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he pleaded guilty and consented to the judgment upon condition that the case then pending against him should not be further prosecuted, but without any promise in reference to further proceedings, or to proceedings in the supreme court of the state or elsewhere. It appears that the information in the circuit court of Vermilion county not only charged the defendant with mal conduct in regard to the divorce cases, but also charged him with a number of other offenses, to wit, with the slander of officers of the courts of Vermilion county, and that he had been convicted thereof; also, that his reputation for truth and veracity was bad, and had been impeached, and that such impeachment had been made from time to time for the past 15 years, and twice during the then term of court; also, that in the past 15 years he had been indict

his consent, he cannot, in the absence of proof of fraud, have it vacated on the ground that he acted on the erroneous advice of counsel." 11 Enc. Pl. & Prac. 1030, note 5. The question at issue between the people and the present defendant in the proceedings by information in the circuit court of Vermilion county was whether or not the defendant was guilty of the charges there made against him; and, inasmuch as that question was there adjudicated, the judgment is conclusive in this proceeding, which is also a proceeding by the people, upon the relation of the attorney general, against the defendant. When a question at issue between two parties is once adjudicated in a former proceeding in a court of competent jurisdiction, the judgment so adjudicating it is conclusive whenever the same fact is again put in issue between the same parties. Hanna v. Read, 102 Ill. 596; Wrighted or prosecuted 15 times for different ofv. Griffey, 147 Ill. 496, 35 N. E. 732; Railway Co. v. Carson, 169 Ill. 247, 48 N. E. 402; Markley v. People, 171 Ill. 260, 49 N. E. 502.

There is, however, evidence outside of the record of the proceeding by information in the circuit court of Vermilion county, and the judgment of conviction rendered therein, which establishes the truth of the charges made against the defendant. The testimony shows that the defendant drew an affidavit in the Roos case alleging that Dora Roos was a nonresident of the state of Illinois, and procured publication to be made against her as such nonresident, when he knew that the affidavit was not true. Christian Roos testifies in this case that when he applied for a divorce from his wife, in 1898, she resided on Milwaukee avenue, in the city of Chicago, in the state of Illinois, and that he told the defendant, Hill, of his wife's residence in Chicago. Several witnesses also testify to the fact that the defendant in the Little case represented to the court that the summons therein had been served, when such was not the fact. The defendant himself, in his testimony, denies what these other witnesses thus say; but he is impeached by 40 reputable citizens, business and professional men, living in Vermilion county. These witnesses all swear that the reputation of the defendant for truth and veracity in Danville, where he lives, is bad, and that they would not believe him under oath. He does not produce a single witness to state that his reputation for truth and veracity is good.

The statement of the defendant that he was promised immunity from further prosecution for his nonprofessional conduct if he should plead guilty to the charges against him of misconduct in the divorce cases is de nied by the state's attorney and two members of the bar, who were instrumenta! in procuring the judgment of conviction in the circuit court of Vermilion county, by which he was suspended from practicing his profession in that county for two years. They swear that

fenses against the criminal law of the state; also, that he was indicted in the year 1891 on the charge of burning public records, and found guilty thereof by a jury, though on a second trial he was found not guilty; and also that he had been repeatedly arrested and imprisoned by the police, but had been released on account of corrupt testimony furnished by himself. The evidence in this case tends to show that he pleaded guilty in the proceeding in the Vermilion county circuit court to the charges made against him in the information there relating to the divorce cases only for the purpose of avoiding a trial upon the other charges made in said information, which did not relate to the divorce cases. One of the members of the bar assisting the state's attorney in the prosecution in Vermilion county states that the defendant said, “If I plead guilty, you will prosecute me for perjury," and that the state's attorney said that he thought there was no disposition on the part of the bar to send him to the penitentiary. The testimony is conclusive to our minds that the defendant, Hill, was present with his counsel in the circuit court of Vermilion county when the plea of guilty was entered, and when the judgment of conviction was rendered against him, and that he knew and understood and consented to what was there done. Neither the defense set up in his answer, nor the defense put forward in his testimony, is sustained by the evidence.

