text:
    Alexander Flannigen v. C. E. Pope.
    1. Appeals — By a Garnishment Does Not Affect the Judgment Against the Defendant in the Attachment. — When a judgment is rendered by a justice against a defendant in attachment, and afterward a judgment is also rendered by him against a party served with a garnishee process in the same proceeding, and the defendant in the garnishee proceeding takes an appeal, but the defendant in the attachment does not, nor does he join in the appeal by the garnishee, but abides by the judgment rendered against him in the attachment, such judgment is not vacated by the appeal taken by the garnishee from the judgment rendered against him, but remains in full force and effect.
    2. Same — Practice on Appeals in Garnishment Proceedings. — Where a party summoned as garnishee of a defendant in attachment before a justice of the peace, appeals from the judgment rendered against him and the defendant in the attachment does not, but abides by the judgment rendered against him, on the trial of the appeal by the -garnishee, in the Circuit Court, the transcript of the justice is admissible as competent proof of the judgment upon which to base the proceedings against the person summoned as garnishee.
    3. Practice — In Attachment and Garnishee Proceedings, —In attachment and garnishee proceedings before justices, where the suit is commenced by attachment, the procedure as to the garnishee is under the attachment act (R. S., Ch. 11) only, until it has reached the stage where judgment has been rendered against the defendant in attachment, and thereafter the proceeding against the person summoned as garnishee is" under the garnishee act (R. S., Ch. 62), the same as in ordinary garnishee proceedings on a judgment where an execution has been returned unsatisfied and exists only by virtue of such act.
    Attachment and Garnishee Proceedings. — Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    B. H. Canby, attorney for appellant.
    L. E. Shaeffer, attorney for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

The questions in this case arise out of an attachment proceeding originally commenced before a justice of the peace by appellee against one Mary Farrell, in which proceeding appellant was regularly summoned as garnishee. The proceeding was duty prosecuted to judgment in favor of appellee against Farrell, rendered August 1, 1900, and to final judgment against appellant as garnishee for use of appellee, attaching and then judgment creditor of Farrell, rendered August 7, 1900. From this judgment appellant appealed to the City Court of East St. Louis. Farrell did not appeal nor join in the appeal nor was she in any manner made or asked to be made a party thereto, and she did not appear in the case at any stage thereof.

TJpon the trial in the City Court, appellee offered the justice’s docket,, showing his judgment against Farrell. This the court admitted in evidence over appellant’s objection. Ho evidence of the original indebtedness from Farrell to appellee was offered. At the conclusion of the trial the court rendered judgment in favor of appellee against appellant as garnishee. Ho judgment was rendered in that court against Farrell. To the admission in evidence of the justice’s docket, and the rendering of judgment against him, appellant excepted, and assigns upon the record these acts of the court as error.

Appellant’s whole case, stated in the language of his counsel, is:

“ In this case no evidence was heard upon the trial in the City Court proving or tending to prove that Mary Farrell, the defendant in attachment, was in any manner indebted to C. E. Pope, the plaintiff in attachment. True, the docket of the justice was introduced in evidence, which showed the rendition of a judgment against the defendant in attachment, but that judgment was vacated by the appeal, and was therefore no evidence whatever upon which the court could render a judgment against the defendant in attachment. But the court did not render any judgment whatever against the defendant in attachment. It rendered a judgment in favor of Mary Farrell, the defendant in attachment, for the use of C. E. Pope, the plaintiff in attachment, and against the garnishee, for the sum of $25 and costs of suit. The garnishee would not be protected in paying this judgment against a suit brought against him by Mary Farrell, the defendant in attachment. The court has no jurisdiction to render a judgment against the garnishee until it has first rendered judgment against the defendant in attachment. The court in this case had jurisdiction to render a judgment against the defendant in attachment, but it did not do so. In the absence of such judgment it was clearly erroneous to render a judgment against the garnishee.”

In support, counsel cites Sec. 91, Chap. 79, Starr & Curtis’ Statutes; Reynolds v. DeGeer, 13 Ill. App. 113; Seymour-Danne Co. v. Jennings, 88 Ill. App. 347, and Lee v. Bodley, 92 Ill. App. 523.

The statute is:

“Ho final judgment shall be entered against a garnishee in any attachment proceedings until the plaintiff shall have recovered a judgment against the defendant in such attachment.”

True, but the plaintiff (appellee here) had recovered a judgment against the defendant in attachment (Farrell),as was proven by the justice’s docket, which the court admitted in evidence for that purpose. In answer to this condition, appellant’s counsel contends that by appellant’s appeal alone the judgment in favor of appellee against Farrrell was “ vacated,” and that sucli appeal brought up to the City Court for trial de novo, the issues between appellee and Farrell which had been determined in that judgment and from which no appeal had been taken, and that in absence of such trial de novo in the City Court and judgment over again in that court, in favor of appellee against Farrell, that court had no jurisdiction to render judgment against appellant as garnishee. This brings us to the controlling question in the case. Did the appeal, by appellant " alone, from the final judgment rendered against him on August 7th, “ vacate ” appellee’s judgment against Farrell, rendered August 1st, and bring all the issues involved in that case up to the City Court for trial de novo ? If Farrell had appealed or joined in the appeal there could be no doubt.

. Sec. 54, Chap. 11, of statutes above quoted from, provides :

“When an attachment shall be returned served upon anv person as garnishee, the justice shall make an entry upon the record of his proceedings in the case, stating the name of such person summoned, and continue the case as to such garnishee, and shall proceed with the case as against the defendant in the attachment, as though the attachment had been levied on personal property.”

Sec. 55 provides, that when judgment is entered by a justice of the peace against a defendant in attachment in such case, the justice shall issue a summons against the garnishee requiring him to appear, at a time and place, not less than five nor more than fifteen days, to answer, and Sec. 56 provides, that the further proceedings against the garnishee shall be had in pursuance to the act on garnishment. The act on garnishment (Chap. 62) provides in detail for the trial and judgment as to the garnishee for appeals from such judgments. It must be borne in mind that where the suit is commenced by attachment, the procedure as to the garnishee is under the attachment act (Chap. 11) only, until it has reached the stage where judgment has been rendered against the defendant in attachment, and that thereafter the procedure against the garnishee falls under and shall progress in pursuance to the garnishment act the same as would an ordinary garnishee proceeding on an ordinary judgment where execution has been returned “ no property found.” The garnishee’s right to take and prosecute a separate appeal as was done in this case, exists only by virtue of Sec. 28 of the garnishment act.

In the subsequent proceedings against the garnishee he has no interest concerning the judgment of plaintiff against the defendant in attachment, except to know and demand that it be properly proven, before final judgment is entered against him, that such judgment against the defendant in attachment in fact exists, and that the court had jurisdiction to render it. In Pomeroy v. Band, McNally & Co., 157 Ill. 176, the court says:

“ If the proceedings in attachment are void, they may be attacked by the garnishee; but if the court had jurisdiction, its errors and irregularities can only be called in question by the defendant in the original attachment. * * * Whether or not the Circuit Court heard evidence as to the indebtedness claimed by the plaintiff in attachment from the defendant is a matter of no concern to the garnishee.”

This case is in many respects analogous to the case at bar. It too, was a suit in attachment commenced before a justice of the peace; judgment was rendered against the defendant in attachment, the garnishee alone appealed to the Circuit Court; upon the trial in the Circuit Court that court heard no evidence as to the alleged indebtedness from the defendant in the attachment to the plaintiff, and rendered judgment against the garnishee, as was done by the City Court here.

We think counsel for appellant has misconceived the authorities upon which he relies. In Reynolds v. DeGeer, the defendant in attachment appealed, which of course vacated the judgment' against him and brought up the case for trial de novo in the Circuit Court. In Seymour-Danne Co. v. Jennings, judgment was rendered against the defendant in attachment on March 14th, and against appellant, the garnishee, on March 25th. From this latter judgment the garnishee on April 14th appealed. Mo appeal was taken by the defendant in attachment from the judgment against him. The Circuit Court dismissed the appeal, upon what grounds is not stated, but probably on the erroneous theory that the appeal by the garnishee brought up for re-trial the issues between the plaintiff and the defendant in attachment, and that the transcript showed that more than twenty days had elapsed after the rendition of that judgment before the filing of the appeal bond. The appeal was by the garnishee alone, and the Appellate Court held that the judgment appealed from was the one of March 25th against the garnishee, that an appeal will lie from such judgment, and that as twenty days had not elapsed since the rendition of that judgment, the appeal was properly taken, and that the garnishee was entitled to a trial de novo as to the issues involved in its appeal. This case does riot hold that the appeal by the garnishee from the judgment of March 25th, against it, “vacated” the judgment of March 14th against the defendant in attachment 'and' brought up for trial de novo the issues determined by that judgment. In Lee v. Bodley, one Miller was the plaintiff, Bodley was the defendant in attachment, and Lee was the garnishee. After judgment had been rendered against Bodley, the garnishee answered that he had $225 in his hands, but that it was claimed by certain intervenors, among them one Wilce. The justice disallowed the claims of the intervening claimants and rendered judgment against the garnishee for use of Miller, the plaintiff in attachment. From this judgment the garnishee appealed to the Circuit Court. Mo appeal' was taken by Bodley nor was he in any manner made a party. The Circuit Court entered judgment against the garnishee, but in favor of the intervening claimant’Wilce, instead of rendering it as the justice had, in favor of Miller, Bodley’s attaching creditor. From this judgment the garnishee again appealed to the Appellate Court. The Appellate Court held that under the facts in the case Bodley was a necessary party to the appeal, and say:

“ He was an interested party. The answer of the garnishee discloses $225 in the latter's hands in which presumably Bodley had, or claimed to have an interest. By the judgment against the garnishee as rendered by the justice in favor of Miller, the attaching creditor, the fund in the garnishee’s hands would have been applied to Bodley’s use in payment of the judgment against him, and if so applied he would have no cause to complain. * * * But by the judgment of the Circuit Court, the fund in controversy is taken away from Bodley, and from his judgment creditor, and given to Wilce, a third party, without that court acquiring jurisdiction over Bodley or giving him a chance to assert his claim. A judgment is in effect rendered against Bodley * * * in a case to which he is not a party.”

