APPENDIX.

NOTE. This department of the magazine will contain a selection of the latest cases, taken from Reporters' advance sheets, or other sources too recent for use in the body of the number. The Appendix is simply an extra feature, and all cases thus noticed will be found, indexed in the regular way, in succeeding numbers.

Arrest on Civil Process; Illinois Statute.

2790. First Nat. Bank v. Burkett, 101 Ill. 391 (advance sheets). Opinion by WALKER, J. The assignment of errors questions the correctness of the construction given by the Appellate Court to the second section of chapter 72 in relation to insolvent debtors. It provides that "when any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action wherein malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment by complying with the provisions of this act." No question as to such compliance is raised on this record, it being contended that under the facts disclosed appellee was not entitled to a release that the gist of the action in which judgment was recovered was malice.

This Court had occasion, in the case of The People v. Greer, 43 Ill. 213, to give a construction to this clause of the section. It was there said, that the intention was to release all persons confined on civil process, by their compliance with the requirements of the statute, although the cause was founded in tort, unless the tort was malicious, or, what amounts to the same thing, where the tort originated in malice, or where malice was the gist of the action. What, then, is malice?

In the case of Harpham v. Whitney, 77 Ill. 32, the case of Mitchell v. Jenkins, 5 B. & A. 594, was referred to as defining malice. It was there said by PARKE, J., "that the term 'malice,' in this form of action, is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives." That definition was applied in a case of malicious prosecution. The term has been defined: "A formed design of doing mischief to another "—" a wicked intention to do an injury to another." Thus, the forsaking of a husband or wife of the other, without sufficient cause, is said to be a malicious abandonment. Malicious mischief is the wanton or reckless destruction of or injury to property. It in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if any thing, short of a criminal act, and it was malicious, in the statutory sense.

Being malicious, was it the gist of the action? The gist is defined to be the cause for which an action will lie the ground or foundation of a suit, without which it would not be maintainable — the essential ground or object of a suit, and without which there is not a cause of action. In this case an action on the case could not have been maintained had not the defendant wrongfully and dishonestly drawn the money for which the hogs were sold, and for which he had given a draft to the bank on Green, Huddleson & Co., and for which draft the bank paid him. This fraud was of the essence or foundation of the action, and in the statutory sense it was both wicked and malicious.

We are, therefore, of opinion that the County Court erred in discharging appellee from the arrest and imprisonment, and it was error in the Circuit and Appellate Courts to affirm the judgment, and the judgment of the latter court must be reversed, and the cause remanded. (SCOTT, J., dissenting.)

Bill of Particulars.

2791. Gross v. Clark, New York Court of Appeals, December 15, 1881. The common-law power of the trial court to strike out the declaration, and dismiss the action, when the plaintiff neglects to comply with its order for a bill of particulars, is not abrogated by any provision of the New York Code. It seems that the Code itself expressly gives the power. 13 N. Y. Week.

Dig. 434.

Deed; Quit-claim Title.'

2792. Fox v. Hall, Missouri Supreme Court, October, 1881. A grantee under a quit-claim deed, without notice of a prior unrecorded conveyance of the same premises by his grantor, gets a valid title. 25 Alb. L. J. 123 (with notes); 13 Reporter, 147.

Divorce; Alimony; Decreeing Husband's Lands to Wife.

2793. Robbins v. Robbins, 101 Ill. 416 (advance sheets). Opinion by CRAIG, C. J. Section 18, chapter 40, Revised Statutes, 1874, entitled "Divorce," provides: "When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. * * * And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper."

Under this statute cases may arise where it would be proper and just for the court to decree a sum in gross for alimony, or a part of the husband's real estate in fee to the wife. If, at the time of the marriage, or during coverture, the wife acquires money which passes into the hands of the husband, and he invests it in real estate, when she obtains a divorce it would be only justice to her to decree the title to land thus obtained, to her. But where the husband has obtained no money or property through the wife, and she has contributed nothing to make the property, we are aware of no principle upon which a court would be justified in decreeing to the wife the title in fee to a portion of his lands. As was said in Dinet v. Eigenmann, 80 Ill. 274: "Where the wife brings nothing to the husband, and contributes little or nothing to the accumulation of her husband's fortune, she has no just claim to share in a division of property, but under the law, where the husband was in default, he is bound to support her according to his circumstances and condition in life; and in such case it is proper that such support be afforded by an annual, half-yearly, or quarterly allowance of a fixed sum so long as she lives, or until supervening circumstances render it improper." In Ross v. Ross, 78 Ill. 402, it was held, that "the practice of vesting the fee of real estate in the wife by decree for alimony, although sometimes sanctioned by this court under special circumstances, is objectionable." In Von Glahn v. Von Glahn, 46 Ill. 134, a similar question arose, and the court held: "Where the property of the husband was accumulated by him before marriage, and the wife brought no property to him upon the marriage, it would be unjust to decree to her as alimony, after decree of divorce, a large amount of the husband's property absolutely." The same principle is announced in Keating v. Keating, 48 Ill. 241.

