author: Rogers, J.: —

text:
      (Circuit Court of Cook County.)

    John L. Beveridge, for Use of Oliver Smith vs. Estate of M. O. Walker.
    (January 14, 1878.)
    Bah,. Where a claim on a hail bond is filed against the estate of the surety in the bond, the evidence must show that the bond required by the statute was taken according to every requirement of the law, or it will be illegal and void, and where the evidence shows affirmatively that it was not so taken such claim will not be allowed.

      Miller & Frost, attorneys for plaintiff.

      E. A. Small, attorney for defendant,
   Rogers, J.: —

The statute in force when the bail was taken, in the original suit of Smith v. Aylesworth, required (1) an affidavit setting out the nature and cause of action, with the facts in relation thereto, to be delivered to the clerk of the court, who (if upon examination thereof he was satisfied that sufficient cause was shown) issued (2) a capias ad respondendum for the arrest of the defendant, (3) with an indorsement thereon of an order specifying in what amount the defendant should be required to give bail; (4) which writ the sheriff was required to serve and to take bail accordingly; that is, (5) á bail bond 'to himself, with sufficient security in a penalty double the sum for 'which bail was required; (6) and this bond was to be returned with the writ on the first day of the term of the court to which the writ was returnable. (7) The bail so taken was deemed special bail, and could be proceeded against by action of debt, in the name of the plaintiff in the original action, except when the bail was adjudged insufficient by the court; but no suit could be commenced upon such bail bond until a capias acL satisfaciendum had been issued against the defendant in the original suit and been returned that the defendant was not found in the county in which he had been arrested. In this case, a claim on bail bond, filed in the county court by Smith v. The Estate of M. O. Walker, deceased, security in the bond, which is here on appeal from that court, it appears, by proof satisfactory to me, that the plaintiff filed an affidavit (in the original suit) for the purpose of procuring a writ for the arrest of Aylesworth; that the clerk issued the writ, with an order thereon specifying some amount for which the defendant •should be required to give bail, but there is no sufficient proof •of the actual sum (the evidence leaving it indefinite) — either .‘$3,000 or $3,500, but which it is altogether uncertain, while the presumption arising from the amount of the bail bond, $3,000, is that the order on the writ specified $1,500 as the .amount of bail required. It also appears that the sheriff, under that writ, arrested the defendant, and that he gave a bail bond, with M. O. Walker as security, in the penal sum of $3,000, with conditions as required by law, and substantially as those in the copy of bond filed as the foundation of plaintiff’s claim in this case; and that this bond was returned to the court with the writ. This bond, together with the writ and all other parts of the record, — affidavit, declaration, etc., . — were destroyed in the great fire in this city on the 8 th and 9th of October, 1871.

The original records of this suit of Smith v. Aylesworth being thus destroyed, the plaintiff filed a petition in June, 1873, under what is commonly known as the “Burnt Beeords Act,” to have them restored; or rather, in the language of the petition, he presented a “draught affidavit and declaration substantially the same in matter and form as the originals on file in said cause, and which were destroyed as aforesaid,” and prayed “for an order declaring the said draught affidavit and declaration be a substitute for the said original record, so far as the same may extend in supplying the defect caused by the destruction of the same.”

The act under which he filed this petition required the party interested (plaintiff) to make a written application to the court, verified by affidavit showing the destruction thereof and the substance of the record so destroyed, and that such destruction of such record, unless supplied, would result in damage to the party, and thereupon the court should order such application to be entered of record and due notice of said application to be given that it would be heard by the court. And upon hearing, said court should make an order reciting what was the substance and effect of said destroyed record; which order was to be entered of record, and have the same effect which said original record would have if the record had not been destroyed, so far as concerns the party making the application and the person who had been notified) as provided for in the act. Upon this application the court made an order in substance, “that the case be and it is hereby restored. ’ ’

There was no order entered of record reciting what was the substance and effect of said destroyed record, but the substituted declaration and affidavit were filed, and thereby, it is claimed, were made records. But copies of the original writ, the order thereon fixing amount of bail required, the return on the writ and the bail bond, were not filed, and no order made reciting the substance and effect thereof.

If it was necessary to have the destroyed records restored in order to charge the parties, then' there is a fatal omission in not restoring the bond, writ, order fixing amount of bail and the sheriff’s return on said writ. And, even if this had been restored, still as to Walker they would not have the same effect as the originals would, because he was not notified of the application or hearing as required by the statute, in order to charge him, or that they should have that effect. He was no party to the suit, and it is true that it was not necessary to restore the suit and the records thereof, that he should have notice; that is, it could proceed to trial and judgment as it did, and be effectual as against Aylesworth, who had notice of the application, and who in fact appeared and defended it. But if Walker was to be charged on the bond and held as bail, he should have been served with, and was entitled to, notice of the proceeding before his interests could be affected. If notified, he could have appeared — could have had a day in court — to see that the copy of the bond was a correct copy of the one he executed and that the bond was. such as was required by the statute, and if not, to have the bond quashed or himself released therefrom by reason of its invalidity.

But suppose it was not necessary to restore the bond, writ, order fixing amount of bail and retuin of the sheriff on the writ, and that Walker or his administrator could be sued upon it as a lost or destroyed bond, as in the loss or destruction of any record, bond or note (as I am inclined to think), still the question remains, has a case been made out to charge his estate?

As to the execution of a bond, substantially such as is sued on, and that it was taken as bail on the arrest of Aylesworth I have no doubt. But was it a valid bond? Was it taken for the amount required by the order of the clerk, indorsed on the writ? There is no proof that it was; the precise amount of bail required not having been shown. This is necessary to show the validity of the bond. It devolved on the plaintiff, not only to prove the execution of a bond and its contents (the original being lost), but the prerequisites, according to the allegations of his affidavit of claim filed in this, case.

The claim having been objected to, the affidavit stands in the place of a declaration in an ordinary suit, and the claimant is required to prove all its material allegations.

In the affidavit, the claimant has averred that Smith brought suit against Aylesworth, filed his affidavit for a capias ad respondendum, that the court (should have been, that the clerk) ordered that the defendant be held to bail in the sum, of $3,000; that the writ was issued, bail was given in the sum of $3,000, and that the writ was returned, etc., Those were material allegations, necessary to show the liability of Walker’s estate, and as such the claimant is required to prove them. He has failed in this, that he did not show the amount of bail required, nor the return of the officer on the writ.

But it is insisted by claimant’s attorneys that it was sufficient to prove the bond — Its execution and conditions; that it was given to release Aylesworth; that it was returned to court; that judgment was rendered; that a ca. sa was issued and returned that the defendant was not found. If Walker was alive and this was an ordinary action of debt on the bond, with such averments as are contained in the affidavit of claim, and he had put in' issue, by pleas, those averments, then such proof, alone, would not have been sufficient to authorize a finding in the plaintiff’s favor. But here he is dead, and this proceeding, is by claim filed against his estate, and all defenses may be interposed without technical pleading. The claim is objected to, and it becomes necessary for the claimant to make all the proof that would be required on pleas of nul tiel record, non est factum, or that the bond was void because it was not taken for the amount indorsed on the writ.

