valuable considerations, and it was said that nothing appears in the record to charge any of the judgment creditors with fraud, or to show that the judgments were collusively entered. The judgments, being in no wise impeached under the statute, (section 7, c. 69, Rev. St.,) could not be enjoined, and it was accordingly held that the bill seeking to enjoin the collection of the judgment was properly dismissed. In this case no attack is made upon the judgment of the Kalamazoo Paper Company, nor is it sought in any way to interfere with its collection. On the contrary, the Kalamazoo Paper Company comes into a court of equity, and seeks affirmative relief in its own behalf. To entitle it to such relief, it must come with clean hands, and be prepared to do equity. A party will not be permitted to come into a court of equity to enable him to reap the fruits of fraud; and if it appears that the right sought to be enforced in equity is unconscionable, or has been obtained by fraud, deceit, or covin, a court of equity will not lend its aid. It is conceded that James J. West was the authorized agent of the Kalamazoo Paper Company. At the time of the execution of the note to the paper company, and the assignment of the book accounts to West, he knew that the J. L. Regan Printing Company was an insolvent corporation; that it was largely indebted to other persons and corporations, and unable to pay its debts. The Kalamazoo Paper Company must be held responsible for the knowledge and conduct of its agent, West. He, by his representa. tions and conduct, had led the president of the Regan Printing Company to believe that he was friendly to it, and would aid it financially. The proof tends to show that West applied in the afternoon to the president of the company for the execution of the assignment, saying, in effect, that he only wanted it as protection in the event that anything happened; that the president might be killed in going up and down elevators, and the like; that it was intended to put the notes away, where they could not be seen, and the assignment would be used only in the event of disaster overtaking the company,-and that the president was induced by these representations to execute the formal assignment. On the same afternoon, after procuring the assignment, he caused judg ments to be entered up upon the notes which he held, for over $40,000, and execution immediately to be issued, and the sheriff put in possession of all of the property of the company on the same day, and its business closed. On the same afternoon, in the absence of the officers of the company, and in apparent violation of the understanding, the books were, by West's order, loaded into a wagon, and taken to the office of West's attorney, and two days later delivered into the possession of the Commercial National Bank as collateral to the note of West. As said by the appellate court, "the fact that West intended at the time he took the assignment to enter up his judgments and levy upon the remaining property of the company, and leave other creditors with their debts unpaid, may be fairly inferred from the

evidence." But there is more than this. He procured the preference by unquestioned fraud and overreaching, and now he or his principal, for whom he acted, seeks the aid of a court of equity to reap the fruits of his fraudulent practices. We fully recognize the doctrine that the law favors the diligent creditor, and will uphold him in pursuing all legitimate means to secure or satisfy his debt, whether the debtor be an insolvent corporation or an insolvent person. But here the means resorted to were not legitimate. They were in the highest sense culpable and fraudulent. The officers of the company were led to believe that by taking this step they would be permitted to go on, with a fair hope of meeting the obligations of the corporation. Without the active fraud practiced, it is clear the assignment would not have been made. As said by this court in Fortier v. Darst, 31 Ill. 212: "A party who comes into a court of equity, asking for equitable relief which a court of law cannot afford him, and exhibits a case all blotched over with fraud and overreaching, as this is, must expect but little favor or sympathy at our hands." Here the assignment was obtained through falsehood, fraud, and deception, and possession of the books of account taken forcibly, and without leave of the company, and, as before said, at least in apparent violation of the understanding. It is not necessary to here determine whether the officers of an insolvent corporation, knowing it to be insolvent, may prefer creditors; for the preference here obtained was not by the consent, fairly or lawfully obtained, from any officer of this corporation. In equity and good conscience, it should be treated as if no assignment had been attempted to be made. We are of opinion that the appellate court erred in reversing so much of the decree of the circuit court as dismissed the intervening petition of the Kalamazoo Paper Company, and in so far the judgment will be reversed. In all other respects the judgment is affirmed. It being admitted that the debt was bona fide, there is no objection apparent in permitting the Kalamazoo Paper Company to prove its claim, and share pro rata in the assets in the hands of the receiver, with other unsecured creditors.