We are of the opinion that the charges made in the information in this case against the defendant are established by the proof, and that the conduct of the defendant has been unworthy and of such a character as tends to defeat and corrupt the administration of justice. Therefore let the rule in this case be made absolute, and let an order be entered striking the name of Alonzo R. Hill, respondent herein, from the roll of attorneys of this court, in accordance with the prayer of the information filed by the attorney general. Rule made absolute.

(182 Ill. 473)

SNELL v. TAYLOR.1 (Supreme Court of Illinois. Oct. 19, 1899.)

INTEREST-ACCOUNTING BETWEEN

PARTNERS.

In an action for an accounting between partners, defendant should not be charged with Interest on the firm funds in his possessior from the filing of the bill until the entry of the decree, where many years elapsed between these two dates solely through the fault of plaintiff, who also neglected to demand an accounting before suit brought.

Appeal from appellate court, Third district.

Bill by Thomas Snell against Abner Taylor for an accounting as to the affairs of the firm of Snell & Taylor. To a judgment of the appellate court (79 Ill. App. 462) modifying the decree of the circuit court, complainant brings error. Affirmed.

Thomas Snell, on December 9, 1875, filed his bill against Abner Taylor, in which he averred that about the year 1870 he and Abner Taylor became partners in the business of buying and selling real estate in equal shares as to profits and losses, the business to be carried on at Chicago under the name of Snell & Taylor; that the co-partnership thus formed was commenced December 31, 1870, and its business carried on at Chicago under said firm name, and has since continued; that Abner Taylor, for and in the name of the firm, purchased a certain tract of land containing 27 acres, in Cook county; that said tract, according to the intention with which it was purchased. was divided into lots, and, as such, sold; that Abner Taylor has sold and conveyed all of said lots, received all the moneys that have been paid on the same by persons purchasing, and has also received all notes, bonds, securities, etc., arising out of the sale thereof, amounting to the sum of $100,000; that Abner Taylor has ever refused, and still refuses, to account to complainant for any part of such moneys, notes, bonds, securities, etc.; that there has not been any settlement or adjustment between complainant and Taylor of said co-partnership business for six years and upwards, and that the accounts respecting the same are still open and unliquidated, and the amount of money due said co-partnership from said Taylor individually is very considerable, and much more than his share or proportion thereof; and praying process against Taylor, and that he be required, but not under oath, to make answer to the bill, and that the co-partnership business of Snell & Taylor may be dissolved, and that an account may be taken of all said co-partnership dealings and transactions which are open and pending between the partners, and that what thereupon shall appear to be due from Taylor to complainant may be decreed to be paid by him, and that a writ of injunction may be issued restraining Taylor from

'Rehearing denied December 13, 1899. 55 N.E.-35

drawing, making, incorsing or negotiating any note or bill or security whatever for or on account of or in the name of said firm, or from receiving or keeping any money, bill, or security for or or account of said co-par:nership funds, or from using or employing said co-partnership funds, or any part there of, and from furthe: intermeddling with the books, papers, bills, notes, cash, and security in said business, and that a proper perso 1 may be appointed by the court as a receiver, etc.

