author: Mr. Justice Dickey

text:
    Benevolent Ass’n of the Paid Fire Department of Chicago v. John A. Farwell, Comptroller, etc.

      Filed at Ottawa September 26, 1881.

    1. Disabled firemen and policemen—as to the management of the fund created by law for their benefit—“Benevolent Association of the Paid Fire Department of Chicago. ” The various provisions in the charter of the city of Chicago, and amendments thereto, for the setting apart a portion of the fire insurance rates annually received by the city, and the act of March 5, 1867, creating the Benevolent Association of the Paid Fire Department of Chicago, and giving it the management of the fund arising from such source, etc., if not otherwise repealed before that time, have all been superseded by the act of May 24, 1877, entitled “An act for the relief of disabled members of the police and fire departments in cities and villages,” which was intended as a revision of all the statutes on that subject.
    2. ■ This association never had a vested right to the fund, which, by a clause in its charter, was directed to be paid over to it by the comptroller of the city. As to that fund, this corporation was merely created or selected as a public functionary to manage and apply the same, and it was liable to be cut off or changed at the will of the State.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.

      Mr. Egbert Jamieson, and Mr. W. 0. Goudy, for the appellant :
    As said by the Appellate Court when the case was first before it, the questions presented are:
    First—Whether the law requiring the moneys in question to be paid to the petitioner has been repealed by subsequent legislation; and
    Second—Whether the petitioner obtained by its charter a vested right to receive said moneys which is irrepealable, and which the legislature has no power to divest.
    The provisions of the revised .charter of 1863 were not repealed by section 30 of the act of March 10, 1869. See Van Inwagen v. City of Chicago, 61 Ill. 31.
    The law does not favor repeals by implication. Town of Ottawa v. LaSalle County, 12 Ill. 341; Dwarris on Statutes, 673; Bowen v. Lease, 5 Hill, 221; Bruce v. Schuyler, 4 Gilm. 221; Kinney v. Mallery, 3 Ala. 626; Planters’ Bank v. State, 6 Sme. & M. 628.
    Section 3 of the petitioner’s charter, act of 1867, was not repealed, directly nor by implication, by the act of 1877. The first was and is a special local act, and could not, by implication, be repealed by the general act of May 24, 1877, which is a general law. Dwarris on Statutes, 674; 4 Pike, 410; Town of Ottawa v. LaSalle County, 12 Ill. 341.
    The legislature could not repeal or amend the act of 1867 without the consent of the corporation, which is a private one. See Home of the Friendless v. Rouse, 8 Wall. 430; Washington University v. Rouse, id. 439; Bouffett v. Great Western R. R. Co., 25 Ill. 355.
    Mr. Francis Adams, for the appellee,
    after stating the case, made the following points:
    1. Section 5, chapter 8, of the act of 1863, was repealed by section 30 of the act of March 11,1869, in relation to insurance companies. Van Inwagen v. City of Chicago, 61 Ill. 31.

      2. If not so repealed, it is repealed by section 110 of the general law for the incorporation of cities and villages, which is a revision of the whole subject matter of the section in the act of 1863, and was intended as a substitute for all prior laws on the subject as to cities organized under the general law. Sedgwick on Const. Stat. and Const. Law, 104; Illinois and Michigan Canal v. City of Chicago, 14 Ill. 334; Culver v. Third National Bank, 64 id. 534; Andrews v. People, 75 id. 613; Devine v. Board, etc. of Cook County, 84 id. 590.
    3. Section 3 of appellant’s charter was repealed. by the act for the relief of disabled members of the police and fire departments in cities and villages. (Hurd’s Stat. 1877, p. 239.)
    4. .Section 3 of appellant’s charter is not a contract, within the meaning of the constitution of the United States or of this State. Fireman’s Benevolent Association v. Launsbury, 21 Ill. 515.
    The money derived as license fees from foreign insurance companies is public revenue of the city, and as such is subject to legislative control. County of Pike v. State, 11 Ill. 202; County of Richland v. County of Lawrence, 12 id. 1; People v. Power, 25 id. 187; Board of Supervisors v. City of Springfield, 63 id. 66.
    This is equally true of the revenue of incorporated cities, which are but subordinate departments of government of the State. 1 Dillon on Mun. Corp. sec. 35; Gretzweller v. People, 14 Ill. 142; People v. Mayor, etc. of Chicago, 51 id. 31.
    This is a power which can not be abridged or bartered away by legislative enactment. Cooley on Const. Lim. 206, 283; Thorpe v. R. and B. R. R. Co. 27 Vt. 149; Dingman v. People, 51 Ill. 277.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a petition for mandamus, filed in the circuit court of Cook county, by appellant against the comptroller of the city of Chicago, to compel him to pay over to petitioner one-eighth of the amount of all fire insurance rates which had been paid into the city treasury after the act of May 24, 1877, came into force, entitled “An act for the relief of disabled members of the police and fire departments in cities and villages.” A demurrer was sustained to the petition by the circuit court, and judgment rendered thereupon against the petitioner. This judgment was, on appeal, affirmed by the Appellate Court for the First District, arid the petitioner appeals from that judgment to this court.

By the old charter of Chicago, enacted in 1863, all foreign fire. insurance companies doing business in the city were required to pay into the city treasury, semi-annually, two per cent “upon the amount of all premiums which, ” in the preceding half year, had been received, or had “been agreed to be effected in said city, by such companies, respectively; and moneys so received were to be used only for the promotion of the efficiency of the fire department, and for providing a fund for the relief of disabled firemen; and one-eighth of all fire insurance rates annually received by the city was to be set apart as a' fund for the relief of such disabled firemen, to be disbursed under such regulations as the council might prescribe.

On March 5, 1867, an act was passed constituting “all such persons as now are, or hereafter may become, members of the Benevolent Association of the Paid Fire Departmenof Chicago, in accordance with the constitution and by-laws thereof, a body corporate, with power to prescribe for the management of its affairs and the disposition of its funds such constitution and by-laws as might seem proper and needful for the purposes of the incorporationand that act declared the object of the corporation to be to create a fund and provide means for the relief of distressed, sick, injured and disabled members thereof and their immediate families— such fund to be managed by the association, and disbursed for that purpose only; and it was further provided, that “the one-eighth of the amount of all fixe rates now annually paid into the city treasury * * * shall annually be paid by the comptroller of the city to the association, to be held and invested by them as a trust fund for the benefit of firemen who shall or may become disabled while in the service of the city.”

It is upon these provisions of the statutes of 1863 and of 1867 that appellant rests its alleged rights sought to he enforced in this proceeding.

In behalf of the appellee it is contended that the statutes in question have been repealed. The contention is, that the provisions of the act of 1863 were repealed by section 30 of the general law in relation to insurance companies, passed March 11, 1869, and if not repealed by the act of 1869, the provisions became inoperative in Chicago in 1875, when the city was reorganized under the general law of 1872 as to “cities and villages,” by reason of section 110 of that act; and lastly, counsel for the city insists that even if the provisions of the old charter in this' regard remained unaffected by the acts of 1869 and 1872, still the rights asserted by the petitioner were terminated by the act of May 24, 1877, entitled “An act for the relief of disabled members of the police and fire departments in cities and villages.” (Laws 1877, p. 62.)

In this latter position, taken by counsel for appellee, we concur. Assuming, as claimed-by appellant, that the act of 1869 was intended to provide for merely general taxation (for State, county and municipal purposes, at the rate at which personal property was taxed for such purposes,) of two per cent upon the local net receipts of foreign fire insurance companies ; and that in cities having an organized fire department, such companies were to remain bound by law to contribute also a special amount for the promotion of the efficiency of the fire department, at the rate and in the mode required in each charter imposing that burden; and assuming, as claimed by appellant, that section 110 of the City act of 1872 is to be treated as a mere amendment of the charter of 1863, affecting only the amount tp be paid,—still we can not avoid the conclusion that the act of 1877 was intended as a revision of all statutes on that subject, and as a complete substitute for all former laws on that subject. If so, they all ceased to have force when the substitute came into force.

. If the petitioner’s views are sound, at and before the passage of the act of May 24, 1877, foreign insurance companies doing business in Chicago were liable to taxation (as upon personal property) upon the amount of the net receipts at their agencies in Chicago, no matter whether such receipts arose from premiums, or from interest on money loaned, or from any other source, and were also liable to contribute, in addition, two per cent annually on these same “net receipts, ” and also two per cent upon the amount of all premiums received or agreed to be effected,—the latter being not strictly taxation, but demanded by law as a just contribution to a special fund, which was to be appropriated exclusively to the object of promoting the efficiency of the fire department, in which fire insurance companies had a special interest; and if petitioner’s views are right, one-eighth of the fund arising from the latter class of contributions was by law to be paid over to the petitioner, for the mere purpose of application to one means of rendering efficient the fire department. No share of taxes proper, paid in by such companies, was at that time applicable by law specially to the fire department of any city.

Now, the act of May 24, 1877, sets apart not only the one-eighth of this fund (which in Chicago was administered by this corporation), but one-fourth of the same, and also one-fourth of the taxes which are or may hereafter be required by law to be paid by all foreign fire insurance companies, and also one-fourth of all fines inflicted upon firemen or policemen, and also one-fourth of all moneys received by the city as fines for violation of fire ordinances, and also of all moneys arising from sale of unclaimed stolen property, as a general fund for disabled members of the police and fire departments, and places the control of this entire fund in the custody of a board of public officers, to be applied to the relief of disabled firemen and policemen; to which fund is to be added a contribution of five dollars annually from each policeman and fireman. ' •

When, we consider the object and purposes of the provisions of the old charter of Chicago, and of the act of 1872, and the object of the clause in the charter of this association, giving it the management of the fund in question, and .at the same time examine the provisions of this act of May 24, 1877, we are fully satisfied the latter was intended to supersede and take the place of the former.