It is true that there are, near the end of the opinion, some general statements made in connection with an authority there cited, viz., Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582 (590), which might be so understood as to lend support to appellant’s contention; but when the language of the court is considered in the light of the facts of the case in which it is used and of the authority cited in connection with it, we feel quite sure the court meant no more than to emphasize the necessity of the courts having jurisdiction over all the parties directly and prejudicially affected by their judgments. What is there said is not necessary to the conclusion reached by the court in that case; the case cited, in connection with the language used, was not ah appeal case from a justice of the peace, but was originally commenced in the Circuit Court, and there is not a word in it about the procedure in such appeal cases, nor about the effect upon a judgment against a defendant in attachment of an appeal by a garnishee alone, from the final judgment subsequently rendered against him, nor about the trial de novo, and finally, if the language used be understood as appellant contends, then it does not correctly state the law as we understand it.

We are of opinion that under the facts of this case it was not error for the court to admit the justice docket in evidence for the purpose of proving the judgment of August 1st, in favor of appellee against appellant, without first hearing evidence to prove that the defendant in attachment was indebted to appellee and rendering judgment over again in that court against her.

We hold that appellant’s appeal was from the judgment of August 7th against him, that it was taken and prosecuted under Sec. 28 of the garnishment act, and that it did not “ vacate ” the judgment of August 1st, in favor of appellee against Farrell, the defendant in attachment, and bring up to the City Court for trial de novo, the issues between those parties which that judgment had determined. The judgment of the City Court of East St. Louis is affirmed.


source: Caselaw Access Project

author: Mr. Justice Bigelow

license: Public Domain

text:
    Julia D. Ramsay and G. Van Hoorebeke v. E. P. Ramsay, Adm’r.
    1. Administration of Estates — No Privity Between Administrators Appointed in Different States. — When administration is granted in different States to different persons in respect to the same estate, no privity exists between such administrators.
    3. Same — Diligence of Creditors in Presenting Claims. — Under our statutes a person who proves his claim at the end of the second year after the letters of administration are granted, is considered in law as diligent as the person who proves his claim on the adjustment day.
    8." Same — Application of the Rule, No Privity Between the Administrations of Different States. — The rule that there is no privity between the administrators of. different States, merely goes to the extent of declaring that an administrator is only answerable to the court appointing him, and if there is an ancillary administration and the estate is solvent in that jurisdiction, the debts to creditors there will be paid there instead of sending them to the domicile, and that judgments recovered against a representative in one jurisdiction are not evidence against a representative holding by appointment in another.
    4. Same — The Administration at the Domicile is the Principal Administration. — The administration at the domicile is the principal administration and all others are but ancillary and more or less subservient thereto, either as a matter of comity or of positive right.

      5. Same — Distribution After Debts of Creditors in Ancillary Jurisdictions are Paid. — After the ancillary administrator has paid the debts of the local creditors, if the court appointing him orders distribution of the residue, such distribution will be made in accordance with the laws of the domicile.
    6. Same — Payment by a Non-resident Debtor' to a Domiciliary Administrator When a Good Defense to a Suit by the Ancillary Administrator. — A payment made by a non-resident debtor to a domiciliary administrator will be a good defense to a suit brought by an ancillary administrator appointed after such payment.
    7. Same — Domiciliary and Ancillary Administrators. — The domiciliary administrator succeeds to the title of all the decedent's personal estate wherever located, while the ancillary administrator’s title is limited to such assets as are within the jurisdiction appointing him.
    8. Same — Object of Ancillary Appointments — Solvent and Insolvent Estates. — The chief object of ancillary appointments is the protection of local creditors, and when these have been paid, it is the duty of the ancillary administrator to transmit the balance of the assets to the domiciliary administrator for disposition by the courts of the domicile; but this rule holds good only in case the estate as a whole is solvent; if insolvent, local creditors are only entitled to a pro rata dividend, measured by all assets and liabilities, although the ancillary administrator had sufficient funds in his hands to pay such creditors.
    9. Same — No Distinction Between Resident and Non-resident Creditors in this State. — The courts of this State permit non-resident as well as resident creditors to prove their claims against ancillary estates, leaving the question of the payment of such claims to be dealt with the question of when the solvency or insolvency of the estate is to be determined.
    10. Same — Postponement of Creditors Receiving Dividends from an Ancillary Administrator. — A person who proves up his claim in an ancillary jurisdiction and receives a dividend from the administrator there, is to be postponed to the extent of such dividend in the distribution of the assets in the principal administration, the entire estate being insolvent.
    Claims in Probate. — Appeal from the Circuit Court of Clinton County; the Hon.. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Statement. — Rufus R. Ramsay, a resident of Carlyle, Clinton county, in this State, died intestate on the 11th day of Rovember, 1894, leaving a large amount of real and personal property, the most of it situate in this State, but some of it situated in the State of Missouri. Defendant in error was appointed administrator of the estate in Illinois, or. the 17th of November, 1894, and Sterling Price Bond was appointed administrator of the estate in-Missouri on the 8th of March, 1895.
    On the 5th of February, 1895, plaintiff in error Julia D. Bamsay, widow of deceased, had a claim of $18,931.72 allowed her by the County Court of Clinton County, against the estate, and on or about the same date plaintiff in error Van Hoorebeke proved up a claim for the sum of $2,020.42 in the same court in his favor against the estate, both claimants being residents of the State of Illinois. Later, and within one year after letters of administration had issued from the Missouri court to Mr. Bond, Mrs. Bamsay proved up and had allowed to her, in the Probate Court of St. Louis, Missouri, the same claim that had been allowed to her in Clinton county, which then amounted to the sum of $19,252.40, the difference being in the accrued interest. At the same time Van Hoorebeke proved up his claim in the same court in Missouri for the amount originally allowed in the County Court of Clinton County. The Illinois court classified the claims as of the 7th class, while the Missouri court classified them as of the 5th class, as defined by the laws of that State, the laws of the two States differing as to the classification of claims.
    The property in Missouri was real estate, and the administrator there sold the property under the order of the court there. At the June term, 1897, there was a final settlement of the administration in Missouri. The Van Hoore-' beke claim, with interest up to that time, amounted to $2,226.15, and the Bamsay claim, with interest up to the same time, amounted to $20,591.03. The Probate Court of St. Louis ordered distribution to be made of the assets in the hands of the administrator at that place, a dividend of 12.44 per cent being paid to the 5th class creditors, giving' Mrs. Bamsay $2,561.51 and Van Hoorebeke $278.03. Defendant in error, as administrator of the estate in Illinois, appeared before the St. Louis court and asked that the money in the hands of the Missouri administrator be transmitted to himself, as principal administrator, for distribution under the directions of the County Court of Clinton County. The Missouri court denied the request, and plaintiffs in error received from the Missouri administrator the respective amounts above stated. 3STo appeal was taken from the order of the St. Louis Probate Court.
    Under the statutes of Missouri ordinary debts are placed in the 5th class, if presented within one year, and in the 6th class if presented after one year and within two years after letters granted.
    On the 25th of June, 1900, defendant in error presented a partial report of his acts as administrator to the County Court of Clinton County. In this report he charged himself with the two items paid to Julia D. Ramsay and Q-. Van Hoorebeke by the Missouri administrator, and he took credit for the same amounts, as having been paid by him to said claimants, respectively. Including these two items paid by the Missouri administrator the report shows that the assets of the estate on the 25th of June, 1900, amounted to §131,810.42, and that the total liabilities of the estate to 7th class creditors, including the claims allowed to plaintiffs in error, amounted to §183,854.70, thereby showing the insolvency of the estate in Illinois.
    Plaintiffs in error filed exceptions to this report; the • County Court of Clinton County ordered that the administrator pay fifty cents on the dollar of the claims of the 7th class creditors, except that the respective amounts received by plaintiffs in error from the Missouri administration should first be credited on their claims as allowed, and that fifty cents on the dollar should then be paid on the balance of said two claims joaripassu with the other creditors.
    Plaintiffs in error appealed separately from the order of the County Court to the Circuit Court of Clinton County, where, by stipulation, both appeals were consolidated, and the court heard the cause on an agreed statement of facts. The Circuit Court directed the administrator to first pay all claimants, except plaintiffs in error, 12.44 per cent on their claims, to make such claimants equal with Mrs. Ramsay and Mr. Yan Hop rebebe, as to the whole estate in both Illinois and Missouri, and that the balance in the 'hands of the administrator be ratably distributed thereafter among all of the claimants of the seventh class.
    The following sections of the Missouri Statutes were introduced in evidence on the trial:
    “ Section 261. When administration is taken in this State on the estate of any person, who at the time of his death was an inhabitant of any other State or country, his ' real estate found here, after the payment of his debts, shall be disposed of according to his last will, if he left any. * * * If there be no such will, his real estate shall descend according to the laws of this State. His personal estate is disposed of according to the laws of the domicile.
    Section 262. Upon final settlement, after the payment of all debts for which the same is liable in this State, the residue of the personal estate, if any, may be distributed and disposed of in the manner aforesaid, by the court in which the estate is settled, or it may be transmitted to the administrator of the domicile of deceased, as the court thinks best.
    Section 263. If the deceased dies insolvent, his estate found in this State shall, as far as practicable, be so disposed of that all bis creditors here and elsewhere may receive an equal share in proportion to their respective debts.
    Section 264. To this end the estate shall not be transmitted to the foreign administrator until his creditors, who are citizens of this State, shall have received their just proportion that would be due them if the whole estate, wherever found, were divided among all said creditors in proportion to their respective debts, without preferring any species of debts to another.
    Section 265. Ho creditor not being a citizen of this State, shall be paid out of the assets found here, until those who are citizens shall have received their just proportion as provided in preceding section.
    Section 266. If there be any residue, after such payment to the citizens of this State, the same may be paid to other creditors who shall duly have proved their debts in proportion to the amount due to each of them respectively.
    Section 267. Ho one shall receive more than would be due him, if the whole estate were divided ratably among all creditors who shall have duly proven their claim in the couit having jurisdiction thereof in this State.

