Prescott et ux. v. Fisher et al.

Robert Rae testified, that he had been one of the attorneys in this cause; that he called upon Prescott and wife, and presented two bills for millinery goods which Mrs. Prescott had purchased of plaintiffs, and Mrs. Prescott admitted she had purchased the articles in the bill mentioned, and that upon the first bill there was a balance of $309.50 due to plaintiffs, and the second bill she admitted was correct, and that she had received the goods therein mentioned. And Charles Prescott, the defendant, promised to pay in one month thereafter. But he failed to pay either of the bills. That Mrs. Prescott had been engaged, both before and since her marriage with Prescott, in the millinery business. That they were married shortly after the first bill of goods was purchased, during the year 1857, and that she was known as Mrs. Lloyd previous to her marriage with Prescott.

A witness testified that she was present at the marriage of Mrs. Prescott, one of the defendants, when she married Bartholomew F. Lloyd, in England. That Mr. Lloyd was still living; went to California in 1852.

Another witness testified, that he knew Lloyd, and that he and Mrs. Prescott lived as man and wife, and were regarded as such in this city. They carried on millinery business. Lloyd went to California in 1852. It was publicly and well known when he left, and where he was going; Lloyd left his business and what he had with the defendant, Mrs. Prescott, and she carried on the business after he left.

The plaintiffs below then took from the files of the Cook County Court of Common Pleas, papers, purporting to be a petition for a divorce, and also a decree, and introduced and read the same in evidence without other proof, (both of which respectively were objected to, and objections were overruled,) in which, the petitioner, Mrs. Lloyd, (Mrs. Prescott,) stated she was married in 1833, in England, to B. F. Lloyd; lived with him there and then until 1852, when she charges that he deserted her, and has not lived with her since.

The petition also charges against said B. F. Lloyd, that she was in equity the owner of the property she had then on hand, as she had to support three children, and had commenced the said business in 1852, (the time as then alleged of the desertion,) and had carried on the millinery business since.

The petition then alleges that Mrs. Lloyd had three lots, stock, household furniture, etc., except a piano, which was owned by her said husband, Lloyd.

Asks a decree of divorce, and that the property be declared hers.

Prescott et ux. v. Fisher et al.

The paper purporting to be the decree, decreed a divorce, and that this property be hers, and she have the care and custody of the children, and recites the desertion for two years.

Defendants then called a witness, who stated that he knew Mr. Lloyd. When he left for California, he sold his stock of stationery to him for the sum of four hundred dollars, which he paid to Mrs. Prescott, his wife, thereafter, in four installments. Cause was submitted to the jury, under the following instructions on the part of the plaintiff, both of which were objected to by defendant:

1st. That if the jury believe, from the evidence, that the aforesaid Mary Ann Lloyd was, at the time the plaintiffs' debt was contracted, trading, and that her husband had before that time, permanently deserted her, and afterwards intermarried. with the defendant, Charles Prescott, then said defendants are liable for whatever you, the jury, find due the plaintiffs upon said account.

2nd. That if the jury believe that the defendants admitted there was due and unpaid the plaintiffs, the sum of $425, and refused to pay the same for and on account of goods sold and delivered by plaintiffs to defendant's wife, whilst a trader, and doing business after she was permanently deserted by her first husband, at her special instance and request, then the plaintiffs are entitled to recover.

Defendants' instruction, which was refused:

4th. If the jury believe that she was a married woman at the time the account, or any part of it, accrued, then the plaintiffs cannot recover, although if she traded after her husband had abandoned her, she might be sued as a feme sole, but no action can be maintained against her and Prescott.

Verdict for plaintiffs, $425.

Defendants filed their motion for a new trial, because the verdict was contrary to law and evidence, and the court had erred in overruling defendants' objections and exceptions above mentioned. Motion overruled.

Judgment entered for $425, and a remittitur entered, of $115.

A. GARRISON, and S. M. FELKER, for Appellants.

GROW & STORRS, for Appellees..

BREESE, J. The papers in the divorce case of Lloyd v. Lloyd, in which the present defendant, then Mrs. Lloyd, was complainant, were files of the court in which the present action against her and her present husband was tried, and were properly admissible in evidence without any proof-they proved them

Diversy v. Loeb.

selves. The bill she filed for a divorce, is to be taken, as an admission by her of the facts therein stated, and consequently, evidence against her in this suit, and constitute an estoppel of record. 2 Smith's Leading Cases, 687, and the cases there cited. It is not now in her power, nor in that of her co-defendant, her present husband, to deny them. It is there admitted by her that her husband abandoned her without cause and failed to make a suitable provision for her, and that she carried. on business as a sole trader whilst thus deserted.

This court has held in the case of Love v. Moynehan, 16 Ill. R. 277, that in such case, the deserted wife may acquire property, control it and her person, contract, sue and be sued as a feme sole. For her contracts thus made, her present husband is responsible jointly with her. 1 Ch. Pl. 65; Angel v. Felton, 8 J. R. 149; Gage v. Reed et al., 15 ib. 403; 7 T. R. 348.