There is no force in the suggestion that this association has a vested right to the fund, which, by one clause in its charter, was directed to be paid over to it by the comptroller. As to that fund, this corporation was merely created or selected as a public functionary to manage and apply the same. This is manifest from the nature of the provisions and from the phraseology of the act. The moneys to be paid were designated as a portion of certain “insurance rates, now annually paid into the city treasury, ” for a given purpose. The use of the word “now” shows clearly that this fund was hable to be cut off or changed at the will of the State, and that there was no undertaking on the part of the State that this arrangement should not be changed.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William B. Oakley et al. v. Edmund B. Hurlbut.

      Filed at Ottawa September 26, 1881.

    1. Cloud on title—jurisdiction of court of equity to remove. Under our law a court of chancery will not entertain a bill to remove a cloud upon the title of a complainant unless he is in the lawful possession of the land, or the land is unoccupied.
    2. Chancery-—laches—when a defence. After a delay of more than fourteen years from the sale of land for taxes, permitting the purchaser to pay taxes and make improvements on the land, the former owner will be precluded from having the salé set aside in equity for a fraudulent combination preventing competition at the sale, in the absence of any excuse being shown for the delay.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Mr. Robert Doyle, for the appellants:
    A bill in chancery will not lie to clear a title, or to test title to land, when the defendant is in possession. The remedy is by an action of ejectment. There are only two eases under the act of 1869 where a bill to remove a cloud on . title to land will lie: first, when the complainant has possession ; and, second, when the lands are unoccupied. Hardin et al. v. Jones, 86 Ill. 315; Whiting v. Stevens, 78 id. 585; Comstock v. Henneberry, 66 id. 213; Bwrton v. Gleason, 56 id. 25; Reed v. Tyler, 56 id. 288; Emery v. Cochran, 82 id. 65; Hernandez v. Drake, 81 id. 41; Imperial Fire Ins. Co. v. Greening et al. 81 id. 240.
    Messrs. Kay & Euans, for the appellee:
    The answering of the bill after a demurrer thereto was overruled, estops the appellants from insisting upon the question of jurisdiction because of a remedy at law. Parker v. Parker, 61 Ill. 369; 2 Daniell’s Ch. Pr. 140.

      The allegations of the bill show fraud, which gives a court of equity jurisdiction. The combination at the sale to prevent competition was a fraud,—it was more than a mere irregularity. See Kennedy v. Northup, 15 Ill. 148; Comstock v. Henneberry, 66 id. 212; Hodgen et al. v. Guttery, 58 id. 431; Moore v. Munn, 69 id. 591; Whitney v. Stevens, 77 id. 585.
    The specific relief of cancelling the tax deed could not be had at law. Reed v. Tyler, 56 Ill. 291, and cases there cited.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a bill filed by Hurlbut, claiming to be the owner in fee of a tract of land in the county of Iroquois, against Oakley and his tenant in possession. The case made shows that the tract was owned by the Illinois Central Railroad Company, and was conveyed by the trustees of that company to one George Siggens, in August, 1857. The land remaining vacant and unimproved, was sold for taxes of 1863, in 1864, and bid off by Oakley. Not being redeemed, Oakley received a tax deed from the sheriff, June 2, 1866.. For seven consecutive years following, and up to and in 1873, the land being vacant, Oakley paid taxes in full under his tax deed. Oakley after-wards took possession and made some improvements, and placed a tenant upon the same, who occupied at the commencement of this suit, on May 28, 1879, and Oakley has continued to pay the taxes. On the 28th of February, 1878, Siggens conveyed his interest by quitclaim to Johnson. In July, 1878, Johnson conveyed by quitclaim to Strean, and on April 1, 1879, Strean conveyed by quitclaim to Hurlbut— near two months before the suit was begun. The bill seeks to set aside the sheriff’s deed to Oakley, as a cloud upon complainant’s title. The circuit court granted the relief sought, and defendants in the court below appeal to this court.

Under our laws, courts of chancery will not intervene to remove a cloud upon the title of a complainant, unless the complainant is in the lawful possession of the land, or where the land in controversy is unoccupied. Hardin v. Jones, 86 Ill. 313. This case does not come within the rule, and in the answers the jurisdiction of the court is challenged upon this ground. Counsel for appellee seek to support the jurisdiction upon the ground of fraud, alleged in the purchase of the land at the tax sale. It is claimed that appellant Oakley was a party to a combination among the bidders at that sale, by which they agreed not to bid against each other, and that under that arrangement appellant bought without competition. The statute protecting the title of a holder with color of title and claim under such color, made in good faith, with payment of taxes for seven consecutive years, is in the nature of a statute of limitations. If the fraud alleged was practiced, it was against Siggens, who seems at that time to have been the owner. If he desired the sale set aside on that ground, he should have intervened in apt time. No excuse is shown for this long delay. Neither he nor those claiming under him, after a lapse of more than fourteen years, can be heard to allege, under such circumstances, that he was injured in that way. Having lain by for so long a time, and permitted appellant to pay taxes and make improvements, it is too late to elect to complain upon that ground.

The decree of the circuit court is therefore reversed, and the cause remanded to that court, with directions to dismiss the bill.

Decree reversed.


author: Mr. Justice Dickey Mr. Justice Walker :

text:
    Thomas Moore v. Patrick Tierney.

      Filed at Ottawa September 26, 1881.

    1. Statute—Practice act does not apply to chancery cases. No part of the “Act in regard to practice in courts of record,” (ch. 110, Rev. Stat. 1874,) has any reference to the mode of procedure in chancery cases, except in so far as the language, expressly or by clear implication, refers to such procedure. That is regulated by the act relating to courts of chancery, except so far as is otherwise expressly enacted, or is necessarily implied by subsequent legislation.
    2. Practice—Supreme Court reviews questions of fact in chancery cases. The amendment of section 88 of the Practice act, in 1879, by which the class of cases which might be brought directly to this court was changed so as to exclude criminal cases below the grade of felony from the enumeration, and so as to add to the enumeration cases in which the construction of the constitution is involved, and cases relating to the revenue, or in which the State is interested, has no effect upon the consideration of questions of fact in chancery cases, there never having been any legislation on that subject in either sections 88 or 89 of that act.
    3. Same—former decisions. In Gravett et al. v. Damis, 92 Ill. 191, and Morris v. Preston, 93 Ill. 219, “cases in chancery” are recognized as being among the cases referred to in sec. 89 of the Practice act as “enumerated in sec. 88” of that act before its amendment in 1879, in considering in what cases the Supreme Court might review controverted questions of fact. But both those cases were actions at law, so that all that was really adjudged was that the cases in hand were not enumerated in sec. 88.
    4. Practice in Supreme Court—as to reviewing questions of fact. It has always been the practice of this court, in reviewing cases in chancery, to examine and determine for itself the truth as to controverted questions of fact from the evidence in the record, and its duty to do so has not been changed by section 89 of the Practice act, or any other legislation.
    Appeal from the Appellate Court for the First District heard in that court on appeal from the Circuit Court • of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Goudy & Chandler, for the appellant.
    Mr. E. S. Williams, for the appellee.
   Mr. Justice Dickey

delivered the opinion" of the Court:

Moore had loaned to Hageman money to be used in the construction of houses upon lots owned by Hageman. This loan was secured upon the lots to be improved. Tierney did work and furnished materials relating to the plastering of the houses, and under our statute became entitled to a mechanic’s lien for the same, subject to Moore’s mortgage lien for the money lent, unless he has waived it.

This suit is a bill brought by Moore, alleging, in substance, that before the buildings were completed it was found that the original loan was not sufficient to pay for the completion of the buildings, and that thereupon, to induce Moore to make a further loan to Hageman, the several mechanics to whom money was due by Hageman for work and materials, and Tierney among the number, agreed to waive their liens, to the end that Hageman might give Moore a second mortgage to secure a second loan of some $10,000, which should not be subordinate to their respective claims for mechanic’s liens. A second loan was made, and this bill is by Moore to foreclose his securities upon these houses and lots, claiming that his liens are superior to all other claims upon the property.

Tierney claims that-he never did agree to waive his right to a mechanic’s lien, and having answered, filed a cross-petition to enforce his lien -as a mechanic, under the statute.

The circuit court, on hearing, decided this dispute in favor of Tierney. Moore appealed to the Appellate Court, and there the decree of the circuit court was, on hearing, affirmed, and from that judgment Moore appeals to this court, insisting that the proofs in the record sustain his version of the facts.

Appellee insists that since the act of 1879, amending section 88, which was added to the Practice act in 1877, mere questions of fact can not be considered in this court in the determination of chancery cases. We all agree in holding that this position is not tenable. The practice in cases in chancery was regulated by an act approved March 15, 1872, entitled “An act to regulate the practice in courts of chancery, ” (found in ch. 22, Rev. Stat. 1874.) The practice in cases at law was regulated by an act approved February 22, 1872, entitled “An act in regard to practice in courts of record, ” (found in ch. 110, Rev. Stat. 1874.)