      Section 268. The balance, if any, may be transmitted to the foreign executor or administrator, or if there be none, it shall, in three years, be distributed ratably among all creditors,” etc.
    S. P. Bond, attorney for Julia D. Ramsay, plaintiff in error.
    Gr. Van Hoorebeke, pro se.

    M. P. Murray, attorney for defendant in error.
   Mr. Justice Bigelow

delivered the opinion of the court.

The naked question presented by this record is, whether a claimant, who has received a dividend from an ancillary administration, shall be postponed in the division of assets found in the domiciliary administration, to the extent of the per cent already received by him, the estate being insolvent. It is the contention of plaintiffs in error that by their assumed diligence in having had their claims allowed in the Probate Court of St. Louis, they have gained a preference over other creditors of the estate located in the domicile of the intestate, to the extent of the foreign assets paid over to them, and that this assumed preference exists in the nature of collateral security, so that plaintiffs in error are entitled to the same percentage out of the assets, located in this State that other creditors are, disregarding for the time being the amounts paid them by the Missouri administrator, provided all sums paid do not exceed the amount of their claims. To sustain this contention reference is had to such adjudications as Furness v. Union National Bank, 147 Ill. 570, and Levy v. Chicago National Bank, 158 Ill. 88, where the rule is laid down, that a secured creditor may prove up his claim for the full amount thereof, without reference to the value of his collaterals, and that such creditor is entitled to dividends on his entire claim out of the general fund just the same as unsecured creditors are. It is likewise sought to fortify such position by referring to the statutes quoted from Missouri and further by the general rule in administration of estates that there is no privity between administrations granted in different States. McGarvey v. Darnall., 134 Ill. 367.

We regard each suggestion made and authorities cited, entirely inapplicable to a case of this character.

Collateral security is in the hands of the creditor by the act of a person who has the full dominion of his property. When he dies this dominion passes under control of the laws of the land. By our statutes a person who proves his claim at the end of the second year after letters of administration granted, is as diligent as the person who proves his claim on claim day. Section 71 of Chapter 3, Hurd’s B. S. 1899, provides, that where the estate is insufficient to pay all demands the demands in any one class shall be paid pro rata. Such is and has been the policy of this State for many years in reference to estates administered here. The rule that there is no privity between administrations of different jurisdictions does not sanction the idea that an estate is made up of as many independent funds as there are jurisdictions, so that some creditors may, by a species of equitable attachment, gain a preference over others, if the estate should be insolvent. The rule merely goes to the extent of declaring that an administrator is only answerable to the court which appointed him; that if the estate is solvent in the ancillary administration, debts to home creditors will be paid there, instead of sending such creditors to the domicile, and that judgments recovered against a representative in one jurisdiction are not evidence against a representative holding by appointment in another jurisdiction. Outside of such considerations, as a question of potentiality the estate of a deceased person is in substance one estate, even though it be spread through several jurisdictions where local laws may more or less temporarily disturb this conception. From the same conception flows the rule of law, that the administration at the domicile, is the principal administration, and that all others are but ancillary and more or less subservient thereto, either as a matter of comity or of positive right. Young v. Wittenmyre, 123 Ill. 303; Schouler’s Executors and Administrators, Sec. 175.

From this conception flow many other rules in administration, such as that after the ancillary administrator has paid the debts of local creditors, if the court orders distribution of the residue, such distribution will be made in accordance with the laws of the domicile and not of the forum (Cooper v. Beers, 143 Ill. 25); that payment made to a domiciliary administrator by a non-resident debtor will be a good defense against a suit afterward brought by an ancillary administrator appointed after such payment (1 Woerner’s. Law of Administration, Sec. 161; Bull v. Fuller, 78 Iowa, 20); that the domiciliary administrator succeeds to the title of all the decedent’s personal estate, wherever located, while an ancillary administrator’s title is limited to such assets as are within the jurisdiction which appointed him. Vol. 13, Am. & Eng. Ency. Law (2d Ed.), 931. These rules we mention, not by way of decision, but by way of illustrating the views held by courts and text writers as logical deductions from the conception that a deceased person’s estate is substantially one estate, even though the situs thereof may be in many jurisdictions.

The chief object of ancillary letters is the protection of local creditors; when these have been paid, it is the duty of the ancillary representative to transmit the balance to the principal administrator for disposition by the courts of the domicile. Young v. Wittenmyre, supra; 1 Woerner’s Law of Administration, Sec. 167. But this rule holds only in case the estate, as a whole, is solvent; if insolvent, local creditors are only entitled to a pro rata dividend, measured by all assets and all liabilities, although the ancillary representative has sufficient funds in his hands to pay such creditors. Dawes v. Head, 3 Pick. 128; Davis v. Estey, 8 Pick. 475; 1 Woerner’s Administration, supra; 2 Kent’s Commentaries, Sec. 434. The law of Missouri found in the quoted sections 264 and 265 is only a statutory rule in recognition of this principle, as Mr. Woerner observes in the paragraph above quoted. In the aim at the principle of equality in distribution of insolvent estates some courts have denied the right of domiciliary creditors to prove their claims in the ancillary administration. Barry’s Appeal, 88 Pa. St. 131; Churchill v. Boyden, 17 Vt. 319. Other courts permit non-resident as well as resident claimants to prove their claims against the ancillary estate, leaving the question of payment of claims to be dealt with afterward, when the solvency or insolvency of the whole estate is to be scrutinized. Miner v. Austin, 45 Iowa, 221. (In Rosenthal v. Renick, 44 Ill. 202, the Supreme Court of this State follows the latter rule; however, the question of distribution was not up for consideration.) The facts in Miner v. Austin were: The intestate died in Illinois and letters of administration were issued on his property here. He also left property in Iowa to the amount of $6,000, and letters of administration were issued there. The claimants who wrnre residents of Massachusetts filed a claim to the amount of $60,000 against the estate in Illinois, which was allowed here. A claim by a resident of the State of Iowa for the sum of $2,000 had already been allowed against the ancillary estate. The Massachusetts claimants asked the allowance of their claim in Iowa; the lower court refused to allow the claim. This order was set aside by the Supreme Court. The court said:

“ But the case we have before us is one where the an- • ciliary administration is insolvent (or will be, if the plaintiff’s claim is allowed, as we held it should be), and there is no evidence as to whether the principal estate is solvent or insolvent. If it is solvent, it is clear that plaintiffs whose claim has been allowed against it should receive their payment from it. But if it is insolvent and can not pay as large a percentage as the ancillary estate could pay if no claims were allowed against it except those which are allowed against it alone, then the plaintiffs would be entitled to share in the ancillary estate; and inasmuch as this may happen, we hold that the Circuit Court erred in disallowing the claim. But justice would seem to require that they should not, in the aggregate, receive a larger percentage than those whose claims have been allowed against the ancillary estate alone.”

This language is as applicable to a principal administration, as to an ancillary one.

We have no means of knowing the precise grounds upon which the Probate Court of St. Louis awarded the 12.44 per cent to plaintiffs in error; nor do we regard this fact as important. The estate was insolvent in both jurisdictions as a matter of fact, whether the Missouri court knew it or not. In no view can the order of the Missouri court bind assets of the Eamsay estate further than assets under its control; it may be, if the Illinois estate could not have paid all of the claimants except plaintiffs in error as large a per ' cent as was paid to plaintiffs in error in Missouri, that they would be entitled to hold what they received by virtue of the order of a court of competent jurisdiction; on that

question we express no opinion. But so long as the estate was insolvent in both jurisdictions, the true legal effect of the order of payment to plaintiffs in error was this : By reason of the insolvency of the entire estate, there was due plaintiffs in error only a pro rata dividend when the final report was made by the Missouri administrator, and the 12.44 per cent was part payment of this share. Such is the precise import of the Missouri law (quoted in the statement of facts); from its provisions no intended' preference ’ on behalf of any claimant can be gathered, not even on behalf of resident creditors. Equality among all creditors is the aim of that law. The insolvency of the estate in Illinois was, without question, brought to the attention of the Missouri court by the defendant in error; that court, perhaps, being unable to say that the 12.44 per cent would do more than pay plaintiffs in error their pro rata share in the entire estate, ordered distribution of the amount on hand to the persons who were before the court. This payment had in view, as far as it was practicable at that time, the condition of the entire estate, wheresoever located; but if that be not so, we hold with the Iowa court, that in the distribution of the assets within our own jurisdiction, justice would seem to require that a person who proves up a claim against an ancillary estate and receives a dividend from such estate is to be postponed to the extent of that dividend in the distribution of the assets in the principal administration, the entire estate being insolvent. 13 Am. & Eng. Ency. of Law (2d Ed.), 937, 938; Hays v. Cecil, 16 Lea (Tenn.), 160; Lawrence v. Elmendorf, 5 Barb. 73.

