text:
    Edward A. Trask v. The People of the State of Illinois.

      Filed at Ottawa November 20,1882.

      Instruction—error to refuse one on party’s theory based on evidence. On the trial of a party for a conspiracy to obtain goods, etc., where the evidence upon the material points in the case is conflicting, it is error to refuse an instruction for the defendant fairly presenting the law on the theory of the case contended for by him, having a basis in the evidence on which to rest.
    Writ of Error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. E. F. Runyan, for the plaintiff in error.
    Mr. Luther Laflin Mills, State’s Attorney, and Mr. Geo. C. Ingham, Assistant State’s Attorney, for the People.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The plaintiff in error was indicted, together with John Horr, William Turner, Michael McDonough, and H. M. Cook, for conspiracy. The indictment contains two counts, varying from each other only in the ownership of the money, goods, etc., which it is alleged it was the purpose of the conspiracy to obtain. Plaintiff in error was put upon trial alone. The jury returned a verdict of guilty, fixing his punishment at confinement in the penitentiary for the term of two' years. The court, after overruling a motion for a new trial, gave judgment upon this verdict, to reverse which this writ of error is prosecuted.

One Lederer was the owner of a house in the city of Chicago, and plaintiff in error was his agent for renting the same, and had been such agent prior to and including the year 1875. On the 24th day of November, 1875, Mary Wagner rented the rooms on the second floor of this building, at a rental of $25 per month, and on the next day she moved into them, and continued to occupy them thenceforward until near the last of April, 1876. On the 20th of February, 1880, plaintiff in error assumed to assign what he claimed was a balance of $75, due on account of this occupancy of the rooms, to William Turner. On the 9th of July, 1880, Turner sued out a writ of attachment before Demurs, a justice of the peace of Cook county, in favor of Lederer and against Mary Wagner, to recover the amount so assigned to him. The writ was placed in the hands of Michael McDonough, a constable of Cook county, to execute, and, assuming to act by virtue of its authority, he seized goods belonging to John Taylor, in the possession of Mary Wagner, and one or more articles, of insignificant value, belonging to her. The venue was changed from Demurs to Matson, another justice of the peace* of Cook county, and plaintiff in error appeared, in obedience to a subpoena, and testified on the trial before Matson. While this attachment suit was pending, somebody, representing himself to be Franklin J. Spencer, sued out a writ of replevin before Smull, also a justice of the peace of Cook county, for the same property upon which the writ of attachment was levied. This writ was placed in the hands of John Horr, a constable of Cook county, to execute. Horr, assuming to act by virtue of the writ, took the attached property from McDonough and placed it in a warehouse belonging to Horner, who issued duplicate receipts therefor, one to McDonough and one to Miller,—the latter a name not in anywise identified by any of the witnesses as connected with the transactions. H. M-. Cook was bondsman for Turner in the attachment suit, and also an employé of plaintiff in error. The writ of attachment was, on the hearing before the justice of the peace; quashed. McDonough appeared at the return day of the writ in the replevin suit, and there being no prosecution, judgment was given for the defendant, and that the property he returned to him. The warehouse receipt issued in the name of “Miller, ” subsequently came into possession of Mary Wagner, and by means of it she regained possession of the property which had been taken from her by virtue of the writ of attachment.

The theory of the prosecution is, that there was nothing due from Mary Wagner to Lederer for the occupancy of the rooms; that the assignment to Turner was colorable only, and the suit brought pursuant to a previous agreement or understanding with plaintiff in error; that the replevin suit instituted in the name of Franklin J. Spencer was, in fact, instituted by plaintiff in error in person, under that name, and that both suits were instituted as a means whereby to enable plaintiff in error and one or more of his co-defendants to obtain this property. On the question of the indebtedness of Mary Wagner there was a conflict of evidence. There was, also, evidence tending to show that the attachment suit was commenced by Turner of his own volition, and without the knowledge or encouragement of plaintiff in error, and also that the suit in the name of Franklin J. Spencer was not commenced by plaintiff in error, but by another person. If the jury were warranted in finding, on these several matters, in favor of the plaintiff in error, we think it clear their verdict should have been .for the defendant, for there is no other theory, warranted by the evidence, upon which there could be a verdict of guilty.

The plaintiff in error asked the court to instruct the jury as follows:

“The court instructs the jury, that if they believe, from the evidence, that on the first day of May, A. D. 1876, the witness Mary L. Wagner was owing to the witness Lederer a balance for rent of the premises previously occupied by her, at the corner of Desplaines and Washington streets; and they further believe, from the evidence, that she had not paid that balance that was by her 'so owing to said Lederer, on the 20th day of February, A. D. 1880; and they further believe, from the evidence, that on that day the defendant Trask assigned. all of the interest of said Lederer and himself in and to said claim to William L. Turner, and that said Turner, of his own motion, without consultation with the defendant Trask, on the 9th day of July, 1880, commenced a suit by attachment, of Lederer v. Wagner, before justice Demars, and that up to the trial of said cáuse said Trask was not advised with or about said suit, and only appeared at the trial of said cause in .response to a subpoena, and upon the trial of said cause only testified as to the amount that was due from said Wagner to said-Lederer; and they further believe, from the evidence, that said Trask was, on the morning of the 12th day of July, A. D. 1880, in Chicago, and not in Austin, and that he did not appear in Austin on that day and obtain the writ of replevin at the suit of Franklin J. Spencer against M. B. McDonough, their verdict should be not guilty. ”

The court refused to give the instruction, and plaintiff in error excepted. We think in this there was error. The instruction fairly presented the law on the theory of the case contended for by plaintiff in error, and had a basis in the evidence on which to rest.

For this error the judgment is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Louis Glanz v. Charles S. Gloeckler.

      Filed at Ottawa November 20, 1882.

      Insurance—party having the legal title and, right to control of policy.; "Where a father procured a policy of insurance upon his own life for the * benefit of his infant daughter, which was, in express terms, made payable, upon his decease, to her, her executors, etc., and paid all the premiums thereon out of his own funds, making no charge of the same against her, and retaining the custody of the policy: Held, that the contract of the insurance company was with the daughter, and upon her death the legal title in the contract vested in her legal representative, and that he was legally entitled to the possession of the policy, and that the administrator of the deceased daughter was entitled to an order for its surrender to him.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Jussen & Anderson, for the appellant:
    Where a person effects an insurance on his own life for the benefit of his wife or daughter, pays the premiums thereon, and survives his'wife or daughter, he will not be deprived of all control of the policy still remaining in his hands, but may, with the consent of the insurance company, change the policy in favor of some other person. Kerann v. Howard, 23 Wis. 108; Clark v. Durand, 12 id. 223; Gambs v. C. M. S. Ins. Co. 50 Mo. 44; Succession of Hearing, 26 La. Ann. 326; Mutual Benefit Life Ins. Co. v. Atwood, 24 Gratt. 497; Otis v. Beckwith, 49 Ill. 121; Ballou v. Giles, 50 Wis. 614; Universal Life Ins. Co. v. Cogbill, 30 Graft. 72; Graugrac v. Arden, 10 Johns. 293; People v. Johnson, 14 Ill. 342; Pulvertorft v. Pulvertorft, 18 Yes. Jr. 98; Dole v. Lincoln, 31 Me. 428; Foster v. Giles, 50 Wis. 603; Gould v. Emerson, 99 Mass. 154.

      Mr. Fbank J. Smith, for the appellee:
    The controversy arises over the possession of the policy itself, which is but the evidence of the contract of insurance.. Succession of Hearing, 26 La. Ann. 326. .
    If appellee, as administrator of Emily Glanz, is a contracting party with the insurance company, and if he is also entitled to the benefits of the contract of insurance, then he is entitled to the possession of the policy. The policy shows, on its face, that it is a contract 'of insurance upon the life of Louis Glanz, made by and between the insurance company and “Amelia L. Glanz, her executors, administrators and assigns. ” The consideration is recited as paid by her, and the promise of the company is made to her. On her death without issue, her interest in this policy passed to the appellee, as her husband and administrator. As sustaining this view, see Stoan v. Snow, 11 Allen, 224; North American Life Ins. Co. v. Wilson, 111 Mass. 542; Campbell v. New England Ins. Co. 98 Mass. 381; Continental Life Ins. Co. v. Palmer et al. 42 Conn. 60; Chapin et al. v. Fellows, 36 id. 132; Hutson v. Merrifield, Admr. 51 Ind. 24; Richer v. Charter Oak Life Ins. Co. 27 Minn. 193.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was a proceeding by petition, commenced originally in the probate court of Cook county, by Charles S. Gloeckler, the appellee, as administrator of Amelia L. Gloeckler, his' deceased wife, against Louis Glanz, the appellant, and father of the said Amelia L. Gloeckler, to recover the possession of a policy of insurance issued by the United States Life Insuranee Company of New York City, upon the life of appellant, for the sum of $5000, to be paid upon his death to the said Amelia L. On the hearing of the cause, the probate court entered an order directing the surrender of the policy, in conformity with the prayer of the petition. From this order Glanz appealed to the circuit court of Cook county, where the cause was heard de novo, and a similar conclusion reached. Appellant thereupon prosecuted an appeal to the Appellate Court for the First District, where1 the judgment and order of the circuit court were affirmed, and he now brings the case here for review, and the cause is submitted upon the following agreed state of facts :