In view of these authorities, * * * we are of opinion that it was error to decree the wife the title to the quarter section of land named in the decree.

Executors and Administrators.

2794. Wait v. Holt, 58 N. H. 467 (advance sheets). An estate is not liable, in an action at law, for the services of an attorney employed by the executor to defend suits, brought against him as executor, on a cause of action for which he is personally liable. The question is one for a probate court.

Marriage; Ante-nuptial Agreements.

2795. Stratton v. Stratton, 58 N. H. 473 (advance sheets). Specific performance of an ante-nuptial agreement for the use of land may be enforced in favor of a husband against his wife.

Notes and Bills; Transfer without Indorsement; Protection of Maker paying Wrong Person. 2796. Dunn v. Meserve, 58 N. H. 429 (advance sheets). The payee of a negotiable note pledged it as collateral security to a bank, but did not indorse it. The maker afterward, having no notice of the transaction with the bank, and acting in good faith, paid the note to the payee. Held, that the bank could not compel him to pay again.

Notes and Bills; Separate Actions for Principal and Interest of Note.

2797. Dulaney v. Payne, 101 Ill. 325 (advance sheets). The holder of a promissory note, bearing interest payable semi-annually, may, at the end of each half year, recover the interest, and this will be no bar to a suit on the note when it shall become due. Opinion by CRAIG, C. J.

The law is well settled that a party cannot divide an entire demand or cause of action, and maintain several suits for its recovery. It is also clear that a recovery for a part of an entire demand will bar an action for the remainder, if due at the time the first action was commenced. Nickerson v. Rockwell, 90 Ill. 460, and cases there cited.

The question then arises whether the principal of the note, and the interest accruing thereon semiannually, is, wlthin the meaning of the law, an entire demand. If it was, the plaintiff was bound, when he brought suit for the interest, to include the principal sum due on the note in the action. If it was not, then he had the right to sue for and recover the interest, and afterward recover a judgment for the principal. As is said in Phillips v. Bank, 16 Johns. 136: "It is in the election of the plaintiff, if he has distinct causes of action, to sue upon all, or any of them, when he pleases, and he has the further election to unite in one suit, under certain restrictions, not now necessary to be stated, several causes of action; but the defendant cannot compel him to do this."

What constitutes an entire or single demand is often a question of much difficulty, and the decisions of different courts are not in harmony on the question. * * * In Parsons on Contracts, volume 2, page 636, the author says: "One holding a note on which interest is payable annually, or semi-annually, may sue for each installment of interest as it becomes payable, although the note is not yet due; but after the principal becomes due the unpaid installments of interest become merged in the principal, and must, therefore, be sued for with the principal, if at all." In support of the rule announced, the author, in the note, cites Howe v. Bradley, 19 Me. 31. In the case cited it was held that annual interest cannot be recovered by a separate action after the principal has become due. This decision was made by a divided court, and although it may sustain the rule laid down by Parsons, we are not inclined to follow it, believing, as we do, that the rule established by the courts in Massachusetts is the better doctrine, and more calculated to further the ends of justice. * * * It is but reasonable to presume, from the nature of this transaction, that it was contemplated by the parties, although the note was, by its terms, due in one year, that it should run for a longer term, but that the interest should be paid every six months. Under such circumstances it would be manifestly unjust to hold that a judgment for the interest after the maturity of the note would bar a recovery of the principal, and we are unable to sanction authorities which establish such a rule. If a separate action may be maintained upon each one of several notes which grow out of a single contract, upon the same principle, and for the same reason a note containing a promise to pay interest at one time, and the principal debt at another, may be the foundation of one action to recover the interest, and another to recover the principal.

Railroads; Railway Mortgages; Power of Legislature.

2798. Ashuelot R. R. v. Elliott, 58 N. H. 451 (advance sheets). The foreclosure, by Act, of a railway mortgage is not an exercise of legislative power. It is not helped by a reservation in the original charter of the railroad giving the mortgage, that the Legislature may at any time alter or amend it, or modify or annul the powers conferred.

Religious Societies; Actions against Shaker Communities.

2799. Davis v. Bradford, 58 N. H. 476 (advance sheets). A suit against a Shaker community may be brought in the name of their trustees. It is immaterial whether the trustee or the beneficiary is made defendant of record. In this State the day of contention for such a technicality has gone by. If there is a question of the personal liability of the trustees, the judgment and execution will be made to conform to the legal rights of the parties. No such question can defeat the right of the plaintiff to a judgment. And extrinsic evidence is admissible to show that the church is the defendant in interest, and that its property should satisfy the judgment.

2791

of the tri

ply with:

It se

Dig. 434.

2792

without

25 Alb. 1

2791

chapter 4

court ma port of t

shall be

such alte

children,

Und

gross for

riage, or

invests i

land thu

and she

would b

v. Eigen ing to tl

but und

stances:

half-yea render

real esta

circums

the cou

wife br decree

announ

In

title to

27

the ser

on a cε

21

agreen

21

as coll

transa

could

EDITORIAL DEPARTMENT.