The ruling of the Circuit Court being in accordance with the views herein expressed the judgment is affirmed.


author: Mr. Presiding Justice Creighton

text:
    James N. Fender v. A. J. J. Rogers.
    1. Use and Occupation — Foundation of the Action.— The action for uge and occupation is founded upon a contract, express or implied, and to sustain the action it must appear that the relation of landlord and tenant existed between the parties or their privies.
    2. Same — Where the Lessor's Possession is Adverse to the Owner.— The rule that one who continues to occupy premises after being notified by the owner that he will be required to pay rent thereby becomes liable for the rent, does not apply where such possession is adverse and hostile to such owner and has been so from the beginning.
    3. Same — Where the Action Will Not Lie. — An action for use and occupation will not lie where there is no privity between the plaintiff „ and the person in possession.
    Assumpsit, for use and occupation. Appeal from the County Court of Clay County; the Hon. John R. Bonney, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    G-. A. Hoff and H. B. Boyles, attorneys for appellant; Frank F. Holeman, of counsel.
    A. M. Bose, attorney for appellee.
   Mr. Presiding Justice Creighton

delivered the- opinion of the court.

This was an action commenced before a justice of the peace, by appellant against appellee, to recover for use and occupation of a village lot, on which was situate a small stable. From the judgment rendered by the justice the case was appealed to the County Court of Clay County, where "trial de novo was had, by jury, resulting in a verdict and judgment in favor of appellee.

.The action, is based on the second clause of section one of the landlord and tenant act, Chap. 80, Starr & Curtis’ Statutes. The statute provides that the owner of lands may sue for and recover a fair and reasonable satisfaction for the use and occupation thereof, when such lands are held and occupied by any person without any special agreement for rent.

So far as we are able to learn from the evidence in this case, one Mary A. Fender, on the 6th day of November, 1899, was in peaceable and lawful possession of the stable in question, and on that day leased it to appellee for a term of one year and put him into possession thereof. Thereafter on the same day appellee was served with notice as follows:

“ Iola, III., Nov. 6, 1899.

A. J. Eog-ebs :

“Take notice that we, the undersigned, are the owners of the premises occupied by you, situate on lot seven (7), block two (2), in the village of Iola, Illinois, and that we hereby demand of you the immediate possession of the said premises, or that you pay to the undersigned the rent for the said premises. Also take notice that we shall, from this date, bold you personally liable to us for the rent, for the use and occupation of the said premises, and notify you not to pay any rent for the same to one Mary A. Fender. Tours, etc., Jas. N. Fender, Docia Williams, M. H. Fender, J. W. Fender, F. Fender.”

It does not appear that appellee had any knowledge of any title or claim, on the part of any of these parties, to the premises prior to or at the time he entered into possession under said lease. His lessor was in peaceable and lawful possession, by what right or title does not appear, but it does inferentiallv appear that her possession was adverse and hostile to, and in no manner under or derived from appellant. Upon the trial appellant put in evidence a deed, bearing date February 16, 1890, from one Edward Fender, purporting to convey all the premises in dispute to appellant, but it does not appear that either he, or any of the said noticers, had ever had any kind of possession of any part of said premises under said deed or o then vise, or that all or any of them, had ever exercised any act of control over the same.

The action for use and occupation is founded upon a contract express or implied, and to sustain such action it must appear that the relation of landlord and tenant existed between the parties or their privies. Dudding v. Hill, 15 Ill. 61; Sanborn v. Haynes, Gordon & Co., 26 Ill. App. 335. We do not understand that counsel for appellant controvert this doctrine, but they rely on the rule that “ one who continues to occupy premises after being notified by the owner that he will be required to pay rent, thereby becomes liable,” and contend that such condition establishes the relation of landlord and tenant between the parties and brings the case within the statute upon which appellant’s suit is based.

This rule does not apply where such possession is, and from the beginning was, adverse and hostile to such owner. Title in the plaintiff and use and occupation by the defendant are not enough to support this action. The action for use and occupation will not lie where there is no privity between the plaintiff and the person in possession. American and English Encyclopædia of Law, Vol. 12, 756 and 757; Dudding v. Hill, 15 Ill. 61; Oakes v. Oakes, 16 Ill. 106; Rose v. Day, 21 Ill. App. 139.

Appellee did not in any manner, directly or indirectly, enter into possession of or hold the premises in question by, through or under appellant. They did not sustain to each other the relation of landlord and tenant as to such premises. There was no privity between them, and consequently no liability on the part of appellee that could be enforced on the part of appellant, by the action resorted to.

The conclusions thus far reached are decisive of the case and render a discussion of the various errors assigned unnecessary. Such discussion would be wholly bootless. The judgment of the County Court is affirmed.


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    Estate of Rufus N. Ramsay v. The People, etc., for the use of the Commissioners of the Southern Penitentiary.
    1. Official Bonds — Admission in Evidence. — In this State all official bonds are required to be acknowledged by both principal and sureties before some officer authorized to take acknowledgments of instruments under seal, and such acknowledgment is to be taken as prima facie evidence that the instrument was signed, sealed and acknowledged in the manner set forth in such acknowledgment, and is to have the same force and effect as evidence in all legal proceedings as that given to acknowledgments to deeds of conveyance of real estate.
    2. Same— Want of Approval Does Not Invalidate. —The requirement that official bonds shall be approved by some other official, is for the purpose of protecting the State, and is a matter in no wise concerning the makers of the bond.
    3. Same — When the Court Will Look to the Law for the Condition of an Official Bond. — When the condition of an official bond is not as full as the law requires it should be, the court will look to the law to learn what the duties of the official giving it are, concerning the finances of the institution he represents.
    4. Same — Application of the Rule “ Strictissimi ” Juris to Sureties on Official Bonds. — The undertaking of a surety is strictissimi juris, but this rule of law is not to be invoked where it is sought to ascertain the true meaning of words or terms only, and not to enlarge their scope.
    5. Same — Obligors upon Official Bonds Are Insurers of the Safety of the Public Funds. — The warden of the penitentiary and the sureties upon his official bond are insurers of the safekeeping of the public funds coming into his possession.
    6. Practice — In Suits upon Official Bonds. — When the plaintiff in a suit upon an official bond has established the fact that the principal in the bond has received any public moneys which he has not turned over to his successor or to the person or persons entitled to it by law, the burden of showing why he has not turned it over, is upon the defendants in the suit — that is, the officer and his sureties. .
    Debt, upon the official bond of the warden of the Southern Penitentiary. Appeal from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Statement. — January 23, 1893, James D. Baber was duly appointed warden of the Southern Illinois Penitentiary, and on the following day gave what is claimed by appellees, a temporary official bond, in the sum of $50,000, with Thomas E. Ford, Henry Seiter, and Charles J. Reuter, as his sureties, and he immediately took charge of the penitentiary, receiving from his predecessor in office all unexpended moneys belonging to it, remaining in the hands of such predecessor.
    The law requiring the warden to give bond is as follows :
    “ The warden, before entering upon the duties of his office, shall take and subscribe the oath or affirmation prescribed by section twenty-five, article five, of the constitution of this State. And he shall also enter into a bond to the people of the State of Illinois in the penal sum of $50,000, with good and sufficiént sureties, to be approved by the governor and by the said commissioners, or a majority of them, conditioned for the faithful performance of the several duties which now are or may hereafter be required of him by law,which said bond and oath or affirmation shall be deposited in the office of secretary of state.” Hurd’s R. S. 1899, p. 1267.
    On the 15th of February, 1893, Baker executed another official bond in the sum of $50,000, with Henry Seiter, Rufus N. Ramsay and Charles J. Reuter, as his sureties; it was duly acknowledged by the makers, and -after having been accepted and approved by the commissioners of the penitentiary, it was deposited in the office of the secretary of state at Springfield, as required by law. The condition of the bond is as follows:
    “ The condition of the above obligation is such, that whereas, the above bounden James D. Baker has been appointed warden of the Southern Illinois penitentiary, now if the said James D. Baker shall faithfully perform his duty as such warden, then this obligation to be void, otherwis'e to be in full force and effect.”
    Rufus N. Ramsay died November 11,1894, and James D. Baker resigned his office as warden November 30th of the same year, and was immediately succeeded by John J. Schneider.
    A large amount of money belonging to the State was received by Baker while he held the office of warden, a part of it from the sale of the products of the penitentiary, and a part from appropriations made by the State for the support of the institution.
    At Lebanon there was what was called a bank, which was run under the name of “Henry Seiter & Co.,” but of which Henry Seiter, one of the sureties on Baker’s bond, was the exclusive owner. In this bank, Baker kept depos.ited, in his name as warden, a portion of the funds belonging to the penitentiary. About ten days after Baker resigned as warden, Seiter made an assignment for the benefit of his creditors.
    Some time before Baker became warden, he had been a partner of Seiter in the banking business.-
    Before Seiter made an assignment, and while the bank was running, Baker knew that the assignment was about to be made. From the time he resigned his office until Seiter made his assignment, Baker made no effort to withdraw the money from Seiter’s bank, or to turn it over to Schneider, his successor in office.
    The balance of the money in Seiter’s bank, due Baker as warden at the time Seiter made his assignment, was §11,750, and for this sum a claim in favor of appellees, duly verified, was filed on March 20, 1896, against the estate of Bufus H. Bamsay, in the County Court of Clinton County, and at the same time or soon after, a copy of Baker’s bond, which Bamsay had signed as surety, duly certified by the secretary of state, was also filed; bub on account of the litigation between the sureties on Bamsay’s bond as state treasurer and his estate (which was protracted through several years), this case was not tried until that litigation was ended, when by agreement of parties, this case was transferred to the Circuit Court of Clinton County, where a jury was waived and the case was tried by the court, resulting in a judgment for appellee for the total amount of the claim, to be paid in due course of administration as a seventh class claim, and the estate has brought this appeal.
    John Q-. Irwin and M. P. Murray, attorneys for appellant.