Affirmed in part and reversed in part.

MILLER V. WILSON.1

(Supreme Court of Illinois. May 12, 1892.) VENDOR AND PURCHASER-ACTION FOR PRICEEVIDENCE-STATUTE OF FRAUDS.

In an action for the price of land, the written evidence consisted of a letter by defendant to plaintiff saying, "Should I take a notion to buy the lot adjoining the three I bought, what would be your lowest price for it? I feel that I paid a pretty good price for the three lots; 120x140 is a small farm for $1.000;" also a note signed by defendant, saying, "Not having received funds, I forfeit the above $100, and relinquish all claim to the above lots, "-which note was attached to the following receipt, signed by plaintiff, “Received of [defendant] $100 in cash, in consideration of which, and the further payment of $900,

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

to be paid on or before the 21st day of January, 1888, agree to convey to him by warranty deed lots 5, 6, and 7, of block one, in M. M. Miller's addition to Clay Center, Kansas." Held, that such writings were insufficient to constitute a note or memorandum in writing, signed by the defendant, of a contract to purchase land, as required by Rev. St. 1891, c. 59, § 2.

Appeal from appellate court, second district.

Assumpsit by Matthew Miller against Robert R. Wilson. Plaintiff obtained judgment, which was reversed by the appellate court. Plaintiff appeals. Affirmed.

E. L. Bedford, for appellant. W. Spensley, for appellee.

SCHOLFIELD, J. Appellant sued appellee in assumpsit, in the Jo Daviess circuit court, for money averred to be due on a contract whereby the latter promised to pay the former a certain sum of money for the conveyance of certain town lots in Kansas. Appellee pleaded the general issue and several special pleas, among which was the second, that the supposed contract mentioned in the declaration was made concerning the sale of lands and tenements, and that no memorandum or note thereof was made in writing, and signed by the defendant or any other person lawfully authorized in writing to sign the same, accordingly to the statute in such case made and provided. Appellant replied to this plea "that the several contracts and writings in said declaration were signed by the defendant according to the form of the statute in such cases made and provided," etc. There were also replications to the other pleas, and the issues were joined on all the pleas. The court gave judgment for the appellant, and appellee appealed therefrom to the appellate court of the second district. That court reversed the judgment of the circuit court, and gave judgment in favor of appellee, and, inasmuch as this judgment was the result, wholly or in part, of its finding the facts concerning the matter in controversy different from the finding of the circuit court, it recited in its final judgment the facts as found, as follows: "We find the following facts to be incorporated in the judgment of this court: (1) That the only cause of action on which a recovery is sought by appellee is the breach of an alleged contract of appellant for the purchase of real estate. (2) We find that such contract was not in writing, and that there was no memorandum or note thereof in writing signed by appellant. (3) We find the only memoranda in writing signed by appellant were a letter written on the 24th of October, 1887, and a note written by him on the 23d of January, 1888, and that they were insufficient to charge and render liable the appellant under the statute of frauds; that the said letter is as follows: Windsor Hotel, Omaha, Neb., Oct. 24th, 1887. Col. M. M. Miller-Dear Sir: Should I take a notion to buy the lot adjoining the three I bought, what would be your lowest price for it? I feel that I paid a pretty good price for the three lots, and would like a back lot if you can let me have it low enough; 120 by 140 is a small farm for