On June 2, 1877, an act establishing the inferior appellate courts, mentioned in the constitution, was approved. By that act the jurisdiction of Appellate Courts was defined, and such courts were authorized, among other things, to decide appeals and writs of error “in any suit in chancery, ” and in certain of such suits cases could be taken by appeal or writ of error from an Appellate Court to the Supreme Court, and in other such eases the decision of the Appellate Court was made final. (Laws of 1877, p. 75 et seq.) On the same day an act was approved amending several sections of the Practice act, supra, of February 22,1872, and adding thereto five new sections, to be numbered consecutively from 87 to 91, inclusive. Section 89, thus added, is in these words: “The Supreme Court shall reexamine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shah be allowed which shall call in question the determination of the inferior or Appellate Courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section.”

The “preceding section” (88) here referred to provided that appeals and writs of error, upon the election of the party appealing or prosecuting such writ of error, shall be taken directly to the Supreme Court “in all criminal cases, and cases in which a franchise, or freehold, or the validity of a statute is involved, excepting in chancery cases, ” and in all cases in chancery determined in the Appellate Court the mode of bringing the record before the Supreme Court was pointed out.

The construction of the language of these two sections became the subject of discussion in several cases, and the question whether chancery cases were to be considered one of the classes of cases mentioned in section 89 as those “enumerated” in section 88, was alluded to or spoken of, and opinions expressed incidentally and by way of argument in several instances in cases at law. In all these cases the view taken seems to have been that the decision of the Appellate Court on questions of fact in chancery was not made final by section 89, so as to preclude review in this- court. In some eases that conclusion was placed upon the ground that chancery cases are among the classes “enumerated” in section 88, and hence excepted from the provisions of section 89, and in others a like conclusion was placed upon the ground that these sections, 88 and 89 of the Practice act, have no reference whatever to the practice in chancery cases. So, in Wallace et al. v. Goold, 91 Ill. 17, it is said that section 88 “enumerates criminal eases, and cases in which a franchise, or freehold, or the validity of a statute is involved, ” and hence it was held that the enumeration did not embrace that case, which was an action of assumpsit upon a guaranty of the payment of a promissory note. In this statement of the classes of cases “enumerated, ” chancery eases are not mentioned, and would seem to have been considered as not embraced • in the enumeration. Again, in Wabash Raikvay Co. v. Henks, (in same volume, page 409,) which was an action at law for a personal injury to appellee of a collision of appellant’s train, the enumeration referred to in these sections-is said to embrace “criminal cases, and eases involving a franchise, or a freehold, or the validity of a statute, ” thus by implication saying that chancery cases are not embraced in the “enumeration.” But in Gravett et al. v. Davis, 92 Ill. 191, which was an action of assumpsit, it is said we are prohibited from reexamining questions of fact under section 89 of the Practice act, “except in criminal eases and cases involving a freehold, or a franchise, or the validity of a statute, and in cases in chancery, ” and so it was held the questions of fact, could not be reviewed in that case. And again, in Morris v. Preston, 93 Ill. 219, which was an action of replevin for certain promissory notes, wherein this court held that the findings as to facts could not be reviewed in this court, it was again said, “the enumerated cases in the 88th section are criminal cases, and cases involving a franchise, or freehold, or the validity of a statute, and cases in chancery.” All these eases were actions at law, and in them the question as to cases in chancery did not come in judgment. In each of these cases it was adjudged simply that the ease in hand was not enumerated in section 88, or excepted from the provisions of section 89.

In Fanning v. Russell, 94 Ill. 386, we have the first reported ease wherein the question of the true practice in chancery cases came in judgment, and it was there decided that section 89 had no application to cases in chancery. It is there said: “Since this cause was submitted, the sections of the Practice act cited have been subjects of construction by this court, and it has been held they have no application to chancery eases, and it is now, as was the former practice, the duty of this court to review the evidence as to facts found which constitute the basis of the decree. ” It must be that this question had been passed upon in cases which went off upon motion, and were never reported. And in J. and C. R. R. Co. v. Healy et al. 416 of same volume, which was a chancery case, a like decision was made, and the same view repeated. After this, in Brant v. Lill, 96 Ill. 610, the enumerated cases referred to in section 89 are said to be “criminal cases, cases in which a franchise, a .freehold, or the validity of a statute is involved, ” thus omitting from the enumeration chancery cases.

The writer of this opinion entertains the view that section 89 in the amendments of the Practice act, adopted in 1877, was never intended to ajiply to chancery cases at all, and that such cases form no part of the enumerated cases in section 88; that such eases are mentioned in that section, not as embraced in the enumeration, but solely for the purpose of being expressly excluded from the enumeration, and in this view a majority of this court concur.

By the usage of appellate courts of general jurisdiction, in England and America, it has ever been held, in the absence of express statutes to the contrary, that the findings of inferior courts in chancery cases are open to review in the higher courts. Such courts have, from time immemorial, always proceeded in such cases to examine and determine for themselves the truth as to controverted questions of fact, and this, generally, from "a consideration of the evidence found in the record. While in criminal cases and in civil cases at law it had never been the usage of courts having appellate powers to examine evidence as to the facts of the case, except in cases where some statute expressly required that this should be done, in criminal cases and civil cases at law the facts to be considered were those appearing of record, as confessed' by the pleadings, or found by the verdict. Prior to 1837 such was the law of this State. The same rules prevailed in this court, on that class of questions, which now prevail and have ever prevailed in the Supreme .Court of the United States. In 1837 a statute of this State was passed requiring the Supreme Court to review the decisions of circuit courts in refusing to grant new trials in law cases. Like provisions were enacted as to criminal cases. To enable this court to exercise that power in a criminal case, or in an action at law, it became necessary to preserve all the evidence in the case by bill of exceptions. Out of this necessity sprang the voluminous records in these cases with which this court had been burdened for forty years.

It was conceived that the object of this section 89 was to relieve this court, in some degree, from the great labor which had so long been imposed upon this court by-reason of this statute as to new trials in criminal cases and cases at law, and to provide that in such cases this labor should not be thereafter required, except in criminal cases; and in cases at law involving a freehold or franchise, the validity of a statute, or the construction of the constitution. This seeming to he^the object of this section 89, and it being an amendment of a statute relating to law cases alone, except in certain provisions where other classes of eases were specifically referred to, it was ever held, where the question came in judgment under the act of 1877, that it was the duty of this court, in reviewing chancery cases, to consider the whole record,—the evidence as well as the law arising upon the facts found to be proven.

If this view of the subject be correct, it is plain that the amendment of this section 88 by the act of 1879, by which the class of cases which may he brought directly to this court was changed so as to exclude criminal cases below the grade of felony from the enumeration,- and so as to add to the enumeration cases in which the construction of the constitution is involved, and cases relating to the revenue, or in which the State is interested, can not have the slightest effect upon the question of the consideration of questions of fact in chancery eases; for there never was, properly speaking, any legislation on that subject in either section 88 or section 89.

We all think that under the law, as it now stands, questions of fact arising in chancery eases are open to the consideration of this court, whether brought here for review from an Appellate Court or from a court of original jurisdiction. We have therefore found it our duty to examine carefully all the proofs in the record. We find on the main questions of fact in dispute in this case the weight of the testimony on each side so nearly balanced, that we can find no sufficient ground to say that the circuit court erred in its conclusions as to the facts.

The judgment of the Appellate Court affirming the decree of the circuit court is therefore affirmed.

Judgment affirmed.

Mr. Justice Walker :

I concur in holding that under the rules of chancery practice this court may, in such case, review the facts, until prohibited by enactment. But I hold that the General Assembly, by embracing chancery eases in the enumeration in section 88, as first adopted, did so to exclude all doubt that facts should be examined in such cases; but the intention does not appear by the amendatory act to prohibit their consideration.


text:
    Orrin P. Bissell v. Thomas Lloyd et al.

      Filed at Ottawa September 26, 1881.

    1. Lease—construction, as to extent that tenant should repair. Where the lessee of a store room in a building undertakes to make all needed repairs and alterations in and about such room, the lessor, by implication, will be bound to keep the residue of the building in repair, so as to protect such room. ■
    2. Landlord and tenant—when tenant released from rent for want of repairs. Where a party rents a room in a building for a store room, undertaking to keep the building, except the particular room, in proper repair, and neglects to repair, so that the roof of the building leaks so badly as to render the store room unfit for the use for which it is rented, and the lessee leaves the same on that account, the lessor will not be entitled to recover rent for the store, room for the time after it is abandoned.
    3. Chancery—relief, when denied for laches. Where a party purchasing a lot of goods from a surviving partner,, agreed, as a part of the consideration of the sale, to pay all the debts and liabilities of the late firm, a bill in chancery by one who had leased the firm a store room, to enforce the payment of rent, after a lapse of more than eight years from a repudiation of the claim for rent by the defendant, will not be enforced, on account of the stale-n'ess of the demand.
    4. Judgment—does not bind one not a party. "One not a party to a judgment against another is not in any manner concluded by it, although he may have agreed to pay the indebtedness of the defendant.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    On the 1st of August, 1869, Bissell, being possessed of certain buildings in Peoria, leased to the firm of Billings, Lloyd & Schembs a part thereof, for a term of five years from that date, at a yearly rent of $1000, payable monthly. The premises rented were described as “the brick store room on south Washington street, * * * being the store room now occupied by the party of the first part; also, the undivided half of room in the second story of said store; also, the undivided one-half of the basement of the brick building in rear of said store. ” The lessor reserved “the right of free passage through the store room during business hours, ” and the lessees bound themselves “to make all repairs and alterations necessary, in and about said store room, ” at their own cost. The premises were rented for keeping on sale a stock of hardware, tinware, etc. The lessee firm consisted of George Billings, George P. Lloyd and Jacob Schembs. Possession was taken under the lease, and the rent was paid by the lessees and those entering under them until March 1, 1871.
    This is a bill in chancery, brought September 22, 1879, by Bissell, • for the purpose of compelling Thomas Lloyd (the father of George P. Lloyd) to pay the rent claimed by him to be in arrear on that lease, for the time between the 1st of March, 1871, to August 1,1874, or at least a portion thereof. The bill on final hearing was dismissed by the decree of the circuit court. This decree was affirmed by the Appellate Court. From that judgment of affirmance Bissell appeals to this court. .
    Messrs. Ptjterbaugh & Puterbaugh, and Mr. J. M. Morse, for the appellant.
    Messrs. Cooper & Tennery, Messrs. Johnson & Foster, and Mr. M. M. Bassett, for the appellee Thomas Lloyd.
   Mr. Justice Dickey

delivered the opinion of the Court:

We find no sufficient ground in the record to reverse this judgment. By the terms of the lease, the lessees were hound to make needed repairs and alterations in and about the store-room, which was only a part of the building. The fair implication from this express undertaking is, that the lessor undertook to keep the residue of the building in repair. The premises were not occupied by the lessees, or by any one under them, after March 1, 1871. The evidence tends to show that at that time the building leaked so badly as to render the store room in question unfit for the use for which it was rented. Upon this ground, alone, it would seem the chancellor was fully justified in dismissing the bill as against Thomas Lloyd. True, judgments were rendered against the estate of George P. Lloyd, July 3, 1872, for a portion of the rent claimed, but Thomas Lloyd was not a party to the proceedings, and he is in no manner concluded thereby.

The complainant seeks to charge Thomas Lloyd with a portion of this unpaid rent, upon the ground that, in November, 1869, some three months after the making of the lease, Schembs, one of the lessees, sold to his partners his interest in the firm, and they assumed the liabilities of the firm; and that Billings and George P. Lloyd, under the firm name of Billings & Lloyd, continued the business at the same place, paying the rent until May 1, 1870, when George P. Lloyd died; and that thereupon Bissell, as surviving partner, con-tinned to occupy the store, and remained in custody of the assets of the late firm, until August 20, 1870, and on that day the entire assets were turned over by Billings to Thomas Lloyd, who at that time bought the interest of Billings in the same for $2200, and undertook, by his bond to Billings of that date, to pay all the debts of the late firm; and it is claimed by complainant, that the value of the assets in that way received by Thomas Lloyd exceeds the amount of debts of the firm paid by Thomas Lloyd by several thousand dollars, and to that extent it is claimed that a decree should go against him in favor of complainant. The proofs show that on July 29, 1879, Bissell’s claim for the rent here claimed was allowed against the estate of George P. Lloyd, and the amount fixed at the sums of $1500 and $1916.72, mailing $3416.72, “to be paid out of property not heretofore inventoried or accounted for. ”

The record shows that an administrator of the estate of George P. Lloyd, deceased, was duly appointed, and qualified on July 14, 1870, and that Billings, the surviving partner, prepared a full inventory of the assets of the late firm and a, list of its liabilities, and having the assets duly appraised, filed with the county court said inventory and other papers, in the month of May, 1870; and that on the 23d of November, •1872, the administrator of the estate of George P. Lloyd made a report to the county court, in answer to a citation on the complaint of Bissell, showing that there were no assets of that estate known to him, except his interest in the partnership effects of Billings & Lloyd, which went into the hands of Billings, as surviving partner. Soon after Thomas Lloyd bought the assets of the late firm of Billings & Lloyd, he took in a partner in the business, named Mcllvaine, and they carried on business in the store room in question until March, 1871, paying rent to Bissell at the rate of $1000 a-year, and taking receipts in the name of “Lloyd & Mcllvaine. ” About that time Mcllvaine left the firm, and Thomas Lloyd removed from the premises, and refused to pay any part of the rent now demanded.

Complainant’s claim, if any, against Thomas Lloyd, is an equity supposed to arise from his receipt of the goods and effects turned over to him by Billings in August, 1870. His right to an allowance against the estate of Geo. P. Lloyd, for a breach of the contract in the lease, was complete in April, 1871, when Billings and Schembs had both abandoned the premises, and Thomas Lloyd, who entered under Billings, had also abandoned the same, and repudiated Bissell’s claim upon him for rent. In so far as the enforcement of this supposed equity of the complainant is concerned, the complainant lay by and slept upon his supposed rights from April, 1871, until September, 1879, more than eight years. This delay is set up as a defence in the pleadings. We regard the claim as stale, and such an one as a court of chancery should not interfere to enforce.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Asahel Gage v. Mahala Scales et al.

      Filed at Ottawa September 26, 1881.

    1. Appeal—whether a freehold is involved. A bill to set aside a deed for land made on a sale for taxes, by one claiming title on the ground of a redemption from such sale, in which suit the redemption is denied, involves a freehold, and an appeal lies from the Appellate Court.
    2. Redemption —from tax sale—mistake of county clerk as to amount. Where the qwner of real estate sold for taxes applied to the county clerk to redeem the same, and paid the sum required of him by the clerk, and took a certificate of redemption, but the clerk, by mistake, failed to require the payment of taxes subsequent to the sale: Held, that a court of equity had the power to relieve the owner against the mistake of the clerk, and protect the title of the owner, upon his paying the amount of the subsequent taxes.
    3. The county clerk is the proper person to receive the redemption money, and it is his duty to inform the owner seeking to redeem, of the correct amount to be paid for that purpose.

      4. Although redemption from a tax sale is a statutory right, yet a party attempting, in good faith, to make it, may be relieved against the mistakes or frauds of the officers of the law, or of the purchaser. If he has attempted to redeem, and has done all he was required to do by those entitled to receive the money, in such ease the sale will be discharged, even though in consequence of the mistake of the officer he has paid less than the proper amount, if he will pay the deficiency.
    5. Same—subsequent taxes, how found. On application to redeem land from a tax sale while the tax books are in the hands of the collector, the county clerk can require the party to present a receipt showing the payment of subsequent taxes, or-if they have been paid by the person holding the certificate, a statement from the collector showing the amount paid, by whom and when; and in this manner the proper amount necessary to redeem may be ascertained.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Samuel M. Mooee, Judge, presiding.
    Mr. Augustus N. Gage, and Mr. Martin B. M. Wallace, for the appellant:
    Redemption is purely a statutory right, and to be effective the statute giving that right, which is a grant of privilege, must be strictly followed. Burroughs on Taxation, pp. 358, 361; Cooley on Taxation, p. 364; Rorer on Judicial Sales, (2d ed.) pp. 422, 433; Finch v. Brown, 3 Gilm. 488; Stone v. Gardner, 20 Ill. 304; Little v. People, 43 id. 188; Finch v. Eslaman, 68 id. 78; Durley v. Davis, 69 id. 133.
    It was claimed by appellees’ counsel in the court below that this redemption was insufficient, because of a mistake or of the corruption of the county clerk in not giving appellees the total amount necessary for a redemption. “But where one claims to have discharged lands from a tax sale by the payment of all taxes demanded of him, which was less than the whole, it must appear that no responsibility for the error rests upon him.” Cooley on Taxation, p. 367; Lamb v. Irwin, 69 Pa. St. 436.
    If the issue can be made under these pleadings whether a .mistake was made by the appellees or by the clerk, still the appellees must show, by clear and satisfactory proof, that a mistake existed. Ruffner v. McConnel, 17 Ill. 212, and cases cited.
    Appellees were sufficiently advised to put them upon inquiry as to whether they were depositing the proper amount, and if they neglected to make the necessary inquiries, the loss must fall upon them. Henneberry v. Morse, 56 Ill. 394.
    If this was a bill filed for the purpose of making a redemption, or for the purpose of perfecting a redemption, another question would be raised; but the issue being upon the question of fact whether there was a redemption, and it being established that there was not, it seems to us that upon all principles of law and practice this should end the case. The bill does not allege that the redemption was prevented by mistake or fraud, but, on the contrary, it is expressly stated that the redemption was complete. Shafer v. Davis, 13 Ill. 395.
    Have appellees shown such a title to this property that will warrant them in bringing this suit ? If they have not the title to this property, the decree is erroneous. Daniell’s Ch. Pl. and Pr. vol. 1, ch. 6, sec. 4, pp. 314-317; sec. 49, ch. 22, Rev. Stat.; Harding v. Jones, 86 Ill. 313; Emery v. Cochrane, 82 id. 65; Wing v. Sherrer, 77 id. 200.
    Mr. Frank Scales, for the appellees:
    The redemption was not invalidated by the mistake of the county clerk as to the amount necessary to be paid. Babb et al. v. Tomkins, 47 Pa. St. 359; Dietrich & Wilson v. Mason, 57 id. 40; Noble et al. v. Bullis, 23 Iowa, 559; Cooley on Taxation, 363.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellees against Asahel Gage, to set aside a tax deed issued to appellant by the county clerk of Cook county in the month of July, 1878, on a certain tract of land in Cook county.

It is in substance alleged in the bill, that appellees are the owners in fee of the premises, and are in the actual possession of the same; that the premises were sold October 14, 1875, for the third installment of the South Park special assessment, to N. Lamb, for $111.17; that a deed was issued to appellant, Gage, on such sale, July 30, 1878; that said premises had been redeemed from the sale before the issuing of said deed. The bill contains other allegations, but as no evidence was offered to sustain them, it will not be necessary to set them out here.