“December 10, 1860, the United States Life Insurance Company of New York City, in the State of New York, made, issued and delivered in said city its policy of insurance numbered 8503, which declared, among other things, that in con-, sideration of $122.35 to said company in hand paid by! Amelia L. Glanz, and of the annual premium of $122.35, to ¡ be paid in advance on or before December 10 in every year during the continuance of said policy, said company did insure the life of said Louis Glanz in the amount of $5000, for the term of his natural life; and that said company did thereby promise and agree- to and with the said assured, her executors, administrators and assigns, well and truly to pay, or cause to be paid, the said sum assured to the said assured, her executors, administrators or assigns, within three months after due notice and proof of the death of said Louis Glanz: Provided, that if said Louis Glanz should, without the consent of the said company previously obtained and entered upon said policy, pass beyond the settled limits of the United States, * * * then said policy should be void, and that said policy should also be void in case any representation in the application for said policy should be found 'to be untrue. Permissions to said Louis Glanz to visit or reside in Europe are indorsed upon said policy under date of March 1, 1861, March 7, 1862, March 20, 1866, and March 17, 1867. Said policy was issued on the application of respondent, Louis Glanz, in the year A. D. 1860, and when the said Amelia L. (or Emily L.) was only six years of age. All premiums have been paid by the respondent, and out of his own moneys, up to the death of the decedent. The decedent and beneficiary in said policy was the daughter of this respondent, and the only daughter and child of respondent at the date of the issue of said policy; that decedent died August 22, 1879, at the age of twenty-five years, and left her surviving no child or children, or descendants of child or children; that decedent never paid anything to the respondent for or on account of said policy, but was his daughter, and resided with him until her marriage, in June, 1879, nor has he, the respondent, ever made any charge against her or her estate for or on account of said premiums; that respondent has had possession of said policy since its issue, and the permissions thereon for respondent to visit Europe were granted by the company at respondent’s sole request; that said policy was made and issued in the city of New York, in the State of New York, and there delivered; that said policy has a surrender value of over $1000; that the respondent, on the 9th day of October, 1879, served upon the company issuing said policy a written notice, notifying said company of respondent’s purpose and desire to change the beneficiaries in said policy. ” It is clear, from an examination of the policy, the sum insured upon appellant’s life is, in express terms, made payable, upon his decease, to his daughter, appellee’s intestate, and had she survived him, it will not be questioned that she alone could have maintained an action on the policy; or, in other words, it must be conceded the contract, of which the policy is the only evidence, was between the company on one side, and Amelia L. Glanz on the other, and the company expressly covenants with her, “her executors, administrators and assigns, ” and upon her decease it is clear the legal title in the contract vested in appellee, as her legal representative. This being so, we are aware of no principle that would authorize appellant to arbitrarily, and without the consent of appellee, defeat this vested right in him. Nor is his right in this respect at all affected by the ^ fact that the contract of insurance was entered into by the company on the application of the appellant upon his own life, or that the premiums were paid to the company out of his owm funds. The contract having been expressly made with, and for the benefit of, appellee’s intestate, as we have already seen, it follows appellee is legally entitled to the possession of the policy, and as the judgment of the circuit court was in conformity with this view of the law, it follows the Appellate Court committed no error in affirming it. Had appellant, when causing this policy to be executed to his daughter, desired to retain control over it in the event of her death without issue, it would have been very easy to have provided for such a contingency; hut nothing of this kind was done, or even attempted to be done, and he must abide the consequences.

The view we have taken of the case seems to be fully sustained by the authorities. Eudie v. Slemmons, 26 N. Y. 9; Knickerbocker Life Ins. Co. v. Weitz et al. 99 Mass. 157; Swan v. Snow, 11 Allen, 224; North American Life Ins. Co. v. Wilson, 111 Mass. 542; Continental Life Ins. Co. v. Palmer et al. 42 Conn. 60; Hutson, Admr. v. Merrifield, Admr. 51 Ind. 24.

A number of cases have been cited by appellant which are supposed to lay down a different rule in cases of this character. Without entering upon any analysis or review of. those cases, suffice it to say, that upon a careful consideration of them, we are of opinion they are all distinguishable from the case before us, and may readily be reconciled with the view we have taken of it.

The judgment will be affirmed.

Judgment affirmed„

Scott, Ch. J., and Walker, J.: "We are unable to concur in the above opinion.


author: Mr. Justice Craig

text:
    Lena M. McCauley et al. v. Henry W. Rogers et al.

      Filed at Ottawa November 20, 1882.

    1. Chancery jurisdiction—to foreclose chattel mortgage. A court of equity has jurisdiction of a bill to foreclose a chattel mortgage.
    2. Decree—binds parties and privies in estate. A decree for the foreclosure of a chattel mortgage, where the court has jurisdiction of the parties and of the subject matter, and ordering sale of the mortgaged property, from which no appeal is taken, is binding and conclusive upon the mortgagor and all persons claiming title through or under him after the filing of the bill to foreclose the mortgage.
    3. Notice—from pendency of suit. A purchaser of personal property, pending a bill to foreclose a chattel mortgage thereon, is bound by the decree that may be made against the person from whom he derives, title. The effect of the pendency of the suit is not to annul the conveyance or purchase, but only to render it subservient to the rights of the parties in litigation. As to the lights of these parties, the conveyance is treated as if it had never had any existence, and it does not vary them.
    4. Writ oe assistance—against purchaser pendente lite. During the pendency of a bill to foreclose a chattel mortgage on buildings upon leased ground, the mortgagor confessed judgment in favor of another creditor, who, a few days after the decree of foreclosure, took out an execution on the judgment, which was levied on the same property. Before the sale under the execution the judgment creditor was served with notice of the decree of foreclosure, but nevertheless purchased a portion of the property under his execution: Held, that as to the mortgagee, the purchase was to be regarded as if it had no existence, and that a writ of assistance against the purchaser, to put the mortgagee in possession under his purchase, was properly awarded in the suit to foreclose.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Messrs. Leland & Gilbert, for the plaintiffs in error:
    No lien was acquired on the property by filing the bill to foreclose the chattel mortgage. The only case in which an equitable lien upon personal property is recognized as created by the filing of a bill in equity, is that of a creditor’s bill. But even in such case it is Reid that as to chattels liable to execution, the lien is defeated by their actual seizure under execution before the appointment -of a receiver. First Nat. Bank v. Gage et al. 93 Ill. 175.
    A decree foreclosing a chattel mortgage, so long as the property has not been seized or sold under it, does not affect the rights of third persons in the goods. Catlin v. Curier, 1 Sawyer, 7.
    There can be no lien created by a decree upon personal property in a defendant’s possession, whicn can defeat an execution sale of the same in favor of other creditors. In this case the lien of the execution first attached. There is no authority in law for the issuing of a writ of assistance to put a purchaser of personal property in possession.
    Mr. Samuel Kerr, for the defendants in error:
    Defendants in error having been made parties to the bill to foreclose the mortgage, are bound by the decree in the case, and by meddling with the property pendente lite, became parties to the decree. Kessinger v. Whittaker, 82 Ill. 22.
    In certain cases a mortgagee may foreclose his "chattel mortgageby bill in equity. Dupuy v. Gibson et al. 36 Ill. 197.
    It is not the decree which creates the lien on the chattel property, but the chattel mortgage. The decree establishes and fixes the extent of the lien,' and provides for its enforcement. It follows that .plaintiffs in error, who are purchasers pendente lite, are bound by the decree, and their only remedy was to appeal from the decree, or. surrender the property and bring their action of replevin.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 6th day of August, 1879, James McCauley, being the owner of certain personal property in Streator, LaSalle county, consisting of certain buildings and property thereon, situated on leased land, executed a chattel mortgage on the property to Henry W. and James C. Rogers, to secure money then due and money to become due, the mortgage to remain in force for a period of twenty-three months. The mortgage ■was acknowledged and recorded in the manner required by the statute. On the 24th day of December, 1880, the mortgagor having failed to make payment as required by the mortgage, the mortgagees took possession of the property, and placed it in the charge of a custodian, who remained in tile possession for four days, when McCauley caused the custodian to be arrested on a charge of riot, and he having been taken from the premises under a warrant, McCauley went into the possession, and assumed the control thereof. On the 10th day of January, 1881, the mortgagees, who then resided in Cook county, brought a bill in equity, in the Superior Court of Cook county, to foreclose the mortgage. James McCauley, who also at that time resided in Cook county, was made a defendant to the bill, and duly served with process. In May following a hearing was had, and the cause was referred to the master to state an account. On the 2d day of November the master’s report was confirmed, and a decree of foreclosure rendered for the sum of $1482.62. Under this decree the master in chancery sold the property to the mortgagees. While the bill to foreclose the mortgage was pending, and on the 22d day of July, 1881, James McCauley confessed a judgment in the' La Salle circuit court, in favor of Lena M. McCauley, for the sum of $3073.60. On November 8, 1881, an execution was issued on the judgment, and' levied upon the property, which was sold on the execution November 26, a part to the plaintiff in execution, and the balance to Wm. A. Funk, both of whom had actual notice of the decree of foreclosure. On the 28tli day of December, 1881, the court entered a rule on Lena M. McCauley and Wm. A. Funk, to show cause why a writ of assistance should not issue against them on behalf of the complainants in the decree of foreclosure, to put them in possession of the property. Lena M. McCauley and Wm. A. Funk appeared before the court, and a hearing was had, which resulted in an order directing the writ of assistance to issue. To reverse this last order a writ of error was sued out from the Appellate Court, where the order of the circuit court was .affirmed, and plaintiffs in error have sued out this writ of error to reverse the judgment of the Appellate Court.

This writ of error was not brought to reverse the decree of the Superior Court of Cook county, wherein the chattel mortgage was foreclosed, and a sale of the property ordered. That decree remains unchallenged, so far as this proceeding is concerned. The object of this writ was merely to reverse the order of December 28, 1881, which directed a writ of assistance to issue against Lena M. McCauley and Wm. "A. Funk, to take-the property out of their possession and place the same into the possession of defendants in error, who purchased under the decree of foreclosure. The Superior Court of Cook county, in the proceedings to foreclose the mortgage, acquired jurisdiction over the person of the mortgagor, James McCauley, by service of process upon him, and if ■ the court i had jurisdiction of the subject matter of the litigation, the decree rendered in the cause will be binding and conclusive upon McCauley, and all persons who claim title to the property through or under him after the bill was brought to foreclose the mortgage. We shall not enter upon a discussion of the question whether a court of equity has jurisdiction to decree a foreclosure of a chattel mortgage, as this court has heretofore decided in favor of the jurisdiction, and the question may be regarded as settled in this court,—at least that a court of equity has jurisdiction. Pupuy v. Gibson, 36 Ill. 197; Gaar, Scott & Co. v. Hurd, 92 id. 315.

