the court below. Upon motion of appellee the two causes were consolidated and tried together, over the objection and exception of the appellant. The consolidation of the two causes constitutes the first error relied upon by the appellant.

"

It is provided by the Code that a plaintiff may unite several causes of action when they are all "money demands on contract," such as the two claims in the case at bar. Rev. St. 1881, § 278. The same Code provides that, "when the plaintiff shall at the same term of court bring several actions against the defendant upon demands which might have been joined in one action, he shall recover costs in only one action." Rev. St. 1881, § 595. It is further to be noted that although the improper joinder of different causes of actions constitutes good cause for demurrer, under subdivision 6, § 339, yet under the following two seetions (340-341) the sustaining or overruling of such demurrer is not error which will cause a reversal. Coan v. Grimes, 63 Ind. 21. It would seem from these provisions, and from the policy of the law to avoid a multiplicity of suits whenever practicable, that the consolidation of causes of this character is favored, and when done will be regarded as a proper exercise of judicial discretion. 1 Amer. & Eng. Enc. Law, 184a. The practice obtains in chancery courts. Campbell's Case, 2 Bland. Ch. 209; Patterson v. Eakin, (Va.) 12S. E. 144; Biron v. Edwards, 77 Wis. 477, 46 N. W. Rep. 813. Also at common law, (3 Chit. Pr. 642,) though it seems in the latter it was applied more particularly where the subject-matter of the actions was the same. City of Springfield v. Sleeper, 115 Mass. 587; Thomp. Trials, § 210. We are of the opinion that the court committed no error in ordering the cases consolidated.

The appellee examined the appellant prior to the beginning of the trial, under section 509 et seq., Rev. St. 1881. The examination was filed and published. It seems that afterwards the document containing this examination was removed from the files by the appellee's attorneys. The filing took place on the 27th day of March, 1891. On the 21st day of September, 1891, the appellant filed an affidavit in the court below, stating that the appellee had removed said paper from the files, and refused to permit the appellant au inspection thereof, and moved for an order upon the appellee to place said paper back on the files or give the appellant an inspection of the same. To this the appellee filed an answer, admitting that his attorneys had taken the paper off the files, but stating that the appellant was present at the examination, and knew the contents of the paper, and that immediately after said examination, and before he signed the same, he had had said paper in his possession as much as a week or 10 days. As a further reason for refusing to permit said appellant the use of said paper appellee stated that the law made it optional with the appellee whether he would introduce said paper in evidence or not, and if he elected to so introduce it he would give the appellant ample time and opportunity to read and inspect the same. The court

thereupon overruled the appellant's motion, and the latter saved his exception, and now urges this ruling as a proper and sufficient ground for the reversal of the judgment. The trial did not occur until the 27th day of September, 1891, or six days after the overruling of said motion. The paper containing said examination was introduced in evidence and read to the jury. No objection or exception to the introduction thereof seems to have been taken by the appellant. The argument is made for appellee that we must assume that during the six days' interval between the day the motion was presented and the day of the trial the appellee's counsel gave the appellant a satisfactory inspection of the paper in question. Otherwise the appellant's counsel would not have permitted it to go in evidence without objection. With this position of counsel we cannot agree. The time for appellant to make objections to the removal of the paper from the files and to move for an inspection of the same was before the beginning of the trial. Had the appellant waited until the paper was offered in evidence before raising the questions as to taking from the files and inspection, the court would have decided, and properly so, we think, that it was too late, and that the appellant was then in no position to ob. ject. The declaration of appellee's counsel that they would not introduce the paper in evidence without giving the appellant ample opportunity to inspect it did not, in our judgment, cast upon the appellant the duty of raising an objection to the document's going in evidence in order to make available his objection and exception upon the ruling of the court upon his motion. It is a false assumption that the paper containing this examination belonged to the appellee, and he or his counsel could do as they pleased with it. The paper belongs to the files of the court as one of the papers in the cause, the same as a deposition. Rev. St. § 511. It is true, the party taking it need not use it in evidence unless he sees fit to do so, but this gives him no right to take it away and conceal it until the day of trial, and then. use it or not as he may determine; and yet, if the ruling of the court be sustained, it will inevitably lead to some such result. It is really not a question of giving the opposite party a right to inspect the paper, for that would be assuming that it was rightfully in the possession and custody of the party taking it, like any other paper or article belonging to him. Here the paper is in custodia legis, and either party should have access to it under such reasonable restrictions as the court in its discretion may prescribe. True, if the appellee had not introduced the paper in evidence, it could not be said that appellant had sustained any injury from the ruling of the court. But the fact that the paper was used made the ruling harmful. We cannot indulge in presumptions that the appellee's attorneys must have submitted the document to the appellant or his counsel in time for an inspection, or the latter would have raised an objection to its introduction. There may have been very patent reasons which prompted the