In Stafford v. Low, 20 Ill. 152, in an action on a bail bond, the defendant plead that the affidavit in the original suit upon which the writ was issued, and upon which the.defendant was held to bail, did not comply with the statute, and was insufficient in law, in not stating facts, etc., and that the arrest under the writ was illegal, and the bail bond was therefore void. The supreme court held the plea to be good. The requirements of the statute had not been complied with, and the bond was void. So here, there is no proof of the exact amount of the hail required by order of the clerk indorsed on the writ of capias ad respondendum, nor of the precise return of the sheriff.

We are asked to presume that the officer did what the law required; that he made a return of the arrest, the giving of bail, and that the bail bond was filed with his writ so returned ; but it is dangerous to render judgments on mere presumptions of compliance with official duly. And if such presumptions are allowed with such serious effect, then we must presume, also, that as the bond was for $3,000, the order on the writ requiring bail was in the sum of $1,500; for the statute required the sheriff to take bond with a penalty double the amount of bail required, and he in fact took it for $3,000. Then there is a variance between the proof on presumptions and the allegation in the affidavit, that the amount required by the clerk by his order on the writ was $3,000. But in view of the evidence of Mr. Rockwell, the presumption that the sheriff took the bond required by law cannot arise, because his testimony (and there is no other in the case upon that point) is, that by the order of the clerk the amount of bail required was either $3,000 or $3,500; then of course, under the statute, the sheriff should have required bail in double the amount, and the penalty of the bond would have been either $6,000 or $7,000. So in any point of view the bond required by the statute was not taken; or, to say the least of it, it is not shown by the evidence that it was according to the requirement of the law, or the order of the clerk. If not the bond required, then it was and is illegal and void.

So far' from the evidence showing that the bond was in accordance with the requirements of the statute, I am satisfied it shows affirmatively that it was not.

I must therefore disallow the claim, and sustain the order of the county court, from which this appeal was taken. Order sustained.


source: Caselaw Access Project

author: Sheldon, J.:—

license: Public Domain

text:
      (Supreme Court of Illinois.)
    Lucinda G. Bent vs. Mary Coleman, et al.
    (January Term, 1878.)
    Dismissal of Appeal fob Insufficiency of Bond. Cross motion to amend insufficient bond.
   Sheldon, J.:—

There is a motion to dismiss the appeal for want of a sufficient appeal bond and a cross motion for leave to file an amendment. The cross motion is allowed and five days given within which to file the amendment.


author: Sheldon, J.:— Schofield, J.:

text:
      (Supreme Court of Illinois.)

    Lyman Chapin vs. Julia H. Billings.
    (January Term, 1878.)
    Appeal Bond. Motion to file a new bond in forcible detainer suit to cover accruing rents and profits.

      William H. Barnes, Isaac J. Ketchum and Charles A. Barnes, for appellant.

      Brown, Kirby & Russell, for appellee.
   Sheldon, J.:—

There is a motion to file a further appeal bond in the case. Objections are taken to the bond filed. It is a case of forcible detainer, and the objection is that the bond filed does not cover accruing rents and profits, but is conditioned merely for payment of the judgment and costs, the judgment being merely for the restitution of the land, the condition really covers costs. We think the bond should also cover the accruing rents and profits, although the order of the court below does not require that; still we think it should require it. We think the penalty is sufficient, $2,500, and we therefore rule to file a sufficient appeal bond within twenty days, conditioned to cover rents and profits, and if not done within that time the appeal will be dismissed.

Schofield, J.:

The order is entered requiring the bond to be entered within thirty days of this date — to be approved by the clerk of this court, and in default of such bond being filed the appeal will be dismissed.

Note. See 91 Ill. 534 — Ed.


author: McAllister, J.,

text:
      (Circuit Court of Cook County.)

    Anna Wescott vs. John Menhard, et al.
    (Opinion delivered May 20, 1878.)
    1. Justice of the Peace — Jurisdiction. A justice court is one of limited and inferior jurisdiction. Its acts are null and void where it assumes jurisdiction not given by statute. Such jurisdiction must affirmatively appear.
    2. Same — Jurisdiction in Action of Trespass. Where the entry on the justice’s docket showed a judgment in favor of plaintiff in an action “to recover damages for trespass” it was held that this was insufficient as the entry did not indicate whether the trespass was against the person or against property.
   McAllister, J.,

delivered the opinion of the court:—

Anna Wescott recovered a judgment before George L. Ford, Esq., a justice of the peace, January 25, 1878, against John Menhard and Agnes Menhard, his wife, for $150 damages. The defendants filed a petition in this court for a common-law certiorari, which was allowed by my brother Rogers, and to which return has been made. The question for decision is whether it appears from the transcript of the justice, which alone can be considered, that the subject-matter of the suit was within the jurisdiction of the justice.

The entries on the justice’s docket are that the “action is brought to recover damages for trespass by above named defendants.”

The court decided that the plaintiff, according to the evidence offered, was entitled to the possession of the premises until January 21, 1878. Judgment was entered against the defendants for the sum of $150 damages in trespass, and costs of suit, and in favor of plaintiff.

A justice’s court is one of limited and inferior jurisdiction; the statute is the charter of its authority. Its acts are null and void when it assumes jurisdiction not given by the statute. Robinson v. Harlan, 1 Scam. 237. The law is well settled that in order to justify courts not of record, in taking cognizance of a cause, their jurisdiction must affirmatively appear. Trader v. McKee, 1 Scam. 558. Authorities might be multiplied to any extent in further support of the above propositions. Sec. 122 of the Justice’s Act, Rev. Stat. 655, declares that, “It shall be the duty of every justice, whenever a suit shall be commenced before him, to record in a well-bound book kept for that purpose, the names of the parties, the amount, and nature of the debt sued for,” etc.

Sec. 13, Rev. Stat. 639, defines the jurisdiction of justices of the peace, and gives jurisdiction “in actions for damages for injury to real property, or for taking, detaining, or injuring personal property.”

But such courts have no jurisdiction of actions for injur-y to the person or to the relative rights of persons.

Trespass is an action brought for injury to the person as well as to property. If the entry of the justice had been: Trespass for injury to real property or to personal property, or even trespass to property, then it would have shown a case within the justice’s jurisdiction, and the law would indulge the presumption that the evidence proved or sustained the cause of action specified. As was held in Chicago & Rock Island Railway Company v. Fell, 22 Ill. 336, which was a common-law certiorari to justice’s court: “It was only necessary that the court should see that the law conferred jurisdiction upon the justice to take cognizance of the offense specified; and when it appears that the court could have had jurisdiction, the presumption is that the evidence made out a proper cause for its exercise.” In that case, “the offense specified” on the justice’s docket was “trespass on personal property.” In the case in hand it is simply trespass, with nothing to affirmatively show that it was trespass to property and not to the person, over which the justice has no jurisdiction. The finding of the justice as to plaintiff being entitled to the possession of premises, standing by itself as it does, would be just as material to a case of trespass to the person for forcibly putting her out of, as to an action for damages for injury to real property. I have endeavored to spell out jurisdiction and uphold the judgment; but under the rules of law applicable to courts of inferior and limited jurisdiction requiring that their jurisdiction shall in all cases affirmatively appear, I have, after repeated efforts to dispose of the case the other way, been, at last, forced to decide that it does not affirmatively appear upon the face of the transcript that the justice had jurisdiction of the cause. This court will not, in the absence of any entry on the justice’s docket showing the nature of the cause of action sued on, presume that it was one within the jurisdiction of the court, because being a court of inferior and limited jurisdiction, its jurisdiction must affirmatively appear. The generic word “trespass” does not give the nature of the cause of action any more than the word “tort” or “wrong” would. It should have said “trespass to property,” or something equivalent. For these reasons the judgment of the justice must be quashed. Judgment quashed.


author: Drummond, J.,

text:
      (Circuit Court of the United States. Northern District of Illinois.)