As the decree of foreclosure remains in full force and effect, and has, to a certain extent, settled the rights of the parties, it becomes important to refer to the decree, and determine what facts were found therein, and what matters were determined and settled thereby. In the decree it is, among other things, found that the defendants in error obtained a lien on the property under the chattel mortgage, which was and is paramount. The decree orders: “That on demand of the master in chancery, James McCauley permit him and any other person to enter and inspect said property on the day of sale, and that on the confirmation of such sale, and the production of the bill of sale or conveyance, the said James McCauley, or other defendants who may be in possession, or any other person who shall have come into possession of said property, or any part thereof, under any of the defendants to this cause since the filing of this bill, immediately quit and deliver up said goods and chattels * * * to the purchaser at said sale, without delay, and that in default thereof a writ of assistance may issue, in accordance with the practice of this court. ” Under the finding in the decree, when the bill to foreclose the chattel mortgage was filed the mortgagees had a valid lien on the property. Had a court of equity jurisdiction to enforce that lien by proper decree, or could plaintiffs in error, pending the proceedings to enforce the lien, with full notice of the proceedings, acquire a valid title to the property, and thus render null a decree of a court of general jurisdiction?

In the discussion of this question, Story, (vol. 1, see. 406,) says: “He who purchases during the pendency of a suit is held bound by the decree that may be made against the person from whom he derives title. * * Where there is a real and fair purchase, without any notice, the rule may operate hardly; but it is a rule founded upon a great public policy, for otherwise alienations made during a suit might defeat its whole purpose, and there would be no end to litigation, and hence arises the maxim pendente lite nihil innoventer, the effect of which is, not to annul the conveyance; but only to render it subservient to the rights of the parties in litigation. As to the rights of these parties the conveyance is treated as if it never had any existence, and it does not vary them. The decree of foreclosure was rendered November 2, 1881. The execution under which plaintiffs in error purchased was not issued until November 8, and the sale on the execution was not made until November 26, but before the sale plaintiffs in error, who purchased the property, were served with a copy of the decree, and had actual notice of all the rights of the mortgagees in the property, as found and established by the decree. Under such circumstances, what right had plaintiffs in error to meddle with the property ? They knew defendants in error had a valid lien on the property, and that the property had been decreed to be sold in satisfaction of a valid debt, secured by a prior lien. Knowing these facts, the purchase by them is to be treated as if it never had any existence. They had no right to attempt to obstruct the enforcement of a decree of a court of equity, and they can take nothing by their purchase.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    William Vogt et al. v. Edward E. Ayer.

      Filed at Ottawa November 20,1882.

      Taxation—place for assessment of vessels. Vessels are required by the statute to be listed and assessed for taxation in the county, town, city, village or district in which the same may belong, or are enrolled, or registered, or licensed, or are kept when not enrolled, registered or licensed, and not elsewhere; and when listed and assessed at some other place, the assessment will be without authority of law, and the' taxes levied thereon may be enjoined.

      Appeal from the Superior Court of Cook county; the Hon, George Gardner, Judge, presiding.
    Mr. Consider H. Willett, for the appellants:
    As a general principle, personal property ’ follows the person of the owner, and in contemplation of law has its place where he is domiciled. Mobile v. Baldwin, 57 Ala. 61; Battle v. Mobile, 9 id. (N. S.) 239; St. Louis v. Ferry Co. 11 Wall. 423.
    The place where vessels are registered, enrolled or licensed, may belong or are kept when not enrolled, etc., is the place where they are liable to taxation. Sec. 13, Revenue Law; Hays v. Pacific Mail Steamship Co. 17 How. 596; City of St. Joseph v. Saville, 39 Miss. 460; State v. Haight, 30 N. J. 428; People v. Commissioner of Taxes, 1 Hun, 143; Wilkey v. Pekin, 19 Ill. 160; Minturn v. Hays, 2 Cal. 590; Peabody v. County, 10 Gray, 97; Burroughs on Taxation, sec. 46; 1 Cooley on Taxation, 270; Hilliard on Taxation, 125; Morgan v. Parham, 16 Wall. 471.
    Personal property is taxable at the place where the owner resides,. unless changed by statute. Foster v. Blue Earth County, 7 Minn. 140; Whitesell v. Northampton County, 49 Pa. 526; McKeem v. Northampton County, 49 id. 519.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case- was brought by Edward E. Ayer, against William Vogt, collector of the town of North Chicago, and William T. Johnson, treasurer and ex officio collector of taxes for the county of Cook, to enjoin the taxes assessed by the town of North Chicago on two vessels owned by complainant. It is alleged in the bill that. by the laws of the United. States, Chicago is a port of registry, and a place for the registering of vessels; that the office for registering is at the custom house, in South Chicago; that complainant was, on the 1st day of May, 1881, the owner of two vessels,—the “Milwaukee Belle, ” and the “Jessie Hoyt; ” that such A7essels were duly registered at the office of the collector of revenue, in South Chicago, and that the situs of the vessels and the place where their business is transacted is in the town of South Chicago. It further appears, from the allegations of the bill, that both vessels were assessed, under the State laws, in the town of South Chicago, for the year 1881. Of that tax no complaint is made, and it is averred complainant has paid the same. It also appears that complainant resides in the town of North Chicago, and on that account his vessels seem to have been assessed in that town for the same year they were assessed in the town of South Chicago. It is the tax imposed by the town of North Chicago complainant seeks to have enjoined. To the bill alleging these facts, with the usual particularity, defendants interposed a demurrer, which was by the court overruled, and defendants electing to stand by their demurrer, the temporary injunction previously awarded was made perpetual.

Section 13 of the Revenue Law, Rev. Stat. 1874, provides : “All persons, companies and corporations in this State owning steamboats, sailing vessels, wharf boats, barges and other water craft, shall be required to list the same for assessment and taxation in the county, town, city, village or district in Avliich the same may belong, or be enrolled, registered or licensed, or kept when not enrolled, registered or licensed.” The allegations of the bill, which the demurrer admits to be true, bring the case precisely within the provisions of this statute, and shoAV that complainant has done all the laAv requires him to do. It is stated, Avith sufficient definiteness, that Chicago is a port of registry under the laAvs of the United States, and that the office of the collector of that port is in the town of South Chicago, where complainant’s vessels are registered, and the allegation of the bill is, “the situs of the vessels and the place where their business is transacted is in the town of South Chicago. ” -That being admitted, as it is by the demurrer to the bill, the town of South Chicago is the place where such vessels, in the language of the law, “belong,” or are “enrolled, or registered, or licensed,” or are “kept when not enrolled, registered or licensed.” It follows, therefore, that South.Chicago is the place where complainant’s vessels should be listed for assessment and taxation. They were not assessable elsewhere, and the taxes levied upon them in the town of North Chicago were without authority of law, and the court properly made the injunction restraining the collection perpetual.

The decree of the Superior Court is affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The West Chicago Alcohol Works v. Charles Sheer.

      Filed at Ottawa November 20,1882.

    1. Interest—unreasonable and vexatious delay of payment. Mere delayto make payment of money due on an account, or appearing and defending suit for its recovery, will not authorize a recovery of interest under the clause of the statute giving interest “on money withheld by an unreasonable and vexatious delay of payment.”
    2. The delay of. payment must be both unreasonable and vexatious, and to make it such the debtor must, in some way, have thrown obstacles in the way of collection of the demand, or by some management have induced the creditor to prolong taking proceedings to collect the debt longer than he would otherwise have done.
    3. Same—statute—where the sum is certain. The statute does not allow interest on money, after it becomes due by the terms of a contract, unless such contract is in writing, or unless the money is due on the settlement of accounts between the parties. The case of Maltman v. Williamson, 69 HI. 423, so far as it holds that money becoming due upon a verbal contract will carry interest when it is a certain and definite sum, is not to be followed.

      Writ op Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. S. K. Dow, for the plaintiff in error:
    At common law, interest was not recoverable in any case. In this State its recovery depends entirely upon the statute. Illinois Central R. R. Co. v. Cobb et al. 72 Ill. 148; City of Pekin v. Reynolds, 31 id. 530; Madison County v. Bartlett, 1 Scam. 67; City of Chicago v. Allcock, 86 Ill. 384.
    There is a class of cases arising out of damage to, or conversion of, personal property, by fraud or otherwise, in which the allowance of six per cent interest on the sum found has been sanctioned. Bradley v. Geiselman, 22 Ill. 494; Chicago and Northwestern Ry. Co. v. Ames, 40 id. 249; Northern Transportation Co. v. Yellick, 52 id. 249; Chicago and Northwestern Ry. Co. v. Schultz, 55 id. 421.
    To justify the allowance of interest upon an unliquidated account, there must be an unreasonable and vexatious delay of payment. Eev. Stat. chap. 74, sec. 2.
    Appearing and defending suit alone is not an unreasonable and vexatious delay of payment. Aldrich et al. v. Dunham et al. 16 Ill. 403; Sammis v. Clark et al. 13 id. 544; Kennedy v. Gibbs, 15 id. 406; Hitt v. Allen, 13 id. 597.
    The provision in the statute making certain indebtedness interest bearing, excludes all other debts not mentioned. Aldrich et al. v. Dunham et al. 16 Ill. 403; Sammis v. Clark et al. 13 id. 546.
    Mr. Francis Lackner, and Mr. Sidney C.. Eastman, for the defendant in error:
    Interest was properly allowed on the rent due, as the amount was fixed and certain. The liquidation is not required to be made after the termination of a contract. If there is no dispute as to the amount, there can be no basis for a liquidation,—it is liquidated the moment it is made. Clark, Jr. v. Dutton, 69 Ill. 521; Maltman v. Williamson, 69 id. 423; Bishop Hill Colony v. Edgerton, 26 id. 54; Ditch v. Vollhardt, 82 id. 134.
    When it is the duty of one party to pay the other a fixed or definite sum of money, by contract either express or implied, without any previous demand, and a definite time is fixed for payment, interest is recoverable from the time so fixed for payment. Forte v. Blanchard, 6 Allen, 221; Dodge v. Perkins, 9 Pick. 368; Graham v. Chrystal, 1 Abb. 121; Van Renssalaer v. Jones, 2 N. Y. 643; Williams v. Sherman, 7 Wend. 109; Hollingsworth v. Hammond, 30 Ala. 668.
   Mr. Justice Sheldon

delivered the opinion of the Court;

This was a suit for. rent claimed to be due under an alleged verbal lease of premises, from October 7, 1876, to May 1, 1877, at the monthly rent, payable at the expiration of each month, of $208.34 to January, 1877, and of $275 thence to May 1, 1877, making, according to the bill of particulars filed with the declaration, the whole amount due May 1, 1877, $1690.18. Upon trial in the circuit court the jury returned a verdict in favor of the plaintiff, for $1997.18, upon which judgment was entered, which was affirmed by the Appellate Court for the First District, and the present writ of error then -taken.