Her status is no longer an open question. The decree of the court establishes that beyond all future controversy, and must be conclusive. The great and general principle is, that a record of the proceedings and judgment of a court of competent jurisdiction is conclusive evidence of the facts appearing therein, and this whether the status, rights or property of parties be involved, and cannot be attacked or questioned in a collateral manner. The decree is competent evidence in any action, no matter who may be the parties, and the recitals in it, are conclusive of the facts sought to be established in this suit. The instructions given for the plaintiffs were based on the principles we here announce, and were correct. The fourth instruction being the converse of these propositions, asked by the defendants, was properly refused. The judgment of the court below is affirmed.

Judgment affirmed.

MICHAEL DIVERSY, Appellant, v. ADOLPH LOEB, Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

An accommodation acceptor of a bill, cannot set up as a defense, that he never received any consideration.

THIS was an action of assumpsit, brought to the Cook County Court of Common Pleas.

The plaintiff declared upon a bill of exchange, dated the 3rd day of December, A. D. 1857, for five hundred dollars, drawn

Diversy v. Loeb.

by S. D. LaRue, upon the defendant, Diversey, at three months, payable to the order of the drawer, at the office of Greenbaum & Brothers, Chicago; and also upon the common money counts.

The defendant pleaded to the declaration the general issue, and to the count upon the said bill the following plea of want of consideration:

And for a further plea in this behalf, as to the first count in said declaration, said defendant says actio non, because he says that he accepted the said bill of exchange in said count mentioned, without any good, valuable or sufficient consideration. therefor, which was well known to the said plaintiff at the time he received the said bill, to wit, at Chicago aforesaid. And this he is ready to verify, wherefore he prays judgment, etc.

To this plea the plaintiff demurred generally, and the court, J. M. WILSON, Judge, sustained the demurrer, and rendered judgment in favor of said Adolph Loeb, for the sum of five hundred and twenty-three dollars and twenty-five cents.

The defendant prayed an appeal, which was allowed.

The decision of the court in sustaining the said demurrer is assigned for error.

SCATES, MCALLISTER & JEWETT, for Appellant.

B. S. MORRIS, for Appellee.

WALKER, J. An accommodation acceptor, like a surety on a promissory note, cannot be heard to say that there was no consideration received by him. That such acceptance or indorsement as surety, gives the paper of the drawer of a bill, or the principal in a note, credit with the person to whom the bill is negotiated, or to whom the note is drawn, is a sufficient consideration to bind the acceptor of the bill, or the surety on the note. It is usually the credit of the acceptor or surety, that enables the drawer or maker to procure money or property on the instrument, and it would be unjust to permit the acceptor or surety to avoid payment because he had not himself received the consideration for which it was given, but had enabled another to procure it, who could not have done so without his indorsement. And the fact that the person receiving the instrument knew that he was an accommodation acceptor, can make no difference, as he had put his name on the paper, and sent it into the world, and thereby given it credit, which may have alone rendered it valuable in the market. If the holder gives a bona fide consideration for it, he has a right to recover against the accommodation acceptor, whether he got the money for which it was negotiated or not. Edw. on Bills, 316; 3 Esp.

Hathorn et al. v. Lewis.

R. 46. This is known and acted upon in the commercial world, it is believed almost without exception, as well as by most of the legal profession.

In this case, there is nothing disclosed by the record, such as fraud, payment, or any other fact which would authorize a court to decide in favor of appellant, but the law and facts are clearly with the appellee, and in the absence of any error in the record the judgment of the court below must be affirmed.

Judgment affirmed.

JOHN HATHORN and LOREN HEATH, Plaintiffs in Error, v. SETH LEWIS, Defendant in Error.

ERROR TO KANE.

A chattel mortgage which is good as to the parties executing it, will hold, as to third parties who purchase with knowledge; such purchasers not considered as bona fide. The purchasers acquire only the right of redemption.

THIS suit was commenced by defendant in error, by writ of replevin, and tried at the January term of the Kane county Circuit Court for 1858, I. G. WILSON, Judge, presiding, and a jury, and resulted in a verdict for the defendant in error. The property replevied was a quantity of goods in a store.

On the trial below, the plaintiff offered in evidence a chattel mortgage, in the words and figures following, to wit:

THIS INDENTURE, Made this twenty-third day of October, 1857, between George W. Alexander, party of the first part, of the town of Virgil, county of Kane, and State of Illinois, and Seth Lewis, of the town of Virgil, same county and State aforesaid, party of the second part,

Witnesseth, that the said party of the first part, for and in consideration of the sum of ten dollars in hand paid, received by the said party of the second part, do grant, bargain, and sell unto the said party of the second part, his heirs and assigns, the following goods and chattels, to wit: All the goods of every kind and quality, prints, clothing, drugs, groceries, medicines, ready-made clothing, dry goods, hardware, crockery, and all and singular every article and articles in said store, formerly owned by Seth Lewis, and situated on block two, and lot four, in Lodi, Kane county, Illinois. Also, all the goods and materials of every kind and description, belonging to said mortgagor in said store, during the continuance of this mortgage. Also, all accounts and notes, book accounts, and indebtedness or debt of any individual or individuals in favor of said mortgagor, sole and belonging to the party of the second part; also, all the goods which may be in said store at the time when this mortgage shall be due and payable. One span of horses, color bay, medium size, black mane and tail, about eight years old. Also, one