Adam v. Arnold, 86 Ill. 185, was a case not unlike this, and it was there held that a judgment by confession under a power for a sum in excess of that due cannot be set aside at the instance of a stranger, although he be a creditor of the debtor; that the defendant in the judgment alone can complain, and he should have the error corrected, on motion, in the court below. To the same. effect is Kellogg v. Keith, 4 Ill. App. 386.

On the theory that the motion was properly entertained by the circuit court we think the decision of the Appellate Court is right. There is no equitable or just principle upon which appellant could, under the facts of the case, be given a preference over appellee. We are, however, clearly of the opinion that, on the authorities above cited, the circuit court erred in overruling the motion to dismiss the proceeding, and for that error its judgment, as well as that of the Appellate Court, must be reversed and the cause remanded to the circuit court, with directions to dismiss the motions at the cost of the parties making the same.

Reversed and remanded.

1. REPLEVIN―action cannot be brought in name of agent. One whose only interest in chattels is a naked authority from a mortgagee to take possession and foreclose the mortgage is an agent only, and cannot maintain replevin in his own name against a constable who has taken the property on execution.

2. SAME-right to foreclose not separable from mortgagee's interest. A mortgagee's right to foreclose upon chattels is not separable from the interest in the property acquired through the mortgage, so as to be transferable to another.

43

f189 8464 a189 1465

3. SAME-language of the Replerin act construed. The provision of the statute (Rev. Stat. 1874, p. 1102, sec. 1,) that replevin may be brought for chattels by "the person entitled to their possession," is declaratory of the common law, and intended to distinguish a special interest in the property from absolute ownership.

APPEAL from the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. GEORGE W. HERDMAN, Judge, presiding.

MOORE & WARNER, for appellant.

R. A. LEMON, E. J. SWEENEY, and GEORGE K. INGHAM, for appellee.

Per CURIAM: After a careful consideration of this case we have arrived at the same conclusion as that reached by the Appellate Court, and are satisfied with the reasons given for the decision as set forth in the following opinion of that court delivered by Mr. Presiding Justice PLEASANTS, which opinion is here adopted:

"This was an action of replevin, brought against appellee, a constable, who had levied on the property in controversy under process against the mortgagor in possession and before condition broken. By stipulation of the parties it was tried without written pleadings, by the court, without a jury. The issues were found and judgment given for the defendant.

"It appears that after the levy was made which was a breach of the condition of the mortgagor's right to retain possession as against the mortgagee and authorized a foreclosure, the plaintiff was appointed by the mortgagee, Mrs. Sarah D. Swayne, a resident of McLean county, to take possession and sell under the provisions of the mortgage, which was, that in case of breach of the conditions it should be lawful for the mortgagee, or her 'agent or attorney, her heirs, executors or administrators,' to take possession of said goods and chattels to and for the use of said mortgagee, etc., and that 'the exhibition

of this mortgage shall be sufficient proof that any person claiming to act for the mortgagee is duly made, constituted and appointed agent and attorney to do whatever is above authorized.' It is not claimed that appellee wrongfully took the chattels in question. He was a constable de jure, his executions were regular, and the mortgagee had such an interest as made them liable to the levy. But appellant exhibited to him the mortgage and note secured by it, and demanded the goods of him in writing, and it is said that he thereby became 'entitled to their possession,' so that the refusal to deliver it was a wrongful detention, and he could maintain this action. in the detinet under the statute. (Rev. Stat. chap. 119, sec. 1.) Whether he was shown by the evidence to be so entitled is the only question in the case.

"It is substantially conceded that his title was not such as the common law required to maintain the action in his own name. He had never been in possession, even as agent, and therefore was never responsible for it to anybody. He made no claim of property, general or special, or any interest, legal or equitable, in the goods themselves. He testified that 'he had no personal interest in the property,' nor any more authority as agent than that conferred in the manner and to the extent above stated. That empowered him to foreclose for the benefit of his principal and in her name-not otherwise. She could not sever her right to foreclose from her interest in the property, and transfer it, naked, to another. But in his written demand and these subsequent steps he wholly ignored her, and proceeded in his own name and as in his own personal right. He was responsible to her only for the performance of his duty as agent, and interested only in the compensation for his services as such.

"We are of opinion that the language of the statute, 'or person entitled to their possession,' is declaratory of the common law, and intended to distinguish from the absolute owner a person having a qualified or special

interest, legal or equitable, in the property itself. Upon the facts here shown the judgment was right and will therefore be affirmed."

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

THE THOMAS PRESSED BRICK COMPANY

v.

JOHN A. HERTER.

Filed at Springfield June 11, 1896.

APPEALS AND ERRORS-questions which the Supreme Court cannot review. On appeal to the Supreme Court from a judgment of the Appellate Court affirming a judgment awarding damages for a trespass, the questions whether defendant below was guilty of trespass, whether the Statute of Limitations'had run, and whether the damages allowed are excessive, are all questions of fact, which the Supreme Court cannot review.

Thomas Pressed Brick Co. v. Herter, 60 Ill. App. 58, affirmed.

WRIT OF ERROR to the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of Calhoun county; the Hon. GEORGE W. HERDMAN, Judge, presiding.

The defendant in error (plaintiff below) brought suit against the Thomas Pressed Brick Company, in the circuit court of Calhoun county, in an action of trespass, and a trial before a jury resulted in a verdict of guilty, assessing plaintiff's damages at $2455. Plaintiff having remitted $955 of this amount, the circuit court rendered judgment against the defendant company on this verdict for $1500, from which judgment the company appealed to the Appellate Court for the Third District, by whom this judgment was afterward in all respects affirmed, and to review that decision of the Appellate Court the defendant company now prosecutes this writ of error.

No ruling or decision of the trial court, except in overruling the motion for a new trial and rendering judgment on the verdict, is cited or relied on by plaintiff in error to secure a reversal of this judgment, the only contentions in this court being: First, that the company was not guilty; second, that the trespasses were not committed within five years prior to the institution of this suit; and third, that the damages are excessive.

JAMES F. GREATHOUSE, for plaintiff in error.

T. J. SELBY, and FRANK A. WHITESIDE, for defendant in error.

Mr. JUSTICE PHILLIPS delivered the opinion of the court:

By section 89 of the Practice act this court can reexamine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error seeking to call in question the determination of the trial or Appellate Court upon controverted questions of fact can be considered, except in cases enumerated in section 88. Whether the defendant was guilty as alleged in the declaration, whether the trespasses were committed more than five years before the institution of suit, and whether the damages were excessive, are all questions of fact. Fitch v. Johnson, 104 Ill. 111; Kreigh v. Sherman, 105 id. 49; Capen v. DeSteiger Glass Co. id. 185; Steinman v. Steinman, id. 348; Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 id. 216; Richards v. People, 100 id. 390; Chicago and Grand Trunk Railway Co. v. Gaeinowski, 155 id. 189; Board of Education v. Bolton, 104 id. 220; North Chicago Street Railroad Co. v. Eldridge, 151 id. 542; Bradley v. Sattler, 156 id. 603; Legnard v. Rhoades, id. 431; Stumer v. Pitchman, 124 id. 250.

No question is presented on this record which we can consider. The judgment of the Appellate Court for the Third District is affirmed. Judgment affirmed.