    Charles S. Crane and Jefferson Hodgkins, Petitioners, vs. Albert Conro, Willard S. Carkin, Harry Fox and Bradford Hancock, Assignee, Respondents.
    1. Bankruptcy — Jurisdiction of Circuit Court to Review Order of District Court. Under sec. 4986 of the Rev. Stat. U. S., the circuit court has jurisdiction to review all cases and questions arising under the bankruptcy law where the law has not otherwise provided for an appeal.

      2. Same — Setting Aside Sale After Confirmation — Notice to Purchaser. It is error to set aside an order confirming an assignee’s sale upon the ex parte application of the assignee without giving the purchaser notice and hearing.
    3. Assignee’s Sale — When Purchase Money is Payable. After the sale of the property of a bankrupt the purchaser is not bound to pay the purchase money instanter. The purchaser is entitled to ascertain how and to what extent the property could be delivered to him, and whether or not the order of the court could be complied with before he can be required to pay the-purchase money.
    4. Purchaser — Real Bidder Bound. Where a bid is made at an assignee’s sale by an irresponsible bidder on behalf of his. principal, the principal will he considered as the real party in interest and will be bound by the bid.
    5. Assignee in Bankruptcy — Duty to Notify Purchaser Before Cancelling Bid. An assignee in bankruptcy who cancels a bid made at an assignee’s sale and resells the property without notifying the first purchaser, does not act in good faith.
    6. Reversal of Decree — Effect on Sale. Where a decree under which a judicial sale has taken place is reversed on appeal the validity of the sale is not impaired. But where the validity of the sale is the subject of controversy a different rule-applies.

      Cooper, Garnett & Packard and Crane & Tatham, attorneys for petitioners. Henry Crawford, of counsel.

      Tuley, Stiles & Lewis and Ayer & Kales, attorneys for Conro & Cartin and Henry Fox.

      Tenneys, Flower & Abercrombie, attorneys for Bradford Hancock.
   Drummond, J.,

delivered the opinion of the court:—

The consequences of delay in the decision of this case are so serious that I have come to the conclusion that I would dispose of the petition in review at the earliest practicable-moment.

It is objected that it is improperly brought into the circuit court, under the second section of the original bankrupt law (sec. 4986, Rev. Stat. U. S.), which provides for a review of any decision of the district court, and which declares r “The circuit court for each district shall have a general superintendenee and jurisdiction of all cases and questions arising in the district court for such district when sitting as a court of bankruptcy, whether the powers and jurisdiction of a circuit court have been conferred on such district court or not, and except when special provision is otherwise made, may, upon bill, petition or other proper process, of any party aggrieved, hear and determine the case as in a court of -equity. ’ ’

This law provides for the superintendence and jurisdiction of the circuit court over all cases and questions arising under the act; and unless special provision is otherwise made, it declares how the court shall exercise this supervision and jurisdiction. Therefore, unless the law has provided elsewhere for an appeal from the decision of the district court in this case, it must necessarily come up under the second section of the bankrupt law. Rev. Stat. sec. 4986.

It is not necessary that I should go into a history of the ■case; that has been done by the district judge. It is only •of importance that I should state the fact that Fox & Howard, having become bankrupts, and a provisional assignee having been appointed, on his application to the district ■court he was directed to receive bids for the property of the bankrupts; and he accordingly received a bid from J. Hodgkins, on the 2d day of July, 1875, for certain property of the bankrupts, for which Hodgkins agreed to pay the sum of $40,000. An order nisi was thereupon entered by the district court requiring all parties to show cause why that bid should not be received, and on the 9th of July following the same was confirmed to Mr. Hodgkins. On the 12th of July following, on application of the assignee to the district court, this order of confirmation was set aside and another bid was received and confirmed to other parties on an advance in the price, $40,500, and the sale was confirmed to them and the money paid, and the property turned over to the new purchasers.

It is these sales and confirmations made by the district court that are the subject of controversy here. And the point is, whether or not there is provision otherwise made than in the section already referred to, for the appellate jurisdiction of the circuit court over this action of the district court. I think there is not.

This is simply a sale of the property of the bankrupts; and the question is, whether the sale shall stand as the act of the éourt, and the property of the bankrupts pass to the purchaser. It is not such a decree or judgment as is provided for in the eighth section of the original bankrupt law (Rev. Stat. sec. 4980), which gives an appeal or writ of error; and unless there is an appeal or writ of error given elsewhere than is provided in the third section, then it necessarily follows that the circuit court must exercise superintendence and jurisdiction over the case under that section.

It is apparent that the question whether or not a sale of the estate of a bankrupt shall stand, is one of the greatest importance. Upon it may depend not only the rights of the bankrupts, but the rights of all the creditors. And it is manifest that the statute intends to give the circuit court superintendence and jurisdiction over such cases. It would be a serious matter to hold that the order of the district court as to the validity of a sale of the property of a bankrupt is necessarily final, and that because the district court has confirmed the sale and turned over the property to the purchaser, and received the money, therefore there is no power in the circuit court to interfere with it. That would be a very simple way of depriving the circuit court of jurisdiction over a case, and it might well happen that property might be sacrificed and the rights of creditors jeoparded by the action of the district court.

It is manifest, I think, therefore, that it was the intention of the bankrupt law to allow the circuit court to have jurisdiction over all cases of this kind; and, inasmuch as an appeal or a writ of error is not elsewhere given, the right of supervision and jurisdiction must exist under the second section of the bankrupt law.

It is said that in this case there has been no record, or, at -least, no full record brought into the circuit court, and that the court has not considered the full record upon which the •district court acted. That is true; but it is nothing more than fair to state the circumstances under which the record is brought before this court. A printed abstract of the testimony has been introduced, all of which the court has read. The court has not read all the original testimony, of which this is a full abstract; but the case has been submitted to the court upon this abstract, and was argued, in part, upon the abstract; and it was not until after the ease was partially heard, that objection was taken by some of the counsel to the fact that this was not a full record; but, as I understand, it was submitted to the court upon this abstract for convenience, and to save labor and trouble to the court, with the understanding on both sides that, if there was any error or mistake in the abstract, it might be corrected by reference to the original depositions or testimony in the case. I so understand it. And if there is any material error in this record or abstract as it has been presented, of course I desire it to be rectified; and I wish to state to counsel upon both sides that this is the only testimony which this court has considered. But I ought to add, no material error has been pointed out.