      Van Hoorebeke & Louden, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

This case, in substance, is an action on the bond of February 15, 1893, called by the commissioners the principal or permanent bond, against the estate of Rufus A. Ramsay, one of the sureties on the bond.

Ao written pleadings were filed in either the County or Circuit Court, and as the parties went to trial by agreement in the Circuit Court, without first trying the case in the County Court, and having it regularly taken by appeal from that court to the Circuit Court, and as an action of debt on a penal bond is not required to be formally brought in the County Court in order to establish a claim for damages against an estate for a breach of the condition of the bond, there is no merit in appellant’s first assignment of error, which questions the form of the judgment, because it was not entered for the entire penalty of the bond, to be satisfied by the payment of the §11,750 damages found by the court.

Other minor questions are raised in appellant’s brief and argument, which only require to be briefly noticed.

It is contended by counsel for appellant that the bond was improperly admitted in evidence without first proving Ramsay’s signature to it. By a law approved May 31,1879, in force July 1, 1879, and which is now section 1 of chapter 103 of Hurd’s Revised Statutes of 1899, it is provided that all official bonds shall be acknowledged by both principals and sureties, before some officer authorized by law to take acknowledgments of instruments under seal,” etc.; and after providing a form of acknowledgment to be substantially followed, it further provides, “ which acknowledgment shall be deemed and taken as jprima facie evidence that the instrument was signed, sealed and acknowledged in the manner therein set forth, and such acknowledgments shall have the same force and effect, as evidence in all legal proceedings, as that given to acknowledgments of deeds of conveyance of real estate.”

A deed of real estate acknowledged in the manner the bond in this case was, would be admitted in evidence by any court in the State without further proof.

We are of the opinion that the bond was properly proven to have been executed by Rufus R. Ramsay, to the extent of putting the burden of proof upon appellant to establish the contrary.

A further contention is, that the bond was not approved by the commissioners of the penitentiary, nor by the governor, as provided by law. As to the commissioners, their approval is indorsed on the bond.

It is true the bond does not appear to have been approved by the governor, but that fact does not render it of no effect. The requirement that such official bonds shall be approved by the governor, is for the purpose of protecting the State, and is a matter that in no wise concerns the makers of the bonds. Mechem on Public Officers, Secs. 311, 312, 313.

It is urged that “ it was not within the authority of the commissioners to release the Ford bond.”

Whether the commissioners did right or wrong in surrendering or in destroying it (if it was surrendered or destroyed), is a matter we can not inquire into in this case. The question is, did Baker hold the office under the bond in suit in this case, and did he perform the duties required of him by law, and’ the conditions of the bond ? If he did so hold the office, and did not perform the duties, his sureties are liable for his default. But it is urged that Ramsay died before the bond was indorsed “ filed,” in the office of the secretary of state, and therefore it was not delivered in the lifetime of Ramsay, and so his estate is not liable. This conclusion does not follow from the premises.

We are of the opinion that when the bond was accepted by the commissioners, and was approved by them, that the delivery of it was complete, so far as Baker and his sureties were concerned. • Section 8, of chapter 108, of Hurd’s R. S. of 1899, requires the bond and oath of office to be “ deposited” in the office of the secretary of state, and the uncontradicted evidence is, that immediately after the bond was executed, it was sent to the secretary of state.

The plaintiff below asked, and the court held, four propositions of law, to each of which holdings the defendant excepted.

The defendant below asked the court to hold six propositions of law, all of which were refused, and the defendant excepted to each refusal.

After what we have already said, we think it unnecessary to refer to but one of the plaintiff’s propositions and one of defendant’s.

Plaintiff’s first proposition is as follows:

“ 1. Under the law in this case, the warden and his sureties are liable for all moneys coming into his hands as warden of the Southern Illinois Penitentiary by virtue of his office while such warden, and not paid out or disbursed by him as such warden, and the plaintiff is entitled to judgment on the bond for the balance shown by the evidence to have been in his hands at the time he turned the office over to his successor in office.”

The condition of the bond is not as full as the law requires it should be, but if it was, it would furnish, by itself, nothing to show what the undertaking of the warden was concerning the finances of the penitentiary, and hence we must look to the law to learn what the warden’s financial duties were. Section 19 of chapter 108 of the statute before referred to, provides:

“ The warden shall attend to the fiscal concerns of the penitentiary, under the direction of said commissioners, and shall use his best endeavors to defray all the expenses of the penitentiary by the labor of the convicts; he shall superintend the labor of the convicts when employed in manufacturing or other work on behalf of the State and shall act under the direction of said commissioners in making contracts for the employment of the labor of the convicts and for furnishing the necessary supplies for their support, and in purchasing such raw material as may be required for manufacture by convict labor, and in taking charge of the articles so manufactured, and selling and disposing of the same for the benefit of the State.”

Section 20 of the statute provides:

“ He shall render to said commissioners on the first day of each month a full and accurate statement of all moneys received by him, and all sums of money expended by him during the preceding month; showing on what account received and expended, and shall accompany said report with proper vouchers for all such expenditures; which report shall be verified by the oath of the warden.”

These sections embrace all of the law in regard to the finances of the penitentiary, so far as the warden has anything to do with them.

From the sections of the law above quoted, it will be seen that the warden has substantial charge of all the fiscal affairs of the penitentiary. True, he is under the direction and control of the commissioners whenever they see fit to direct and control him, but in all financial matters where they do not specially direct and control him, he must be answerable directly to the commissioners, and this is doubtless the reason why he is required to give so large a bond.

- So far as the money deposited in Seiter’s bank is concerned, Baker acted upon his own responsibility, without advice or direction from the commissioners in placing and keeping it there. It appears from the evidence that he alone was in control of the money and he only could check against it. He had a duty to perform in regard to all the money that came into his hands and if he had expended it for his own private use, there could be no question that he had failed to perform his duty, and hence he would have been liable on his bond for the money, and if he was liable, his sureties were also liable. It was his duty to have paid over the money to his successor in office on the termination of his own legal right to retain it. What else could he legally do with it ?

Fiad it been expressly provided in the condition of the bond, that if Baker should pay over to his successor in office all moneys in his hands belonging to the State or penitentiary, the bond should be void, all would agree that if he failed to pay over the money, without legal excuse, the bondsmen would be liable.

If Baker was legally bound to pay over the money, it was one of the duties, for the breach of which his bondsmen became liable, even though the duty was not expressly named in the bond.

Whatever the warden was by law required to do, became his duty to do.

We are not unmindful that the undertaking of a surety is striotissimi juris, but this rule of law may not be invoked where it is sought to ascertain the true meaning of words or terms only, and not to enlarge their scope. If it was not the duty of the warden to pay over the money to his successor in office, or to the commissioners of the peniten-

tiary, then no duty rested upon him under the law, to account for it, in any way that we can discover, and the bond was useless, at least so far as the money was concerned.

We are of the' opinion that the words of the bond, “if the said James D. Baker shall faithfully perform his duties as such warden,” cover and embrace the duty to account for and pay over all moneys received by him belonging to the penitentiary and not paid out on its account, during his term of office.

Defendant’s refused proposition of law, to which we refer, is as follows:

“ The court is asked to hold that the makers of the bond sued on did not, by virtue of the condition thereof, become insurers of the funds which went into the hands of the principal of said bonds as warden of the Southern Illinois penitentiary.”

The term “ insurers ” is broad, and may in a given case be construed to cover a loss from an act of Glod or the public enemy; but it was not used in that sense in the proposition; the sense in which it was used, included all risks and losses not caused in that manner; stated differently, it was intended to hold that Baker was a bailee of the moneys that passed through his hands, and could only be held liable, if at all, in that character. We are aware that on this question there is some conflict in the áuthorities. In considering the matter the fact must not be lost sight of, that it was money really belonging to the State, that Baker was intrusted with, and it does not matter whether it was received from the State treasury or from the sale of articles produced by the penitentiary, or from both sources; it must be classed as State revenue, and when it came to Baker’s hands, he was bound to keep it safely, that it might be had at any moment, to meet the needs of the penitentiary. He took the office voluntarily, with all the responsibilities attending it, and if, by reposing confidence in another, a portion of the money with which he was intrusted was lost, he and his bondsmen must answer for the loss. For what purpose was the bond made and the penalty fixed at so large a sum, if not for the purpose of keeping the fund secure from any loss, except through the act of God or the public enemy ?

Of what avail is it to require township collectors, county collectors and State treasurers to give heavy bonds to secure the revenue that comes to their hands, if, when it gets to the warden of the penitentiary, the guards that have theretofore secured the safety of the money are not succeeded in turn by another, that holds it secure in the warden’s hands, until properly expended or accounted for % If the rule contended for by counsel for appellants is sound as to the warden, we can discover no reason why it should not apply to the other officers before named, as well as to all officers of the customs. In the case of Muzzy v. Shattuck, 1 Denio (N. Y.), 233, the court says:

“ The main question which the defendants make in this case is, whether a town collector of taxes is responsible for the payment of the taxes collected by him, to the several public officers to whom he is directed to pay by his warrant, though the moneys thus collected have been stolen from his possession without any fault, want of care, or omission of duty on the part of such collector. The court held the collector and his bondsmen responsible for the taxes.”

