
    Jury may be waived in misdemeanors. Brewster v. People, 183 Ill. 149.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

First, it is claimed that without a jury the Criminal Court had no power or authority to render judgment; that the waiver of the jury by plaintiff in error gave the court no power to try the case without the intervention of a jury. Humerous cases are cited by counsel in other jurisdictions, in support of the contention, but we think the question is settled against plaintiff in error by the case of Brewster v. The People, 183 Ill. 143, in which the court, in speaking of the constitutional provision that no person shall be held to answer for a criminal offense unless on an indictment of a grand jury, except in cases when the punishment is by fine, or imprisonment otherwise than in the penitentiary, say: “ As jury trials in criminal cases as known to the common law were such as followed upon indictment in a common law court, and as our constitution refers to the right of trial by jury as it was understood at the common law, this prohibition against the right to waive a trial by jury can not apply to misdemeanors, because the constitution expressly provides that,' in cases of misdemeanor, a person can be held to answer without indictment,” and held that in cases of "misdemeanor the defendant could waive a jury, the statute in this State permitting such waiver.

The punishment provided by the statute under which the indictment was found, is a fine or imprisonment in the county jail, or both, and prohibition from practicing his profession of attorney at law in the State. This is clearly a misdemeanor as defined by the statute, paragraphs 277 and 278 of the Criminal Code, which say (Sec. 5): "A felony is an offense punishable by death or by imprisonment in the penitentiary. (Sec. 6:) Every other offense is a misdemeanor.”

See also People v. Murphy, 185 Ill. 623-7, the latest expression of the Supreme Court on this subject to which our attention has been directed. We think the crime with which plaintiff in error was charged being a misdemeanor, he had a right to waive a jury trial and the court had jurisdiction to try him and render judgment.

Hext it is claimed that the judgment is contrary to the evidence. It needs no citation of authority to establish the proposition that in' criminal cases the proof must be sufficient to establish the guilt of the defendant beyond all reasonable doubt before a judgment of conviction can be justified.

The statute under which the conviction in this case was had is as folloAvs :

■ “ If any attorney at law, justice of the peace, constable, clerk of a court, or other person authorized by Iuav to collect money, shall fail or refuse to pay over any money collected by him, less his proper charges, on demand by the person entitled to receive the same, or his agent, duly authorized, he shall be fined,” etc.

We are of opinion that the evidence in this case fails to establish the guilt of the defendant beyond all reasonable doubt. Before there could be a conviction, the other essentials to guilt being established, it must appear that the defendant failed or refused to pay over money collected by him, less his proper charges.

The evidence shows that Edward J. Hamel was employed by Mrs. Kate McGinnis through his wife, Emma L. Hamel, Avho had charge of his office in Chicago, to collect a claim. of $36 from a Mrs. Duncan in Bloomington, Illinois. When the claim was left for collection the evidence shoAvs that no definite contract Avas made as to what the charges would be. Mrs. Hamel testified that she told Mrs. McGinnis, Avhen the latter asked with reference to the charge, it was “ twenty-five per cent in the city, but I do not know how much it would be out of the city. * * * I told her we would take it at tAventy-five per cent if Ave collected it. If we have to sue it that is a different matter. I did not know what a suit would cost, and I meant she would have to see Mr. Hamel.”

The defendant did not see Mrs. McGinnis when the claim was left, but says that the arrangement was made of twenty-five per cent simply for the collection of the claim; that the original contract was for dunning and collection only. The claim was sent by Hamel to E. E. Donnelly, an attorney at Bloomington, Illinois, about June 22, 1899, who testified that Mr. Hamel wrote him, stating that the commission would be twenty-five per cent, two-thirds to witness; also that he collected the claim after suit and judgment thereon, and sent the proceeds, $36, less his charges of $6.10, to Hamel on October 25, 1899. It appears that some time after the claim was sent to Donnelly, Mrs. McGinnis became dissatisfied with the progress made toward its collection, and requested Hamel to return her papers. Hamel wrote to Donnelly in order to get the papers returned, but the latter refused to return them unless he had a fee, or an opportunity to sue, whereupon Hamel communicated that fact to Mrs. McGinnis; but she declined to advance the costs, and was then told by Hamel that if the claim had to be sued, the original contract for twenty-five per cent would not hold, and when asked by him what she wished to do about it, he testifies that she said she would take $10 for the claim. Another witness, Hanley, and also Mrs. Hamel, testified that Mrs. McGinnis said that she was satisfied to take $10 for the claim. Mrs. McGinnis does not deny that she so stated.

The net .proceeds of the collection were sent by Donnelly on October 25, 1899, to Hamel, and the next day after their receipt he sent Mrs. Hamel to Mrs. McGinnis with $20, retaining $9.90 for his charges. Mrs. Hamel offered the money to Mrs. McGinnis, who said, “ I would be perfectly satisfied, that is more than I expected, but Mr. McGinnis told me not to make any settlement without seeing him. I will send him to your office;” and declined to take the $20. Mr. McGinnis subsequently, upon an order from Mrs. McGinnis, demanded $27 from Hamel, which the latter declined to pay, though he offered to .pay the $20. Later, when Mr. McGinnis came to Hamel’s office and demanded the $27, the latter offered to go to the office of an attorney, Mr. Barrett, and submit the matter to him, and that if Mr. Barrett should say that he, Hamel, owed the $27, he would pay it. They went to Mr. Barrett’s office and talked over the case, and when Mr. Barrett, in effect, told Mr. McGinnis that $20 was right, the latter refused to take that amount. Later, when Hamel received a communication from the state’s attorney regarding the matter, he sent a communication in which he expressed himself to the state’s attorney as being entirely willing to leave the matter to arbitration and to pay any amount he, the state’s attorney, might consider due to Mrs. McGinnis.

Donnelly, who had fifteen years experience in collections, admits that claims are as a rule sent on a contingent compensation, and that there was a demand made upon him for the return of Mrs. McGinnis’ papers, which he refused. Mrs. McGinnis admits also that when she was asked on October 28th to take $20 by Mrs. Hamel, that she said she would think it over.

In view of this evidence, it is by no means clear that Hamel agreed to charge Mrs. McGinnis only twenty-five per cent of the amount of the claim in case it was necessary to bring suit in order to collect it. There is no evidence whatever as to what was a proper charge, under the circumstances, for Hamel’s services.

There is no doubt, all the evidence considered, that there was a bona fide claim on the part of Hamel that he was entitled to $9.90 for his services in the collection made. This is not without basis, too, when it is considered that Mrs. McGinnis refused to pay any costs for the commencement of a suit, and that Hamel made himself responsible for the costs when suit was commenced. Also, his good faith is shown by the fact, which is clearly established, that within a day or two after he received the money from Donnelly he offered to pay $20, and at least on two occasions thereafter, to Mr. McGinnis and the state’s attorney, offered to pay whatever was reasonable, in the one case leaving it to Mr. Barrett, the attorney, and in the other, to the state’s attorney.

If, under such evidence as is contained in this record, an attorney at law can be found guilty under this statute, then there would be little safety for the attorney who did not allow his client to determine what should be a proper charge for his services. The statute is highly penal, in that it becomes the duty of the court, on a conviction under it of an attorney at law, to forever prohibit him from practicing his profession in the State, and should therefore be strictly construed. • Before a conviction would be justified, aside from the other requisite proof, there should be no reasonable question under the evidence either that the attorney’s compensation had been agreed upon, or there should be proof, beyond a reasonable doubt, as to what were his .proper charges.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    Garrie S. French v. The Commercial National Bank and Edward B. McKey, Receiver.
    1. Chancery Practice— When an Allegation of a Return of an Execution Nulla Bona, Unnecessary. — In a bill to set aside a conveyance alleged to be fraudulent, an allegation of a return of an execution nulla bona is unnecessary to give the court jurisdiction.