That being so, the question is: whether the order of the district court, made on the 9th of July, 1875, confirming the sale to Mr. Hodgkins, and that made on the 12th of July, rescinding the order of confirmation and confirming a sale to other parties, should stand — one or both? When the order was made by the district court rescinding the sale to Mr. Hodgkins and confirming it to other parties, that action of the district court was brought for review before this court, and this court remitted the ease to the district court with -directions to open that order for the purpose of allowing Mr. Hodgkins or Mr. Crane, for whom it was claimed Mr. Hodgkins made the bid, to be heard, because the confirmation of the sale being made by the district court to Mr. Hodgkins, he became a party in court, and before any order affecting his rights could be properly made by the district court he was entitled to his day in court, to notice, and to be heard. The order of confirmation was set aside without any notice to him whatever, and without giving him an opportunity to be heard, upon the ex parte application of the assignee. This court decided that to be error, and remitted the case to the district court, in order that Mr. Hodgkins and Mr. Crane might be heard upon their right to this property. They were accordingly heard, and the court affirmed its order of the 12th of July, rescinding the order of sale made to Mr. Hodgkins. The material question is, whether that order was right, and should be affirmed by this court. I think it should not, but that it must be reversed. And I will proced to state the reasons why I so think.

The whole action of the assignee, Mr. Hancock, was under a misapprehension of the rights of the purchaser (the bidder) at the sale, which seems to have been shared by the district court. He seems to have proceeded upon this hypothesis: That, as soon as the sale was made by the assignee and confirmed, it was the duty of the purchaser at once to pay to the assignee Rthe $40,000 without any demurrer and upon a moment’s notice. That was a mistake — a misapprehension of the law.

What was the position of the case as it- stood after the bid was received by the assignee and confirmed by the court? This1 is the order: “It is by the court ordered that the sale of the property to J. Hodgkins, for the sum of $40,000, mentioned in his bid therefor, and the said report of the said provisional assignee thereupon, be and the same are hereby, in all respects, approved, ratified and confirmed; and the said provisional assignee, upon the receipt by him of the sum of $40,000, is hereby authorized and directed to execute and deliver to the said J. Hodgkins all bills of sale or other transfers to pass to and vest in the said J. Hodgkins, his heirs or assigns, all the right, title or interest of said Fox & Howard in and to said property, and to deliver to the said Hodgkins the immediate possession thereof.”

What was the effect of that order? It was that, upon the payment of the purchase money, certain acts should be done by the assignee. One of them was, the delivery of the property.

Now, it was the right of the purchaser to examine into the condition of the property — to ascertain where it was. He was not bound by this bid until the 9th day of July, when it was confirmed to him. He had the right to ascertain how and to what extent it could be delivered to him; whether or not the order of the court could be or was complied with, before he could be required to pay his money.

It may be said that the payment of the money and the delivery of the property, and the written transfers and bills of sale were simultaneous acts; but undoubtedly it was the right of the purchaser to look into this matter and to ascertain whether or not the order of the court would instantaneously be complied with.

Now, it is not pretended that in any of the conversations which took place between Mr. Hancock, the assignee, and Mr. Hodgkins and Mr. Crane, it was proposed that the order of the court on his part should be fully complied with. True, the assignee said that he was ready to deliver over the property; but some of the property was not only not in the district, but it was out of the state, and it might be a very serious question whether or not it was the duty of the assignee to deliver over the property to the purchaser here; but whether that be so or not, it was the right of the purchaser to take the opinion of the court upon that subject, and not allow the assignee to prescribe dictatorially a rule to him as to when and how he should pay the $40,000.

Undoubtedly the court might have prescribed, in the order that a certain sum of money, as a deposit, should be paid by the purchaser to satisfy the court that it was a bid in good faith. That was not done. The court required the whole sum of money to be paid down at once, under certain circumstances. Certainly it was the right of the purchaser to have the judgment of the court on any doubtful questions involved in the order of confirmation. The confirmation was made on Friday, and the order of rescission was made on Monday There was just one business day intervening between the day of the confirmation and the date of rescission.

Now, I am obliged to say, on this evidence, that Mr. Hancock, the assignee, has not acted in good faith, either with the purchaser or with the district court.

Let us see whether the facts do not bear that out. The assignee says that he did not know that Mr. Crane was interested in this bid until Saturday, the 10th of July. It is clear that he is mistaken upon that point. Numerous witnesses contradict him clearly; and there can be no doubt, in examining this testimony in a candid and impartial manner, he was, to* say the least, under a misapprehension. He actually did! know that Mr. Crane was interested in the bid, and that he was the responsible party, on the day that the bid was confirmed, namely, Friday, the 9th day of July. And yet he is very positive to the contrary. The assignee says, on page 271: “I say I hadn’t heard Crane’s name mentioned in this connection — in connection with this bid — up to and before Friday, July 9. I swear to that, as a positive, definite fact.” Whether he means that he didn’t hear it until the 10th, there perhaps might be some question. “The reason I am so positive is, that they were all strangers, and they might have mentioned the name of Crane and of Smith or of Jones, or of any-other man. What I mean to be understood is, that I never heard the name of Crane mentioned in connection with this matter in any way, so as to call my attention to it, at any time, up to Saturday, July 10.” It is first, “up to the evening of July 9,” and then afterward, “up to Saturday, July 10.”

Then, on page 245, he says: “The first I heard that Crane had anything to do with this bid was from Mr. Hodgkins, on Saturday afternoon.”

It is clear, upon the other testimony in the ease, that Mr. Hancock was in error in this respect. He says that he was in the habit of making memoranda, or keeping a sort of diary of his business, and especially, as I understand him, of his bankruptcy business. He generally put down, the very next day, what he had done the preceding day, but the inference is that he didn’t do it always; and I think the experience of every person who undertakes to keep a diary is, that unless he keeps it regularly and promptly, or if he allows a few days to pass by without making the entry, he is very apt to confound what was done on one day with what was done on another ; and it is clear that Mr. Hancock, in this case, did confound what took place on Friday with what occurred on Saturday; at any rate, the testimony is conclusive that he was .notified on Friday, the day of the confirmation of the sale, that Crane was interested in it, and that he was the responsible party from whom'the money was to come.

It is true that Mr. Hancock says that he made several demands on Mr. Hodgkins for this money, Friday and Saturday, and that he did not respond to them; but, as I have said, he made them under a false impression as to his right and that of the purchaser.

And again, whether he did or not, I hold that as soon as he was apprised that Mr. Crane was the responsible party from whom the money was to be received, that he should have done nothing affecting his rights without giving him notice. He says that he did not consider Mr. Crane as being the bidder ; that he had nothing to do with Mr. Crane; that the only person that he had anything to do with was Mr. Hodgkins. That was a mistake — a misapprehension on his part. As soon as he was informed that Mr. Crane was the responsible party, he, the person who was making the sale and who was acting under the direction of the court, should have acted in entire good faith toward him.

Now, did he ? There is one fact indisputable, namely, that on Saturday afternoon he was notified that the money was to come from Mr. Crane, and he had an interview with him, and he was told by him that the bid-was a bona fide bid, and that the money would be paid. He didn’t ask Mr. Crane at that time for the whole of the purchase money; he only asked him then that there should be a deposit made — which was the true view to take of it.