appellant to abstain from raising an objection to have his own statement go before the jury. However that may be, it seems to us that the appellant did all he could reasonably be expected to do in making the motion and reserving an exception to its being overruled by the court. The question is somewhat analogous to one arising upon the overruling of a motion to suppress a deposition. If the motion is erroneously overruled and an exception saved, the unsuccessful party is under no obligation to object to the introduction of the paper in evidence when it is offered. His exception to the ruling of the court in failing to suppress the depositions will quite effectually save the question for him so as to present it on appeal. There was nothing left to be done by the appellee after the court had ruled against his motion to place the paper back on the files so he could inspect it. Had the court made an order upon appellee's attorney to return the examination to the files within a time certain, and the record were silent as to whether this was done or not, there would be good reason for presuming that the order had been complied with, and in that event an objection to the introduction might become necessary in order to bring it to the court's attention that its order had not been obeyed. But where no order was made, how can it be presumed that the appellee had voluntarily done that which the court decided be was under no obligation to do? It is earnestly contended on behalf of appellee that it is not shown that appellant was harmed by the ruling, as no showing was made for appellant as to the purpose for which the paper was to be returned to the files, and an examination of it made by the appellant and his counsel. This position, in our judgment, cannot be sustained. As well might it be contended that, if the complaint or answer had been removed from the files by the appellee, and appellant had asked for an order to have it restored so that he might make some examination of it, the latter must first show the purpose for which he wanted such paper, and that, if he failed to disclose such purpose, and the court ruled against him, he was without remedy. The paper under consideration was as much one of the files of the cause as the complaint or answer, and it was as little required in the one case as in the other that each time he desired to look over it he should present some specific reason therefor. If this paper was to be used against him in evidence, he could not be denied its examination without giving some particular reason for wanting to do so There are scores of reasons why such inspection is not only proper, but necessary, to a correct preparation of the case, and we know of no rule that each time counsel desire to examine a paper on file they should be required to testify upon oath or state in writing why they wish to use it. If the paper was not to be used, he could doubtless take it from the files with the court's permission, and, even if taken without it, no injury would occur to the other party. Certain technical rules of practice must necessarily be adhered to for the further

| ance of justice. We presume that if a deposition were taken from the files and opened by one of the parties without the usual formality of first publishing it in open court, and were kept by such party an indefinite length of time, the court would not hesitate, upon motion of the opposite party, to have it placed upon file, so that he might have proper opportunity of examining it; and we apprehend that in such case the court would not require the party requesting the privilege of examination to assign some reason therefor before granting it. The overruling of such a motion, and the subsequent use of the deposition, would be a clear error for which the judgment must be reversed. Without extending this opinion further, it is sufficient to say that we have concluded that the court committed a similar error in the overruling of the motion under consideration. Other questions discussed may not arise again, and for that reason we shall not pass upon them at this time. Judgment reversed.

KATTELMAN V. GUTHRIE'S ESTATE.1 (Supreme Court of Illinois. June 18, 1892.) GUARDIAN AND WARD-ESTOPPEL-COMPOUND IN

TEREST.

1. Where a guardian has made a final settlement, showing a certain amount due from him to his ward, and such settlement has been approved by the county court, the guardian and his personal representatives are estopped to deny the correctness of such settlement.

2. The fact that a guardian, after his ward comes of age, retains her money in his hands, and invests it for his own benefit, does not render him liable to pay the ward compound interest therefor where it appears that the ward never made any objection to his retaining and using the money.

Appeal from appellate court, Fourth district.

Claim of Tirza A. Kattelman against the estate of George W. Guthrie, deceased. The claim was allowed in part, and the judgment affirmed by the appellate court. Plaintiff appeals. Reversed.

Charles W. Thomas, for appellant. G. & G. A. Koerner, R. J. Goddard, and M. McMurdo, for appellee.

CRAIG, J. The appellant, Tirza A. Kattelman, presented the following claim in the county court of St. Clair county against the estate of George W. Guthrie, deceased: "Estate of George W. Guthrie, to Tirza A. Kattelman, Dr., to amount due her as Guthrie's ward, as per his last settlement as guardian, made in the county court of St. Clair county, Illinois, on Nov. 2, 1881, with interest on the same as allowed by law, $7,500.00." On a hearing in the county court on the 22d day of April, 1890, the court found that there was due the claimant $3,723.54, and entered an order allowing that sum against the estate. The plaintiff appealed from the judgment of the county court to the circuit court, when a trial was had by agreement before the court without a jury, resulting in a judgment for the same amount allowed in

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

receipt of the ward, on the same day, the court ordered it to be filed and recorded.