      2. Same — When Ansiver Overrules a Demurrer. — It seems to be well settled that an answer to a bill previously demurred to, overrules the demurrer.
    3. Evidence — Sufficient to Establish the Execution of an Instrument. —When a witness testifies that she did not remember signing the paper, but that the signature looked like hers and in her answer to a supplemental bill admitted its execution as set out in the bill and prayed the protection of the court in the enforcement of its terms, the finding by the court that she executed the instrument is fully warranted by the evidence.
    4. Decrees — When Not to be Disturbed by a Court of Review.— Where a party, claiming to be a trustee, is defendant to a bill to set aside a conveyance alleged to be fraudulent, refuses to appear before the master and submit to an examination with respect to the disposition of certain property turned over to him, and persistently fails and contumaciously refuses to obey the orders of the court, he is liable to be charged with the full value of the property without compensation for his services, and unless the reviewing court can say that the finding is clearly and manifestly against the evidence, it will not be disturbed.
    Bill to Set Aside a Fraudulent Conveyance. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed October 10, 1901.
    Statement. — February 27,1897,the Commercial National Bank filed a bill against Garrie S. French, George A. Leslie, Lizzie M. Leslie, his wife, Ezra T. Miller, Alva T. Martin and Anderson E. Martin, the appellees, averring that February 8, 1897, the complainant recovered judgment against George A. Leslie for the sum of $419 and costs, in the Superior Court of Cook County; that, execution issued on said judgment February 10, 1897, was delivered to the sheriff the same day, and February 18, 1897, the sheriff returned the execution, defendant not found, and no property found in Cook county on which to levy. Avers that George A. Leslie, for a number of years prior to January 29, 1897, was engaged in the business of manufacturer’s agent for shoes and other leather goods at 109 Fifth Avenue, Chicago, and January 29, 1897, owned a stock of goods of the value of at least $10,000, and had debts and book accounts due and unpaid, as complainant has been informed and believes, of the amount of $5,000; that January 29,1897, said Leslie confessed judgment for the sum of $3,718.33, in the Circuit Court of Cook County, in favor of his wife; and thereupon execution was issued on said judgment and was levied on said stock of goods; that January 30, 1897, said George A. Leslie confessed judgment in said Circuit Court in favor of Ezra T. Miller for $7,104.16, and execution was issued on said judgment and was delivered to the sheriff, and January 29, 1897, was levied on same property; that George A. Leslie was indebted to sundry persons, and entered into a conspiracy with Lizzie M., his wife, said Miller and others, to confess judgment on notes given without consideration, and that the notes on which the said judgment in favor of Lizzie M. Leslie and Miller were confessed were fraudulent and without consideration; that Lizzie M. Leslie instituted collusive proceedings for a divorce against her husband, for the purpose of misleading complainant and other creditors of her husband into the belief that the note on which judgment in her favor was confessed was for money advanced by her; that after the sheriff had levied on said stock, Lizzie M. Leslie, Ezra T. Miller and Garrie S. French agreed in writing to the effect that Garrie S. French, as trustee, should purchase the property at the sheriff’s sale, remove it to some safe place, and dispose of it at public or private sale, as might be best, and that French should receive for his services as trustee for Lizzie M. Leslie and Miller, $150 per month so long as he should continue to act as trustee; that in pursuance of said agreement, said French, February 15, 1897, purchased the property at the sheriff’s sale for $5,000, and removed the same to a warehouse, or warehouses, where the same is stored, and is holding the same as his own, notwithstanding his said trusteeship, well knowing the judgments in favor of Lizzie M. Leslie and Miller are fraudulent and without consideration; that French claims that George A. Leslie has assigned to him all his debts and book accounts, and has so notified Leslie’s debtors, and has collected several claims and is about to collect others; avers, on information and belief, that French has about completed a sale of the property purchased by him at the sheriff’s sale, and will dispose of the same February 27, 1897, and so further hinder and delay thé creditors of George A. Leslie, unless a receiver is appointed, and said French restrained; that Lizzie M. . Leslie is of no financial responsibility. Prayer for receiver and injunction and for general relief. An injunction was granted and a receiver was appointed and qualified. Several intervening petitions of creditors of George A. Leslie were filed, and the issues having been made up, the cause was referred to a master to take proofs and report. May 21, 1897, the master filed a report, in which he found, in substance, that the sole valid consideration for the note for $3,500, on which judgment .was confessed in favor of Lizzie M. Leslie, was $627, and that the sole consideration for the $7,000 note, on which judgment was confessed in favor of Miller, was $1,000, and that both of said notes were fraudulent as to creditors. The master also found that there was a trust' agreement between Lizzie M. Leslie, Ezra T. Miller and Garrie S. French, as averred in the bill, and that in pursuance of such trust agreement French purchased George A. Leslie’s stock at the sheriff’s sale, he bidding therefor the sum of $5,500. The master finds in favor of the claim of the Commercial ¡National Bank, and the claims of certain intervening creditors, and recommends a decree in accordance with the prayer of the bill.
    The complainant, Mary M. Leslie, and Garrie S. French, filed exceptions to the master’s report, after which an agreement in writing was entered into between George A. Leslie, Lizzie M. Leslie, the Bluffton Shoe Company, Jacob Boedel, ■W. L. Kreider & Son, J. Landis & Sons and W. ¡H. Usher & Sons, all of whom, except the Leslies, were intervening creditors, wherein, after reciting that the master’s report had been filed, finding that the judgments confessed in favor of Lizzie M. Leslie and Miller should be set aside, and that the property levied on by virtue of executions issued on said judgments should be turned over to the receiver for the benefit of the creditors of George A. Leslie, and also that the assignment of accounts, etc., by George A. Leslie to French should be set aside, and that a hearing had been had in court on exceptions to said report, and that all parties were desirous of settling their claims in an amicable way, it was agreed that Lizzie M. Leslie should withdraw her exceptions to the report and consent to its being approved and aid the complainant and the receiver in obtaining from Garrie S. French the property of George A. Leslie in French’s hands, and also that a decree should be entered in the cause providing for the distribution of the funds in the receiver’s hands, as follows:

      1st. Payment of all court costs in all cases of creditors v. Leslie.
    2d. $1,000 to Miller.
    3d. Payment of claim of Commercial National Bank in full.
    4th. Payment of solicitors’ fees to Sleeper, McCordic & Barbour, $150; Flower, Smith & Musgrave, $150; Newman, Northrop & Levinson, $100; claims of J. Roedel, lireider & Sons, Landis & Sons, Bluff ton Shoe Company and Usher & Sons, fifty per cent respectively, plus court costs. Remainder, one-half to Lizzie M. Leslie and one-half to James J. Barbour.
    The agreement is dated July 20, 1897, and concludes with a provision that it should not be binding if not carried out within four months, unless extended by agreement.
    Subsequently, September 10, 1897, all the parties to the foregoing agreement and the Commercial National Bank, by another agreement in writing, extended the agreement of July 20th until the time of entry of the final decree in the cause. S. A. French, father of Garrie S. French, was the solicitor of Lizzie M. Leslie, and after the agreement of July 20th was executed she substituted for French Messrs. Coffey and Hurtubis as her solicitors, and they, by her authority, withdrew her exceptions to the master’s report July 23, 1897. March 9, 1897, an order was entered ordering Garrie S. French to turn over to the receiver all books, papers, vouchers and documents belonging to George A. Leslie, or in which he was interested, and from collecting, prosecuting, or attempting to collect or prosecute, any claims placed with him by said Leslie, and directing the receiver to proceed with the collection of the same.
    August 27, 1897, a further order was entered, ordering Garrie S. French forthwith to transfer and deliver to the receiver all property of every kind and description (not including the money realized and collected by him) and all books, papers and accounts received by him from George A. Leslie, in which George A. Leslie wras interested, and delivered to him under agreement of February 8, 1897, and to file an account of all moneys collected under said agreement within five days, and leave given to Garrie S. French to file a supplemental answer, etc.
    September 1, 1897, appellant French filed a supplemental answer, which concludes, in substance, as follows:
    “Avers that this defendant is only answerable to Lizzie M. Leslie and Ezra T. Miller to account under said trust; that complainant has not shown by said bill, or the evidence taken thereunder, any right, equitable or otherwise, to call on this defendant for an accounting. Avers willingness and ability to account for and turn over all property coming into his hands, and in his hands, or within his knowledge or control, under the terms of said trust agreement, to said cestuis qtoe trust, or any person lawfully claiming and entitled under, through or by said cestuis que trust.”