$1,000. Please advise me at Hanover, and oblige, yours, respectfully, R. R. WILSON.' That the said note is as follows: Monday Morning, 6:30, Jan. 23, '88. On account of sickness and disappointment in not having received funds ordered to meet this Saturday, I forfeit the above $100, and relinquish all claim in the above lots. R. R. WILSON,'—which note was attached to the following reeeipt, executed by ap pellee: Clay Center, Kan., Oct. 21st. 1887. Received of R. R. Wilson $100 in cash, in consideration of which, and the further payment of $900 to be paid on or before the 21st of January, 1888, I agree to convey to him, by warranty deed, lots 5, 6, and 7 of block one, in M. M. Miller's addition to Clay Center, Kausas. [Signed] M. M. MILLER.' (4) We find that the parol evidence in the record was incompetent to connect and aid the said receipt, letter, and note to make out a valid contract under the statute of frauds, and also insufficient, and we reject the same as evidence."

The contention of counsel for appellant. is that the question whether the contract sued upon is capable of being enforced, as against the defense that it does not conform to the requirements of the statute of frauds, is not before the court, because it appears that the contract was executed in Kansas, where is the situs of the property the subject of it, and it does not appear that there is, in that state, any statute similar to ours in that respect. But the plea clearly sets up the statute of frauds as a defense, and, if it is insufficient for the reasons contended, appellant should either have demurred to it, or replied that the contract was made in Kansas, and that there is no such statute in force there which could enter into and become a part of the contract. But he took issue upon the plea, and thereby waived all objections to its sufficiency. The circuit court, in giving judgment as it did, necessarily found this issue, as well as all other issues of fact, for the appellant; and the appellate court reversed that judgment, and gave judgment for appellee, because it found that issue of fact for appellee. The only question upon which we can pass, therefore, is, do the writings recited in the judgment of the appellate court constitute a note or memorandum in writing, signed by appellee or by some other person by him authorized in writing, of a contract whereby appellee promised to pay appellant money for the purchase of land sold to him by appeilant? We agree with the appellate court that they do not. It is to be noted that the case is quite different from what it would be if appellee had paid for the land, and were now seeking specific performance of the contract; for, in that case, appellant, who has unquestionably signed a memorandum of the contract, would be the party to be charged thereby. See Ives v. Hazard, 4 R. I. 14. Here appellee is the party sought to be charged, and, to authorize a judgment against him, it must appear either that he did himself sign a note or memorandum in writing of the contract, or that some one else did so for him, who was by him

not connected with the time of his death, or any habit the deceased may have had of using intoxicating liquors prior to the day of his death, and the admission of evidence of the habit of the deceased prior to the day of his death in relation to drinking liquors and becoming intoxicated, is

not erroneous.

38 Ill. App. 638, affirmed.

SMITH et al. v. People, to Use of WILLIAMSON.1

(Supreme Court of Illinois. May 12, 1892.) INTOXICATING LIQUORS-CIVIL DAMAGE LAWSACTION ON BOND-INSTRUCTIONS.

1. In an action against a liquor seller and his sureties on a bond given under Rev. St. 1891, c. 43, 5, conditioned for the payment of all damages sustained in person or property or means of support by reason of said principal defendant selling or giving away intoxicating liquors, where the declaration alleges the giving as well as the selling of intoxicating liquors, and there is some evidence to prove the giving of such liquors, it is proper to submit to the jury the question of the giving as well as of the selling of such liq

nors.

2. Where the proof shows that the person, on account of whose death the action was brought, drank beer many times during the afternoon in the saloon of the principal defendant, and became intoxicated, and left there with a bottle of whisky in his pocket, it is not error to submit to the jury the question whether the beer which decedent then drank was an intoxicating liquor. although there was no positive testimony that such beer was intoxicating.

3. An instruction which leaves it to the jury to determine whether the decedent's death "was occasioned by intoxication produced by beer which was intoxicating, or other intoxicating liquors sold or given to him by defendant," is not erroneous as assuming that beer is an intoxicating liquor.

4. It is not error to refuse to instruct the jury that as a matter of law the word "intoxication," used in the dramshop act, means "excited to frenzy.