The condition of the bond in that case, was for the faithful execution of his duties as such collector.

In the case of United States v. Prescott et al., 3 Howard (U. S.), 587, Prescott was a receiver of public moneys at Chicago, and the money for which the suit was brought was feloniously stolen, without any fault or negligence on bis part. The court in delivering its opinion said:

“ This is not a case of bailment, and consequently the law of bailments does not apply to it. The liability of the defendant Prescott arises out of his official bond, and principles which are founded upon public policy.” * * * “ Public policy requires that every depositary of public money should be held to a strict accountability. Hot only that he should exercise the highest degree of vigilance, but that ‘he should keep safely’ the moneys which come to his hands. Any relaxation of this condition would open the door to frauds, which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs so as to establish his loss without- laches on his part.”

The question as to whether the defense set up was a valid one, arose on a demurrer to defendant’s plea setting up the manner of the loss, and- the demurrer was sustained. The Prescott case was followed in United States v. Morgan et al., 11 Howard, 161, and in United States v. Dashiel, 4 Wallace, 182; also, in Boyden et al. v. United States, 13 Wallace, 17. See also State of Ohio v. Harper et al., 6 O. State, 607, in which the Muzzy case and Prescott case are cited and followed.

Mr. Mechem in his late work on Public Officers, at sections 298-299 and 300, cites other cases in support of the view that an officer, in receiving public money, becomes a debtor and is not a mere bailee; and while in section 301 he gives his own private view that the officer is a bailee for hire, he frankly admits there are but few authorities that sustain his view.

The Supreme Court of this State, in Thompson et al. v.. Board of Trustees, 30 Ill. 99, cited with approval and followed in the Prescott case, supra, and in the late case of Swift v. Trustees of Schools, 189 Ill. 584, it has affirmed the rule laid down in the Thompson case.

We are of the opinion that the court did not err in holding plaintiff’s first proposition of law, nor did it err in refusing to hold defendant’s first proposition of law asked to be held.

But if the conclusion at which we have arrived — that Baker held the money as a depositary of public funds and therefore was practically an insurer against its loss — is stating the law too broadly when applied to Baker’s sureties, there remains the further question as to whether Baker, if living, would be liable for the money as bailee. What the duty of a bailee of property for hire is, is well understood to be, that he is bound to take such care of it while in his possession or control, as a reasonably prudent man would take of his own property, under similar circumstances.

In considering the facts in the case and the rule of .law to be applied to them, we must not omit to consider what may be termed negative facts as well as affirmative facts— what was not proven, as well as what was proven — in order to arrive at a just conclusion in regard to the whole matter.

There is a decided lack of evidence in regard to some material matters, upon which, it would seem,- light might have been thrown, and this evidence it was incumbent upon appellant to have produced.

When the plaintiff, by its evidence, established the fact that Baker had received money that he -had not turned over to his successor or the commissioners, the burden of showing why he had not paid it over, was upon the defendant; and merely to show that he had intrusted the money to a single individual, whom he knew was doing business under an assumed name of “ bank,” was not enough to relieve him from liability, because it can not be said that a reasonably prudent person would have intrusted nearly $12,000 of his own money with such a person, unless he had positively known or had reliable assurance from a source on which he could safely rely, that the money would be forthcoming at any time when called for.

If Seiter was, in and by himself, so wealthy as to be entitled to take to himself the additional name of “ bank,” surely some of his neighbors and friends could have been found willing to testify to his financial ability in the neighborhood where he resided, but not one was called for that purpose, and the only evidence on that point in the record comes from one of the commissioners of the penitentiary, and it is very general and scarcely deserves to be noticed.

Baker had been a partner of Seiter up to a short time prior to his appointment as warden, and he must have known Seiter’s financial condition; and if it was good, what became of his wealth in so short a time? Seiter himself, when testifyihg, was not asked this question, and if he had been, the only answer he could have made, so far as we are able to see, was that he had little or no wealth of his own.

Under such circumstances shall it be said that Baker, in depositing the money of the State in Seiter’s so-called bank, acted with the State’s monej7" as a reasonably prudent person "would have done with his own money ? We can not hold that this question can be answered in the affirmative. To do so, would open the door for innumerable frauds to enter.

Some suggestions are made in the argument of counsel for appellant that perhaps should not go unnoticed. One is.

“That by ordering the money from the State treasury when it was not needed the commissioners made the loss possible; and that the increased risk caused by thus accumulating a large and unnecessary fund, is not a risk assumed by the sureties in executing the bond.”

The contention is significant in that it in effect assumes that the commissioners were culpable in aiding the warden in getting money from the State treasury in a manner not justified by law, and really for the purpose of assisting Seiter. Whether such was the case, and the commissioners actually knew they were aiding the warden in getting money from the treasury, when it was not needed to run the penitentiary, but was really obtained for the purpose of holding up Seiter’s bank, which Baker must have known was in a failing condition, it is unnecessary to determine in this case, as this action is not against the commissioners.

If it should be established that the commissioners were engaged in the scheme carried out by Baker, and that they should be held liable for the loss of the money, as is claimed by counsel for appellant, that would make no difference with the legal liability of Baker and his sureties on his bond, since the money no more belonged to the commissioners as individuals than it did to Baker. Baker resigned the wardenship nine or ten days before Seiter made his assignment and it was Baker’s duty to have immediately turned over all funds in his hands, or under his control, to his successor in office, and if this had been done, it is probable the money would have been saved to the State.

It is further insisted that if the commissioners, on the resignation of Baker, had promptly required him to account to them or to Schneider, his successor in office, the loss would have been averted.

That also may be true; but if it is, the fault of the commissioners can not be used to neutralize Baker’s fault. He must, as we have already said, have known that Seiter was liable (to put it mildly), soon to fail entirely7; and yet he did absolutely nothing toward securing the money.

Would a reasonably prudent man have done Avith his own money what Baker did with the money of the State intrusted to him ? We are of the opinion he would not.

We are not unmindful of the other points urged in the able argument of counsel for appellant why the judgment should be reversed; but when all are considered, with the facts in the case and the inferences that may be fairly drawn from them, we are unable to come to any other conclusion than that Baker was grossly negligent, if not reckless, in the care of the State’s money intrusted to him.

It therefore follows that it does not matter on what theory the case was tried or -whether the court erred or not, in holding or refusing to hold propositions of law submitted to it; if the judgment is right, which it is, it should be affirmed, which is accordingly done. Judgment affirmed.


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    Estate of Rufus N. Ramsay v. The People, etc., for the use of the Commissioners of the Asylum for Insane Criminals.
    1. Official Bonds — Sufficiency of Acknowledgments Before Notaries of Other States. — Official bonds are required to be acknowledged before some officer authorized by law to take the acknowledgments "of instruments under seal, and when taken before a notary outside of the State it must be certified by him under his seal of office and when so taken and certified it does not matter whether or not the notary was authorized by the laws of his own State to take acknowledgments of instruments under seal, and an acknowledgment of an official bond so taken and certified is sufficient to allow it to be admitted in evidence in a suit brought upon it.
    Debt,upon an official bond. Appeal.from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    John G. Irwin and M. P. Murray, attorneys for appellant.
    Van Hoorebeke & Louden, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

This case, in its main features, is the same as the case of the same appellant v. the People of the State of Illinois, for the use of the Commissioners of the Southern Illinois Penitentiary, decided at the present term of this court. (See case reported ante.)

That case was really an action on the official bond of James D. Baker, as warden of the Southern Illinois Penitentiary, against the estate of Bufus V. Ramsay, the deceased, being one of the sureties on the bond, and this case is really an action on the bond of said James D. Baker, as treasurer of the Illinois Asylum for Insane Criminals. The penalty of the bond is $25,000 and the condition of it is as follows:

“ The condition of the 'above obligation is such that whereas the said James D. Baker has been appointed treasurer of the Illinois Asylum for Insane Criminals, a public institution incorporated by the State of Illinois, and situated at Chester, in the said State.

Now therefore, if the above bounden James D. Baker shall faithfully perform all the duties of this said office, as required of him by the laws which are now or may be hereafter in force, then this obligation to be void, otherwise to remain in full force and virtue.”

The bond was dated February 13, 1893, and Eufus N. Eamsay and Henry Seiter were sureties on it. It was approved by the commissioners of the Southern Illinois Penitentiary and by the governor of the State.

Baker resigned the office of treasurer January 2, 1895, and one A. A. Short was appointed his successor. The former action was brought to recover the money in Baker’s hands, as warden of the Southern Illinois Penitentiary, when he resigned that office, and this action was brought to-recover the money in Baker’s hands as treasurer of the Illinois Asylum for Insane Criminals when he resigned that office.

The two cases were practically consolidated and were tried together. In this case appellees recovered a judgment against the Eamsay estate for $5,809.86, as a seventh class claim.

The contentions of the counsel on each side of the two cases are substantially the same in each case, with the exception that it is contended by counsel for appellant in this case that the court erred in receiving the bond in evidence over the objection of appellant’s counsel, for the reason that although it was acknowledged before a notary public in Missouri, there was no evidence that the notary was authorized by the laws of that State to take the acknowledgment.

The contention could not well be answered if the authority to take the acknowledgment depended upon the law of that State, which it does not, but depends entirely upon the law of this State.