On December 9, 1875, a summons was issued out of the court on said bill, an-1 duly served the next day on Abner Taylo:. The proceeding was regularly continued, without any other orders of the court therein, or answer from Taylor, until September 2, 1889, when Taylor filed a plea and answer, alleging that as to so much of the bill as seeks an account of the dealings and transactions between coraplainant and defendant prior to the 1st day of January, 1875, the defendant says that on the 1st day of January, 1875, complainant and defendant settle.1 their accounts of all sums of money which defendant had before that time received e:ther from complainant or from complainant and defendant as partners, and of all ma:ters and things thereunto relating, or at any time before the said 1st day of January. 1875, being or depending between them in relation to their co-partnership dealings, an 1 in respect of which the complainant's bil has since been filed; that complainant, after a strict examination of said account, an every item and particular thereof, which the defendant avers, according to the best of his knowledge and belief, to be true and jus!, did approve and allow the same, and actually received from the defendant the sum of $1,000, the balance of said account, which, by said account, appeared to be justly due from the defendant, and the complainant then and there, in consideration thereof, released and discharged the defendant from any and all liability or obligation to him on account of said co-partnership dealings up to that time; and therefore defendant pleads said settlement in bar to so much of the complainant's bill as is hereinbefore particularly mentioned. And for answer to the residue of said bill defendant says that in 1869 complainant and defendant entered into an agreement to become partners in the business of buying and selling real estate in equal shares as to profit and loss, but denies that it was carried on in the name of Snell & Taylor, and charges that it was carried on in the name of this defendant, and was limited to the purchase and sale of the lands hereinafter described, and none other; denics that he, for and in the name of Snell & Taylor, purchased a tract of land containing 27 acres, in Cook county, but states that he purchased it in his own name, and for his individual purposes, long before the formation of said co-partnership, and that afterwards,

ings thereon;

ties to the master's report, account, and rulings thereon; and the court, on April 11, 1895, after sustaining certain exceptions upon each side and recasting the account in accordance with its rulings on the exceptions, found that there was owing to the complainant, Snell, by the defendant, Taylor, on December 9, 1875, the sum of $5,071.96, with interest thereon from that time until the hearing, amounting to $5,693.51,-making in all $10,765.47,-and decreed that Taylor pay that amount to Snell, and also that Taylor pay all the costs. Taylor prosecuted a writ of error from the appellate court, which partly affirmed and partly reversed the decree of the circuit court.

Richard A. Lemon, for appellant. Moore & Warner, for appellee.

PER CURIAM. In deciding this case the appellate court expressed the following views:

in the year 1868, he, at the earnest solicita-gether with the exceptions made by the partion of said Snell, allowed him to become the owner of an undivided one-half thereof, and that from that time until it was sold they owned it as partners; admits that said land was divided and subdivided into lots, known as "Taylor's Subdivision," and the most, if not all, of it sold; denies that he sold and conveyed all of said lots and received all the money that had been paid on the same, and has also received all the money that had been paid on the same, and has also received all the notes, bonds, etc., arising out of the sale of said lots, amounting to the sum of $100,000, and avers the truth to be, that the complainant sold and conveyed a large number of said lots, and received the proceeds of the same, which he continues to hold, and for which he refuses to account to this defendant; denies that he retained any of the money or other property belonging to the said firm, and that he has ever refused to account to the complainant for any poruon of what he ever did receive for said firm, but states that on January 1, 1875, he accounted to the complainant for all the money he (the defendant) had ever received for or on account of said firm, and there was a full settlement of all their co-partnership dealings between them up to that time, each one of them receiving the full amount due him from the firm on account of all sales made to the firm by either of them at that time; that defendant conveyed to the complainant lot 21 in said subdivision; that complainant was to hold it and sell it as the property of the firm, and account to the firm for its proceeds; and defendant charges that the complainant has never accounted for said last-mentioned lot or its proceeds, although, as this defendant is informed and believes, he sold the same for a large sum of money, which he still retains. Defendant denies that complainant is entitled to the relief, or any part thereof, in this bill demanded, but says this defendant is entitled to have the complainant account to him for this last-mentioned lot, which he prays may be required of him to do.