5. Where deceased was killed by the running away of a team of horses, it is not error to re fuse an instruction that no recovery could be had if the death of the deceased was occasioned by the negligence or willful act of the deceased in handling a dangerous team, since such instruction fails to exclude the hypothesis that such negligence was due to his intoxication.

6. It is not error to refuse an instruction that, if the team became frightened and ran away in consequence of the fastenings on the whippletrees dropping off, decedent's death would not be the proximate result of intoxication, since, if the deceased had been sober, he might have been able to prevent the runaway in spite of the fright of the horses.

7. Where plaintiff's declaration contains, as one of the assignments of breach, an allegation that the principal defendant, in the lifetime of the decedent, sold and gave said decedent intoxicating liquors, said decedent then being an habitual drunkard, and that thereby his wife was injured in respect to her means of support, the refusal to instruct the jury that they had no right to consider any evidence in relation to decedent having been drunk on former occasions,

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Appeal from appellate court, second dis

Action by the people of the state of Illinois, for the use of Anna A. Williamson, against James M. Smith, Charles C. Beber, Bothwell Pulford, and Joseph Keller, upon a bond given under the dramshop act, (Rev. St. 1891, c. 43, § 5.) Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants appeal. Affirmed.

Defendants' third instruction, referred to in the opinion, was as follows: "The court further instructs the jury that if they believe from the evidence that the deceased, William Williamson, on the 12th day of August, A. D. 1889, at the time when the accident occurred, which resulted in his death, was driving a young and fractious team of horses attached to a wagon of the kind and description described by the witnesses in this case, and that while so driving said team on his road to his home the clips or fastenings on the whippletrees which attach the team to the said wagon became loosened and dropped off, and allowed the tongue of the wagon to drop down upon the road, and that in consequence therefore the team became frightened and unmanageable, and ran away and overturned the wagon in which the deceased was riding, and threw the deceased violently upon the ground, with such force as to cause injuries from which he died, in such case his death would not be the immediate and proximate result of intoxication, if the jury believe from the evidence that such intoxication existed at the time, and could not be charged against the defendants; and in that case the jury should find the issues for defendants.

J. M. Hunter and D. S. Berry, for appellants. Geo. L. Hoffman, for appellee.

BAKER, J. This was debt against James M. Smith and his sureties on a bond given in compliance with the requirements of section 5 of the dramshop act; and the bond was conditioned for the payment to all persons of all damages that they might sustain, either in person or property or means of support, by reason of said Smith selling or giving away any intoxicating liquors. The suit was prosecuted in the name of the people of the state of Illinois for the use of Anna Williamson. The declaration contained two assignments of breaches. The substance of one was that said Smith on divers occasions sold and gave away intoxicating liquors to William Williamson, the husband of said Anna Williamson, by means whereof said William became habitually intoxicated, and, by reason of so being habitually intoxicated, wasted and squandered his moneys, income, and property, and became and was greatly impoverished, reduced, and degraded in mind and body,