On the trial in the circuit court, at the close of plaintiff’s testimony, the plaintiff, against the objection of defendant, introduced as a witness one Eastman, who testified that he had computed the interest on $1690.18, from May 2, 1877, to that time, at six per cent per annum; that he had computed it for three years—not for the fraction of a month; that the principal and interest were $1994.38, and the interest $304.20. The defendant then moved to exclude this evidence, and the motion was overruled, and exception taken. The sole question presented is as to the admission of this evidence—whether interest was allowable.

Interest in this State, upon claims ex contractu, is wholly regulated by statute, which provides, that “creditors shall be allowed to receive at the rate of six per cent per annum for all moneys after they become due, on any bond, bill, promissory note, or other instrument in writing; on money lent or advanced for the use of another; on money due on the settlement of accounts, from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another, and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment. ” In Sammis v. Clark, 13 Ill. 546, it was laid down that interest can only be recovered in this State in actions purely ex contractu, and where there is nothing tortious in the character of the indebtedness, in the cases specified in the statute, or where there has been a promise to pay it.

The only clauses of the statute under which there can be any pretense that this case may be brought, are the two, as to money due on the settlement of accounts, etc., and money withheld by an unreasonable and vexatious delay of payment. The evidence shows nothing of the latter. It shows in that respect no more than mere delay to make payment, and defending this suit. But it has distinctly been held that mere delay to make payment, or appearing and defending a suit, will not authorize a recovery of interest under this clause of the -statute. (Sammis v. Clark, supra; Aldrich v. Dunham, 16 Ill. 403.) The delay of payment must be both unreasonable and vexatious, and to make it such the debtor must, in some way, have thrown obstacles in the way of collection of the demand, or by some management have induced the creditor to prolong taking proceedings to collect the debt longer than he would otherwise have done. (Hitt v. Allen, 13 Ill. 592.) Nor has there been here any settlement and liquidation of accounts and ascertainment of the balance, to bring the case within the clause of the statute in that regard, but on the contrary,’ the defendant denies the lease, and has never admitted there to be anything due thereunder.

It is insisted that as it was a sum certain which, by the terms of the contract, would become due under it, it was a liquidated sum, and so would carry interest under this clause of the statute. This would be to give interest in case of every verbal contract, where the money due under it is a definite sum. But such is not the reading of the statute. It gives interest on • all moneys after they become due on any instrument in writing, and, inferentially, not on moneys which become due on any verbal contract, and this, we conceive, without regard to whether the money to become due is a sum certain or uncertain. It was said in Hitt v. Allen, supra, that “the statute does not allow interest on money, after it becomes due by the terms of a contract, unless such contract is in writing, or unless the money is due on the settlement of accounts between the parties, ”—it being understood, of course, that the money was not withheld by an unreasonable and vexatious delay of payment.

As sustaining.the position of defendant in*error, reference is made to the cases of Clark v. Dutton, 69 Ill. 521, Maltman v. Williamson, id. 423, and Ditch v. Vollhardt, 82 id. 134. We find in those cases no support of defendant in error, except in that of Maltman v. Williamson, which does appear to favor the view of defendant in error; but so far as that case is looked upon as authority for the position that money becoming due under a verbal contract will carry interest where it is a certain and definite sum, it is not to be followed. That would not be in accordance with former decisions of the court, from which there was no intention in that case to depart.

We are of opinion that interest was not allowable in the present case, and therefore that the admission of the evidence in regard to interest was erroneous.

As defendant in error offers to remit the interest on its being held that he is not entitled thereto, the judgment of the Appellate Court will be reversed, and the cause remanded with instructions to reverse the judgment of the circuit court, with direction to, that court, upon a remittitur being made by defendant in error of the interest, ($304.20,) to enter judgment for the residue of the verdict.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    The People ex rel. City of Gilman v. Franklin Blades.

      Filed at Ottawa November 20, 1882.

    1. Bill on exceptions—refusal to sign because of non-compliance with rule of court. Where a standing rule of the trial court required the party obtaining an extension of the time for preparing a bill of exceptions to a day in vacation, to give the adverse party five days’ notice of the time and place of presenting the bill to the judge, and at the same time leave with the opposite party a copy of the bill, or allow him to take and retain the original draft four days for examination,^unless waived this court will not compel the judge to sign the bill of exceptions presented to him without a compliance with the rule, and such rule is the exercise of a reasonable discretion in the conditions imposed for the extension of time.
    2. The court might, by an order of record, have rescinded or modified its rule in relation to giving notice to attorneys and leaving a copy of the bill of exceptions with them; but until such an order is entered of record the rule must stand, and any order giving time within which to prepare and file a bill of exceptions, must be construed with reference to the rule, unless it affirmatively appears the rule is thereby modified or rescinded.
    This was an application on behalf of the city of Gilman, against Franklin Blades, to compel him, as judge of the circuit court, to sign a bill of exceptions prepared in an action wherein Margaret Haley was plaintiff, and .the city of Gilman defendant, tried before him in the circuit court of Iroquois county. The material facts appear in the opinion of the court.

      'Messrs. Doyle & Morris, and Mr. T. B. Harris, for the relator.
    Messrs. Kay & Euans, for the respondent.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an application for a mandamus to compel the respondent to sign a hill of exceptions. At the November term, 1881, of the Iroquois circuit court, an action at law, wherein Margaret Haley was plaintiff, and the city of Gilman was defendant, was tried, resulting in a verdict and judgment for the plaintiff. The defendant prayed an appeal to the Appellate Court for the Second District, which was allowed, and time was given by the court to file a bill of exceptions' during the term. During the same term, but near its close, being on the 30th of November, 1881, no bill of exceptions having been presented, application was made to the court, on behalf of the city of Gilman, for an extension of time within which to file a bill of exceptions, which motion the court allowed, and ordered that time be extended within which to file a bill of exceptions until a day named in vacation, (the 1st of January, 1882,) upon condition that the testimony taken by the short-hand reporter should be embodied in such bill of exceptions. At that time there was in full force a rule of practice of said court, as follows : '•

“Bule No. 1.—Deposition, bills of exceptions.—Upon the first day of the term of court the clerk will open all depositions on file, and thereafter such as may be filed during the term. In case the court shall, in any ease, extend the time for preparing and presenting for signature a bill of exceptions to a day in vacation, on or before which such bill of exceptions may be presented for the signature of the judge, it shall be the duty of the party preparing such bill to give the opposite party five days’ notice of the time and place of presenting such bill of exceptions, and shall at the same time leave with the opposite party a copy of the proposed bill of exceptions, or shall allow the opposite party to take the original draft of such bill, and retain the same for four days for examination; and no bill of exceptions shall be signed-in vacation without satisfactory proof of such service of notice and copy, unless the opposite party shall waive, in writing, such notice and copy, or of leaving the original with the opposite party, as aforesaid. ”

On the 27th of December, 1881, the attorneys for the city of Gilman served a written notice upon the attorneys for Margaret Haley, that a bill of exceptions in said case would, be presented to respondent for his signature, at his chambers, on the 31st of December, 1881, and, at the time designated in the notice, a bill of exceptions in the ease was presented to respondent for his signature; but, upon objection being urged by the attorneys of Margaret Haley that it had not, nor had any copy thereof, been presented to and left with them as counsel for said Hargaret Haley, five days, for examination, previous to such presentation, and, also, that five days’ previous notice of such presentation had not been served upon them, the court’ refused to sign said bill of exceptions, or to make any examination thereof, and then indorsed thereon the following:

“Presented this 31st December, 1881, and I do refuse to sign the same, because, upon objection, notice has not been given in compliance with rule No. 7 of the circuit court.
Fbanklin Blades, Judge.”

At the same time the counsel for the city of Gilman presented respondent with the affidavit of F. P. Morris, stating that lie was unable to procure the short-hand report of the testimony before the,. 28th of December, 1881, on account of the ill-health of the reporter, but respondent still refused to sign or examine the bill of exceptions.