    September 21, 1897, an order was entered referring the cause to -another master, with directions to take proofs on the bill of complaint, answers, supplemental answer and replications, and as to all moneys, property and effects that come into the hands, or is now in the hands of Garrie S. French under and by virtue of the trust agreement of February 8, 1897, and the assignment of accounts of same, date by George A. Leslie, and ordering appellant to appear before the master and account.
    October 5,1897, the master reported, among other things, that September 28, 1897, he entered a rule on Garrie S. French to appear before him on Friday, October 1, 1897, at two o’clock p. m. and submit to an examination under oath, as required by the order of court of September 21, 1897; that thereupon said French and his solicitor appeared before him, the master, and said solicitor argued, among other things, that the court had not jurisdiction to enter said order, and that Garrie S. French, by the advice of his solicitor, declined to appear and submit to an examination, as required by said order, and that said French failed to appear, in compliance with the rule entered, as aforesaid, to appear before him, the master, in accordance with said order of September, 21, 1897.
    October 6,1897, an order was entered requiring Garrie S. French to show cause, by ten o’clock a. m., October 12,1897, for his failure to appear before the master, as theretofore ordered. October 11, 1897, French filed an answer to the rule to show cause, claiming, as he persistently had claimed, that the court-had not jurisdiction to enter the order of September 21st, and not offering to appear before the master and submit to an examination, as required by that order.
    Such further proceedings were had in the matter of the rule to show cause, that October 19, 1897, a judgment was entered fining Garrie S. French $500 and committing him to the county jail until such time as he could comply with the order of September 21, 1897, etc. French appealed from that judgment to this court, and the judgment was reversed for reasons stated in the opinion in French v. The Commercial National Bank et al., 79 Ill. App. 110.
    January 11, 1898, after the judgment in the last mentioned cause had been reversed and the cause remanded, the Commercial National Bank filed, by leave of court, an amended and supplemental bill, in which are set up, among other things, the agreement of July 20, 1897, and the extension thereof, dated September 10, 1897, heretofore referred to, praying, among other things, that the judgments in favor of Lizzie M. Leslie and Ezra T. Miller be declared fraudulent as to creditors, and that they, Leslie and Miller, take nothing by said judgments, but be compelled to share in the distribution of funds in the manner prescribed in the composition agreement of July 20, 1897, and that the trust agreement of February 8, 1897, be declared a fraud, etc. Garrie S. French demurred to the entire amended and supplemental bill, assigning grounds of demurrer, but subsequently he answered the bill. The Leslies each filed an answer admitting the execution of the composition agreement of July 20, 1897, set up in the amended and supplemental bill. Miller also answered, claiming the benefit of the composition agreement, as also did the other creditors heretofore named. Replications were filed to the answers, and the amended and supplemental bill was referred to a master to take proofs and report. The master’s report was filed July 10, 1899, and a decree was entered March 2, 1900. The court, by its decree, finds specifically in favor of the material allegations of the bill and the amended and supplemental bill. The court finds that the fair market value of the property turned over to appellant at the sheriff’s sale was $7,560.25, and that it might have been sold for $9,000; that appellant sold the same to one David Rankin for $3,250, and that said sale was a pretense and a fraud, and for the purpose of hindering and delaying complainant in the collection of its judgment, and that appellant had in his hands property of George A. Leslie, or the proceeds thereof, of the. value of $7,560.25, and $298.35 of money collected; finds the compromise agreement of July 20, 1897, binding on the parties; finds that there is due from appellant $7,566.85, with interest from September 21, 1897, amounting in all to $8,433.34, after allowing all proper credits. The court overrules all exceptions to the master’s report so far as said exceptions conflict with the findings of the decree, and approves the report except in so far as it conflicts with the decree. The ordering part of the decree is, in substance, as follows:
    That Garrie S. French pay to Edward B. McKey, receiver in this case, within forty-five days after the entry of this decree, the sum of $8,433.34 wrongfully withheld by him, and deliver to receiver all books of accounts, papers and documents belonging to or received from George A. Leslie; that judgment in favor of Lizzie M. Leslie against George A. Leslie for $3,718.33, and judgment of Ezra T.. Miller against George A. Leslie, for $7,104.76, be set aside; that Henry M. Rogers, administrator .to collect the estate of Lizzie M. Leslie, deceased, be held to abide by and take under the compromise agreement of July 20, 1897, and not under their judgment writs; that the complainant and the defendants, Bluffton Shoe Company, W. L. Kreider & Son, J. Landis & Son, W. R. Usher & Sons, and their solicitors, be paid the amounts found due them by Master in Chancery Stevenson, by virtue of the provisions in their favor, ' in the agreement of July 20, 1897; that James J. Barbour be paid by the receiver whatever sum of money shall be due him by virtue of the provisions in his favor in the agreement of July 20,1897; that the receiver, after he shall receive payment from said Garrie S. French, as directed in this decree, shall make report of all moneys in his hands as such receiver, and the court reserves jurisdiction, for the. purpose of carrying out the provisions of this decree, and makes no disposition of the accounts receivable of George A. Leslie, as yet uncollected, etc.
    Gage & Deming, attorneys for appellant.
    James J. Barbour, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Counsel for appellant seek a reversal of the decree on several grounds. First, that the court had no jurisdiction, because it does not appear from the evidence that the complainant had exhausted its remedy at law. This proposition is based mainly on the ground that the execution issued on the complainant’s judgment February 9, 1897, and delivered to the sheriff February 9, 1897, seems to have been returned February 18th, by direction of the plaintiff’s attorney. The same point was made by appellant in the same cause, between the same parties, in French v. Commercial National Bank et al., 79 Ill. App. 110, and was decided adversely to appellant, for reasons stated in the opinion, and we feel bound by that decision. The evidence of De Lue, the deputy sheriff who returned the writ, is, that two or three days before the writ was delivered to him, he had sold all the property of George A. Leslie which he could find, and that he tried to find Leslie to make a demand on him on complainant’s execution, and could not find him; that he had removed from his former place of business. Two executions and the returns thereto were put in evidence, one issued January 29, 1.897, on Lizzie M. Leslie’s judgment against George A. Leslie for $3,748 and costs, and the other on Miller’s judgment against George A. Leslie for §7,104 and costs. The returns show that the former execution was levied January 29 th and the latter January 30, 1897; that February 9, 1897, there were sales under both executions, and that after satisfaction of Lizzie M. Leslie’s judgment and costs there remained only $1,185.94 to apply on the Miller judgment, which was returned satisfied for that amount.

The evidence shows conclusively, as we think, that George A. Leslie had no property except that levied on and his bills receivable and accounts, which the evidence shows were assigned to appellant in trust. Mr. Barbour testified that De Lue, in his presence, and before the return was made, stated to Mr. Peters, the chief clerk in the sheriff’s office, that he had sold all the property of George A. Leslie which he could find, and that he couldn’t find Leslie, and that Peters said the writ might be returned in accordance with said facts.

In no case cited by counsel, in support of the view that the legal remedy was not exhausted, were the facts the same or similar to those in the present case.

Counsel also contend that complainant had a legal rem- • edv by garnishment, but w'e find no sufficient evidence to sustain this position.

Appellant’s counsel object that the supplemental bill was improperly filed, was demurrable, and that no relief could be granted under it. The precise objection, if we understand the argument of counsel, is that the original bill was defective, and therefore could not be aided by supplemental bill, and that by the supplemental bill the complainant claims by a new title, namely, under the composition agreement. We find no defect in either the original or amended and supplemental bill, nor any inconsistency, in so far as complainant’s claim is concerned, between the former and the latter. By the original bill the complainant, on the ground of fraud therein alleged, sought to subject, to the satisfaction of its judgment, property of George A. Leslie in the hands of appellant. The amended . and supplemental bill proceeds on the same grounds, set* ting up, in addition, the composition agreement, by the terms of which complainant’s claim is to be paid in full. The withdrawal of Mrs. Leslie’s objections to the report of Master Winchester, finding her and Miller’s notes, on which judgments were confessed, fraudulent, and her consent to the approval of that report, was a virtual confession that- the notes were fraudulent as to creditors, as was also her consent, and that of her husband and Miller, to the composition agreement of Jtfly 20, 1897. Appellant demurred to the amended and supplemental bill, and subsequently answered it. It seems well settled that an answer to a bill, previously demurred to, overrules the demurrer. Story’s Eq. Pl., 9th Ed., Sec. 462; Mitford and Tyler’s Pl. & Pr. in Eq., p. 304.

It is objected by counsel that Mrs. Leslie did not'sign the supplemental agreement of September 10, 1897, extending the composition agreement of July 20th. Mrs. Leslie testified that she did not remember signing the paper, but that the signature looked like hers, and in her answer to the amended and supplemental bill she admits the execution of the agreement of July 20, 1897, set out in the bill, and prays the protection of the court in the enforcement of the terms of said agreement. We think the finding that she signed the extension agreement fully warranted by the evidence.

Without referring to the evidence in detail, which is very voluminous, we think it fully justifies the finding of the ' court, that the trust agreement for the disposition of -George A. Leslie’s property was fraudulent as to creditors, and that the court had ample jurisdiction to require appellant to account for the disposition of the property which was turned over to him under that agreement, and to appear before the master and submit to an examination in respect thereto; and that appellant, having persistently and contumaciously failed and refused to obey the orders of the court in that regard, is liable to be charged with the full value of the property, and is not entitled to any compensation for his services as trustee. The master found that the cash value of the goods levied on, and which, under the trust agreement, were nominally purchased by appellant, was $7,560.25, and that appellant had collected of the accounts assigned to him as trustee, the sum of $298.35. The court approved this finding, and found the total amount due from appellant, after deducting certain credits, $7,566.85, with interest from September 1,1897, the date of the order directing appellant to appear before the master and account. The rule in such case is, that unless the reviewing court can say that the finding is clearly and manifestly against the evidence, it will not be disturbed. Siegel v. Andrews & Co., 181 Ill. 350, 356.