Afterwards, at the August term, 1890, of the court, there was filed by the complainant a replication, denying the truthfulness of the facts stated in the plea and answer, and insisting that the facts set out in the bill were true. At the March term, 1891, the issue joined upon the plea and answer on the question of a settlement of the partnership business was heard, and evidence taken, and the court found that there had been no such settlement, and referred the case to the master to take testimony and state an account bẹtween Snell & Taylor. The master did take evidence, and reported the same, with an account stated between the parties, to which exceptions had been made before the master by each party, and overruled by him, upon which evidence and account of the master the proceeding was heard by the court, to

"The evidence shows that some time in 1868 Snell and Taylor did form a co-partnership, and, as such partners, they owned and platted into lots a tract of land in Cook county, and sold the same out to purchasers, at a profit of many thousands of dollars over its cost. Snell lived in Dewitt county, Ill., while Taylor lived in the city of Chicago, and had entire charge of the partnership business, which was conducted in Chicago in a realestate office, where the firm had employed a salesman and bookkeeper by the name of Salter, who made most of the sales, and kept all of the books of Snell & Taylor in this copartnership business, and rendered to Snell quarterly statements of the condition of the firm's affairs, as shown by the books. Snell and Taylor had frequent settlements up to the time of the great Chicago fire in 1871, when all the books and papers of the firm were destroyed. After the fire, Snell went to Chicago, and, having with him the three last quarterly statements sent him by their clerk, he and Taylor divided considerable of the undivided proceeds of the lots sold up to that time, and a new set of firm books was then started. After that, and up to the fall of 1874, the firm continued to sell lots as before, Taylor and the clerk running the firm business in their office in Chicago, and Snell residing in Clinton, but often going to Chicago. When there he would, at times, look over the business, and receive from Taylor some of the proceeds of the lots that had been sold, and after that time the business of selling lots continued, but the evidence is conflicting as to whether Taylor sold them as an individual or partner. It is claimed by Taylor that the books of the firm, as kept by the clerk, show, and that the fact was, that he and Snell had a settlement of their firm matters on October 8, 1874, and then divided all the assets of the firm not before then divided, except one lot, which Snell took, and was to sell, and account to him for one-half

the proceeds thereof, which, up to the time the decree was entered, he had not done, although he had sold the lot for $2,500. Snell claims, however, that no such settlement occurred in October, 1874, and that there was no division between him and Taylor then, as claimed. On this question of fact the evidence is conflicting. The books of the firm contain many entries, and there were in evidence letters written by Taylor to Snell after the fall of 1874, which are very inconsistent with his testimony on the question that there was a settlement and division between him and Snell in October, 1874, as he (Taylor) claimed; and Taylor's letters to Snell, written between 1874 and 1889, corroborate Snell and contradict Taylor. We have, at considerable pains, examined the copies of the books of Snell & Taylor, as kept by their bookkeeper, Salter, and the evidence of the witness Chandler, who played the part of a go-between, as between Snell and Taylor, in an effort to effect a settlement between them in October, 1874, and which, he says, he did effect; also the testimony of the bookkeeper, Salter, and that of Snell and Taylor, as it appears in the transcript of the certificate of evidence in this case; and we are, after a careful consideration thereof, satisfied that the learned chancellor who heard this case in the court below was justified therefrom in stating the account between these two partners as he did, except that he improperly charged in the account the item of $5,693.51 against Taylor, it being the interest on $5,071.96 from December 9, 1875, the date the bill was filed, until April 11, 1895, the date the decree was entered. As these parties were partners, the balance of $5,071.96 of the firm assets found to be in the hands of Taylor on an accounting ought not to bear interest in favor of his partner, Snell, unless it was shown-and it was not-that Taylor had promised to pay interest, or had improperly used, or neglected to account for, the assets of the partnership before the bill for an accounting was filed; or, after the bill was filed, by throwing obstacles in the way of collection, by some circumvention, contrivance, or management of his own, which had induced the court to withhold the hearing of the proceeding against him longer than it otherwise would have done. Imperial Hotel Co. v. H. B. Claflin Co., 175 Ill. 119, 51 N. E. 610; Randolph v. Inman, 172 Ill. 575, 50 N. E. 104; Brownell v. Steere, 128 Ill. 209. 21 N. E. 3. Neither the evidence nor the bill shows that, before it was filed, Snell requested or procured an accounting from Taylor of these firm funds; and, after the bill was filed, it does not appear from the record that Taylor did interpose any unwarrantable applications for delay, or in any manner seek to delay a hearing, but, on the contrary, the long delay between the filing of the bill and a hearing and decree was caused solely by Snell. Hence we think the item of $5,693.51, as interest, charged by the court in its decree