Undoubtedly the court might, by an order of record, have rescinded or modified its rule in relation to giving notice to attorneys, and leaving copy of bill of exceptions with them; but until such an order is entered of record, the rule must stand, and any order giving time within which to prepare and file bills of exceptions must be construed with reference to that rule, unless it affirmatively appears the rule is thereby rescinded or modified. It does not appear here that the court intended to rescind or modify the rule. No reference whatever is made to it, and the fair construction therefore is, that the order was to be executed in the manner prescribed by the rule. This worked no hardship upon the relator. The court was not compelled to extend the time at all within which to prepare and file a bill of exceptions, least of all to do so to a remote day in vacation. It Avas purely discretionary with the court to enter such an order or not. Necessarily, therefore, in the exercise of that discretion, no one has a right to object to the terms and conditions here imposed. The party’s condition is no Avorse than it would have been had the sickness of the reporter, and hence the inability to procure a«transcription of his notes, extended beyond January 1, 1882. Any remedy he might have had in that case, and none other, he has had in this. "

We do not regard it a subject for us to inquire into, whether it would be equitable or inequitable to disregard the rule under the circumstances here shown. There must be a limit to the time within which to present bills of exceptions for the. signatures of judges, and it is most reasonable that opposite counsel should have previous opportunity to examine the bill. It can not be said the judge abused his discretion in enforcing the rule of his court. »

Mandamus denied.


text:
    Pennsylvania Company v. Patrick H. Boylan.

      Filed at Ottawa November 20, 1882.

    1. Evidence—relevancy to counteract effect of other testimony. In a case involving the question of negligence of a railway company in suffering loose planks to lie on a culvert between the rails of the track, resulting in personal injury to the plaintiff, the evidence was conflicting as to the fact of the culvert being worked upon on -the day before" the injury, the section boss and one H., a servant under him, having testified that no work was done on the culvert on the day claimed. After this the plaintiff’s father and mother both testified that the servant, on the day of the accident, said to them that he told the boss the evening before that it was a dangerous way to leave the planks, without being spiked down. • The court refused to allow the defendant to prove in rebuttal by the boss that the servant never told him anything of the kind: Held, that the proposed evidence, under the circumstances, was proper, and that the court erred in refusing it.
    2. Same—corroborative in case of conflict. Where there was evidence by the plaintiff that repairs were made by the servants of a railway company, the defendant, on a culvert on a certain day, and that the planks on the same were removed and left lying loose, while on the other side there was evidence that nothing was done to the culvert on ■ such day, which question was a material one in the case, the defendant called a witness who stated that he had been for twenty-three years in the defendant’s employ as a carpenter, his work including that of overhauling and repairing culverts, and was acquainted with their durability and use, and described the manner in which he rebuilt the culvert some nine months before the time of the alleged repairs, and that he left it in good repair, and the witness was then asked this question: “Undisturbed, how long would that condition last?” which the court refused to allow the witness to answer: Held, that the court erred in not allowing the witness to answer, as his answers would have terided strongly to corroborate the testimony on the one side or the other.
    3. Same—as to witness’ knowledge, or means of knowledge. In the same case a witness for the defendant had testified that on Saturday night before the accident, when he left, there was no place on the culvert where the planks were loose,—no place that he knew of. He was then asked, “Would you have known of it if there were?” which question the court excluded: Held, that the question was proper, and should have been allowed to be answered, although the more correct inquiry might have been to have asked the witness to state what means of knowledge he had as to the condition of the planks.

      4. Same—as to the occasion for removing the cover from a dangerous excavation. In the same ease a witness on the part of the defendant was asked, “For what purpose, or in what case, would the planking be removed by the company for the purpose of maintaining and operating its road? ” to which question the court sustained an objection: Held, that an answer should have been allowed to the question. The line of inquiry indicated by these questions would tend to settle the disputed question whether work was actually done on the culvert on the day named.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran,' Judge, presiding.
    Messrs. Willard & Drums, for the appellant:
    The court erred in disallowing the several questions respecting the culvert and its condition, propounded to the witnesses O’Donnell, Hynes, Gray and Keplinger. “Opinions, like other testimony, are competent in the class of eases in which they are the best testimony, as, when a mere description, without an opinion, would generally convey a very imperfect idea of the force, meaning and inherent character of the things described.” 1 Greenleaf on Evidence, (13th ed.) 494, note 1. To the same effect, see Whittier v. Town of Franklin, 46 N. H. 23; Lincoln v. Taunton Manufacturing Co. 9 Allen, 181; Linn v. Sigsby, 67 Ill. 75; Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 id. 142; Alexander v. Town of Mt. Sterling, 71 id. 366; Hopkins v. Indianapolis and St. Louis R. R. Co. 78 id. 32; City of Chicago v. McGiven, id. 347; Pennsylvania Co. v. Conlan, 101 id. 93.
    When a witness is impeached by showing he has made other statements inconsistent with his testimony, the party who first called him has the right to reexamine him, for the purpose of contradicting or explaining the matter. 1 Greenleaf on Evidence, secs. 462, 467; Richardson v. Kelly, 85 Ill. 491; Bock v. Weigant, 5 Bradw. 643; Robertson v. Brost, 83 Ill. 116; Commonwealth v. Wilson, 1 Gray, 340; Dishen v. Merchants’ Ins. Co. 11 Mete. 199.

      Messrs. Magee & Adiiinson, for the appellee,
    made various points in regard to the right to recover, and upon the facts of the case.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought in the circuit court of Cook county, July 19, 1881, for damages consequent upon being struck by a piece of plank caught from the covering of a culvert at Forty-seventh street crossing, in Chicago, by a passing locomotive of the defendant railroad company, on Sunday morning, July 20, 1879, whilst plaintiff was standing near the tracks of the railroad. The plaintiff recovered. On appeal to the Appellate Court for the First District the judgment was affirmed, and defendant appealed to this court.

The declaration contains two counts, the first averring that defendant suffered divers of the planks wherewith the culvert under the tracks was covered, near Forty-seventh street, to be and remain unfastened, and piled up and lying crosswise on the railroad; and the second averring that defendant negligently suffered the culvert to be repaired in a bad and unsafe manner, and in such a manner that divers planks with which it was covered were thrown loosely upon the railroad, and suffered to remain unfastened, and to lie crosswise of each other, by means whereof, etc.

All the proof to show negligence of the railroad company consisted in the testimony of plaintiff’s mother, and of her near neighbor, Dennis Larkin. Larkin, testified that the railroad hands were working on the culvert the Saturday before—that he saw them throwing the plank temporarily on the culvert, and putting on their hats and going home. Mrs. Boylan, plaintiff’s mother, testified that she noticed men at work the Saturday before, on the culvert. She noticed they were cleaning the culvert; the men were down in the culvert ; that they were working till late in the afternoon.

Witnesses on behalf of the defendant testified that none of the hands of the railroad company worked near Forty-seventh street on the Saturday before the injury; that na work was . done at that culvert or at that crossing by any of the railroad men that day. The testimony of these witnesses tended to show that the culvert was overhauled and thoroughly repaired in September, 1878, nine months before the accident, and that the company’s track inspector saw it every day thereafter, and that it remained in proper condition up to five o’clock Saturday night. The accident occurred at half-past seven o’clock the next morning, when it was found that all the planks between the two rails of the track in question had been pried up—that they were loose at both ends.

One of the assignments of error before the Appellate Court was, that the circuit court erred in the rejection of testimony. Gruhlky, the section foreman on the tracks at and in the vicinity of Forty-seventh street during the year 1879, and Hynes, a section man under Gruhlky, had given testimony that Uo work was done on the culvert on the Saturday next before the accident, and that the planks on the culvert were' all right that day. After this, Mr. and Mrs. Boylan, the father and mother of plaintiff, testified, that on Sunday Hynes said to them that he told the “section boss” (Gruhlky) the evening before that it was a dangerous way to leave those, planks, without being spiked down. After the close of plaintiff’s evidence, defendant’s counsel recalled the witness Gruhlky, and, at the court’s direction that an offer of proof be made, the following was made: “We then offer to prove by the witness Gruhlky, who was Hynes’ section boss, that .the witness Hynes never told him (Gruhlky) anything of the kind testified to by the witnesses Mr. and Mrs. Boylan, namely, that Hynes told them, or one of them, that he told the section boss that it was a dangerous way to leave those planks, • without being spiked down. ” To the proof thus offered the court sustained plaintiff’s objection, and excluded the offered proof. In this we think thére was error. This testimony of the Boylans was, in its tendency, evidence of the most damaging character against defendant. The natural impression from it upon the minds of the jury would he, that the section foreman had notice the evening before that the planks were left loose upon the culvert, and was warned that it was a dangerous way to leave them. Defendant should have been allowed to counteract such effect, so far as he might by the evidence, that the section foreman did not receive such notice and warning,—that Hynes did not make any such statement to him, as testified to by the Boylans. It is not a sufficient answer which plaintiff’s counsel makes, that it was not sought by the Boylans’ testimony to prove the fact that Gruhlky was told of the condition of the planks, but only that Hynes said he so told Gruhlky, the purpose being merely to impeach Hynes, by showing a contradictory statement by him. But evidently the effect would not be limited to such purpose,—it would tend to impeach the testimony of Gruhlky as well, and would be calculated to make the impression upon the jury as above named, and it was but just that Gruhlky should have been allowed the opportunity to disprove that such a statement had been made to him by Hynes.

The witness O’Donnell had stated that he had been twentythre.e years in the defendant’s employ as a carpenter, his work including that of overhauling and repairing culverts, and was acquainted with their durability and use. He described the manner in which he rebuilt this culvert in September, 1878, and stated he left it in good condition. He was thereupon asked this question: “Undisturbed, how long would that condition last?”

The witness Hynes had testified that on Saturday night, when he left Forty-seventh street, there was no place on the culvert where the planks were loose—no place that he knew of. He was then asked this question: “Would you have known it if there were?”

The witness Gray, who for many years had had charge of all work upon the tracks north of Englewood, was asked this ' question: “For what purpose, or in what case, would that planking be removed by the company for the purpose of maintaining and operating its road ?”

The court sustained an objection to each of these questions. In Hynes’ testimony that “there was no place on the culvert where the planks were loose—no place that he knew of, ” the last clause pretty much nullified the first. The statement that there were no planks loose that he knew of, was of little worth unless he would have known it if any were loose. An affirmative answer to the question put to him, that he would have known it if there had been any planks loose, would have counteracted the injurious effect of the last portion of his testimony, and left the first portion in full force, making. it valuable evidence for defendant. Perhaps, in strictness, the more correct inquiry might have been to have asked the witness to state what means of knowledge he had as to the condition of the planks; but yet, we think an answer to the question which was put should have been permitted.