Having carefully read and considered the evidence, we can not say that its weight is manifestly and clearly against the finding. The decree will be affirmed.


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    Jessie Donley v. John Dougherty.
    1. Practice — Effect in Filing Pleas Puis Darien Continuance.— A plea puis darien continuance, when filed, by operation of law supersedes all other pleas and defenses in the cause, and the parties are to proceed to settle their pleadings de novo just as though no pleas had previously been filed in the case.
    3. Pleas Puis Darien Continuance — Strictness Required in Framing— Verification. — By reason of pleas puis darien continuance having a tendency to delay, great strictness is required in framing them.. They are viewed much like pleas in abatement, and for the same reasons they must, like those pleas, be verified by affidavit.
    3. Variance — Questions of, Can Not be Preserved by a Motion for. a New Trial. — The question of a variance can not be preserved by a motion for a new trial, so that, if the motion is overruled, the Appellate Court can pass upon it in review.
    4. Same — Questions of, Can Not be Preserved by a Motion in Arrest of Judgment. — A motion in arrest of a judgment rendered at a term of court prior to that at which the motion is made, is too late, and even though it were made in apt time it can not preserve for review the objection of a variance.
    Debt, on an appeal bond. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed October 24, 1901.

      Statement. — This is an appeal from a judgment in debt for $2,500 debt, and $1,589.86 damages. There are two counts in the declaration, each on an appeal bond; but a recovery was had on the second count, only, which was on an appeal bond given in an appeal from the Appellate Court to the Supreme Court. The suit was against William E. Donley and Jessie Donley, surety on the bond, and appellant here. The defendants pleaded, jointly, non est factum, nul tiel record- as to the judgment of the Superior Court of Cook County, which judgment was affirmed by this court, nul tiel record as to the judgment of affirmance in the Supreme Court, and nil debit.- To the last plea a demurrer was sustained. Issues were taken on the defendant’s pleas. Subsequently the defendant, William E. Donley, filed six pleas puis darien continuance. A rule was made on Donley to elect on which of the pleas he would stand, and he elected to stand on the fourth plea. None of the pleas was verified. The plaintiff introduced evidence making aprima facie case, and rested, and then dismissed the suit as to William E. Donley, whereupon appellant’s attorney moved the court for leave to withdraw the pleas of appellant and for leave to file in lieu thereof a plea puis darien continuance, which plea was presented to the court, and was the same, except the change of name, as William E. Donley’s fourth plea, and was not verified. The court overruled the motion, and instructed the jury to find a verdict for the plaintiff, debt $2,500, damages $1,589.86, which the jury did, when the court asked appellant’s attorney if there was a motion for a new trial, and the attorney answered, “No, your honor, not to-day. I have the whole term in which to make one, if I see fit to do so;” whereupon the court entered judgment on the verdict. This occurred April 23, 1900, at the April term of the court. May 5, 1900, at the same term, appellant’s attorney moved in open court for anew trial, and filed a motion in writing specifying numerous reasons, and, May 8, 1900, filed affidavits in support of the motion, which motion the court, May 11, 1900’, overruled.

      Wm. E. Hughes, attorney for plaintiff in error.
    Edward Maher and. Robert F. Kolb, attorneys for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contend that it was error to refuse to permit appellant to withdraw her original pleas, and to file a plea puis darien continuance. Also, that the action being joint against appellant William E. Donley the rendition against defendant alone was erroneous. The plea puis darien contimmnce was presented to the court after the plaintiff’s evidence was all in, and the plea was not verified. In Mount v. Scholes, 120 Ill. 394, 399, the court say of such a plea:

“ A plea of this kind involves grave legal consequences that do not attach to an ordinary plea. It only questions the plaintiff’s right to further maintain the suit. When filed, it, by operation of law, supersedes all other pleas and defenses in the cause, and the parties proceed to settle the pleadings de novo, just as though no plea or pleas had theretofore been filed in the case. By reason of pleas of this kind having a tendency to delay, great strictness is required in framing them. In this respect they are viewed much like pleas in abatement, and, for the same reason, they must, like those pleas, be verified by affidavit,” citing Chitty <on PL, and Tidd’s Practice.

Chitty says:

•“ Pleas after the last continuance must be verified on oath before they are allowed.” Chitty on Pl., 5th Am. Ed., p. 572.

The court properly ruled against the filing of the plea. When the plaintiff dismissed the suit as «to William E. Donley, the declaration being against both him and the appellant, there was a variance, but this variance was not pointed out in any manner by appellant’s counsel, which had it been, the plaintiff could have amended his declaration. The objection of variance can not be preserved by motion for a new trial, so that, if the motion be overruled, this court can pass on it. Alford v. Donnenberg, 177 Ill. 331.

On the dismissal of the suit against William E. Donley, appellant’s attorney made no objection on the ground of variance. He merely asked leave to withdraw appellant’s plea and file a plea puis, etc.

May 18, 1900, one of the days of the May term of the court, appellant’s attorney moved the court to set aside and vacate the order of May, 1900, overruling the motion for a new trial and granting an appeal and to arrest the judgment entered April 28,1900, at the April tern of the court. We find no error in the refusal of the court to vacate the order of May 11, 1900, or in the refusal to arrest the judgment rendered at the April term. A motion in arrest of a judgment rendered at a term prior to that at which the motion is made, is too late, and even though such motion were made in apt time, it could not preserve for review the objection of variance. Jacobs v. Marks, 183 Ill. 533.

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


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    Fred Rothschild v. New York Life Insurance Co.

      1. Foreign Insurance companies — Subject to the Laws of this State Equally with Domestic Companies. — A foreign insurance company, doing business in this State, is subject to the laws in relation to insurance companies, equally with domestic companies.
    2. Statutes — Construction of the Words "May" and "Shall” When Used in. — The words “ may” or “ shall,” when used in a statute, maybe used interchangeably as will best express the legislative intention.
    8. Same — Rule of Construction of the Word "May” When Used in Statutes. — The word “ may,” when used in a statute, is to be construed to mean “ shall" whenever the rights of the public or of third persons depend upon the exercise of the power, or the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon officers, and the public or third persons have a claim de jure that the power shall be exercised.
    4. Mutual Insurance 'Companies — Distribution of Surplus Funds. —Section 14 of chapter 78 R. S. (Hurd’s Ed., 1899, p. 1014, par. 194) is not a grant of power, hut is perhaps a limitation on the power of such companies to distribute their surplus funds oftener than once a year. In the absence of such a provision, the time of distribution would depend on the directors except so far as limited by the charter of the company or valid by-laws.
    5. Same— Construction of Section H, Ch. 73, R. S'. — Section 14 of chapter 78, R. S. (Hurd’s Ed., 1899, p. 1114, par. 194), when considered entire, seems to be for the protection of policy holders. Such companies are permitted to make distribution not oftener than once a year, but in determining the amount of the surplus to be distributed there is to be reserved an amount not less than the aggregate net value of all outstanding policies.
    6. Construction op Statutes — Intention of the Legislature, Sow Ascertained, — The intention of the legislature in enacting a law is to be ascertained from the language used in the act, and when such language is plain and unambiguous the words are to be understood in their commonly accepted meaning.
    7. Same— Of Statutes and Contracts.— Statutes and contracts should be read and understood according to the natural and most obvious import of the language used, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.
    8. Words and Phrases — 1“ May ” and “ Shall” as Used in Section H, Ch. 73, R. S. — Applying the rules of law to the words “ may ” and “shall,” as used in section 14, chapter 73, R. S. (Hurd’s Ed., 1899, p. 1014, par. 194), the former must be regarded as permissive and the latter as imperative.
    Bill for Belief. — Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed October 24, 1901.
    Statement. — This is an appeal from a decree sustaining a demurrer to a bill filed by appellant August 2, 1900, and dismissing the bill.
    It is averred in the bill that April 4,1895, defendant issued to complainant, on his applications, two policies of insurance on his life, one for the sum of $10,000, the annual premium on which is $512, and one for $8,000, the annual premium on which is $400.50; that said policies were delivered to complainant in Chicago, Illinois, and he paid the first annual premiums due thereon, and has also paid the annual premiums due each April 4th, in the years 1896, 1897, 1898, 1899 and 1900; that the annual premiums due in the years 1899 and 1900 were paid with money borrowed by coimplainant from defendant, for which complainant executed to defendant his notes bearing interest at the rate of five per cent per annum, payable annually, in advance, to secure which the defendant holds said policies as collateral security, by reason of which complainant can not set forth more specifically the contents of the policies; that the defendant is a foreign insurance company, and before it assumed any risk on complainant’s life, obtained a license to transact the business of insurance in this State; that the charter of the defendant contains the following provisions:
    Article III.
    Section 1. “ The business of the company shall be insurance on lives, and all and every insurance appertaining to life, and receiving and executing trusts, and making endowments, and granting, purchasing and disposing of annuities.” * * -x-
    Article IV.
    Section 1. “The company shall have no capital stock, but shall be a mutual company.
    Sec. 2.- “ The officers of the company within sixty days subsequent to the first of January, in each year, shall cause an estimate to be made of the profit and true estate of the affairs of the company, as near as may be, for the preceding 3Tear, which estimate shall be conclusive upon all persons entitled to share in any distribution of surplus which shall be made in accordance with the general provisions of law either in cash, or in reduction of premium, or in reversionaryinsurance payable with the policy on the same conditions . as therein expressed.”
    That the said policies of insurance executed by the defendant and delivered to your orator, as aforesaid, are issued by the defendant upon what is described as the accumulation plan, and each one of said policies contains the following provisions, to wit:
    “ If the insured is living on the 4th day of April, in the year nineteen hundred and fifteen, on which date the accumulation period of this policy ends, and if the premiums have been paid in full to said date the insured is entitled to one of the six benefits following:
    First. To continue the polic3T and receive the dividend then apportioned by the compan3T,” etc.