herein to Taylor, was erroneously so charged. and for that reason the decree will be reversed as to that much, and affirmed for the residue of $5,071.96."

We concur in the views above expressed and in the foregoing conclusion reached by the appellate court. Accordingly the judg ment of the appellate court is affirmed. Judg. ment affirmed.

(182 T11. 486)

DOLESE et al. v. McDOUGALL et al.1 CLEVELAND STONE CO. v. SAME. (Supreme Court of Illinois. Oct. 16, 1899.) COMPOSITION WITH CREDITORS - OBJECTION WAIVED-SPECIAL ASSESSMENT-ORDER-EQ UITABLE ASSIGNMENT-FINDINGS OF MASTER.

1. There is no consummated agreement be-tween a partnership and its creditors for a pro rata payment of its debts out of its assets where at a meeting of the parties there is merely a preliminary arrangement for the drafting and circulating of a written agreement, and this is only partially written up, and never signed.

2. Objection to the findings of a master, exception to whose report was not made in the court below, cannot be made for the first time in the appellate court.

3. Where persons contract to improve L. ave nue for a village, to be paid from a special assessment, in which case they can only be paid from the proceeds of such assessment, an order given by the contractors on the village to pay a certain amount for work done thereon, "and charge the same to our account on L. avenue,' is equivalent to a direction to pay from the proceeds of the assessment, and is an equitable assignment of the amount of the assessment fund stated in the order.

Appeal from appellate court, First district. Suit by John Dolese and another against J. C. McDougall and others. The Cleveland Stone Company filed a cross bill. From a judgment of the appellate court affirming a decree adverse to the complainants and the complainant in the cross bill (78 Ill. App. 629), they appeal. Affirmed.

The firm of McDougall & Hammond was engaged in the business of contracting for street work, in which they employed labor and used materials for plumbing, grading, paving, etc. They had made a contract with the village of South Evanston for curbing. grading, and paving certain of its streets, including West Lincoln avenue. In October, 1891, the firm was found to be financially unable to complete its contracts and meet its existing liabilities for labor and material. Dolese & Shepard claimed an indebtedness against it of $15,076.93, about $4,000 of which was evidenced by its judgment note. In the latter part of October and early in November the creditors generally began to press the collection of their claims. The liabilities aggregated about $40,000. On November 5th the creditors representing $38,000 of that indebtedness held a meeting in the office of Dolese & Shepard, at which McDougall & Hammond were present or represented, for the purpose

1 Rehearing denied December 13, 1899.

and prayed the enforcement of such agreement. Appellees Frieding & Johnson were allowed to file an intervening petition, setting up that there was due them from the firm $974, for which they had received an order on the village of South Evanston, which had been accepted by it, but payment thereof refused, on account of the writ of injunction issued on the original bill. Issues were formed on the bill, cross bill, and intervening petition, and the cause referred to a master to take proofs, and report his conclusions. He found and reported that at the creditors' meeting of November 5th the firm and its creditors made a valid agreement for a pro rata payment of the debts of the firm out of its assets, and that the subsequent action of cer