And they separated upon the understanding that a deposit would be made Monday morning — as agreed by both. The amount was not named, and properly so, because that was a matter for the court to determine — what the amount of the deposit should be — until the purchaser could have an opportunity of looking into the matter.

I am obliged also to differ from the district court in holding that Mr. Crane was not bound by the bid. I think he was. Mr. Hodgkins was, confessedly, an irresponsible party; he had not the means or ability to raise. $40,000. He was directed by Mr. Crane to make the bid (in whose name was not stated), and did it accordingly; but out of that personal sufficiency which we so often see, instead of putting it in in the name of his principal, as he ought to have done, he put it in in his own name; but still the principal who was behind was bound for the bid, for, though a contract under the statute of frauds must be in writing, yet the appointment of an agent who makes it may be by parol.

There is not any satisfactory testimony in this case to indicate any bad faith on the part of Mr. Crane throughout this whole business. On the contrary, as soon as he was notified by the assignee, he told him it was a bona fide bid, and that the money should be -forthcoming Monday morning; and the whole conduct ‘of Mr. Crane is consistent with this view. The negotiations which took place between him and other parties, by which they were to- have an interest in the property purchased, proceeded upon the assumption that he was the responsible bidder, and that if his bid were accepted (as it had not then been when these negotiations occurred), he was to let the other parties have an interst — and Hodgkins among the rest.

Now, what was the conduct of Mr. Hancock? He was told by Mr. Crane that the money should be forthcoming Monday morning, the first thing Monday morning, as Mr. Hancock says, though that is denied by other testimony. But suppose that to be so, when was it to be forthcoming? Did not the circumstances require good faith from Mr. Hancock to Mr. Crane when he was told the money was' to be forthcoming the first thing Monday morning? "Certainly. How was his action after that ? ' He went directly from Mr. Crane and entered into negotiations with other parties to make a bid for this property without waiting till Monday morning, or even Sunday morning, and said to them: “If you will put in a bid for $40,500 I will recommend its acceptance. ’ ’ Early Monday morning the assignee went to the judge and asked that the order of confirmation made on the 9th be rescinded, and that another bid should be accepted. Was that acting in good faith to Mr. Crane 1 The assignee was supplied with abundant information, not a particle of dissent arsing from any quarter, and therefore knew Saturday night that Mr. Crane was an entirely responsible party, that he was good for the bid. After all this had taken place, the assignee negotiated with another party for a different and a higher bid, without notice to Mr. Crane, and went into court Monday morning and claimed that he had asked — not Mr. Crane, but Mr. Hodgkins — repeatedly for the payment of the purchase money, and that he had declined to pay; and the court, upon his ex parte statement, without notice to Hodgkins, or anybody else, rescinded the other.

Then I think it is clearly shown that Mr. Hancock did not act in good faith with the court, and, for the reasons and facts that I have stated, which are uncontradicted, and which are admitted by Mr. Hancock, because he admits that he parted from Mr. Crane on Saturday night under the expectation that the deposit would be made on Monday morning. Now it could not be expected a man would have the necessary amount by him. It is toi be presumed, and I think we may' take notice of the fact, that it was necessary for Mr. Crane to go to some bank on Monday morning and obtain this sum.

Before Mr. Crane had an opportunity of obtaining any considerable sum and tendering it to Mr. Hancock or to the court Monday morning, the application had been made by Mr. Hancock. He made application to the court, it seems, early; the court, at the moment, declined to make the order. Afterward, on a subsequent application, the court made the order, but still, all without notice to the purchaser.

At ten minutes after eleven o’clock on Monday morning Mr. Crane appeared before the assignee with two certificates of deposit of $10,000 each, which are conceded to have been good for the amount, and tendered them to Mr. Hancock in compliance with the agreement made between them on Saturday night, and Mr. Hancock said, “It is too late; I have sold the property to some one else, and the sale has been confirmed. ’ ’ This, all without any notice, or without any hint so far as appears, to Mr. Crane.

Now, was this acting in good faith? Was this properly discharging the duties of an assignee? Although this was a sale made by the court, it was — to speak more correctly— made by the assignee, under the direction of the court.

The assignee was the party who advertised and received the bids; he was the agent of the court. Of course he could do nothing without the consent and the ratification of the court, and as the agent of the court, and, therefore, intimately connected with the action of the court. Naturally, the purchaser had some right to rely on the declarations of the assignee, and to expect good faith from him.

Now, it is most clear, I think, that if the court had been notified on the morning of Monday, the 12th, that Mr. Crane was the responsible bidder, and that he had said Saturday night that he would bring a deposit upon the bid Monday morning, the court would not have made the order that it did. I still think that when the attention of the court was called to it immediately, as it was, and the court was informed of what had taken place, and of the understanding, it was the duty of the court to arrest all proceedings. The property had not then been delivered over. Whether the money had been paid or not, I do not know, but, at any rate,- the money paid by the purchaser was in the control of the court, and I think it was the duty of the court, at that moment, to give ■Mr. Crane a hearing, in order that equity might be meted out to these parties, and that no unfair dealings should be practiced between them, especially by the assignee, an officer of the court.

It is for these reasons that the order which was made by the district court on the 12th of July must be reversed, because it is apparent that Mr. Crane, who was the responsible party, had not been fairly dealt with in the purchase which lie had made, and when he brought his money, as he did, as soon as it could be expected — he came and' insisted it was nothing more than a reasonable time, between the confirmation of the bid and Monday morning, to give him an opportunity to ascertain the situation of the property and to see whether it was forthcoming, and whether the order of the court made on the 9th could be complied with.

I have considered this ease independent, so far, of the rights of the purchasers. It is true that Conro and Carkin made a bid subsequently at the request of the assignee, and they paid their money into court, and the property was delivered over to them.

It is claimed, because that was done this court has no power over this sale,; in other words, that the parties who may be affected by this sale, and this act of the district court are obliged to go into a court.of chancery and file their bill. How could they do that without admitting the validity of the sale, or without taking the confirmation to Conro and Carkin, as vested in them the title to this property? That was the objection made to the filing of a bill in chancery, which it was thought could not be done so long as there was the order of the district court standing, confirming the sale to Conro and Carkin.

But, it is claimed that because when a judgment or decree is rendered, and a sale takes place under it, and a writ of error or appeal is taken to a higher court, and the judgment or decree reversed and that does not impair the validity of the sale, the same rule applies here.

The principle is well established. Why? Because the question is not there as to the validity of the sale, but as to the validity or right of the decree or judgment. It is the decree or judgment that may be set aside, and not the sale.

In this case, the very words of the order of sale, ipsissima verba, are the subject of controversy; whether the sale should stand as the order of the district court. It is not a sale made under a decree of the district court, but it is the order of sale itself by the district court, in an ordinary bankruptcy proceeding, and the question is, whether this sale, shall stand. I insist in all such, cases the purchaser takes the property, if delivered over to him, and he pays the money, subject to the supervisory power of the circuit court over the sale.

As I said in a former part of this opinion, it would be a very easy matter to get rid of the supervisory power of the circuit court, to confirm a sale and deliver over the property and receive the money. That, certainly, was not the intention of the act of congress, as is apparent from the fourth section of the amendment of 1874.