      “No dividend shall be apportioned or paid on this policy before the end of the accumulation period,” etc.
    That the defendant has annually reported to the insurance department of the State of Illinois its assets and liabilities and its surplus, according to the legal standard of the State of Illinois, and the business done by it in said State, and avers, upon information and belief, that the complainant’s policies were included in each of said annual reports as business done by the defendant in said State; that the premium charged the complainant is based upon the assumptions of the actuaries’ table of mortality, and four per cent interest, and is a level premium, by which practice the defendant charges the complainant, in advance, a certain definite sum, called “ Eeserve,” which is set aside annually as afund to meet future costs of insurance at a time of life when the net level premium charged might not be sufficient to pay complainant’s contribution to annual death losses, and which fund, compounded at four per cent, subserves the purpose of annually reducing the defendant’s risk upon complainant’s life, and to the extent of which the insured is actually made the insurer; that to this net level or mathematical premium the defendant has added an arbitrary amount, called “loading,” on the assumption that it may be needed to meet expenses and contingencies not provided for by the mortality table; that the defendant’s surplus arises annually from payments made by the complainant and defendant’s other insured, for assumed costs of insurance on the amount at risk, and for expenses and contingencies, and from interest earnings of their contributions to “ Eeserve,” above the assumed rate of four per cent, whenever and as often as a less number has died during the year than was assumed by the table would die, and whenever and as often as the assumed expenses have exceeded the actual expenses during the year, and because the contingencies which defendant assumed would occur, have not occurred, and whenever and as often as the actual interest earned by defendant exceeds the rate assumed by the defendant.
    The bill then alleges, upon information and belief, that from, the 4th day of April, 1895, up to and inclusive of the 3d day of April, 1900, the defendant has annually made large savings from the sum charged the complainant and its other insured for costs of insurance and expenses and contingencies; and has annually earned, as interest, large sums in excess of four per cent, all of which savings and earnings are now in its hands and possession, and that the defendant’s ascertained surplus on the first day of January, 1895, was $20,249,308, and on January 3, 1900, $41,435,484. a clear gain in five years of §21,186,170; that when defendant issued the said policies to the complainant, the defendant knew from its past experience that the premiums charged the complainant were excessive, etc.; that complainant’s proportion of defendant’s savings and earnings amounted to, to wit, the sum of $1,000 April 4, 1900; that knowledge of the facts hereinbefore stated has but recently, to wit, July 2, 1900, come to complainant, and complainant charges that said policies are cunningly devised gaining contracts, etc.; that in certain books published by defendant, it has estimated that, according to its past experience, the surplus fund belonging to complainant’s policies, or to similar policies, would amount to, to wit, §6,318, at the end of the accumulation period; that should complainant die during the present year, defendant would take from complainant’s surplus account, and transfer to others insured, the said sum of, to wit, §1,000, now in its hands, etc.; that July 10,1900, complainant demanded of defendant his equitable proportion of the- surplus funds of defendant for the first five years of the policies, which demand defendant refused; that the “ reserve ” contributed by complainant on said policies amounted to, to wit, $2,554.56; that defendant is a mutual company, etc.
    The prayer is that the policies may be set aside and vacated and the notes and all other writings in possession of the defendant be canceled and surrendered to complainant, and that defendant be ordered to pay to complainant all moneys paid by him on said policies and notes, or, if the court shall find the policies valid, that defendant be decreed to apportion and pay to complainant his equitable share of the surplus fund.
    Nicholas Michels, attorney for appellant; Clark & Clark, of counsel.
    Edward O’Bryan, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel bases appellant’s right to the relief prayed on the following, propositions :

1. That a foreign insurance corporation, doing business in this State, is subject to the laws of the State in relation to insurance companies, equally with domestic insurance companies.

2. That section 14 of “An act to organize and regulate the business of life insurance.” Hurd’s Stat. 1899, p. 1014, is so far mandatory that a mutual insurance company must make distribution of its surplus at least every five years.

3. That the policies in question, in providing that no dividend shall be apportioned or paid on them before the end of the accumulation period, viz., April 4, 1915, are in contravention of section 14, above referred to.

4. That the policies in question are gaming contracts and in violation of section 131 of chapter 38 of the statutes. Hurd’s Stat. 1899, p. 590.

The first proposition is unquestionably sound. Section 14 is as follows:

“Life insurance companies doing business in this State, which do business on the principle of mutual insurance, or the members of which are entitled to share in the surplus funds thereof, may make distribution of such surplus as they have accumulated, annually, or once in two, three, four or five years, as the directors thereof may from time to time determine. In determining the amount of the surplus to be distributed, there shall be reserved an amount not less than the aggregate net value of all outstanding policies, said value being computed by the combined experience or actuary rate of mortality, with interest not exceeding four per cent.”

It is contended' that the word “ may ” in the section should be read “ must,” so that the section will read, “must make distribution of sucli surplus as they have accumulated, annually,” etc. In support of this contention Kane v. Footh, 70 Ill. 587; Fowler v. Pirkins, 77 Ib. 271; James v. Dexter, 112 Ib. 489, and Brokaw v. Commissioners, etc., 130 Ib. 490, are cited.

Kone of these cases are in point. In Kane v. Footh it was contended that the word “ may ” in a statute providing “And the court may, at the request of either party, require the jury to render a special verdict,” etc., should be read shall, but the court held not. In Fowler v. Pirkins, supra, it was contended that in an act providing “Appeals and writs of error may be taken, etc., the word “may” should be read shall, but the court held not, saying: “ The words may or shall, when used in a statute, may be read interchangeably as will hest express the legislative intention.” In Brokaw v. Commissioners, etc., supra, the language of the statute was : That the commissioners, after having given reasonable notice, etc., may remove any such fence or other obstruction.” The court held that the word “ may ” should be read “ shall,” and said:

“ The word ‘ may’ in a statute will be construed to mean 6 shall ’ whenever the rights of the public or of third persons depend upon the exercise of the power, or the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised.”

It is clear that the court in using the words “ whenever the rights of the public or of third persons depend upon the exercise of the power, or the performance of the duty,” referred to the power- of the commissioners, who were public officers, and to their duty in the premises. Appellant’s counsel rely mainly on certain language of the court in Kane v. Footh, supra. In that case the court cites Schuyler v. Mercer County, 4 Gilm. 20, where the court say:

“ The word £ may,’ when used in statutes should be construed as permissive or imperative, according to the intention of the legislature in each case where it is so used. In its grammatical sense it is permissive, and there is nothing to show that in this case it was intended to be imperative.”

The vital question is, what was the intention of the legislature? Was it, or not, the intention to use the word “ may” imperatively, and as if the word shall had been used?