There being evidence on one side that there were repairs made of the 'culvert, or the planks removed, on Saturday, and on the other side that there was nothing done to the culvert on that day, it. had a material bearing whether there was any necessity for making any repairs, or occasion for removing the planking, at that time. The questions to the witnesses O’Donnell and Gray were calculated to elicit information on those points, and the answers, according as they might have been, would have tended to corroborate the testimony on the one side or the other. If, from the length of time since the culvert had been put in good condition, there could be no probable necessity for any repairs at the time of that Saturday, and there could have been no other occasion than that for removing the planks, this would have been corroborative of the testimony that there were no repairs made or planks removed at that time, and in suck a balance of conflicting testimony any corroborative testimony.was important. We are of opinion that answers to all the questions should have been allowed.

Without considering any other assignments of error, for the errors indicated the judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.


text:
    William H. Bartholomew v. The People of the State of Illinois.

      Filed at Ottawa November 20, 1882.

    1. Criminal law—intoxication as a defence. At common law, where it required a particular intent in the doing of an act to constitute crime,—as, for instance, larceny, where the intent to steal must accompany the taking,— it is held it may be shown, in defence, that the party charged was intoxicated to that degree that he was incapable of entertaining the intent to steal, and that he neither then nor afterward yielded it the sanction of his will.
    2. Under our statute it may be shown, in defence of a charge of larceny, that at the time of the taking of the goods, and for some time afterward, the defendant was under the. influence of intoxication caused by the fraud or contrivance of some other person for the purpose of inducing him to commit, or aid in committing, the larceny.
    3. Witness—when convicted of infamous crime. At common law all crimes were not deemed infamous, and it was the infamy of the crime, and not the nature or mode of punishment, that rendered the person convicted incompetent as a witness. Our statute declaring what crimes are infamous, leaves several offences punishable by confinement in the penitentiary as not infamous, among which is manslaughter.
    4. Same—effect of statute making convicted persons competent: The purpose and object of the statute making persons convicted of crime competent witnesses, but allowing their conviction to be shown to affect their credibility, was sinxply to remove the common law disability, and to allow witnesses to testify who were thereby excluded. It does not, by implication, enlarge the class of cases in which a conviction discredited a witness. It is the conviction of an infamous offence that may be shown as affecting the credibility of the witness, and it was never designed by the statute to allow proof to be made of a conviction of an offence not infamous, and which is not legally presumed to affect the witness’ credibility.
    5. Same—proof of offence affecting credibility. It is the conviction of the person proposed as a witness,—not the punishment for the offence,— that may be shown for the purpose of affecting his credibility; and this can be proved only by the record, or an authenticated copy thereof, and it must appear that the conviction was had before a competent tribunal having jurisdiction to act and decide.
    0. Same—what the record must contain to show conviction. The caption, the returning of the indictment into open court by the grand jury, the-indictment and arraignment of the defendant, are as indispensable parts of the record as the judgment of conviction, to mate it admissible in evidence to affect the credibility of the party as a witness. "
    7. The statute only requires a certified copy of the judgment,—not a copy of the record of conviction,—to be delivered to the sheriff as his authority for detaining a convict and delivering him to the warden of the penitentiary. While this is a protection to the officers receiving the party, and may be sufficient evidence for them, such copy of the judgment is not sufficient evidence to prove the conviction generally, or to discredit the testimony of the person convicted, and it is error to admit the same in evidence for that purpose.
    8. Where a part)- on his trial for larceny becomes a witness in his own behalf, the record of the penitentiary, or a copy of it, is not admissible in evidence to show his former conviction of crime, and thereby affect his credibility.
    9. Same—of party charged with crime—his credibility. Where a party on his trial for a criminal offence becomes a witness, he places himself, as to cross-examination, on the same plane as other witnesses; and the jury, in the consideration of his testimony, may wholly disregard it, if, from the entire evidence, they believe it to be untrue, and they are at liberty, if they believe it to be true, to give it credence and weight, and act upon it to the extent of his acquittal.
    Writ of Error to the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.
    Messrs. Barge, Bathbün & Barge, for the plaintiff in error:
    To constitute a criminal offence there must he a union, or joint operation, of -act "and intention. Hurd’s Stat. 1881, page 409, sec. 280.

      If one who is too drunk to entertain a felonious intent takes property of another, but relinquished it before such intent could arise in his mind, there is no larceny. (1 Bishop on Criminal Law, sec 490.) Where drunkenness is brought about by fraud, etc., of some other person, for the purpose of causing the perpetration of an offence, the statute makes it a defence for the person so intoxicated. Hurd’s Stat. 1881, page 410, see. 291.
    It was not material whether the defendant was ever in the penitentiary. There was no such issue, and being an immaterial question, the answer of defendant, on cross-examination, that he had not been in the penitentiary, was conclusive on the People, and they had no right to introduce testimony to contradict him, either for the purpose of contradicting or discrediting him. 2 Phillips on Evidence, 955, see. 3; Roscoe on Criminal Evidence, 168; Gifford v. People, 87 Ill. 214; Fogleman v. State, 32 Ind. 145; People v. Brown, 72 N. Y. 571; People v. Crapo, 76 id. 288; State v. Huff, 11 Nev. 17.
    Even if it was proper for the prosecution to show that defendant had been in the penitentiary as a convict, it was not proper to do so by parol evidence. 1 Greenleaf on Evidence, 487, sec. 375 ; Rex v. Castel Carcinion, 8 East, 77.
    The court erred in admitting in evidence the two mittimuses authorizing and commanding the sheriff to convey the defendant to the penitentiary, and the warden to receive him, etc. This is not evidence to prove a conviction. The whole record, so far as it concerns the formal stages, must be either produced or exemplified, and if exemplified, the exemplification must show, on its face, that the record is complete. Wharton on Criminal Evidence, (8th ed.) sec. 603; 1 Bishop on Criminal Procedure, (2d ed.) sec. 814; Davidson v. Murphy, 13 Conn. 203 ; Miller v. Beaver, 30 Ind. 373; Mason v. Wolf, 40 Cal. 246; Godefroy v. Jay, 3 C. & P. 192, 14 E. C. L. 521; Porter v. Cooper, 6 C. & P. 354, 25 E. C. L. 435; Young v. Thompson, 14 Ill. 380.

      Mr. James McCartney, Attorney General, for the People:
    In order that a person charged with crime may derive any benefit from sec. 291 of the Criminal Code, three elements are evidently necessary:
    First—The drunkenness must be caused by the fraud, contrivance or force of some other person.
    Second—The drunkenness must be such as to cause the perpetrator of the deed to be bereft of “sound reason and discretion. ”
    Third—The drunkenness must be caused by some other person, for the purpose of causing the commission of an offence. The evidence fails to establish either of these propositions.
    That the instructions upon the subject of drunkenness state the law, correctly, see Shannahan v. Commonwealth, 8 Bush, 461; Estes v. State, 55 Ga. 31; State v. Welch, 21 Minn. 22; Beasley v. State, 50 Ala. 149; State v. Thompson, 12 Nev. 140; Colbath v. State, 2 Texas App. 391; State v. Hundley, 46 Mo. 414; Marshall v. State, 59 Ga. 154; Fisher v. State, 64 Ind. 435.
    Mr. C. B. Morrison, also for the People, after referring to and commenting upon the facts in evidence, especially as to the defendant’s guilt, and his acts, made the following among other points:
    The moment the defendant took the witness stand his credibility became material. Criminal Code, sec. 426; Commonwealth v. Nichols, 114 Mass. 287.
    As affecting his credibility, great discretion is allowed on cross-examination. Connors v. People, 50 N. Y. 242.
    A witness, on cross-examination, may be compelled to answer whether he has been in jail or prison, or State’s prison. Real v. People, 42 N. Y. 281; Wharton on Criminal Evidence, (8th ed.) secs. 154, 174, and notes. So he may be asked, within the proper discretion of the court, not only concerning his conviction, but also concerning any serious charge brought against him. Wilbur v. Flood, 16 Mich. 40; Hamilton v. People, 29 id. 173; Clemmens v. Conrad, 19 id. 170.
    When a defendant takes the witness stand, he does so of his own free will, and subjects himself to all that any other witness would, and he waives the constitutional privilege that no man shall be compelled to give testimony against himself. State v. Beal, 68 Ind. 345 ; Wharton on Criminal Evidence, (8th ed.) secs. 430-434; State v. Fay, 43 Iowa, 651; Burden v. People, 26 Mich. 162; State v. Huff, 11 Nev. 17; Brubaker v. Taylor, 76 Pa. St. 83; Brandon v. People, 42 N. Y. 265; Commonwealth v. Curtis, 97 Mass. 587.
    The records introduced in evidence were copies of the judgments, and are made out according to the requirements of the statute, and contain all that the law requires. Hurd’s Stat. 1880, page 418, see. 456, Criminal Code.
    The instruction that voluntary drunkenness is no excuse for crime, states a correct principle of law. 1 Arch. Criminal Law, (7th ed.) 31, 832; Kenny v. People, 31 N. Y. 330; 24 Wis. 452; Hurd’s Stat. 1881, sec. 291, Criminal Code; Rafferty v. People, 66 Ill. 118; McIntyre v. People, 38 id. 514; People v. Garbutt, 17 Mich. 9; Commonwealth v. Hawk, 3 Gray, 463; Nicholls v. State, 8 Ohio St. 435.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Plaintiff in error was convicted, by the judgment of the court below, of the crime of larceny. It was not seriously contested that a larceny was committed, or that plaintiff in error was connected therewith,—the property stolen being found in his possession. The defence was, at the time of the taking, and for some hours afterwards, plaintiff in error was under the’influence of intoxication caused by the fraud or contrivance of another person-for the purpose of'inducing him to commit, or to aid in committing, the larceny. Our statute provides: “ Drunkenness shall not be an excuse for any crime or misdemeanor, unless such dfunkenness be occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offence.” (Bev. Stat. 1874, p. 395, sec. 19.) At common law, where it required a particular intent in the doing of an act to constitute crime,—as, for instance, larceny, where the intent to steal must accompany the act of taking,—it is held it may be shown in defence that the party charged was intoxicated to that degree that he was incapable of entertaining the intent-to steal, and that he neither then, nor afterwards, yielded it the sanction of his will. 1 Bishop on Criminal Law, (3d ed.) sec. 490; United States v. Routenbush, 1 Baldw. 517; Swan v. The State, 4 Humph. 136; Pigman v. The State, 14 Ohio, 555 ; Kessy v. The State, 3 S. & M. 518. See, also, 1 Wharton on Criminal Law, (7th ed.) sec. 41. It was, therefore, competent to make the defence relied upon.