There is one question which I have not considered, and which I shall leave open, because it was not discussed, and I desire to give the parties an opportunity to argue it. That question is as to the effect of the confirmatory order of the court made on the 9th of July, whether or not it was competent for the court, before the money was paid, if Hodgkins or Crane was ready to pay, upon the receipt of a higher bid, to set aside the previous order and to direct the assignee to transfer the property to the purchaser; that is, perhaps, not clear. It may be that it was the right of the first purchaser, upon the payment of the money, to hold the property, because it will be observed that this was not a case of the whole' proceeding being in fieri, when the power of the court over the matter was plenary when bids were being received, but it was after a confirmation was made of the sale. I do not wish to foreclose the parties in relation to that question.

It is claimed that the bid which was made by Conro and Carkin was a higher bid and better for the estate, but if the court was inclined to receive a higher bid, and had a right to do so before the money was actually paid, and could do away with the confirmatory order of July 9, it was its duty to give that purchaser to whom the sale had been confirmed equal rights with the subsequent purchaser, because that was giving the subsequent purchaser an unfair advantage; it was saying to him after the order confirming the sale — “If you will come in and bid a higher price,* the sale shall be made to you, without giving the other 'party the same opportunity of malting a higher bid.”

If the court allowed an increased bid, it ought to have permitted it to come as well from the party to whom the sale had been confirmed as from a stranger.

That also is a question I do not now decide. It was not discussed, and if the parties desire it I will leave that open; that is, whether this court shall direct the property to be resold, taking the bid of Mr. Crane at $40,000, or whether, upon the payment of the money, the court shall direct the sale to be directly confirmed to him. All that I now do, is to reverse the order of the district court made on the 12th of July, with costs.

       See U. S. Rev. Stat. 1874, p. 971. — Ed.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)

    King vs. Interior Building Co., et al.
    1. Corporations — Winding up Proceedings — Who May Institute. A simple contract creditor may maintain a bill to wind up a corporation under sec. 25 of the general incorporation act.
    2. Same — Right of Simple Contract Creditor to Attack Fraudulent Judgment or Fraudulent Disposition of Assets of Corporation. There is no good reason why a simple contract creditor may not prosecute a suit in equity under see. 25 to attack a fraudulent judgment or fraudulent disposition of ■ assets of a corporation.
    3. Same — Right of Simple Contract Creditors to FhLE Suppiemental Bill to Show That They Have Put Their Claims in Judgment Since Filing Bill. Where a simple contract creditor of a corporation files a bill to attack a fraudulent disposition of the corporate assets and judgment creditors intervene in such suit, the court will permit the filing of a supplemental bill to show that original complainants have reduced their claims to judgment.
    4. Same — Effect of Winding Up Proceeding. A creditors’ bill for the dissolution of a corporation must be filed on behalf of all creditors, whether judgment or contract creditors. If fraudulent preferences are set aside in such a proceeding it enures to the benefit of all creditors and the proceeds must be distributed as other assets passing direct to the receiver.

      Creditors bills, cross-bill, and intervening petitions. Motion for leave to file amended and supplemental bill. Heard before Judge Murray P. Tuley.
    Gen. No. 142,991.
    The facts are stated in the opinion.

      Newman, Northrup & Levinson, for complainant.

      John W. Henston, for certain defendants.

      Defrees, Brace & Ritter, for the receiver.
   Tuley, J.:—

Two bills were filed, each by a simple contract creditor, on behalf of all creditors of the Interior Building Company, an Illinois corporation, seeking under section 25 of the general incorporation act the appointment of a receiver, the marshaling and distribution of the assets of the insolvent company, the enforcement of stockholders’ liability, and also the dissolution of the corporation and the winding up of its affairs. The bills also attacked certain fraudulent preferences and also alleged fraudulent judgments under which the property of the corporation had been seized upon execution.

The cases were consolidated, a receiver appointed and certain assets of the corporation which had been levied on upon judgment in favor of the Lincoln National Bank were turned over to the receiver to be administered. The bank filed a cross-bill seeking the satisfaction of its judgment out of the assets levied on and out of collections made by the receiver because of its alleged prior lien thereon. An amended bill was filed in July, 1896, seeking the same relief on behalf of all creditors and also attacking the same judgment and fraudulent preferences. Answers were duly filed to the amended bill and reference was had to the master upon bill and cross-bill.

Pending the taking of evidence, some eighteen creditors who had obtained judgments against the corporation filed intervening petitions adopting the allegations of the original and amended bills and were made co-complainants by order of court. A large amount of testimony has been taken before the master, and in the meantime the original complainants obtained judgment at law upon their claims. Six of the judgment creditors issued executions which were returned nulla bona in 1896. The judgments and the executions have all been proven before the master.

The complainants now ask leave to' file an amended and supplemental bills, setting up the- obtaining of the said judgments and issuing of said executions and returns thereon, and incorporating into one amended and supplemental bill all matters contained in the intervening petitions. Objection is made by the defendants that the supplemental matter should not be allowed to be set up in favor of the original contract creditors, because it is contended that such contract creditors have no standing in a court of equity under section 25, or otherwise, to attack a judgment or preference good as against the corporation.

It is admitted to be settled law of this state that a simple contract creditor may maintain a bill to wind up the corporation under section 25, but it is insisted that he can not in such a bill attack a judgment or preference good as against the corporation. Although in several cases before our supreme court, brought under section 25, decrees have been sustained in which simple contract creditors have successfully attacked fraudulent judgment, and preferences, yet it is contended that the right of a simple contract creditor to maintain such a bill has never been directly passed upon. See Butler Paper Co. v. Robbins, 151 Ill. 588, and cases cited; Atwater v. American Exchange Nat. Bank, 152 Ill. 605; Roseboom v. Whittaker, 132 Ill. 81; Alling v. Wenzel, 133 Ill. 264; Wolverton v. Taylor, 157 Ill. 485. In the last case the point was first raised in the supreme court, but it was held that it came too late.

The statute, section 25, does not say by whom 11 suits may be brought in equity” and no good reason can be perceived why a creditor of any kind or a stockholder or other person interested in the conservation and distribution of the assets of the insolvent corporation like the defendant corporation, may not prosecute a suit in equity under section 25 on behalf of all the creditors, and attack á fraudulent judgment or fraudulent disposition of assets by an insolvent corporation, upon the ground, that being insolvent the property and assets of a corporation became a trust fund to which the bona fide creditors would equitably be entitled to have appropriated to the payment of their respective claims.

But admitting, for the sake of argument, that a simple contract creditor cannot under section 25 attack fraudulent judgments confessed or fraudulent assignments, the question in this case goes further. It is whether upon a bill filed for such purpose by a simple contract creditor, to which bill judgment creditors have subsequently become parties, and where the original complainants have subsequently put their claims into judgment, should the court permit the original complainants by supplemental bill to set up their judgments and obtain the same relief as the other complainants, who are judgment creditors? It is not contended but that the original complainants could commence a new suit to attack the fraudulent judgments and preferences. Why should they be driven to a new suit? It is admitted that they have standing in the present case as to assets not disposed of by the corporation to have the same marshaled and distributed and the corporation wound up and dissolved. It appears to this court that this is a plain ease for the application of the rule that equity having taken jurisdiction for one purpose will retain it for all other purposes necessary to the final settlement of all matters involved in the litigation growing out of or connected with the subject matter. Equity will never require two suits to be commenced where one will answer the-purpose.