Appellant, Gage, put in an answer to the bill, in which he set up, substantially, that at the June term, 1875, of the county court of Cook county, a judgment was rendered against the land for the delinquent third installment of the South Park special assessment, and by virtue of said judgment the land was sold on the 14th day of October, 1875, to N. Lamb, and a certificate issued to him, which he afterwards assigned to appellant, who obtained a tax deed on the 30th day of July, 1878; that the deed conveyed an estate in fee to the property. Appellant admits that the statute provides for a redemption from a tax sale within a specified time, but denies that the premises were redeemed.

A motion has been made to dismiss the appeal, which, under the statute, will have to be sustained unless a freehold is involved, and that question we will dispose of before we pass to a consideration of the case on its merits.

A freehold has been defined to be an estate in real property, of inheritance, or for life, or the term by which it is held. Here, both parties claim the fee simple title to the property. Appellant claims under a tax title, which appellees insist is worthless, for the reason the land was redeemed from the sale for taxes before the deed was issued. If a redemption was made, that defeats appellant’s title. If, on the other hand, no redemption was effected, then the' title to the property passed under the deed. It seems plain that within the meaning of the statute a freehold is involved. Both by the pleadings and the evidence, each of the parties admits and claims an estate of inheritance in the property, which necessarily involves a freehold. The motion to dismiss the appeal will have to be overruled.

As respects the merits of the case, no question is raised in regard to the tax title held hy appellant hy the testimony introduced on the hearing, except that the land was redeemed from the sale within the time provided hy law, before the deed issued.

It appears from the evidence that appellees, within the time provided by law, undertook to redeem the premises from the tax sale, but in making the redemption the county clerk failed to include in the amount necessary to redeem $125.02, subsequent taxes paid by appellant. On account of the failure to pay the full amount, it is contended by appellant that the attempted redemption availed nothing, and appellees can claim no benefit therefrom, while, on the other hand, appellees claim, that having paid the full amount which the county clerk notified them was necessary to redeem the land, and having received a certificate of redemption from the clerk, they are entitled to relief in a court of equity.

The master in chancery, to whom the cause was referred to take evidence, made a report to the court, that the title to the property was in appellees; that on the 9th day of October, 1877, appellee Frank Scales went to the county clerk’s office to redeem the property from said sale, and paid $355.51, being the amount the clerk said was necessary for that purpose, hut by mistake the clerk omitted to include the sum of $125.02, the subsequent taxes paid by said Lamb or appellant, “so that Scales, thus failed to pay the whole amount necessary for such redemption, the amount actually paid being $126.51 less than the amount which was necessary; that afterwards, on the 30th day of July, A. D. 1878, the county clerk issued a tax deed to Asahel Gage for the premises, upon the ground that not enough money to redeem the same from said tax sale had been deposited with him. ” In the master’s opinion, appellee Frank Scales made an honest effort to pay all the money required to redeem, and did pay all that was given him as the required amount, and the failure to deposit the right amount was the result of accident, and not the fault of appellees; therefore recommends that the tax deed be set aside as a cloud upon the title to the property, upon appellees paying appellant $126.51, and interest thereon at six per cent per annum, from August 16, 1877, which at date of report amounts to $139.52. Dated April 30, 1879.

Section 210 of chap. 120, Rev. Stat. 1874, under which the redemption was made, declares: “Real property sold under the provisions of this act may be redeemed at any time before the expiration of two years from the date of sale, by payment in legal money of the United States, to the county clerk of the proper county, the amount for which the same was sold, and twenty-five per cent thereon if redeemed at any time before the expiration of six months from the day of sale; if between six and twelve months, fifty per cent; if between twelve and eighteen months, seventy-five per cent ; and if between eighteen months and two years, one hundred per cent on the amount for which the same was sold.”

The person redeeming shall also pay the amount of all taxes and special assessments accruing after such sale, with ten per cent interest thereon from the day of payment, unless such subsequent tax or special assessment has been paid by or on behalf of the person for whose benefit the redemption is made, and not by the purchaser at the tax sale, or his assignee.

It is true that appellees, on making the redemption, did not comply strictly with the requirement of the statute, as they failed to pay to the clerk a subsequent tax which had been paid by appellant while he held the tax certificate. But the report of the master, which is fully sustained by the evidence in the record, shows that appellees called upon the county clerk, whose duty it was to inform them of the amount necessary to be paid to make the redemption, and whose duty it was to receive the money, 'and that the full amount which this officer required was paid, and upon the receipt of the money he issued a certificate of redemption, which was delivered to appellees. Here was a mistake of an officer for which appellees were in no manner responsible. For this mistake shall they lose their land, or is it within the power of a court of equity to relieve as against that mistake, and thus protect appellees in the title to their land ?

Cooley, in his work on Taxation, in discussing this subject, says: “Although redemption is a statutory right, yet a party attempting in good faith to make it, may be relieved against the mistakes or frauds of the officer or of the purchaser. If he has attempted to redeem, and done all he was required to do by those entitled to receive the money, the sale is discharged, even though in consequence of the mistake of the officer he has paid less than the proper amount. ”

Here it is apparent the redemption was made in perfectly good faith. The money was paid to the proper officer, and the amount required by him, in the full belief that the sum paid was all that was necessary to redeem the land from the sale. We think the attempted redemption was sufficient to authorize a court of equity to grant relief against the mistake of the clerk. Under section 210 of the Revenue law, the county clerk is the officer whose duty it is to receive from the owner of real estate sold for taxes the redemption money. It is no part of his duty to receive such a sum as the owner may see fit to pay, but, on the other hand, it is his duty to furnish the owner with a statement of the amount required to make the redemption, and he is under no obligation to accept a less amount than the law requires to effect a redemption.

It is urged that it can not be the duty of the clerk to furnish a statement of the amount required to redeem, because the tax books which show subsequent taxes are out of the county clerk’s possession, and in the possession of the township and county collector from December until May, in each year. While the tax books are in the hands of collectors, should a party apply to the county clerk to make a redemption, the clerk can require such person to present a receipt showing the payment of subsequent taxes, or if they have been paid by the party holding the certificate, a statement from the collector showing the amount paid, by whom, and when. In this manner .all difficulty may be removed, and the amount required can easily be determined and furnished by the clerk. The bill in this case, it is true, was not framed directly with the view that appellees might obtain the relief sought by paying the balance of the redemption money, yet the offer' in the bilk to pay any amount the court may find necessary to complete the redemption, may be regarded as' broad enough to authorize the relief granted in the decree.

The decree of the Appellate Court will be affirmed.

Decree affirmed.


text:
    Henry G. Harper v. The Union Manufacturing Company et al.

      Filed at Ottawa September 26, 1881.

    1. Stockholders—liability for debts of corporation—by whom and ■ how enforced. Under section 9 of the act of 1857, relating to manufacturing . corporations, the stockholders are made severally and individually liable to the “creditors” of the company to the amount of stock held by them, for all debts, etc., made by such company prior to the time when the whole capital stock shall have been paid in. This liability can not be enforced by a single creditor, suing in his own behalf, alone. It can be enforced only upon a bill brought by, or at least in behalf of, all the creditors of the corporation.
    2. Same—stockholders’ liability not enforceable until assets of the corporation are. exhausted—parties to bill. Stockholders in a corporation organized under a law making them liable individually “to the creditors” of the corporation, will not be required to pay any portion of the debts until the assets of the corporation are first exhausted. If such assets are in the hands of an assignee for the benefit of creditors, he will be a necessary party to a bill in chancery to enforce the stockholders’ individual liability.
    3. Same—quaere, whether the act of 1857 is superseded by act of 1872. The court are inclined to think that the provisions of the act of 1857, relating to corporations, and making stockholders individually liable for the debts of the corporations, were superseded and became inoperative by reason of the general law of 1872 upon the same subject, but find it unnecessary to adjudge that question.
    Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Whiteside county.
    Mr. F. Sackett, for the appellant:
    When a new liability is imposed, or a new cause of action is given by statute, and no remedy is provided by the statute, the right to resort to the appropriate common law form of action is implied. 1 Term Rep. 512; Corwith v. Culver, 69 Ill. 502; Culver v. The Third National Bank of Chicago, 64 id. 528.
    In the case of Richardson v. Akin, 87 Ill. 138, the Supreme Court held, that since the act of 1872, concerning corporations for pecuniary profit, took effect, a court of law has no jurisdiction of a suit by a creditor of such corporation against a stockholder, unless his debt accrued before the act of 1872 took effect,—the remedy, if any, being in equity.
    This decision is but an application of another uniform rule of law, that where a statute imposes a liability or creates a new cause of action, and a remedy for its enforcement is expressly given by the statute, that remedy is exclusive, and no other can be adopted. Almy v. Harris, 5 Johnson, 175; Broom’s Legal Maxims, marg. pp. 145-149; Confrey v. Stark, 73 Ill. 187.
    One objection is, that our only right to proceed against the stockholders, to enforce their liabilities, is conferred by the 25th section of the act of 1872; and that the provision of that section, which declares that “each stockholder may be required to pay his pro rata share of such debts or liabilities, to the extent of the unpaid portion of his stock, after exhausting the assets of such corporation,” by implication repeals all laws making stockholders liable, otherwise than for the unpaid portion of their capital stock,—that the mention of one class of stockholders by implication excludes all others.
    Messrs. Bennett & Green, for the appellees Smith, Williams, Wood, Hubbard, Korn, Chase, Long, Parks, Goodell, Jenne and Buell:
    It is well recognized law that members of a corporation are not liable at common law, individually, for the debts of the corporation, and if liable at all, are so by statute. (Thompson’s Liability of Stockholders, sec. 4, and cases cited.) And that when the liability of the stockholder is claimed to arise out of the failure of an officer to perform some act, as, the filing of a certificate that stock has been paid in, it is penal in its nature, and should be strictly construed. (Thompson’s Liability of Stockholders, secs. 50, 54; Garrison v. Howe, 17 N. Y. 456; Gray v. Coffin, 9 Cush. 199.) And whenever a statute was designed to relieve stockholders from a more onerous liability imposed by a previous statute, it is entitled to be construed remedially in their favor. Thompson’s Liability of Stockholders, sec. 55, and cases cited; Holyoke Bank v. Goodman Paper Co. 9 Cush. 582.
    This right of individual liability of stockholders is in the nature of a penalty, and not a vested right, until after a debt is contracted. Cooley on Const. Lim. 359; Thompson’s Liability of Stockholders, secs. 71, 72; Richardson v. Akin, 87 Ill. 138.
    A repeal of an individual liability law is valid as 'to after contracted debts, and stockholders afterward joining the corporation. Thompson’s Liability of Stockholders, sec. 72; Ochiltree v. Railroad Co. 21 Wall. 249; Gray v. Coffin, 9 Cush. 192.
    . Although the general law of 1857, under which the Union Manufacturing Company was organized, contained no special clause allowing the legislature to repeal or modify it as to corporations organized under it, yet the legislature has such power when its exercise affects no vested rights. Gay v. Keys, 30 Ill. 413; Richardson v. Akin, 87 id. 138; Bailey v. Hollister, 26 N. Y. 112.
    An inspection of section 16 of the act of 1872, providing for the liability of the officers and directors above referred to, shows that by the language of the section it is not limited to corporations organized- under the laws of 1872.
    Section 25 of the same act, under which this suit is brought, and in accordance with the provisions of which appellant must recover, if he recover at all, fixes the limit to which the liability of the stockholder may be enforced by such mode, “to the extent of the unpaid portion of his stock, after exhausting the assets of the corporation. ” The mode of procedure and the limit of enforcement by such mode are connected in the same clause; and keeping in view the strict construction to be given such statutes, can any one fairly claim that by such mode any liability of a stockholder, beyond the limit thus named, can be enforced ?
    Messrs. Dinsmoor, Stager & Dinsmoor, for the appellees Eoyer and Mickle:
    The bill should have been filed in behalf of all the creditors. Mann v. Pentz, 3 N. Y. 415; Crease v. Babcock, 10 Metc. 531; Adler v. Milwaukee Patent Brick Mfg. Co. 13 Wis. 70.