The defendant was himself examined as a witness, and his testimony tended to make out this defence. Upon cross-examination he was asked if he had not been in the penitentiary. The same question was repeated to him several times, under different" forms. He uniformly answered in the negative. Afterwards the prosecution introduced Moses H. Luke, receiving and discharging clerk of the penitentiary located at Joliet, whom the court permitted to testify, over the defendant’s objection, that he had seen the defendant in the penitentiary at Joliet, suffering punishment as a convict under two different judgments of conviction. The same witness was also allowed to produce and read to the jury, over the defendant’s objection, the mittimuses under which, he testified, the defendant had been, each time, received into the penitentiary as a convict. The same witness was also allowed to produce and read to the jury, over the defendant’s objection, a statement made by the officers in charge of the peniten-' tiary, as, the witness said, when the defendant was each time received into the penitentiary. This gives the date received, the number by which registered, the name, the alias, the county where from and the crime for which sent, term of imprisonment, age, personal description, -etc. Exception was taken to these rulings at the time.

Under the common law, persons convicted of crimes which rendered, them infamous were excluded from being witnesses. (1 Wharton on Criminal Law, (7th ed.) sec. 758; 3 Blackstone’s Commentaries, (Sharswood’s ed.) 369, 370; 1 Greenleaf on Evidence, sec. 372.) All crimes were not deemed infamous, (1 Boscoe on Criminal Evidence, (5th Am. ed.) 134, 1 Greenleaf on Evidence, sec. 373,) and it was the infamy of the crime, and not the nature or mode of the punishment, that rendered the witness incompetent. Our statute provides: “Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sodomy or other crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous.” (Rev. Stat. 1874, p. 394, sec. 279.) This leaves several offences punishable by confinement in the penitentiary that were neither deemed infamous at common law nor are declared to be so by statute, -notably among which may be mentioned manslaughter,—-an offence which is clearly not inconsistent with entire veracity. - •

By section 6 of division 42, of the revised Criminal Code, Rev. Stat. 1874, page 410, it is enacted: “No person shall be disqualified as a witness in a criminal ease or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime, but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness.” Palpably, the purpose of this section is simply to remove the common law disability, and allow witnesses to testify who were thereby excluded. It neither professes to, nor does by implication, enlarge the class of cases wherein convictions discredit the witness. At common law, conviction of an infamous offence excluded the party from being a witness, but- now he may testify notwithstanding such conviction,— i. e., of an infamous offence; but the fact of such conviction, —i. e., of an infamous offence,—may be shown for the purpose of affecting his credibility. It could not have been designed to have allowed proof of a conviction for an offence, not legally presumed to affect his credibility, to be given in evidence. It is to be noted it is the conviction, not the punishment, for the offence, that may be shown, for the purpose of affecting credibility,—and this was the proof required at common law to exclude the witness. “It is,” says Green-leaf’s Evidence, sec. 375, “the judgment, and that only, which is received as the legal and conclusive evidence of the party’s guilt, for the purpose of rendering him incompetent to testify. * * * And the judgment itself, when offered against his admissibility, can be proved only by .the record, or, in proper cases, by an authenticated copy, which the objector must offer and produce at the time when the witness is about to be sworn, or at farthest in the course of the trial. ” Boscoe, in his work on Criminal Evidence, (5th Am. ed.) 136, says: “Where it was said that a witness is disqualified by conviction, a judgment of a court of competent jurisdiction was meant, and that judgment .must have been proved in the ordinary way.” Further along the author says: “It must have appeared that the party was convicted before a competent tribunal. Thus where, in order to prove a conviction at Sierra Leone, an indictment, and conviction thereupon were given in evidence, Bailey, J., held it insufficient, because it did not show by what authority the indictment was found, and because it was imperfect, 'as a record, without the caption, ”—citing Cooke v. Maxwell, 2 Stark. N. P. 183; and the case fully sustains the text. To the like effect is 1 Wharton on Criminal Law, (7th ed.) secs. 763, 659.

That at least the caption, returning of the indictment into open court by the grand jury, the indictment and arraignment of the defendant, are as indispensable parts of the record as the judgment of conviction, can admit of no doubt. (1 Bishop on Criminal Procedure, 913, et seq.) The statute only requires a certified copy of the judgment,—not a copy of- the record of conviction,—to be delivered to the sheriff or other proper officer of the county, as his authority for taking a convict and -delivering him to the warden of the penitentiary. (Rev. Stat. 1874, p. 414, sec. 18, div. 45, of the Criminal Code.) This is not made evidence of the conviction of the defendant generally, but is simply designed as a protection to the officers receiving the party, and detaining him, and as to them, and for that act, is, doubtless, sufficient evidence of his conviction. But they who undertake to discredit a party because of his conviction of an infamous crime, must make legal proof of that fact,—not merely of authority to detain in the penitentiary ; and, in our opinion, no such proof was here made.

There was, as we conceive, no reason why the prison record, or a copy of it, should have been read.in evidence. Plaintiff in error, by electing to become a witness, placed himself, so far as cross-examination was concerned, on the same plane with other witnesses. The jury were authorized to take his interest in the result of the case into consideration, and they were at liberty to wholly disregard his evidence, if, from other evidence, they believed it untrue; but they were also at liberty to give credence to it, and -might, if they believed it to be true, act upon it, even to the extent of his acquittal. It was as essential to the theory of the law admitting plaintiff in error to testify, that his evidence should not be improperly impeached or discredited, as that the evidence of any other witness should not be thus discredited. It is quite true, the jury might not have decided differently from what they did if this evidence had been excluded; but they might have done so, and plaintiff in error was entitled to the benefit of that chance. We can not say the jury were bound to disbelieve the evidence of the plaintiff in error, nor can we say that, if his evidence had been believed, the same result, both as to fact of guilt and amount of punishment, must have been reached, and plaintiff in error was entitled to 'all evidence that, might, legitimately, have affected him in either respect.

We perceive no other error in the record, but for that indicated the judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Walker

text:
    William H. Wachter v. Benjamin G. Blowney et al.

      Filed at Ottawa November 20,1882.

    1. Trust— sufficiency of evidence to show. A, in 1867, erected a block of frame buildings, obtaining money from B for some of the cost thereof, B then residing with A, and continuing to so reside until A’s death, and with his widow afterward; but the proof failed to show how much money B furnished, or on what terms or understanding, except that A had often stated that one of the buildings, particularly named, belonged to B. Shortly before A’s death he and his wife executed a deed to B for all the property, which was left with 0, and not 'delivered and recorded until after A’s death. The purpose of this deed was not clearly shown, but it seems to have been left with 0 until A and B should settle their respective dealings, and the interest of each in the property. After A’s death B obtained a loan of, $6500 on the property, giving a deed of trust thereon to secure its repayment, and afterward, the interest, taxes and insurance having reached $2000, and the property being advertised for sale, B applied to the directors of the Firemen’s Benevolent Association to advance money to save the property for A’s widow and minor children, disclaiming title, and offering to waive any rights he might have, and to induce that association to aid the widow, voluntarily conveyed the property to her. That body paid the interest, taxes, etc., and the widow gave it her note for $1200, secured by deed of trust on the property. She died, having devised the property to the association in trust for her minor children, when B filed his bill claiming an equitable title in the property, and seeking to have his quitclaim deed to the widow and her will as to the property set aside, and asking to be decreed the owner of the property: Held, that the evidence failed to establish a trust, or show any kind of equitable title in B authorizing or requiring a conveyance to him of any portion of the property.
    2. Witness—competency as against heirs defendant. On bill in chancery against the widow and heirs of a deceased person, seeking a conveyance of real estate held by the father of the heirs at his death, the complainant is not a competent witness to testify in his own behalf to anything occurring before the death of the ancestor 6f the defendant heirs.
    3. Chanoeby practice'—dismissal of cross-bill on dismissal of original bill. Where an original bill is dismissed, on the hearing, for want of equity, there is no error in dismissing also a cross-bill by the defendants, which only seeks to dispossess the complainant from real estate, when the defendants’ remedy for possession is complete and adequate at law.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. A. Garrison, for the appellant:
    When the deed of Chappell and wife to Wachter was acknowledged, the latter was the owner in equity of the north house on State street. Prior to. that time Chappell held the title. thereto, in trust for him. A resulting trust can be proved by parol. Rev. Stat. 1874, p. 541, sec. 9; Perry on Trusts, secs. 96, 97, 99, 124, 137, 138, 139; Brown v. Williams, 14 Ill. 200.
    It can make no odds in principle, in equity, whether Wachter furnished money towards paying for the lots, or to pay to construct the block,—it took both to make the block. Besides, if Wachter’s judgment was then (1867) enforced, Chappell could not have built at all. 2 Story’s Equity Jur. 1156.
    When a deed is delivered in escroto, if the conditions are not complied with until after the grantor’s death, the title passes. Stone v. Duval, 77 Ill. 475; Skinner v. Baler, 79 id. 480; Shirley v. Ayers, 14 Ohio, 307; Price v. Chicago, Pittsburg and Fort Wayne R. R. Co. 39 Ill. 13; Wiggins v. Lark, 12 id. 132; Revard v. Walker, 39 id. 413; Union Mutual Ins. Co. v. Campbell, 95 id. 287; Gun v. Cockerill, 84 id. 319; Jackson v. Collin, 2 I. R. 248.
    The facts show that the quitclaim, deed.made by complainant to Mrs. Chappell of the lots was only intended as a security for the money to be loaned to aid her and her family, by the Firemen’s Benevolent Association. She held the title in trust for Wachter. Perry on Trusts, secs. 161, 162.
    That the same was only a mortgage, being given for security of money to be advanced, can be shown by parol. Jones on Mortgages, secs. 241, 250, 253, 255, 257, 258; Ewarts v. Walling, 42 Ill. 453; Cornell v. Hall, 22 Mich. 377; Owen v. Blake, 44 Ill. 135.
    Wachter always kept possession. Brown v. Gafney, 28 Ill. 149; Furgeson v. Stephens, 3 Gilm. 565 ; Miller v. Thomas, 14 Ill. 428; Smith v. Sackett, 15 id. 528; Williams v. Bishop, id. 553.
    Wachter was a witness to all transactions after the death of Chappell and wife. He should have been allowed to testify. Crane v. Crane, 81 Ill. 165.
    Mr. H. W. Wolseley, for the appellees:
    The furnishing of money by Wachter to aid Chappell in erecting buildings, furnished no equitable claim to the property improved by his money. This is a purely legal indebtedness, and should be presented to the probate court for allowance. Hales v. Holland, 92 Ill. 497; Blanchard v. Williamson, 70 id. 651; Dewey v. Eckert, 62 id. 220.
    The Statute of Frauds being pleaded, all verbal statements by Chappell as to ownership must be regarded as incompetent testimony. Kane County v. Harrington, 50 Ill. 232.
    The burden was upon appellant to prove tifie, and the defendants in interest being minors, it is essential the- record