A' bill filed by a creditor under section 25, for the dissolution of the corporation and winding up its affairs must be brought upon behalf of all creditors, whether judgment or simple contract creditors. If brought by a contract creditor, and a judgment creditor intervenes and becomes a co-eomplainant seeking, as he undoubtedly may, to set aside prior fraudulent judgments and preferences he litigates to that end on behalf of all other creditors, whether they are judgment or simple contract creditors, and if he succeeds, he obtains no preference as to assets so realized from his litigation. The jurisdiction of equity attaches upon the filing of the winding up bill, and the assets so realized, by reason of the right of such intervening judgment creditors to attack fraudulent judgments and preferences, must be distributed as other assets which passed direct from the corporation to the receiver and must be divided pro rata among creditors except so far as any of them had priorities at the commencement of the winding up suit. This, in the opinion of the court, is the doctrine deducible from the case of Blair v. Illinois Steel Co., 159 Ill. 350.

If there is any doubt upon the question as to whether in event the alleged fraudulent judgment and preferences are set aside, it will inure to the benefit of the simple contract creditors who filed the original bills, and who subsequently have obtained judgments, — such doubt can be removed by permitting them to set up their subsequently acquired judgments by way of supplement. It is difficult to see what injury to the defendants who claim under such fraudulent judgments and preferences can result from granting complainant leave to file such amended and supplemental bill. The necessity of defending their rights is the same without regard to who is to share in the proceeds of a successful attack.

It is difficult to perceive any limitations of a court of equity in a proceeding under section 25 of the general incorporation act. It is a “winding up bill” with all that the term implies and the court has the power to do all that is necessary to conserve, marshal and distribute the assets of the corporation among creditors and those who may be entitled thereto, in short to do all and every thing and adjust all questions necessary to settle all the affairs of the corporation and determine the rights of all interested in such winding up. . The leave' to file the amendment and supplemental bill will be granted.


author: Gaby, J.:

text:
      (Superior Court of Cook County.)

    Anonymous.
    (January Term, 1878.)
    1. Garnishment — Time of Trial of Garnishment Issue.
    2. Same. Method of trying right to credits garnisheed.
   Mr. Moses : This is a garnishee proceeding upon a judgment. I have served notice that I would move to strike the plea from the files.

Gaby, J.:

The regular mode is for the garnishee to set up-that the claim belongs to somebody else than the nominal plaintiff. If it appear that any credits in the hands of the garnishee are claimed by any other person by virtue of an assignment the court will permit such claimant to appear and. maintain his right.

Mr. Moses : In this case I would like to have the issue tried immediately under the statute.

Gaby, J.: The statute says I shall do it immediately (Rev. Stat. 1874, 551, sec. 7), which I understand to mean as soon-, as I can. That is the best I can do. I can’t undertake to-make a special providence of myself. The legislature can’t, confer upon me power to do more than I do. The legislature meant that I should try the case as soon.as I could. I won’t pick out one class of litigated business to try it in preference-to another class of litigated business. If you will try it without a jury then I will give you a hearing.


author: Tuley, J.

text:
      (Circuit Court of Cook County.)

    Little, for use of Hartwell vs. Bryan Lathrop.
    (1899.)
    1. Constitutional Law — Garnishment Act of 1897 — Whether: Liberal Exemption Law. It is for the legislature to determine? what constitutes a liberal exemption law.

      :2. Garnishment — Necessity of Prior Demand. No proceedings in garnishment can be instituted against a wage earner who is the head of a family, unless a demand is first made in writing for the excess over the amount exempt. This is a condition precedent to obtaining a judgment.
    "S. Same — Wages Not Due at Time of Service of Writ. Wages earned or coming due after the service of the writ oí garnishment are not subject to the writ. It is against the policy of the law to allow a creditor to sue his debtor to the extent that he must work for the benefit of the creditor.
    •4. Same — Right of Employer to Pay Employee in Advance to .. Avoid Garnishment. It is perfectly competent for an employer to pay his employee his wages in advance and such wages cannot be garnished.
    Appeal by defendant from a judgment entered against him .as garnishee before Justice of the Peace George H. Woods, ■for a debt of $200 that one Charles Hartwell claimed was due him from A. D. Little, an employee of defendant. The evidence disclosed that defendant paid Little’s monthly salary in advance and at the time the writ was served nothing was ■owing.
    The case was submitted to the court without a jury.

      Asa G. & Elmer Adams, attorneys for plaintiff.

      Willard & More, attorneys for defendant,
   Tuley, J.

(orally) :—

The first question here is as to the effect of what is known •as the Case garnishment act. The law as it' stood at the time that act was passed, in 1897, as I understand it, was as follows : 11 The wages and services of a defendant being the head ■of a family, and residing with the same, to an amount not exceeding fifty dollars, shall be exempt from garnishment. In case the wages or services of such defendant in the hands ■of a garnishee shall exceed fifty dollars, judgment shall be given only for the balance above that amount” (section 111, ch. 79, Ill. Stat.). -•The point is made that the act of 1897 (section 14, ch. 62, Ill. Stat.1) is unconstitutional in that it is not a liberal exemption law. I shall not pass on that further than to say that my first impression would be that it was for the legislature to determine what was, and what was not a liberal exemption law; and that the intention of the legislature by the passage of this act of 1897, was to comply with the provision of the constitution requiring the passage of liberal exemption laws.

The question is, What is the true construction of that law in the case of a garnishment of the wages of a person,.who is the head of a family? As to wages, the exemption law provides that the wages of a person who is the head of a family and is residing with same, to the amount of eight dollars per week shall be exempt from garnishment, all above the sum of eight dollars per week shall be liable to garnishment. If that section stood alone, without the proviso, it would be substantially the act as to exemption of wages which was in force theretofore, which exempted a lump sum of fifty dollars, and made all above that liable to garnishment, this one providing that instead of fifty dollars in one sum, there shall be eight dollars a week. Now comes the proviso, “Provided the person bringing suit shall first make a demand in writing for the excess above the amount herein exempted. ’ ’ ' That proviso makes a condition precedent to any garnishment of wages of a defendant who is the head of a family, having any effect. Unless that condition precedent is complied with, there can be no judgment for wages, even for the amount over and above eight dollars per week. Instead of that law being hard upon the head of a family, possibly more so than the exemption of fifty dollars, a lump sum, it is in the view I take of it, and as applied to this case more liberal to the defendant because it requires the performance of a condition precedent to the garnishing of any portion of a man’s wages. In other words, if there is no demand made there can be no garnishing of wages under this act. The person bringing suit shall, first, make a demand in writing for the excess of the amount thus exempted, and unless that demand be made, that law is not complied with. It was intended to super-cede the old law, so now there can be no garnishment of wages unless demand is first made for the balance over and above eight dollars per week. There having been none in this case, there can be no garnishment of this man’s wages, who is the head of a family in this city.