      Nance, the assignee, should have been made a party. Hopkins v. Roseclare Lead Co. 72 Ill. 373.
    From the bill and answers it appeared whether or not these persons were necessary parties. If complainant had desired to make them parties, he should have done so before the hearing. If he had asked leave on the hearing, it would undoubtedly have been granted on terms, but as he never asked leave it was the duty of the court to dismiss the bill. Atkins v. Billings, 73 Ill. 597; Searles v. Jacksonville, P. and M. Railroad Co. 2 Wood, 621.
    Messrs. Manahan & Ward, for the appellee R. B. Witmer:
    The statutory provisions govern and limit the liability of the stockholder. Baker et al. v. Backus, Admr. 32 Ill. 99.
    The legislature has the power, before rights of creditors have attached, to change or abolish the statutory liability. Coffin v. Rich, 45 Me. 507.
    The acts of April 18, 1872, and March 26, 1872, govern this case.
    By section 25 of the act of 1872 the remedy is solely in equity, and jointly against all of the stockholders with the corporation, and perhaps all of the creditors must join. The appellant has brought his suit and sought his remedy under section 25 of the act of 1872, but declines to be bound by its limitations.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a suit in chancery, brought by Harper against the Union Manufacturing Company and Taylor Williams, and others, constituting all the stockholders of that company, to coerce the payment to the complainant of a judgment of over $2000, recovered in the circuit court of Whiteside county in September, 1877, against the corporation and in favor of one Hotchkiss, for the use of the complainant. The debts were contracted in the months of March and May, 1876. It is alleged in the hill that the defendant stockholders were each stockholders of the corporation at the time these debts were contracted by the corporation, each to the- extent of at least $3000. In June, 1877, the corporation had become insolvent, and made an assignment for the benefit of it's creditors of all of its property and effects to George W. Nance.

The liability of the defendant stockholders, mentioned in the bill, is placed upon two grounds: The first ground rests upon the allegation that each of the defendant stockholders was indebted to the corporation upon a stock subscription,— this allegation is not supported by the proofs. The second ground rests upon the allegation that, at the time these debts were contracted by the corporation, the whole amount of its capital stock had not been paid in, and a certificate thereof made and filed in the office of the clerk of the circuit court of the county wherein the business of the company was transacted.

The liability, on this account, of the defendant stockholders is claimed upon the provisions of the 9th and 10th sections of the act of 1857, relating to corporations of this character.

Section 9 declares: “All the stockholders of every such company shall be severally individually liable to the creditors of the company to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company prior to the time when the whole amount of its capital stock shall have been paid in, and a certificate thereof made and filed as hereinafter required. ”

Section 10 provides for the making, by a. majority of the directors of the company, of a sworn certificate, stating the amount of the capital stock, and that it has all been paid in; and for the filing of the same in the office of the clerk of the circuit court of the proper county.

The 16th section of chapter 32 of the Revised Statutes of 1874, is as follows: “If the indebtedness of any stock corporation exceed the amount of its capital stock, the directors and officers of said corporation assenting thereto, shall be personally and individually liable for such excess to the. creditors of such corporation.

In the case of Low v. Buchanan, 94 Ill. 76, this court, in construing this latter section, held that the phrase “to the creditors, ” meant to “all the creditors; ” and that the liability in such case of such directors and officers was “not to some particular creditor, but to all the creditors.”

It is not perceived that the language of the 9th section of the .act of 1857 can admit of any other or different construction than that given to the 16th section by this court in the case of Low v. Buchanan.. It follows, whatever may be said in relation to other questions raised and discussed by counsel in this case, that the relief sought in this behalf could only be had upon a bill brought by, or at least in behalf of, all the creditors of the corporation. This bill being brought but by one creditor, and in his own behalf, alone, and no application having been made to the court for leave to amend in this respect, the circuit court was clearly right in dismissing the bill.

The assignee of the corporation was also a necessary party. It would clearly be inequitable to require the individual stockholders to pay any portion of the liability of the corporation until the assets of the corporation were exhausted. These, as shown by the record, were in the hands of an assignee.

We are also inclined to think that the provisions of the act of 1857, upon which this claim rests, were superseded and became inoperative by reason of the general law of 1872, upon the same subject; but we find it unnecessary in disposing of this case to adjudge that question.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


text:
    James B. Hobbs v. Daniel Ferguson’s Estate.

      Filed at Ottawa September 26, 1881.

      Practice—to show ruling of law on trial by court. On a trial by the court without a jury, in order to present a question of law to this court as having been passed upon by the court below, the party should submit to the trial court written propositions of law, to be “held” or “refused,” or set out in the bill of exceptions the ultimate facts found by that court from the evidence.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county.
    Messrs. Hoyne, Horton &• Hoyne, and Messrs. Hill & Dibell, for the appellant. ■
    Messrs. Garnsey & Knox, for .the .appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

■ Hobbs filed a claim in the county court against the estate of Ferguson. The claim was disallowed by that court. Hobbs appealed to the circuit court. In that court the cause was tried by the court, a jury being waived, and the finding and judgment were against the claimant, to which he excepted and filed a bill of exceptions, setting out all of the evidence. No rulings of that court in the progress of the trial are complained of as erroneous. The claimant appealed to the Appellate Court, and by that court the judgment of the circuit court, was affirmed, and from that judgment Hobbs appeals to Ibis court.'

The proofs tend to show that Hobbs acted as the agent and commission merchant in behalf of Ferguson, in buying and selling grain for him in the Chicago market, in which losses occurred to Ferguson, which were paid by Hobbs, and .the claim is for moneys so advanced and paid out. Appellant’s •counsel, assuming that the Appellate Court affirmed this judgment upon the ground that the transactions were unlawful, seek to present that question here for determination. The record fails to show that the result was governed or affected by the legal question presented. The bill of exceptions taken in the circuit court fails to show that that question was raised in the circuit court.

Our statute (sec. 42, chap. 110, Rev. Stat. 1874,) provides that in trials of this kind by the circuit court, without a jury, either party may, upon the trial, “submit to the court written propositions, to be held as law in the decision of the case,” which the court is by law required to pass upon, and mark “held” or “refused, ” or to modify, as shall be the views of the court upon the questions presented; and either party may except to such rulings.

Where a party at such a. trial supposes a question of law is ' involved in the finding, he may thus separate the same from the questions of fact, as he might do by asking instructions if the issue were submitted to a jury, and save the supposed question of law for consideration in the Appellate or Supreme 'Court. Had this bill of exceptions in the circuit court set .out the ultimate facts found by that court, instead of the evidence, and had those findings been the same as appellant’s "counsel here present as the actual facts, and had the bill of exceptions shown that upon the ultimate facts so found by the circuit court that court ruled the law against the claimant, in such case counsel could present that question of law to this court.

This case stands now upon this record in the same condition, in so far as affects this question, as if the trial had been by jury in the circuit court and the verdict had been for the defendant, and no instructions whatever had been asked or given in the case. In such ease it must be assumed that the jury made no mistake of law, and if the verdict be wrong, it was a mistake of fact. The judgment of the Appellate Court settles the question of fact, and this we can not review.