Section 1 of chapter 103 of Hurd’s Eevised Statutes of 1899, provides that official bonds shall be “ acknowledged before some officer authorized by law to take acknowledgments of instruments under seal,” and section 20 of chapter 30, of the same statutes, provides that deeds, mortgages, etc., may be acknowledged before a notary public, but when the acknowledgment is so taken before a notary public, without this State, etc., it shall be certified by him “under his seal of office.” The acknowledgment was so certified, and it will thus be seen that it was taken according to the law of this State, and it does not- matter whether the notary was authorized by the laws of Missouri to take acknowledgments of sealed instruments or not. In holding the acknowledgment of the execution of the bond sufficient to allow it to be introduced in evidence, we are not to be understood as holding that where an action is brought against the estate of a deceased person upon a written instrument purporting to have been made by such person in-his * lifetime, and a copy of the instrument is filed with the declaration in the case, that such a case does not fall under section 34 of the practice act (as the sections are numbered in Hurd’s E. S. of 1899). •

Hone of the authorities cited by counsel for appellant in support of their contention are applicable to the facts as they appear in this record.

The judgment is affirmed.


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    Cyrus E. Hull v. Albert Sherrod, by His Next Friend.
    1. Landlord and Ten ant— Landlord.' s Liability for Inj uries Inflicted, upon Strangers While the Tenant is in Possession. — Where a landlord is under no obligation to make repairs upon demised premises, not having reserved the right to make or control the making of repairs, changes or improvements upon the premises, his liability to third persons in ^respect to subsequently accruing conditions of improvements upon the premises is suspended as soon as his tenant’s occupation commences and he will not thereafter be liable for injuries resulting from such changes or improvements made by his tenant.
    Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed.
    Opinion filed September 4, 1901.
    F. C. Smith and M. Millard, attorneys for appellant.
    Alex. Flannigen and B. H. Canby, attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action in case, in the City Court of East St. Louis, by appellee against appellant to recover for a personal injury. Trial by jury. Verdict and judgment in favor of appellee for $2,000.

The undisputed facts of this case are, that appellant owned a lot in the city of East St. Louis at the corner of St. Louis and Third streets, on which stood a two-story building. About two years before the time of the injury complained of he bad leased these premises to a Mrs. Campbell, at a rental of $20 per month, she to make any improvements she wanted and keep the premises in repair. Along the property on the Third street side was a “ cinder ” sidewalk, and at least a part of that side of the lot was inclosed by a fence. At the time Mrs. Campbell took possession under her lease there was a “ single ” gate in this fence, but she desiring to take her horse and buggy in and out through that opening, reconstructed it, making it a “ double ” gate, so hung as to open outward, and when opened, the sections stood across the cinder ” sidewalk. Appellant ivas not consulted with reference to this change in the construction of the gate and had no knowledge of it at the time it was made nor for months afterward, but he did know of it before the time of the injury. The premises were entirely under control of the tenant, Mrs. Campbell, and were used by her for keeping roomers and boarders. Albert Sherrod, the beneficiary appellee, was a boy about nine years old and resided with his father and mother in those premises as roomers or sub-tenants under Mrs. Campbell. The gate ivas kept closed and locked, and was never used except when driving vehicles in or out. On the day the injury occurred Mrs. Campbell and her husband had driven out through the gate and caused it to be shut and locked after them, and on their return they found it as they had left it, shut and locked. In the meantime, however, the injury to the boy, for which this suit is brought, did in some manner occur. The injury resulted in the loss of sight of one eye. .

The evidence as to bow it occurred and what caused it is conflicting and directly contradictory. A number of witnesses testified that the gate was open across the walk and that the boy, beneficiary appellee, ran against it and hurt his eye. Others testify that the gate was not open, and that the boy was running and fell against the fence. The jury found for appellee, and we must assume the facts to be that the gate was open and that the boy ran against it. There is no evidence tending to show who opened the gate or how it became opened, nor how long it remained open, but it is not contended that appellant opened it or had anything to do with opening it; he "was in San Francisco at the time and had been for five or six months.

At the time the gate was reconstructed by Mrs. Campbell and during all the time that elapsed thereafter, the premises were in her sole possession and control; appellant, the landlord, was under no duty to make repairs, had not reserved the right to make or control the making of any repairs, changes or improvements, and did not make or control the making of any such, or attempt to do so. In such cases the law is that the landlord’s liability to third parties in respect to subsequently accruing conditions of the improvements on the premises is suspended as soon as the tenant’s occupation commences. Taylor’s Landlord and Tenant, 8th edition, section 175, and cases cited.

“ The analogy is direct to the rule which holds the owner of real estate free from liability for injuries caused by a contractor to build upon the .premises. In each case the control is parted with.”

Appellee’s counsel contend that the £l terms of the tenancy expired with the end of each month, that each succeeding month was a new letting,” and that in that way appellant had re-let the premises to Mrs. Campbell after the gate was reconstructed. We can not agree to the proposition that the tenancy in this case so terminated at the end of each month as to amount to a surrender of possession and control, and a new leasing and new possession for each succeeding month. The tenancy might have been terminated by either party upon giving the other thirty days previous notice, but this was not done. There was not a day from the time the contract was made that it was not in full force, nor a day from the time that Mrs. Campbell entered into possession that she did not have exclusive possession and control of the whole premises under that contract. By the letting to Mrs. Campbell and her entrance into possession, appellant was divested of possession and control, and he was not at any subsequent date re-invested, nor did he in any manner at any time resume control or assume the right to do so. What the effect would have been upon the case if he had regained and re-let the premises after the gate was changed, it is needless 6to discuss, as it also is to discuss the many other interesting questions raised. This record discloses no case against appellant. The judgment of the City Court of East St. Louis is reversed.


author: Mr. Justice Worthington

text:
    Crowley, Cook & Co. v. Willis A. Sumner.
    1. Appellate Court Practice — Motions and Affidavits.to he Preserved in a Bill of Exceptions. — An appellant assigned as error “that the court refused his motion, supported by affidavit, for a continuance, but as he preserved neither motion nor affidavit by a bill of exceptions, the alleged error is not before the Appellate Court for consideration.
    2. Service of Process— Upon Corporations. — Under the statute (R. S., Ch. 110, Sec. 4) authorizing service of process on private corporations, such service may be made by leaving a copy of the process with its president, if he can be found in the county, but if he can not be so found, then by leaving a copy with any clerk, secretary, superintendent, general agent, cashier, director, station agent, or any agent found in the county.

      8. Same — Who is an Agent Within the Meaning of the Statute. — A person appointed by a corporation to solicit orders for consignments of merchandise in which it dealt, and paid by it for his services measured by his success in securing shipments, is an agent within the meaning of the law, and service of process upon him is sufficient service upon the corporation, under the statute.
    4. Same — Sufficient Return of the Officer Making the Services. — The return of a sheriff indorsed on the back of a summons showing service by delivering a true copy of the same, etc., “ to P. M. B., agent of the within named Crowley, Cook & Co., the president of the said Crowley, Cook & Co. not being found in my county,” etc., is a sufficient return of service under the statute.
    Assumpsit, for balance of a salary. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Rob arts, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Eldon J. Cassoday and Rush C. Butler, attorneys for appellant; Pickrell & Lyerle, of counsel.
    James Lingle, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

This is an action in assumpsit against appellant, a corporation, to recover a balance claimed to be due appellee for salary under a contract of employment.

The return of the sheriff on the back of the summons shows service, “ by delivering a true copy of the same on September 9, 1900, to P. M. Ballard, agent of the within named Crowley, Cook & Co., the president of the said Crowley, Cook & Co. not being found in my county,” etc.

Appellant filed a plea in abatement denying service upon it; denying that P. M. Ballard was its agent; averring that its office and .principal place of business was in Chicago, and denying that it had any office or place of business in Union county or outside of Cook county.

To this plea appellee replied, and upon the issue thus formed on the plea of abatement, a trial was had by jury, and a verdict rendered for appellee. Appellant was then defaulted and the court, upon hearing evidence, rendered judgment in favor of appellee for $150 and costs, from which this appeal.

Two errors are urged by appellant as causes for reversal. One is, that the court refused appellant’s motion supported by affidavit for a continuance. As neither motion nor affidavit is presented in the bill of exceptions, this alleged error is not before us for consideration. Horn v. Neu et al., 63 Ill. 539; Lanyon v. Mich. Buggy Co., 94 Ill. App. 243.

The other error urged is that the evidence fails to show that Ballard was an agent of appellant, and that, not being an agent, no service was had upon appellant.

Appellant carried on a commission business in Chicago for the sale of fruits, soliciting shipments in the country, through persons who were paid by it a per cent upon consignments secured. P. M. Ballard acted for it at Cobden, Illinois, a point from which large quantities of fruit were shipped. He received four per cent commission from appellant on all consignments procured by him to be shipped to appellant at Chicago. He had no office at Cobden and was not authorized to contract for fruits at fixed prices, and payments were made by appellant directly to parties who shipped the fruit. He testifies, in substance, that e‘ I was not authorized to do any other business for them except soliciting consignments. I took their stamps and gave them to the people I got to ship to them. Have each of them a rubber stamp, furnished by the company,with which they marked their goods, and I reported' the names corresponding with the number on the stamps to Crowley, Cook & Co. * * * I was to solicit in Cobden and vicinity. I was simply local fruit solicitor for them. Shippers would come to me if there was any shortage and I would notify the house.”

Hnder these conditions, appellant asked the court to instruct the jury that when a person’s only authority to act for an incorporated company is to solicit shipments to such company, and he has no authority to make purchases or contracts for or on behalf of said company, then I instruct you that he is not an agent of said company so as to authorize service of process upon him. as an agent, and such a service of process is void and is not binding upon said company.”

This instruction the court refused. The decision of the case turns upon the correctness of this ruling by the court.