Mutual insurance companies do not derive their power to distribute their surpltis funds from the statute. Section 14 is not a grant of power, but is perhaps a limitation on the power to distribute surplus oftener than once a year. In the absence of such a,, provision as to the distribution of the surplus, the time of distribution would depend on the directors, except so far as limited by the charter of the company or a valid by-law. Considering the entire section it seems to be for the protection of policy holders. A mutual insurance company is permitted to make distribution not oftener than annually. If the surplus will not warrant annual distribution, then distribution may be made in two, three, four or five years. But it is expressly provided that “ in determining the amount of the surplus to be distributed, there shall be reserved an amount not less than the aggregate net value of all outstanding policies.” The words “ may ” and “ shall ” are both used in the section, the former in the first sentence of the section as to distribution annually, or in two, three, four or five years, as the directors may from time to time determine; the latter in the next and last sentence of the section, requiring an amount to be reserved when distribution is made. The intention of the legislature is to be ascertained from the language used, when such language is plain and unambiguous; and the words of the statute are to be understood in their commonly accepted meaning. City of Beardstown v. City of Virginia, 76 Ill. 34; C., M. & St. P. R. R. Co. T. Dumser, 109 Ib. 402, 410; City of Chicago v. McCoy, 136 Ib. 344, 352; Richmond v. Moore, 107 Ib. 429, 436.

In the first case cited, supra, the court say :

“ Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. McCluskey v. Cromwell, 11 N. Y. 601. The rule is well expressed by Johnson, J„ in Newell v. The People, 3 Seld. 97, in these words: ‘Whether we are considering an agreement between parties, a statute or a constitution, with'a view to its interpretation, the thing we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning, apparent upon the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction.’ ”

Applyingthese rules to the words “ may” and “shall” in section 14, the former must be regarded as permissive and the latter as imperative. We can conceive of no good reason, nor are we aware of any rule of interpretation, which would warrant the holding that the words “ may ” and “ shall” are used in the same sense in the section, and that imperative. Therefore we can not sustain the contention that the section requires distribution of surplus at least once in every five years, or that the contracts between the company and appellant, assuming that such contracts contain the charter provision in regard to distribution of surplus, are in violation of section 14.

Counsel for appellant contend that the contracts between apnellant and the company are in violation of section 27 of chapter 73 of Hurd’s Stat. 1899, p. 978, which is as follows :

“ That no life insurance company or association organized under the laws of this State, or doing business within the limits of the same, shall make or permit any distinction or discrimination between insurants of the same class and equal expectation of life in its established rates; nor in the charging, collecting, demanding or receiving of the amount of premium for insurants of the same class and equal expectation of life; nor in the return ratably of premium, dividends or other benefits accruing or that may accrue to such insurants as aforesaid; nor in the terms and conditions of the contract between such company and the insurants; and such contract of insurance shall be fully and wholly expressed and contained in the policy issued and the application therefor; nor shall any such company or its agents pay, or allow, or offer to pay or allow to any person insured any special rebate or premium, or any special favor or advantage in the dividends or other benefits to accrue on such policy, or promise the same to any person as inducement to insure, or promise to give any advantage or valuable consideration whatever, not expressed or specified in the policy of such company.”

The argument, as we understand it, is that a discrimination as to the distribution of the surplus is made in favor of those who survive April 4,1915, the accumulation period, and against those who may die before that time; that the former are to be regarded as one class and the latter another.

Assuming, for the sake of the argument, that all the policies issued by appellee, including those issued to appellant, contain the charter provisions as to the accumulation period and the distribution of surplus, we can not perceive that any discrimination is made in violation of the section last quoted. Each member or policy holder of the mutual company contracts with the company, which is practically contracting with all the other policy holders, that in the event of his death, whenever that may occur, a sum certain will be paid on his policy by the company, and that if he shall survive April 4,1915, he will receive an equitable proportion of the surplus. There is no discrimination against any member. Each member, in so far as surplus is concerned, makes the same contract. It is the same in principle as if • each member contracted for a sum certain in the event of his death, plus a certain percentage of such sum, in case he should survive April 4, 1915.

Lastly, it is contended that the effect of the provision as to the accumulation period, April 4,1915, and the provision that no dividend shall be apportioned or paid before the end of that period, is that each policy holder bets with all the others that he will survive April 4, 1915, and therefore the provisions are in violation of section 181 of chapter 38, Hurd’s Rev. Stat. 1899, in respect to gaming contracts. We can not concur in the view that the contracts are wagers or bets within the meaning of section 131. Section 131 of the same chapter is as follows :

“ Nothing contained in sections 131 and 132 above, shall be (so) construed as to prohibit or in any way affect any insurance made in good faith for the security or indemnity of the party insured, and which is not otherwise prohibited by law, nor to any contract of bottomry or respondantia."

The averments of the bill do not sustain the view that appellant’s contracts of insurance were not made in good faith for his security or indemnity; and, as we have already held, they were not prohibited by law. The decree will be affirmed.


author: Mr. Presiding Justice Windes

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    Henry Jurgens et al. v. T. N. Jamieson, Receiver.
    1. Building and Loan Associations— Usurious Loans. — A loan by a building and loan association, made without the money being offered at a public meeting of the directors of the association to the highest bidder, where more than the legal rate of interest is taken, is usurious.

      2. Same — How the Imputation of Usury is to he Avoided. — Under the act of 1885, if a building and loan association would avoid the imputation of usury and the forfeiture of all interest consequent thereupon, whenever it has as much as one hundred dollars in the treasury, it must either offer, at a regular meeting of its board of directors, the same to be loaned to the stockholder who will pay the greatest premium therefor, or it must fix by a by-law, a.uniform rate of premium at which its stockholders may borrow its money in the order in which their applications are filed, and without distinction between them.
    Mortgage Foreclosure. — Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed.
    Opinion filed October 24, 1901.
    Statement by the Court. — Defendant in error as receiver of the Northwestern Building Association, filed his bill June 9, 1897, which was subsequently amended June 7, 1898, against the plaintiffs in error, Henry Jurgens and Louisa Jurgens, and others, to foreclose a mortgage to said association made by the said Jurgens to said association, conveying certain real estate in Chicago, to secure the bond of Henry Jurgens in the penal sum of $12,000, to secure a loan to him by the association of $6,000, made April 19,1887, the payments to be made in monthly installments of $36 each, on the third Tuesday of each and every month succeeding the date of the bond, with interest at eight per cent per annum, also payable in monthly installments of $40 each on the third Tuesday of each and every month succeeding the date of the bond, the said installments of principal and interest to be paid promptly as they became due until the principal sum of $6,000 should be fully paid, or until each share of stock in the 19th series thereof issued by said association should have attained the value of $100; also to pay in addition the further sum of $2,000, less the first installment thereof of $285.50; as a premium, in monthly installments of $23.81 each, commencing on the third Tuesday of April, 1888, and payable on the third Tuesday in each and every month thereafter; also providing that the association, on default for six months, might declare the whole debt due, and foreclose.
    Said building association became insolvent August 1, 1895, and defendant in error was appointed receiver September 12th following. Default was made by Henry Jurgens in the payment of an installment of interest becoming due on said bond August 20, 1895, and on all subsequent installments of interest thereon, and by reason of such defaults the receiver exercised his option, pursuant to the terms of said bond and mortgage, to declare the whole debt due and did so declare.
    Answers were filed admitting the loan and making of the bond and mortgage, substantially as above stated, but denying that Henry Jurgens ever became a member of the association, and that he ever bid or authorized any one to bid as premium for the money loaned to him thirty-three and one-third per cent, and-denies that the money loaned to him was offered to the highest bidder at any meeting of the association, and alleges that the contract between him and the association was usurious, and that the indebtedness arose from the loan of said money made without any bidding therefor in open meetings of the association, and therefore that all payments made thereon for principal, interest or premium, by Henry Jurgens, should be credited upon the principal, and that when so credited the loan was paid in full.
    The cause was referred to a master to take proof and report his conclusions thereon, which was done, and the master’s report finds, among other things, facts as above stated and alleged in the bill and answer, that Henry Jurgens in the month of April, 1887, made a loan of the association of $6,000, became the owner of sixty shares of the 19th series of its capital stock of the par value of $100 each, but that he never attended a meeting of the association on the 19th of April, 1887, when, it is claimed, he bid as premium for said loan thirty-three and one-third per cent thereof, or at any other time, and did not direct or authorize any one to bid any premium for the said money borrowed; also that before and after this loan, other loans were made by the association at a premium of thirty-three and one-third per cent; that no official action was ever taken fixing the rate of premiums to be paid by borrowers, but it was tacitly understood between the officers and directors of the association, until some time after the Jurgens loan, that the premium should be thirty-three and one-third per cent; that on the great majority of the loans made by the association, from its organization in 1885 to some time in the year 1888, the premiums were thirt3r-three and one-third per cent, and it does not appear that there was ever any actual competitive bidding for the money, the bids being usually made by the secretary or by a director of the association, as per arrangement with the borrower; that up to April 15, 1895, Henry Jurgens had paid $3,600 on his stock, $3,960 on interest, and $2,000 on premium, making a total of $9,560.04, and that there still remained due the association on November 8, 1899, $5,478.02.
    After objections to the master’s report had been overruled, the cause was heard on exceptions thereto and the report confirmed. A decree of sale, in default of payment of the amount found due, was entered, the master made-sale of the mortgaged premises, pursuant to the decree, which realized §3,000, leaving a deficiency- of §2,972.09 against Henry Jurgens, for which a judgment was awarded the receiver, and the latter was directed to hold the sixty shares of stock of Jurgens as security and apply dividends on the deficiency. To reverse this decree and proceedings thereunder the writ of error herein is prosecuted.
    E. F. Herrmann and E. M. Winston, attorneys for plaintiffs in error.
    E. M. Ashcraft, attorney for defendant in error; R. M. Ashcraft, of counsel.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