Judgment affirmed.


text:
    Elijah H. Gammon v. Jesse Huse.

      Filed at Ottawa September 26, 1881.

    1. Pbactice—;finding of facts by Appellate Court. The statute does not authorize the Appellate Court to incorporate into the record any special finding of facts, except in cases where the same is different, in part at least, from the finding in the trial court.
    2. Same—when general finding must prevail. A general finding .by the Appellate Court, that “the evidence supports the verdict,” must stand, unless there be some special finding inconsistent with it.
    3. Pabtnebship—liability of a retiring partner for debts subsequently contracted. Where a partner on a sale of his interest suffers his name to remain as a member of the firm, taking an agreement from the purchaser to pay all the indebtedness of the firm, whether contracted in the past or to be contracted in the future, he will be bound by a note given b$ a partner in the old firm name to one without notice of any actual change in the firm.
    4. Notice—of partner’s defect of power through agent. Where partnership articles provided that A should not give the firm note without the consent of B, another partner, which provision had been habitually disregarded, without objection, for about two years before the giving of a firm note by A for money loaned to the firm, the fact that C, another partner, acted as the agent of the lender, is not sufficient to charge the latter with notice of such provision, 'without any proof that it was present in the mind of 0 while so acting as agent.
    5. Same—when notice to agent applies to principal. It seems doubtful whether notice to an agent of one loaning money and tailing a firm note, who is also one of the borrowers and makers of the note, will be notice to the principal.
    6. Paboii evidence—of agreement at the time of making written contract. Parol testimony that at the time of the execution of a written agreement for the sale of a partner’s interest in a partnership, he agreed to let his name remain as a member of the firm, is admissible in a suit by a third person seeking to charge him as a partner. Such evidence does not vary the terms or conditions of the written contract, and such agreement is not in any proper sense a part of it.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E..Gaby, Judge, presiding.
    This is assumpsit, brought by appellee against appellant, Gammon, and three others, Orvis, Cutler and Obadiah Huse, as partners, under the style, or firm name of “F. K. Orvis & Co.,” upon a promissory note, payable to the order of Mary J. K. Huse, for the sum of $1200, one year after date, with interest at ten per cent from date, dated December 1, 1870, and signed by the firm name of F. K. Orvis & Co., with allegation that appellee was, at the bringing of the action, the assignee of the note. Appellant, Gammon, alone made defence. He, by his pleas verified by affidavit, denied the execution of the note, denied the alleged joint liability, and denied that he was a member of the firm at the time when the note was made. There was a trial by jury of the issues, resulting in a verdict against appellant. A motion for a new trial was overruled, and judgment was given for the plaintiff. This judgment, on appeal to the Appellate Court, was affirmed, and from that judgment of affirmance Gammon appeals to this court.
    The record shows that the Appellate Court finds that the four defendants entered into a copartnership September 1, 1869, which copartnership was not dissolved until May 31, 1871; that the note sued on was made by said firm at the day of its date; that upon the trial of the cause there was introduced in evidence the following agreement:
    “This agreement, made and entered into this 4th day of April, 1870, between E. H. Gammon, of Chicago, State of Illinois, and Obadiah Huse, of the county of Cook and State of Illinois;

      “Witnesseth: That the said B. H. Gammon, in consideration of $1 to him in hand paid by the said Obadiah Huse, the receipt whereof is hereby acknowledged, and other considerations named below, has granted, bargained and sold, and by these presents does grant, bargain and sell, unto the said Obadiah Huse, all of his interest in the firm of F. K. Orvis & Co;, including stock in trade, tools, fixtures, machinery, all indebtedness to said firm, whether in accounts or notes, the true intent and meaning being to include all the assets of the said firm whatsoever; and the said Obadiah Huse, in consideration of the above, hereby agrees, for himself, his heirs, his administrators and his assigns, to pay all the indebtedness of the said firm of F. K. Orvis & Co., for which the said E. H. Gammon is or may be lawfully holden, whether such indebtedness may have been contracted in the past or may be contracted in the future, and protect the said E. H. Gammon harmless from all and every claim against the said firm, or that may ever be against the said firm, as much as if the said E. H. Gammon had never been a member thereof.
    “In witness whereof we hereby set our hands, the day and year above named.
    E. H. Gammon, Obadiah Huse.”
    That the said agreement was executed by Elijah H. Gammon and Obadiah Huse about its date; that at or about the same time Gammon agreed to allow his name to remain in the firm to give it credit, and that his name did remain in the firm until its dissolution; that the note was given to Mary J. K. Huse for money belonging to her in her own right, and that said money was loaned to the firm of F. K. Orvis & Co. by her, through Obadiah Huse, who, in the making of said loan, acted for her and as her agent, but that there is no evidence that Mary J. K. Huse had actual or personal knowledge of any of the agreements in reference to Gammon’s interest in the firm of F. K. Orvis & Co.; that the note was transferred by the payee after its maturity, and that the evidence sustains the verdict.
    Messrs. Ellis & Meek, and Mr. O. H. Hobton, for the appellant:
    The finding of the Appellate Court is conclusive as to all questions of fact. Gravett v. Davis, 92 Ill. 190.
    Had no certificate been filed by the Appellate Court, then this court would presume that the facts found by the Appellate Court sustained the verdict. Brownell et al. v. Welch, 91 Ill. 523. But when the Appellate Court files its certificate of facts, there is no ground for the presumption.
    By the partnership contract Orvis was to give no firm note without the consent of the appellant. The allowing his name to remain as one of the firm, was subject to all the provisions and conditions of the partnership articles.
    Mrs. Huse, the payee of the note, loaned the money through 0. Huse, her husband, as her agent. O. Huse being a party to all of these contracts, had full knowledge of them, and so the payee of the note, for whom he acted as agent, had like knowledge. Bryan v. Price, Breese, 59; Williams v. Brower, 14 Ill. 201; Page et al. v. Brace, 18 id. 39.
    Under the pleadings in the ease the burden of proof was thrown upon the appellee to establish the liability of the appellant, and to establish that liability the appellee, having notice of the conditions of the partnership articles, must have shown Gammon’s assent to the execution of this note, as it was signed in the firm name by Orvis.
    The partnership was strictly at will, no time being designated for its continuance. 1 Collyer on Part. 148. And the sale to Huse was a dissolution of it. Lindley’s Law of Partnership, vol. 1, p. 698; Parsons on Part. 415.
    There was error in allowing Huse to testify to a parol agreement made at the time of the written one for the sale of his interest in the firm. The witness said: “I think that it was at the time of making the contract of April 4, 1870, that Gammon agreed to remain a member of the firm. ” The admission of the evidence was in plain violation of the rule that all antecedent or contemporaneous verbal agreements are merged in the written contract. Lane v. Sharp, 3 Scam. 573; Abrams v. Ramsey et al. 13 Ill. 137; Mason v. Benton, 54 id. 355; Beattie v. Brown, 64 id. 360.
    Matter collateral may be proved, but it must not change the terms of the contract.
    Messrs. Robinson & Gbeen, for the appellee:
    1. An agreement collateral to a written agreement may be proved by parol. Lane v. Sharp, 3 Scam. 573; Herson v. Henderson, 21 N. H. 224.
    2. The rule of evidence that parol evidence shall not be admitted to vary or contradict a written instrument, is only applicable to controversies between the parties to the written instrument, their representatives, and those claiming under them. Krider v. Lafferty, 1 Whart. 303; Reynolds v. Magness, 2 Iredell, 26; Edgerly v. Emerson, 3 Foster, 555; Badger v. Jones, 12 Pick. 371; Furbush v. Goodwin, 25 N. H. 425.
    3. Where a promissory note is made payable to a married woman since 1861, it will be presumed that the money is due to her and not to her husband. Snider v. Ridgway, 49 Ill. 522; Tooke v. Newman, 75 id. 215; Yazel v. Palmer, 81 id. 82.
    4. It was competent at common law for the husband to create a separate estate for his wife out of his own property, even without the intervention of trustees. No one can impeach the transaction or inquire into its propriety, unless he was a creditor at the time. Gill v. Woods, 81 Ill. 64; Yazel v. Palmer, 81 id. 82.
    5. A party is liable on a promissory note made in the name of the firm in which he has been a partner, though it was drawn after be sold out his interest in the firm, if he consents that his name shall continue in the firm, although the payee knew these facts at the time he took the note. Brown v. Leonard, 2 Chitty, 119; Fisher v. Bowles, 20 Ill. 396.
    6. Private arrangements between partners do not affect parties without notice. Winship v. Bank of United States, 5 Pet. 529; Whitaker v. Brown, 16 Wend. 504.
    7. In order to visit a principal with constructive notice of a fact, it is necessary that such knowledge should have been gained by the agent in the course of the same transaction. Hiever v. Neill, 13 Ves. 120; Bracken v. Miller, 4 Watts & Serg. 102; Williams v. Tatnall, 29 Ill. 564; McCormick v. Wheeler, 36 id. 114; N. Y. C. Ins. Co. v. N. P. Ins. Co. 20 Barb. 468.
    8. A partnership continues as to persons dealing with the firm, until they receive actual notice of the dissolution; as to persons not dealing with the firm, until public notice is given. Parkin v. Corruthers, 3 Esp. 248; Ellis’ Admrs. v. Bronson, 40 Ill. 455; Southern v. Grim, 67 id. 106.
   Mr. Justice Dickey

delivered the opinion of the Court:

Counsel for appellant take the position, that unless the special findings of the Appellate Court form, of themselves, a sufficient basis for the verdict, the judgment must be reversed; that the finding that “the evidence sustains the verdict, ” is merely an inference of law drawn by the Appellate Court from the special findings of fact which precede that finding, and thereupon attempts to show that the special findings are an inadequate foundation for the judgment. The statute does not authorize the Appellate Court to incorporate into the record any special finding of facts, except in cases where the same is different, in part at least, from the finding in the circuit court. Were this otherwise, we can not concur in the construction placed upon this record by counsel for appellant. The Appellate Court find, generally, that “the evidence supports the verdict. ” That general finding must stand, unless there be some special finding which is ■ inconsistent with the general finding. We find no such inconsistency.