      should show that the proofs fully sustain the allegations of the bill. King et al. v. Worthington, 73 Ill. 162.
    There was no error in refusing to'allow appellant to testify, in his own behalf. Stone v. Cook, 79 Ill. 428; Fischer v. Fischer, 54 id. 235 ; Mixell v. Lutz, 34 id. 382; King et al. v. Worthington, 73 id. 164; Crane v. Crane, 81 id. 166; Marshall v. Peck, 91 id. 187.
    The court erred in dismissing the cross-bills, and refusing to grant any relief thereon. The defendants were entitled to a decree for the surrender of the possession of the property held by Wachter.
   Mr. Justice Walker

delivered the opinion of the Court:

This bill was filed by appellant, against appellees, in the Cook circuit court. To it all of the defendants filed answers, and the Firemen’s Benevolent Association filed a cross-bill, asking to be allowed to execute the trust created by the will of Mrs. Mary Jane Chappell, deceased, widow of Delos N. Chappell, deceased. The minor defendants, William H., Horatio S., and Ida E. Chappell, by their guardian, also filed a cross-bill,—to both of which answers were filed, and there were replications to the answers. The case was heard on the proofs, and the bill and cross-bills were dismissed, and complainant brings the record to this court, and assigns errors.

It appears, from the evidence, that Delos N. Chappell, in the year 1867, purchased and received a conveyance of certain real estate, in the city of Chicago, on which he erected a block of frame houses. Appellant advanced money to aid in their erection, and Chappell made statements that the north house of the block was being built for appellant, who lived with Chappell from that time' until the death of Chappell, and afterwards with his widow, until her death. There is no. evidence that this money was ever paid. Chappell died in March, 1876, leaving surviving him Mary Jane, his widow, a daughter by a former wife, Didama Beeve, and his infant children, William H., Horatio S., and Ida B. Chappell.

After Chappell’s death, a deed from him and his wife to appellant, for the block of buildings, was placed on record. It bore date December 10, 1874, and was acknowledged on" the 26th of that month. In the month of January, 1877, appellant procured a loan of $6500, on five years’ time, at nine per cent interest, and to secure its payment he executed a trust deed on the premises to Adolph Loeb, as trustee. On the 6th of January, 1879, the interest on the loan, taxes and insurance, then unpaid, amounted to about $2000, and the property having been advertised for sale under the power contained in the trust deed, appellant attended a meeting of the directors of the Firemen’s Benevolent. Association, and requested them to take some action in the matter for the benefit of the widow and heirs of Delos N. Chappell, and proposed that if they would protect the widow and children, he would waive any claim he had to the property, and offered to convey any interest he might have in the property to Mrs. Chappell. To carry out the arrangement, he quitclaimed the property to her. The association paid the taxes, interest and insurance, and for a portion of the sum so paid she executed a note for $1200, with interest at eight per cent, and to secure the same she executed a trust deed on the property to Thos. B. Miller, as trustee. The association, by arrangement with Mrs. Chappell, took possession of the property, except some rooms occupied by her and her children and appellant, and a small store in the rear. The. association paid the taxes, insurance, and interest on the trust deeds, and to Mrs. Chappell means for the support of herself and family, from the rents of the property, until the time of her death, which occurred the 22d of July, 1880. She left her children surviving her. She made and published her last will, which was duly admitted to probate. By it she devised this real estate to the association in trust, for the benefit of her children.' She appointed B. G. Blowney executor of her will, and appointed him testamentary guardian of her children. She bequeathed certain articles of personal property to her executor, and to Didama Beeve. After her death the association continued in possession of the property, except appellant still retained possession of the rooms occupied by Mrs. Chappell in her lifetime. He filed this bill to set aside the quitclaim deed executed by him to Mrs. Chappell, and her will, so far as they affected the title to this property and the personal property which he claimed to own.

Has appellant shown an equitable title to the property, or any portion of it ? It is not claimed that he holds any other. His claim is founded on the fact that he furnished means, as far back as in 1867, to aid Chappell to erect the block of buildings, and that he, as early as in 1862, held a judgment for $1600 against Chappell, and that he and his wife conveyed the property to appellant, and that Chappell always spoke of and recognized the property as belonging to appellant. . The evidence is indefinite as to the amount thus advanced, or the terms upon which it was furnished. The evidence does not prove that there was any definite understanding in reference to the matter, and we are inclined to believe there was none. The testimony shows that Chappell repeatedly said the north building in the block was appellant’s ; but when Chappell executed the deed, and left it with Boone, it was understood he was to .hold it until they could settle their affairs in reference to the property. From this it is manifest that at that time it was not understood the property was that of appellant, and the title was not to vest in him until a future time.' Whether this deed was executed to vest the title in appellant when the parties settled and ascertained their several interests in the property, or for the purpose of effecting the $6500 loan from Loeb, the evidence does not clearly establish. After the deed was recorded that loan was effected, and some of the evidence tends to show that such was the purpose of the conveyance.

But he this as it may, appellant applied to the association, and ur^ed the directors to take charge of the matter, and save the property for the widow and children. He said, although the title appeared to he in him, that he would waive his rights if the association would take hold of the property, and save it for the widow and children. He volunteered to surrender all of his claims if the association would take charge of the property, and save it from the foreclosure sale, for which notice had been given. He was fully aware that unless this, or some other arrangement, could be speedily made, the property must be lost to the family, and any interest he may have had would be foreclosed, and cut off beyond redemption. The time was short in which to prevent the pending sale. He therefore seems to have sacrificed little or nothing in voluntarily surrendering any interest he may have had in the property, as it was on the verge of being swept away by the sale. ■ So far as the evidence discloses, he had no prospect of protecting his interest, if he had any, and this was the only hope of saving something for the widow and children. He did not ask the association to aid him, and some of the officers testify they would not, had he asked it. He stated to Miller and Sweenie that he had no interest in the property when he was urging that the association should protect the rights of the widow and, children, and the evidence is clear and satisfactory that he conveyed the title to Mrs. Chappell voluntarily, the officers not even demanding that he should convey to her.

This evidence that appellant considered the equitable title was in the widow and children, is clear and convincing. Had he regarded his interest as amounting to any substantial claim, it is unaccountable that he did not disclose it, and endeavor to have it protected. So far from doing so, he disclaims any interest in the property, urges its protection, but not for himself, and conveys to the widow to accomplish the purpose sought. From this wé are compelled to believe that he knew he had no well founded claim to the property, or he would have asserted it "when urging the association to protect the Chappells’ rights. Nor is this overcome by the declarations of Chappell in his lifetime, that appellant was the owner of the north house in the block. These declarations were no more specific than appellant’s that he had no interest in the property, made long subsequent to Chappell’s statements. Chappell’s declarations, and the proof that appellant furnished money to aid in erecting the building, and even the conveyance to appellant, if it were conceded the deed was properly delivered, are not sufficient to overcome the conveyance to Mrs. Chappell, accompanied as it was by his disclaimer of ownership and waiver of all claim to the property. He failed to establish a trust, or any kind of title, authorizing or requiring a conveyance of any portion of the property to him.

Appellant urges that the court erred in not permitting him to testify in the case. He is excluded by the statute from testifying to anything occurring before the death of Chappell or his widow, and he proposed to testify to nothing that occurred subsequently. There was, therefore, no error of the court in this ruling.

Appellees assigned cross-errors, and insist that the court should have decreed appellant to surrender possession. Such relief is purely legal, and appellees have shown no reason why it could not be had at law. They do not claim that there are legal obstructions to a recovery at law, or legal titles in the way, or any reason for the interposition of a court of equity. When complainant failed to establish a right to the relief sought, and his bill was dismissed, there was nothing further for the court to act upon. The cross-bills only sought relief that could be had at law. Had they sought equitable relief, and it had been sustained by the proofs, then it would have been the duty of the court to have granted it; but as the remedy at law is adequate, the court did not err in dismissing the cross-bills.

The decree of the court below must be affirmed.

Decree affirmed.