Eumerous contentions are made in the able and exhaustive briefs of counsel of the respective parties, as to why the decree should be reversed and sustained, but we deem it unnecessary to refer in detail to them, inasmuch as in our opinion the recent case of Borrowers and Investors’ Building Association v. Eklund, 190 Ill. 257, rendered since the filing of the briefs, makes it unnecessary. In that case it is in substance held that such a contract as the one here under consideration, and set out in the statement, is usurious, for the reason that the loan was made without the money being offered at a public meeting • of the directors of the association to the highest bidder. The court, in the case referred to, among other things, say:

“ The plan marked out by the statute, of requiring the association to offer its money for sale at a regular stated meeting of its directory for the highest rate of premium which its stockholders were willing to bid therefor, or the other alternative plan authorized by the provisions of said section 8, but not adopted by this association, of fixing a rate of premium by a general by-law applicable to all and uniform in its operation as to all stockholders, are the only two plans to be followed in order to exempt a loan, otherwise usurious, from the operation of the general interest laws of the State. * * * The privilege to contract for premiums accorded to these associations is not an unbridled license to exact any rate of premiums the present situation •or stress of the affairs of each individual borrower may induce him to consent or agree to pay. On the contrary, if they would avoid the imputation of usury and the forfeiture of all interest consequent thereupon, they must, whenever they have as much as $100 in the treasury, either publicly offer the same at a regular meeting of the board of directors, to be loaned to the stockholder who will pay the greater premium therefor, or they must fix by a bv-law a uniform rate of premium at which their stockholders may borrow their money in order as their applications are filed, and without distinction between stockholders.”

The statute as to homestead loan associations (Hurd’s 1885), in force at the time this loan was made, unlike the statute here under consideration by the court, has no provision permitting a loan association to fix by by-law the rate of premium at which the stockholders may borrow their money, but its only provision in that regard is that the money “ shall be offered for loan in open meeting, and the stockholder who shall bid the highest premium for the preference or priority of loan shall be entitled to receive a loan of $100, less the premium bid, for each share of stock held by said stockholder.” Under the statute and the finding of the master, which was approved by the court, that the loan was made without the money being offered in open meeting to the highest bidder, the contract between the association and Jurgens is clearly usurious. It follows that the association forfeits all interest, and that when the payments made bv Jurgens upon the loan, as set out in the statements, are applied, the indebtedness to the association is fully paid. The decree is therefore reversed.


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    Carl Schoepfer et al. v. Adolph Tommack.
    1. Promissory Notes — A Consideration far an Indorsement. — In June, 1896, A. W. & S. W. made their joint promissory note obligating themselves to pay to the order of O. S., in two years after date, the sum of three hundred dollars. In October following, T. bought the note and paid three hundred dollars for it, but left it in the possession of C. S. for about three months, when he took it and kepcit until January, 1898, and then returned it to 0. S.,who kept it until April or May, 1899. The note was not indorsed in any way until April or May, 1899, when C. S. indorsed it at the request of T. so that “ he could show that he didn’t find or steal it.” It was held that three hundred dollars paid by T. to C. S. for note at the time he purchased it was sufficient as a consideration for the indorsement in 1899. It is immaterial in this case that the indorsement was not made at the time the note was sold.
    2. Same — When Assignable Only by Indorsement. — When "a promissory note, properly assignable only by indorsement, is delivered without such indorsement, the transferee gets only an equitable title. He may, however, have a right to a legal title and therefore to an indorsement, if it is necessary to complete his legal title, and a court of equity may compel such indorsement.
    3. Same — When Properly Transferable by Indorsement. — Where a promissory note is originally payable to a person or his order, it is properly transferable by indorsement, because in no other way will the transfer convey the legal title to the holder, so that he can at law hold the other parties liable to him ex directo, whatever may be his remedy in equity.
    4. Same — Notice of Dishonor — Payee and Indorser. — The payee of a promissory note transferred by him without an indorsement at the time, but subsequently indorsed, can take no advantage of the want of notice of dishonor when he did in fact indorse it, because the indorsement must be considered as made when he sold and transferred the note and not at the time when it was actually indorsed by him. Notice of dishonor, when necessary, is to be given when a note matures, not when it is actually indorsed.
    5., Practice — Several Judgments on Joint Instruments, Under the Act of 1895. — In an action on a promissory note, under the act of 1895 relating to negotiable instruments, if the plaintiff recovers, judgment is to be entered against such one or more of the defendants as are found liable to him.
    Assumpsit, on a promissory note against the makers and indorser. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed October 24, 1901.

      Lackner, Butz & Miller, attorneys for plaintiffs in error.
    Newcomer & Dellenback, attorneys for defendant in error.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

This was assumpsit upon the common counts, to which was attached a copy of the instrument sued on, being a note for $300, dated June 11, 1896, payable two years after date to the order of Carl Schoepfer, with interest at eight per cent per annum, payable annually, made by August Weichert and Lillie Weichert, and indorsed by Carl Schoepfer, the payee. The plea was the general issue by Schoepfer alone. A trial before the court without a jury resulted in a finding for the plaintiff of $330, and judgment thereon, to reverse which this writ of error is prosecuted.

The evidence shows in substance the making and indorsement of the note as above described, a copy of which was offered in evidence without objection; that plaintiff, the defendant in error, bought the note of Schoepfer in October, 1896, and paid him $300 for it, but left the note in Schoepfer’s possession for about- three -months; that plaintiff then got the note from Schoepfer and retained it until January, 1898, when plaintiff returned it to Schoepfer, who kept it until April or May, 1899. During all this time no indorsement of the note had been made, and it was not indorsed until about the time plaintiff received the note back from Schoepfer in April or May, 1899, when, according to Schoepfer’s testimony, he indorsed it, at plaintiff’s request, so that he, plaintiff, could “ show he didn’t find it or didn’t steal it.” It also appears that at the time Schoepfer sold the note to plaintiff, nothing was said about its indorsement. Schoepfer kept the note from the time of its sale for about the three months following, at plaintiff’s request. The remainder of the time the note was in Schoepfer’s possession at his request, and because of a foreclosure suit which made it necessary to give the note to a lawyer, as he claimed. Plaintiff can not read nor write English.

For plaintiff in error it is claimed, first, that there was no consideration for the indorsement by Schoepfer; second, that no proper steps were taken to fix the liability of the latter as indorser; and third, that a joint judgment was not warranted by the evidence.

As to the first point, we think that the §300 paid by plaintiff to Schoepfer for the note was the consideration for the indorsement. Nothing being said at the time of the sale of the note, it was Schoepfer’s duty to pass to the plaintiff the legal title of the note. That he would do by simply indorsing it. It is immaterial, in this case, that the indorsement was not made at the time the note was sold.

In 1 Parsons on Notes and Bills, p. 278, the author says :

“ If paper properly assignable only by indorsement be delivered without indorsement, the transferee has but an equitable title. He may have, however, a right to a legal title, and therefore to an indorsement, if this be necessary to make his title legal; and a court of equity would compel such indorsement. And we should say that the indorsee would then have the same rights and the same protection as if the indorsement had been made at the time of the assignment; because it would relate back to that time, as it is given now, only because it ought to have been given then. The absence of indorsement is a merely technical objection; for the actual transfer for value passes the property in the paper substantially, and the indorsement is needed only to make that transfer formal.”

The author then proceeds to state that a note acquired bona fide as above is not subject to the defense that there was no original consideration for the note.

In Story on Promissory Notes, Sec. 120, the author says:

“ If a promissory note is originally payable to a person or his order, then it is properly transferable bv indorsement. "We say properly transferable, because in no other way will the transfer convey the legal title to the holder, so that he can at law hold the other parties liable to him ex directo, whatever may be his remedy in equity.”