ment was fraudulent, illegal, and void; that such creditors should be required to account for the amounts received by them, and a decree entered carrying into effect said agreement. The court dismissed the cross bill of the Cleveland Stone Company, and dismissed the original bill as to Peck Bros. & Co., E. W. Blatchford & Co., and the L. Wolff Manufacturing Company, and found in favor of the claims of Vider & Co., Frieding & Johnson, Edward Johnson, and T. B. Blanchard, and, their claims being payable out of moneys raised by a special assessment of the village of South Evanston, decreed that the village of Evanston, as the successor of the village of South Evanston, should pay the claims, if sufficient had been collected, but, if not, then pro rata so far as the amount collected on the special assessment would permit. It also found and decreed that the issuing of the warrants to the above-named parties was not a violation of the injunction; that the title to the fund on which the warrants were drawn had passed to the said parties, respectively, before the warrants were issued, etc. This appeal is by the Cleveland Stone Company and the complainants in the original bill.

of bringing about an amicable adjustment of all the liabilities of the firm. Dolese & Shepard took part in that meeting. Whether or not an agreement to that effect was then consummated, binding upon those present, is one of the principal questions in the present litigation. It appears, however, that soon thereafter several of the creditors who were present and participated in the negotiations proceeded to secure the payment of their debts without reference to any action taken at the creditors' meeting. On November 14th Dolese & Shepard caused a judgment to be entered on their note for $4,017, and on the 16th, execution thereon having been returned nulla bona, they filed the original bill herein, which, in its principal allegations and prayer for relief, is an ordinary creditors' bill, ask-tain of the creditors contrary to that agreeing that McDougall & Hammond be required to answer under oath and make discovery in the usual form of such bills, for the appointment of a receiver, and for an injunction. In addition to McDougall & Hammond, Peck Bros. & Co., E. W. Blatchford & Co., the L. Wolff Manufacturing Company, Oliver D. Peck, Albert D. Saunders, etc., were made defendants. The charge in the bill is that the last-named defendants had wrongfully obtained certain of the assets of the firm, and Olof Vider & Co. had, by collusion with McDougall and the board of trustees of the village of South Evanston, fraudulently obtained from the village its warrants, amounting to $5,200, for money due from it to McDougall & Hammond. The contract of the latter with South Evanston is set forth by the bill, with the allegation that on October 24, 1891, the firm assigned to the complainants all their right, title, and interest in and to all moneys, warrants, vouchers, credits, or other benefits then due or thereafter to become due from said village of South Evanston by virtue of said contracts and the performance thereof, and did make, constitute, and appoint Shepard their attorney to collect from the village officers all such moneys, etc., and to receipt for the same; but that the village, by its president and board of trustees, wrongfully refused to recognize such assignment and power of attorney, and threatened to pay over the money, warrants, etc., included in the assignment, to McDougall & Hammond, or other persons on their behalf, to the injury of complainants; and alleging that the appointment of a receiver and an injunction are necessary to the protection of the complainants' rights. Immediately upon the filing of the bill, a receiver was appointed, and a writ of injunction issued and served on the village authorities. Subsequently the appellant the Cleveland Stone Company was permitted to become a party defendant, and, after answer, filed a cross bill, in which it alleged that at the creditors' meeting of November 5th a valid and binding agreement was entered into by McDougall & Hammond and their creditors then present that the latter should share pro rata in all the assets of the firm,

Custer, Goddard & Griffin, for appellants. Lee, Lee & Schuchardt, for L Wolff Mfg. Co.

WILKIN, J. (after stating the facts). If it could be held that there was a valid agreement entered into by the parties at the meeting of November 5th, as alleged in the cross bill, that conclusion would dispose of all issues made on the original bill; hence that branch of the case naturally arises first. While the master reported to the circuit court that the evidence established such an agreement, the court, on exceptions and objections to his report, overruled the finding, and dismissed the cross bill; and that decision has been affirmed by the appellate court, both holding that the evidence on that subject failed to prove that the alleged agreement was consummated by the parties, McDougall & Hammond and their creditors. To carry out such a contract would, we think, under all the circumstances of the case, be equitable and just as to the

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