as well as in his estate, and greatly neg. lected his duties as a farmer and stock raiser, and other business, and thereby said Anna, being his wife, lost and was deprived of her means of support. And the substance of the other was that on the 12th day of August, 1889, said William Williamson, being in a state of intoxication caused by said Smith selling and giving to him intoxicating liquors, was incapacitated, by reason of such intoxication, from properly and safely managing and driving and controlling a team of horses drawing a wagon in which he was riding, by means whereof said team ran away, and said William Williamson was thrown out of the wagon and killed; and that thereby said Anna Williamson was injured in and deprived of her means of support. Upon the issues formed in the case, there was a jury trial, and a verdict and judgment for the penalty of the bond, and for $1,000 damages; and the judgment was afterwards affirmed in the appellate court. Complaint is made by Smith and the other appellants of some four or five of the instructions which were given on the motion of the plaintiff below, on these grounds: That by them the court submitted to the jury the question of the giving of intoxicating liquors, as well as the question of the selling of such liquors, and also submitted the question whether or not the beer which Williamson drank at the saloon of Smith during the afternoon and night of the 12th of August, 1889, was an intoxicating liquor. In respect to the first objection, suffice it to say that the declaration alleged as well the giving as the selling of intoxicating liquors, and that there was some evidence, though but slight, tending to prove the giving of such liquors. The second objection is likewise untenable. It may be that no witness testified in positive terms that the beer that Williamson drank on the 12th day of August was an intoxicating liquor; but that fact, like most other facts, may be established by other than direct and positive proof, and here the proof was ample that Williamson drank beer very many times during the afternoon, and until about 9 o'clock at night, in the saloon of Smith, and became intoxicated, and left there with a bottle of whisky in his pocket. If the direct result of drinking Smith's beer was intoxication, it may reasonably be presumed that Smith's beer was an intoxicating liquor. Instruction 5 did not assume that beer is an intoxicating liquor, but left it to the jury to determine from the evidence whether the death of Mrs. Williamson's husband was occasioned by intoxication produced by beer which was intoxicating, or other intoxicating liquors sold or given to him by the defendant."

We have difficulty in comprehending the point of the criticism made by appellants on the clause found in instruction 6, which reads as follows: "Caused from intoxi. cation in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James M. Smith." Very plainly this means "in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James

M. Smith," and does not mean either "intoxication in whole or in part," or "caused from intoxication in whole or in part." We do not see how it could reasonably be understood by the jury otherwise than as we have suggested. But even if there was intoxication "in part," or partial intoxication, yet, if such intoxication was sufficient to have "caused" the death of the deceased, we are unable to see why the case is not within the province of the statute. So, also, if, notwithstanding the intoxication of the deceased, he would not have been killed if his horses had not run away, yet nevertheless there would be a good cause of action. The very grava men of the case is that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away. and he was thrown out of the wagon and killed.

It is assigned as error that the court refused to give certain of the instructions asked by appellants. It was not error to refuse to tell the jury that as matter of law the word "intoxication," used in the dramshop act, means "excited to frenzy." The denial of the instruction that no recovery could be had in the case if the death of the deceased was occasioned by the negligence or want of caution or willful act of the deceased in handling or driving a dangerous team was clearly not error. The instruction does not exclude the hypothesis that such negligence, want of caution, or willful act was due to or caused by his intoxication. Instruction 3 was properly refused, and for like reason. Even if the clips or fastenings on the whip. pletrees dropped off, and allowed the tongue of the wagon to drop down upon the road, and in consequence the team became frightened and unmanageable, and ran away, yet non constat that if the deceased had been only sober, and in fit condition to manage and control the team, he would not have been able to prevent the running away of the horses, or the overturning of the wagon.

The court refused to instruct the jury that they had "no right to consider any evidence in relation to William Williamson having been drunk on former occasions, not connected with the time of his death, or any habit the deceased may have had of using intoxicating liquors prior to the day of his death." It also, over the objections of appellants, admitted evidence of the habit of the deceased prior to the day of his death in relation to drinking liquors and becoming intoxicated. These rulings of the court are questioned by the assignments of error. It must be borne in mind that there are two assignments of breach in the declaration, and that the first of them is that appellant Smith, in the lifetime of William William. son, sold and gave said Williamson intoxicating liquors,-he, said Williamson, then being an habitual drunkard,—and that thereby his wife, the appellee, was injured in respect to her means of support. The challenged evidence was admissible under this first breach, and the giving of the proffered instruction would have been anderstood by the jury as excluding from

Nicholas Kieffer, one of the sons, died intestate, leaving the said Mary, his mother, and his said brothers and sisters, his only heirs at law. On the 28th day of December, 1889, said widow and surviving children signed and delivered to one Louis J. Hitz the following letter: "L. F. Hitz

Bill by Mary Kieffer, Jacob Kieffer, Peter Kieffer, Anna Kieffer, Kate Kieffer, and Margaret Kieffer against Frank Kieffer and Christian Kieffer, for partition. An intervening petition was filed by Frederick W. Short, Edmund G. Short, and Herman Prenzlaur. The original complainants demurred to the intervening petition, and the demurrer was sustained. The intervening petitioners appeal. Affirmed.