The statute (Ch. 110, Sec. i) authorizing service of process on private corporations, is as follows:

An incorporated company may be served with process by leaving a copy thereof with its president if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process Avith any clerk, secretary, superintendent, general agent, cashier, director, station agent, or any agent of said company found in the county,” etc.

The language of the statute is broad, and considering the fact that the commercial, manufacturing and transportation business of the country is to-day mainly carried on by corporations that act through agents, it should be liberally construed to effect what wvas clearly the intention of the legislature to secure. Corporations doing business over Avide areas of territory, are practically beyond the jurisdiction of local courts in such territory Avhere the business is done, unless they can be reached by service upon their representatives there found. That a representative for limited purposes may be an agent for purposes of service under the statute, is plainly seen from the fact that not only a general agent may be served, but also any agent may be served.

Anderson’s Law Dictionary defines an agent as “A person employed by another to act for him.” In this case, Ballard was appointed by appellant to solicit consignments at Cobden, and AA-as paid by appellant for his services. He acted for appellant to this extent. He was furnished by appellant with rubber stamps to give shippers to mark their goods for appellant, and forwarded to appellant the names or numbers corresponding thereto, thus putting shippers and appellant in touch with each other. It is a matter of common knowledge and experience that solicitors of business for their principals, represent and urge the advantages of doing business with their principals. Ballard was appointed for this purpose, and his pay by appellant, was measured by his success in securing shipments! He was to this extent an agent of appellant, and as the statute authorizes services upon any agent, without defining the extent of his agency, but clearly implying that, as distinguished from a general agent, he may be an agent with limited powers, we think that service upon Ballard, by virtue of the statute, was service upon his principal.

The case of Union Pacific R. R. Co. v. Miller, 87 Ill. 45, cited by appellant, is not in point. In this case the party served was not appointed an agent by the corporation. Mr. Justice Breese says in his opinion, “ Baker had no such connection with the Union Pacific Railroad Company as to constitute him an agent. He had no direct communication with the company in the exercise of its franchise as a railroad company and no executive duties to perform, and did not receive his position from the corporationP He was in fact an agent appointed by a land commissioner, himself an agent for and appointed by trustees who held the title of lands for the use of the company.

If Ballard bad been a sub-agent appointed by an agent of appellant, and working for and paid by said agent, the case would be in point.

In Fairbank & Co. v. C. N. O. & T. Ry. Co., 54 Fed. Rep. 420, cited by appellant, the court says in its opinion, “ The defendant had no agent or representative in Illinois to bind it by any kind of contract. It had no property or officer, and no office for the transaction of business in this State. * * * And these persons were mere solicitors of business and not officers or agents of the defendant, within the meaning of the statute,” citing Wall v. C. & O. R. Co., 95 Fed. Rep. 398. Counsel, in their brief, referring to the person upon whom service was had in the case cited, say: “ His authority was strictly limited to conveying information concerning existing rates, and concerning the connections and time made and facilities possessed by the defendant in and about its passenger traffic.” In other words, he was a mere railroad guide, a bureau of information, and nothing more. A careful examination of the facts, shows a clear distinction between the relations of the employes in these cases who were served with process, and the relations of Ballard to appellant. Ballard was more than a mere bureau of information. He did more than merely solicit business. He was furnished by appellant with rubber stamps to give to shippers with which to mark and identify their goods. When be gave a stamp to a consignor he reported the fact to appellant, and the number of the stamp, thus putting consignor and consignee in business contact.

To this extent he was an agent, and as such could be served with a summons that gave the court jurisdiction over appellant. Judgment affirmed.


text:
    Adolphus North v. Louis Zerwick, Adm’r, etc.
    1. Appellate Court Practice — Sufficiency of the Abstraef. — Where the admission of evidence in the adjustment of a claim in probate is assigned for error, but the abstract discloses neither objection to its admission nor exception to the action of the court below upon it, the assignment will not be considered by the Appellate Court.
    3. Same. — Technical Objections to the Form of the Judgment to be Made in the Trial Court. — Where a judgment entered in favor of a defendant estate on a plea of set-off, was “ that the defendant, the estate of O. E. N., deceased, etc,” instead of “the defendant,L. Z., administrator,etc., have etc.,” and noobjection was made in.the trial court to such c, form and no error assigned in regard to it, the informality is not before this court for review.
    3. Same — Statute of Limitations Can Not Be Raised for the First Time in the Appellate Court. — While it is not necessary to formally plead - the statute of limitations in courts where written pleadings are not required, still it must have been in some way interposed as a defense in the trial court. It can not be relied upon for the first time in an Appellate Court.
    4. Instructions — Errors in One Cured When the Whole Series Are Considered Together. — When there is a plea of set-off on file and undisposed of, an instruction as to the form of the verdict, not accurately drawn, and to some extent open to the criticism that it invades the province of the jury, if, when all the instructions are taken together and fairly considered, they leave the jury to decide the issues on both claim and set-off, the error is cured.
    5. Admissions — In Criminal Cases Not Applicable to Civil Cases.— Decisions in criminal cases to the effect that admissions alone are not sufficient to convict without proof of the corpus delicti are not available in civil cases.
    Administration of Estates. — Claims in probate. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    C. E. Chamberlin and Turner & Holder, attorneys for appellant.
    Hamill & Borders, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Oliver R. North died December 5, 1887, aged eighty-four years. For some time before his death he had made his home with appellant, who was his nephew. John E. North, the son of appellant, was appointed administrator. Appellant filed, in the County Court, a claim embracing many items, the first of which was dated September 1, 1890, and the last December 5, 1897, amounting in all to $3,426.30, and upon which he gave a credit in one item, without date, of $2,414, for “ cash reserved at various times.” The claim was not contested, and was allowed for the difference between these amounts, namely, $1,012.30. Subsequently the heirs of Oliver R. North moved to set aside the order allowing the claim and to remove the administrator. This motion was granted, and the allowance of the claim set aside, the administrator removed, and appellee, public administrator of St. Clair county, was appointed in his stead. By agreement of parties, the case ivas then transferred to the Circuit Court of said county, where a written plea of set-off for $2,500 was filed by the administrator. The case was tried by a jury and a verdict rendered in favor of the estate upon the plea of set-off for $1,942.50, upon which verdict judgment was entered and an appeal taken by appellant.

Appellant assigns for error the admission of evidence showing the removal of John E. North as administrator and the setting aside the' allowance of the claim by the County Court. The abstract discloses neither objections nor exceptions to the introduction of this evidence. This assignment of error will therefore not be considered. Gibler v. City of Mattoon, 167 Ill. 22; Strohn v. People, 160 Ill. 582; Superior Lumber Co. v. Tracy, 78 Ill. App. 552.

The form of the judgment entered was, “ that the defendant, the estate of Oliver R. North, deceased, have and recover, etc,” instead of “ the defendant, Louis Zerwiclc, administrator, etc.” No objection having been taken to the form of judgment, and error not being assigned on account of it, this technical informality is not before this court for review. Counsel for appellant, in their brief, argue that the statute of limitations runs against the set-off. There is nothing in the record to indicate that the statute was in any way interposed as a defense in the trial court. There was a written plea of set-off filed in said court, and while it may have not been necessary to formally plead the statute of limitations in writing, written pleadings not being required on appeal from the County Court, still the statute must have been in* some way interposed in the trial court. It can not for the first time be relied upon in an Appellate Court. Bruce v. Doolittle, 81 Ill. 104; Borders v. Murphy, 78 Ill. 87; Barstow v. McLachlan, 99 Ill. 646.

No instructions were given except as to forms of verdict.

Appellant assigns these for error, claiming that they invade the province of the jury by assuming that there was a set-off. The first instruction is not accurately drawn and is to some extent open to this criticism; but when all are taken together, we do not think that they contain prejudicial error. There was a plea of set-off on file and before the court and jury. When fairly considered, the instructions recognize this fact only, and leave to the jury to decide the issues on both claim and set-off. In addition to this, appellant’s copy of account filed gives credit for $2,414, thereby admitting this amount of money received, which is in substance the set-off claimed.

It is also urged that there was no evidence to sustain the ■ plea of set-off, and therefore the instructions should not have been given.

Two witnesses testified that they heard appellant, within ■ eighteen months of the death of Oliver E. North, admit that he owed him $2,300. One of these witnesses, the daughter of appellant, testifies that a year or so before the death of Oliver E. North she frequently urged her father to have a settlement with the deceased, and that he counted up $2,300 that he owed him, and said that at his death he would make out a bill to cover the estate. She also testifies to his admission that $1,000 was borrowed money. Appellant testified to having received $114 from the deceased in October, 1896, preceding his death in December of that year. There was evidence then,warranting the forms of verdict given in the instructions which recognized the plea of set-off. Appellant introduced no evidence to prove any items of his account of dates preceding eighteen months before the death of the deceased. The only evidence introduced by. him was to prove what it was worth to board and care for the deceased in his feeble condition for these eighteen months. Witnesses varied in their estimates from $3.50 to $5 a week for board, washing, etc. One witness thought it was worth $10 a week to take care of the deceased, owing to his helpless condition. Under this lack of evidence to prove appellant’s account antedating eighteen months preceding Oliver E. North’s death, with the testimony of the two witnesses to appellant’s oral admission of $2,300 indebtedness, together with his evidence of receiving $114 from-him in October, 1896, coupled with the credit for “cashreceived at various times,” we can not say that the jurors were not warranted in returning their verdict for the amount fixed by them.

The references to decisions in criminal cases to the effect that admissions alone are not sufficient to convict without proof of the corpus delicti, are not applicable to civil cases. Judgment affirmed.