But even supposing the court is wrong in that matter, the broad question arises whether, under the law as it now stands, any wages coming due for services or work performed after the service of the garnishment process, can be garnisheed. The revision act concerning justices of the peace, the act of 1895, has revised all of the proceedings before justices of the peace in one act, including proceedings in garnishment, both upon attachment and execution. Section 1, art. 9, ch. 79, Rev. Stat. 1895, provides as follows: “Whenever an execution, issued on a judgment rendered by a justice of a peace shall be returned by the proper officer ‘no property found,’ on the affidavit of the plaintiff or other credible person filed with the justice of the peace that the defendant in the execution has no property within the knowledge- of such affiant, in his possession, liable to execution, and that such affiant has just reason to believe that any other person is indebted to such defendant, or has any effects or personal estate of such defendant in his possession, custody or charge, such justice of the peace shall issue an execution against the person supposed to be indebted to or supposed to have any effects or personal estate of such defendant,, commanding him to appear before some justice as garnishee, and such justice of the peace shall examine and proceed against such garnishee in the same manner as is required by law against garnishees in original attachments.” Now, how was he to proceed in the original attachment? In an original attachment the summons to the garnishee was contained in the writ of attachment that was issued against the property of the debtor, and on the return of that summons the justice is required to proceed and determine the cause.

I read from section 3 (art. 9, ch. 79): “It shall not be necessary to exhibit or file interrogatories in writing, but the garnishee may be examined orally touching the personal estate, goods, chattels, moneys, choses in action, credits and effects of the defendant in execution, and the amount and value thereof in his possession, custody or charge, and from him due and owing to such defendant at the time of the service of such summons, or of any writ of attachment.” Now, what is the inquiry to be made? The amount due at the time of the service of the summons, clearly. All the garnishee is required to answer, is as to the amount due the debtor at the time of the service of the summons.

Section 4 (art. 9, ch. 79.) reads as follows: “When the plaintiff in any garnishee proceeding shall allege that any garnishee served with process, or appearing before a justice of the peace, has not truly discovered the personal effects of the defendant, and the value thereof, in his possession, custody or charge, or from him due and owing to the defendant, at or after the time of the service of the writ, or which shall or may thereafter become due, the justice of the peace shall immediately (unless the case be for good cause continued) proceed to try such cause, as against such garnishee, without the formality of pleading. The trial shall be conducted as other trials before justices of the peace, and if the finding or verdict shall be against the garnishee, judgment shall be given against him in the same manner as if the facts had. been admitted by him, with all costs of such trial. If the finding, shall be in favor- of the garnishee, he shall recover his costs against the plaintiff. And in case the garnishee admits indebtedness to.the judgment debtor, he shall not be liable for costs.” Now, was the justice of the peace to give judgment upon that investigation, for anything excepting that provided for in section' 3, the amount from him due and owing at the time of the service of the summons, or, is he to go on and inquire whether anything has become due since the service of the summons, and if so to give judgment therefor ? The law does not say expressly that he shall give judgment for what shall be served and become owing after the service of the writ, otherwise than by implication.

The court then, in order to hold that judgment might go for after-accruing wages (by “after” I mean “after the service of the summons”), must hold that such a -judgment was intended by implication from the provisions of section 4, art. 9. It seems to me that the court would not be authorized by any language short of an express provision in saying that judgment should be rendered for any amount that might be found owing to the debtor from the garnishee at the time of the examination. In other words, the court is not going to assume that the legislature intended to garnishee a man’s wages before they are earned, to give the creditor a mortgage on the debtor’s labor; the court cannot make any such intendment.

What is a garnishee? It is an attachment; it is a seizure —it is a conveying into possession. Of what? You cannot take into possession what does not exist. It is a taking into possession of a debt, just as a writ of attachment takes hold of chattels, real estate or personal property. The garnishee process is a taking hold, by a writ of the existing debt, and that is all you can take hold of; you cannot take hold of what does not exist. You cannot put your hand on what does not exist. If you cannot seize by attachment what does not exist, you certainly cannot seize by garnishee process, which is nothing more than a theoretical seizure, what does not exist.

To my view, it is against the policy of the law to allow a creditor' to pursue his debtor to the extent that instead of working to support himself and family, he must work for the benefit of the creditor. The"only object of an exemption law is to save the debtor and his family from the exactions of his creditors, and it is against the policy of that law to say that a creditor can acquire any kind of a lien, any kind of a mortgage, legal or equitable, upon the future labor of his debtor. Whether the law is such a law as was contemplated by the constitution in requiring the legislature to pass liberal exemption laws, is a very serious question. My opinion is, that the proper construction of this act, in regard to the garnishment of wages, must be that it only applies to wages due at the time of the service of the writ upon the garnishee. It cannot apply to any other wages. It may apply to wages already earned and thereafter to be paid, but it cannot apply to unearned wages to be contracted for or to be earned in future, and paid in the future. To permit a garnishment for money to be paid for services or work to be done in the future, would be to establish the penal system of slavery.

The decision of Judge Moran, in C. & E. I. R. R. Co. v. Blayden, 33 Ill. App. 254, and the decision of Judge Adams in Davis v. Siegel, Cooper & Co., 80 Ill. App. 278, referred to, are both very clearly to the point. Judge Moran cites Alexander v. Pollock, 72 Ala. 137, and other authorities which are very clear to the effect that it is perfectly competent for a contract to be made between the employer and the employee, that his wages shall be paid in advance of their being earned, and that such a contract is a valid contract, and that such wages cannot be garnisheed.

Now, in the case at bar, if there was such" a contract, it is valid, but whether there was a contract or not, the garnishee testifies that he voluntarily paid the debtor’s wages monthly in advance. Had he not a right to do so? The money was his own. If he chose to trust the employee to work for him and run the risk of the loss of the wages, that was his business, and if he has paid him, why should he pay it twice? He had already paid the wages for May, he paid the wages for June in advance, did it voluntarily, and had' a perfect right to do it. At the time of the service of the writ, he owed nothing to this defendant. It was not then known that he ever would owe him anything. I take it, that the presumption must be that the contract of employment between Mr. Lathrop and his employees was from month to month, presumably at will, so far as is shown, and non constat, there may never have been a dollar earned in June, the party may have been discharged or quit of his own voluntary motion. I see nothing in the law that prohibits the making of such a contract. If the contract for wages is from month to month, or from day to day, every month is a new contract, and every day is a new contract for wages.

It may be this will hinder the creditors somewhat in the collection of their debts, but the constitution says that if creditors are not merciful, the legislature will pass laws by which they will become merciful and not be able to force their claims to the injury of the debtor’s family. In my opinion, the makers of the constitution never intended to give the general assembly the power to pass a law by which a man should have, in any way whatever, a mortgage upon the wages of another man to be earned in the future.

The finding on the first proposition of law from the evidence introduced in the case will be for the defendant.

The judgment will go for the defendant, and that the gam- . ishee be discharged with his costs.

       Laws of 1897, p. 231. — Ed.

       Cited in 78 Ala. 525; 88 Ala. 254, 7 So. 53; 111 Ala. 537, 20 So. 368; 124 Ala. 414, 26 So. 907, 82 Am. St. Rep. 183. See 24 Cent. Dig. Garnishment, sec. 55. — Ed.