In Ranger v. Cary, 1 Met. 369, where a note payable on demand was transferred and delivered by the payee to a ' third person before its maturity, for a valuable consideration, but not indorsed until two years afterward, it was held, in a suit by the indorser against the makers, that they could not set off a demand which was due to them from the payee at the time of the making of the note, its transfer and delivery. . The court say, with reference to the defense sought to be interposed, “ that the indorsement, when made, should be regarded as relating back to the time when the plaintiff paid the consideration and the note was actually delivered to her.”

In Hughes v. Nelson, 29 N. J. Eq. 548, the court quotes approvingly from Watkins v. Maule, 2 Jac. & Walk. 243, as follows:

“ When a note is handed over for a valuable consideration, the indorsement is mere form; the transfer for consideration is the substance; it creates an equitable right and entitles the party to call for the form. The other party is bound to do that formal act, in order to substantiate the right of the party to whom he has transferred it; ” and held that the complainant who received a note for a valuable consideration from the payee before maturity was, in equity, an indorsee with all the rights of a bona-fide holder for value before maturity.

In Baker v. Arnold, 3 Caines (N. Y.), 279-83, which was a suit by the indorsees against the makers of a note, there was evidence tending to show that the indorsement was in fact made after maturity of the note, but it appeared that the plaintiffs were also in fact bona fide holders for a valuable consideration before maturity, and the court held that the indorsement, even if made after maturity, would be held to relate back to the time the note was actually delivered to the plaintiffs.

In Beard v. Dedolph, 29 Wis. 136-42, it was held, upon the authority of the ¡Ranger case and the citation from Mr. Parsons, supra, that the bona fide holder of a note payable to order and not transferable by delivery only, but which was delivered before maturity, though not actually indorsed ountil after maturity, is protected as against everything subsequent to the delivery of the paper, and that the indorsement related back to the time of delivery.

We think the case of Klein v. Currier, 14 Ill. 237, relied on by plaintiffs in error, is not applicable, as it relates to a guaranty, not an indorsement.

In 1 Daniel on Neg. Insts., Sec. 745, the author, in speaking of the ruling in the Baker case, supra, that an indorsement relates back to the time of assignment and operates as if then made, says that the doctrine is doubtless true, when the indorsement was agreed upon and intended at the time of the assignment.

We are inclined, however, to the opinion that the doctrine should not be so limited, unless it may be said that there is an implied agreement and intention to indorse the paper where, as here, nothing was said, and there was a bona fide sale for a valuable consideration.

It is a principle of equity that a thing will be considered as done which ought to have been done. The authorities hold that under the circumstances of this case, equity would compel his indorsement. The indorsement was made, it is true, long after maturity. That is all that equity could require, and the rights of defendant in error should be considered the same as if the indorsement had been made when he first paid his money and received the note.

The note became due June 11, 1898, when it was in Schoepfer’s possession at his own request, and he can take no advantage of the fact that no steps were taken to fix his liability as indorsee. He knew perfectly well that the note was not paid by the makers, and he paid interest thereon. That dispenses with any notice of dishonor at that time. Sohoepfer being in possession of the note, is a valid excuse for not notifying him of its dishonor. Hinsey v. Studebaker Mfg. Co., 73 Ill. App. 278-83; Story on Prom. Notes, Sec. 368; 2 Greenleaf’s Evid., Sec. 184; 2 Am. & English Ency., 419; 1 Parsons on N. & B., 521, 584; Havens v. Talbot, 11 Ind. 323.

Sohoepfer can take no advantage of the want of notice of dishonor when he did in fact indorse, because the' indorsement must be considered as made when he sold the note and not at the time it was actually indorsed. ¡Notice of dishonor, if necessary, should have been given when the note matured, not when it was actually indorsed.

It is conceded that this action was warranted by the statute of 1895, relating to negotiable instruments, and it follows, if we are correct in the conclusions above stated, that there was no error in taking a joint judgment against all the defendants. The statute (Sec. 7b), which provides how judgment shall be entered, first permits a severance under circumstances not relevant here, and then says: “ If the plaintiff recover, judgment shall be entered against such one or more defendants as are found liable to him, but in no event shall the plaintiff be entitled to more than one satisfaction.”

The judgment of the Circuit Court is affirmed.


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    Simcoe Chapman et al. v. Thomas Kane.
    1. Remedies — When by Certiorari. — Where an unjust judgment has been rendered against a party, and he has not been negligent, and has been prevented by the other party to the suit from appealing within the statutory time, be has a remedy by certiorari.
    2. Decrees — Must Find Support in the Evidence. — There must be a basis for decrees either in the evidence or in the findings of fact in them. The evidence must be preserved in some form, as by depositions, reports of the master, or certificates of evidence, and where there is neither evidence preserved nor any findings of fact in the decree, there is no basis for the decree.
    3. Practice — Where a Complainant in Chancery has a Remedy by Certiorari. — When, assuming the averments of his bill to be true, the complainant has a legal remedy by certiorari, a court of chancery will not grant him the relief asked for.
    Bill for Belief. — Error to the Circuit Court of Cook County; the Hon. Edward P. Dunne, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed October 24, 1901.
    Statement. — The defendant in error was complainant and the plaintiffs in error, Simeoe Chapman and ¡Mattie C. Chapman, his wife, were defendants, in the Circuit Court. The bill alleges a lease from Simcoe Chapman to the complainant of certain described premises situated in the city of Chicago, from May 1, 1895, until April 30, 1900, for the sum of $6,000, $100 to be paid in advance on the first day of each month of the term, and possession of defendant in error under the lease; that shortly after the execution of the lease, Simcoe Chapman conveyed the demised premises to Mattie C. Chapman; that August 30,1895, complainant owed $130 rent, and was about to pay it, when Mattie C. Chapman, without any demand for rent, sued out a summons in forcible detainer before a justice, commanding complainant to appear before the justice September 5, 1895, at 1 o’clock p. m.; that about 10 o’clock a. m. on that day, complainant went to Simcoe Chapman, who was his wife’s authorized agent, and .asked him why summons had been issued when complainant was ready to pay the rent, and that said Simcoe answered that it did not amount to anything, and that if complainant would pay to him $130, he, Chapman, would go to the justice’s court and have the suit dismissed, and that complainant need not pay any further attention to it, and that complainant, relying on said Chapman’s representations, and being thereby lulled into security, paid him the rent, $130; that said Chapman, in violation of his promise, did not have the suit dismissed, but caused judgment to be entered against complainant for recovery of possession of the premises; and that complainant first knew of said judgment September 14, 1895.
    The bill prays for an injunction against the enforcement of the judgment, etc. The defendants answered the bill, denying its material allegations, and replications to the answers were filed.
    The court rendered a decree setting aside the judgment in forcible detainer.
    H. S. Derby and Winston & Meagher, attorneys for plaintiffs in error; Winston & Meagher, of counsel.

      F. W. Walker and Pattison & Shaw, attorneys for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

No brief or argument has been filed for defendant in error. Counsel for plaintiffs in error contend that the decree should be reversed for two reasons: First, assuming the allegations of the bill to be true, defendant in error had a legal remedy by writ of certiorari; secondly, there is no basis for the decree in the record, either in evidence properly preserved, or in findings of fact by the court.

If an unjust judgment has been rendered against a party, and he himself has not been negligent, and has been prevented by the other party to the suit from appealing within the statutory time, he has a remedy by writ of certiorari. Gibson v. Ackermann, 70 Ill. App. 399.

In Graff v. Smolensky, 35 Ill. App. 264, a case similar in its main features to that stated in the bill in this case, a writ of certiorari was sustained. We are of opinion that, assuming the averments of the bill to be true, the defendant in error had a legal remedy by writ of certiorari. Such being the case, a court of equity will not grant relief. Booth v. Koehler, 51 Ill. App. 370.

There must be a basis for a decree either in the evidence or in findings of fact in the decree. The evidence must be preserved in some form, as by depositions, the report of a master, or a certificate of evidence. In the present case no evidence has been preserved in any way, so that, so far as appears from the record,- the decree is wholly unsupported by evidence. Neither are there any findings of fact in the decree. There being neither evidence preserved in any manner, nor any findings of fact in the decree, there is no basis for the decree, even assuming that in the case stated in the bill, the court could assume jurisdiction. Baird v. Powers, 131 Ill. 66; First Nat. Bank v. Baker, 161 Ill. 281; Jele v. Lemberger, 163 Ib. 338, 344.

The decree will be reversed and the cause remanded.