The other facts fully appear in the following statement by WILKIN, J.:

On December 18, 1879, Frank Kieffer died testate in Cook county, this state, leaving surviving him Mary Kieffer, his widow, and Jacob, Peter, Annie, Katie, Maggie, Frank, and Nicholas, his surviving children; also, a posthumous son, named Christian. He was seised at the time of his death, in fee, of the following described real estate, to wit: "That part of the southwest quarter of section thirty-six, in township thirty-eight north, of range thirteen east, of the third principal meridian, commencing at a point eleven and eightyfive hundredths chains east of the north west corner of said southwest quarter, and running thence south twenty-two chains; thence east four and eighty one hundredths chains; thence south three chains; thence east fourteen and seventyseven one hundredths chaius; thence north twenty-five chains; thence west nineteen and fifty-eight one hundredths chains, to the place of beginning,-containing fortyseven and fifty-one one hundredtbs acres, more or less." By his last will and testament, he willed this real estate, by an imperfect description, to his said widow for life, and the remainder to his said children, in fee. On the 30th of December, 1885,

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

said

within the next six months the 47 51-100 acres owned by us, situated in the southwest quarter of section 36, T. 38, T. 13, at $700 per acre, 4 cash, balance in 1, 2, and 3 years, with 6% interest; and we will allow you five per cent. commission for selling same, to be deducted out of the first payment, provided you will pay all expenses, court costs, and attorneys' fees for perfecting the title to said land by filing bill for partition. We agree not to place this land in the hands of any one else for sale within said six months." Subsequently, Hitz signed and delivered to Frederick W. Short the following writing: "Chicago, March 26th, 1890. This is to certify that I have this day sold to Frederick W. Short the 47 acres situated in section 36, T. 37 N., R. 13, known as the 'Kieffer Farm,' for seven hundred dollars per acre, as per terms in contract with the Kieffer heirs, dated Dec. 28th, 1889, and that I have received from him two hundred dollars as part payment of purchase money, to be used towards legal expenses in perfecting the title to the same. Louis J. HITZ." At the time of signing said letter to said Hitz, two of said children, viz., Christian Kieffer and Frank Kieffer, were minors. On the children of said Frank Kieffer, deceased, 9th of April, 1890, said widow, and the adult filed a bill for partition of said real estate in the circuit court of Cook county, making said minor children defendants. This bill also set up the fact that the lands were imperfectly described in said will, and prayed that the same might be construed so as to perfect the description and vest the title in said legatees, in and to said real estate. On the 18th of June following a decree was entered by said circuit court according to the prayer of the bill, and commiscordingly. On the 23d of the same month. sioners appointed to make partition acsaid commissioners reporting the premises not susceptible of division, there was a decree of sale, and the premises subsequently sold by the master to appellant Prenzlaur at $36,250. On the 25th of Nocomplainants in said bill, and also by the vember following, on exceptions by the minor defendants by a next friend, that sale was set aside and a resale ordered. On the 17th day of March, 1891, the premises were again sold by the master in chancery to a third party for $47,500. Up to the date of the first sale of said premises, neither of these appellants appear to have any connection whatever with said proceeding. At that sale, appellant Prenzlaur, having bid off the property, paid to the master $1,000 in cash. On the hearing upon the exceptions to that sale, he appeared by counsel, and resisted the motion of the parties to the bill to vacate said sale. By the order setting aside the sale to him the master was ordered to refund to him said $1,000, which he accepted, and, so far as the record shows, acquiesced