If, as found, these four men were partners at the giving, of the note, there is nothing in the contract of April 4, 1870, made between Gammon and Huse, which forbids the- giving of this note so as to charge all four of the partners. The very words of that contract imply that the parties at that time contemplated that' “indebtedness of said firm” would-“be contracted in the future, ” “for which the said E. H. Gammon” would “be lawfully holden; ” and as between the par

It is insisted, also, that this note does not bind Gammon, because the firm name was signed by Orvis, without the consent of Gammon; and it was provided by the original articles of partnership, of September, 1868, that “Orvis is not to * * * give the firm note without the consent of E. H. Gammon.” To this suggestion it is answered, that the payee of the note had no notice of this provision in that contract. Appellant, however, replies, that Obadiah Huse, being. a party to that contract, had notice of the same; and inasmuch as he acted as the agent of the payee of the note in making the loan and accepting the note, notice to the agent, in effect, is notice to the principal.

There is evidence tending to show, and the jury have found, that for a long time before the giving of this note, in the ordinary business of the- firm, that provision had been habitually disregarded, without objection by Gammon or any other member of the firm; and the- course of business was such that it is not at all probable that this provision was borne in mind by Obadiah Huse, or thought of, at the time when the note was given and accepted; There is no proof that knowledge or notice of that feature of the contract was acquired by the agent in the transaction of the business to which his agency related, or that the same was, at that time, really known to him, or that the same was present in the mind of the agent while performing his agency. The fact that he knew of this provision of the contract two years before the transaction, is not sufficient to charge his principal with notice of the same.

It may, perhaps, be doubted whether the same general rules as to notice to an agent can properly be applied to a case where the agent of the party to he charged with notice constitutes one of the parties with whom the party to be so charged is contracting. Obadiah Huse was not only the agent of the payee of this note, hut he was one of the makers, —one of the parties with whom she contracted. Even if specific notice of this feature of the partnership contract had been given to Obadiah Huse at the time of the giving of this note, it may, perhaps, he seriously questioned whether the reasons for the rule (that notice to an agent is notice to his principal) could have any application to this ease.

Nor do we think that any just ground of complaint is found in the ruling of the court in admitting testimony, that at the time of the contract of April 4,1870, Gammon agreed to let his name remain as a member of the firm. Such proof did not vary the terms or conditions of the written contract. As already suggested, the proof is in harmony with the necessary implications of the written contract. It merely shows a separate concurrent contract (which may have constituted part of the consideration or inducement to the written contract), having no relation to the terms, conditions or subject matter of the written contract, and in no proper sense constituting a part of it.

Finding no error in the judgment of the Appellate Court, the same is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Charles Moeck v. The People of the State of Illinois.

      Filed at Ottawa September 27, 1881.

      1. Instruction—construed—as to whether it assumes that a witness had been contradicted. An instruction given on behalf of the prosecution upon the trial of a person indicted for manslaughter, and who testified in hie own behalf, directed the jury that in determining the degree of credibility to be accorded to the testimony of the accused, they should take into consideration the fact, if it was a fact, that he bad been contradicted by other witnesses. On objection that the jury would understand from this that the court believed the accused had been contradicted, it was held, that the instruction would not bear any such construction.
    2. Criminal law—reasonable doubt. On a criminal trial the court instructed the jury as to what should be regarded as a reasonable doubt, as follows: That “in considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that were the same kind of doubt interposed in the graver transactions of life it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.” It was held, the instruction correctly stated the rule.
    3. Practice—evidence received without objection. On the trial of a person upon an indictment, for manslaughter, a witness testified to a remark made by the wounded -man to the accused, after the arrest of the latter, to the effect that the former did not think he, the prisoner, would have done the shooting, as he had always treated him like a brother, to which the prisoner made no reply. On error, it was objected that the evidence was inadmissible; but there having been no objection made in the court below, it was held, it could not be taken in this court for the first time.
    4. Evidence—dying declaration exonerating one who had inflicted a death woimd. The declarations of one who had received a mortal wound by the hand of another, made shortly before his death, exonerating the person who inflicted the wound from any blame in the affair, when so remote from the transaction as not to be considered as a part of the res gestee, are not admissible in evidence in favor of the person inflicting the injury, upon his trial for the homicide. Dying declarations are not admissible in exoneration of the accused.

      Writ of Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge,.presiding.
    Charles Moeck was indicted for manslaughter, for the killing of Adam Conrad, by shooting with a pistol, on the night of November 6, 1880, in the city of Chicago. Upon the arrest of Moeck he was taken to the police station, and while there, Conrad, the wounded man, said to Moeck, as testified to by two witnesses, Wiley and Elliott, “Charley, I did not think you would do that,—I always used you like a brother, ” the witnesses stating that Moeck made no reply. This testimony was not objected to in the court below. Other facts in the case are sufficiently set forth in the opinion of the court. .
    Messrs. Forrester & Felsenthal, for the plaintiff in error, Mr. W. W. O’Brien, of counsel.
    Mr. Luther Laflin Mills, State’s Attorney, and Mr. Henry Wendell Thomson, Assistant State’s Attorney, for the People.
   Mr. Justice Walker

delivered the opinion of the Court:

The grand jury of Cook county, at the November term, 1880, of the Criminal Court of that county, presented an indictment against Charles Moeck for manslaughter, by the killing of Adam Conrad. To this indictment, accused filed a plea of not guilty. A trial was had by the court and a jury, at the June term, 1881, which resulted in a verdict of guilty, as charged, and fixed the term of his confinement in the penitentiary at ten years. Thereupon defendant entered a motion for a new trial, assigning reasons therefor, but the court overruled the motion and rendered judgment on the verdict, and defendant prosecutes a writ of error, and brings the record to this court, and urges a reversal.

Numerous objections are urged for reversal. It is first urged, that the court erred in giving the second instruction for the People, in telling the jury that in determining the degree of credibility to be given to the testimony given by accused, the jury should take into consideration the fact, if it was a fact, that he had been contradicted by other witnesses. It is said that this was calculated to induce the jury to conclude the court believed accused had been contradicted. The instruction is not subject to any such criticism. Such is not the scope or import of the language, and as men of ordinary intelligence it could not have misled the jury.

It is urged that the third instruction is erroneous as to what is a reasonable doubt. This instruction seems to have been copied from one that was given in the ease of Miller v. The People, 39 Ill. 457, which was approved, referring to Pate v. The People, 3 Gilm. 644; and Reins v. The People, 30 Ill. 256, is referred to as supporting its correctness, and others might be added. The doctrine holding this instruction good, we regard as well settled in this court.

It is objected that the court erred, in permitting Wiley and Elliott to testify to what Conrad said to accused at the station. It is enough to say that there was no objection made to its admission, or exception preserved in the record. When such evidence is thus received without objection it is waived, and cannot be-raised in this court for the first time. There is, therefore, no force in this objection. As to whether it proved anything or not was for the jury. If they believed accused did not hear it, they no doubt regarded it of no consequence. If they believed he did hear it, and made no. reply, they were to determine what weight, if any, it should receive.

It is next urged that the court erred in excluding the declarations of deceased, made shortly before his death, in substance that he struck accused, and he was not to blame. They were made so long after the occurrence as to preclude all claim that they were a part of the res gestee. They were, therefore, mere hearsay evidence, and were not admissible. Under the decision in the case of Adams v. The People, 47 Ill. 376, they were not admissible as evidence. It was there said, the dying declarations of deceased, that “he did not wish accused hurt for what he had done, and that accused had done nearly right, etc., affords no evidence of anything more than a truly Christian spirit on the part of one who had been unjustly done to death, and who, in his dying agonies, was willing to forgive the malefactor. ” It is true this was newly discovered evidence on which a new trial was urged, but was said not to be evidence for the jury.

It is insisted that it was improper to ask accused, when he was testifying on the stand, whether or not the pistol with which he shot deceased was the same with which he shot at Murphy, and he should not have been permitted to answer. It is a sufficient answer to this objection to say, that when the question was asked no objection was made to its being answered, no motion made to exclude it, nor any instruction asked telling the jury to disregard it. No objection or exception of any kind was taken, or even intimated. If an objection lay to the question and answer, it was waived, and can not be now raised for the first time in this court.

It was a fact for the finding of the jury, from the evidence, whether deceased died from the effects of the shot, or from some other cause. We think there was an abundance of evidence to. warrant the finding that his death was caused by the wound inflicted by the pistol shot. We therefore feel that we would be wholly unwarranted in reversing on the ground that there was a want of evidence as to the killing. Nor do we see that the time for which plaintiff in error was sentenced to be confined in the penitentiary was excessive. The evidence would, we think, have justified the finding of a much longer period.

We do not see that the court below erred in overruling the motion for a new trial. The evidence was 'entirely sufficient to sustain the verdict. A careful examination of the record and full consideration of arguments of counsel for plaintiff in error fail to enable us to perceive any error in the record, and the judgment of the court below is therefore affirmed.

Judgment affirmed.