The questions presented for determination are raised by three propositions submitted by the appellant, to be held as law in the trial of the cause in the circuit court. The plaintiff submitted the following propositions, but they were refused by the court: (1) The court is requested to hold that the defendant in this case is estopped to deny the correctness of the final settlement made by Guthrie as plaintiff's guardian, and no credit not claimed by him in that settlement, growing out of facts in existence at the time of that settlement, can be allowed his estate in this suit. (2) If the court believes from the evidence that Guthrie in his lifetime never paid plaintiff any part of the money due her from him as her guardian, as shown by his final settlement, but lent the same out in his own name, and expressed the intention of not paying the money to her until she was married, then the court should allow compound interest on any sum found to be due plaintiff in this suit. (3) The plaintiff is entitled to recover in this case the sum of $4,298.80, with compound interest thereon up to the present time, less the sum of $1,537.50.

It appears from the record that George W. Guthrie was appointed guardian of appellant and her three sisters on the 23d day of May, 1874, and upon his appointment assumed charge and control of the wards' property. On the 2d day of November, 1881, after appellant had become of age, the guardian and his ward appeared in the county court, and the guardian rendered a final report to the county court, as follows:

"George W. Guthrie, guardian, in account with Tirza Ann Johnston, ward. Final settlement, the 2d day of November, 1881:

་

Phillip Rhein testified as follows on behalf of the plaintiff: "In 1881 I was deputy county clerk of St. Clair county. I wrote the final settlement of George W. Guthrie, as guardian of Tirza Ann Johnston, now Kattelman. She was present at the time. I wrote the receipt attached to the settlement and she signed it in my presence. No money was paid to her, or into court on her account, by Guthrie. She understood what she was doing when she signed the receipt." The defendant offered evidence tending to prove that Guthrie, the guardian, on the 9th day of August, 1880, purchased a farm in St. Clair county, consisting of 100 acres of land, for which he paid $2,200, and that he placed improvements on the land of the value of $1,000. The land was conveyed directly to the four wards, and the evidence tended to prove that the money paid for the property, and expended on its improvement, was funds in the hands of the guardian belonging to the wards.

bis

The first proposition was asked on the theory that no credit could be given the estate on account of the purchase of this land for the ward; that the settlement which the guardian made with the court estopped him and his representatives from claiming any prior payments made to or on account of the ward. It will be observed that the county court, in passing upon the final report of the guardian, on the 2d day of November, 1881, determined that the guardian had in hands at that time $4,298.80 belonging to his ward. This was an adjudication of a court of competent jurisdiction, and we think it is well settled by the authorities that the judgment is conclusive on the guardian and his representatives. In Ammons v. People, 11 Ill. 6, which was an action against one of the sureties on a guardlan's bond, it was held that an order of a probate court, directing a guardian to pay over to his successor a certain amount in his hands belonging to the ward, is conclusive upon the guardian, unless the order can be impeached for fraud or collusion. In Ralston v. Wood, 15 Ill. 168, where the probate court had determined that there was due from the administrator to one of the heirs of the estate a certain sum, which the administrator was ordered to pay over to the heir, it was held that an order of a probate court against an administrator to pay over money in his hands to an heir is conclusive, and, if not complied with, entitles the person in whose favor it is made to recover upon the administrator's bond against the principal and security. So in Gillett v. Wiley, 126 III. 310, 19 N. E. Rep. 287, it was held that an order of the county court finding the sum in a guardian's hands belonging to his ward, after the majority of the latter, and ordering its payment to the ward, is conclusive upon the guardian and his surety, except for fraud or mistake as to the amount then actually in the hands of the guardian. The same doctrine has been held in other states. See Garton v. Botts, 73 Mo. 274; Sheetz v. Kirtley, 62 Mo. 417.

Here the guardian was before the court in person, and rendered his account, thus submitting himself to the jurisdiction of the court. The court had jurisdiction of the subject-matter, and, having jurisdiction of the person and subject-matter, the judgment is final and conclusive, unless reversed or set aside for fraud. If the guardian, prior to the final settlement, purchased the farm in question in the name of his ward, and the ward had thus received $800, which the evidence tends to show was the case, he ought to have claimed a credit for the amount when he rendered his final account; but having failed to do so after the court had determined, by its judgment, that the guardian held in his hands a specified sum belonging to his ward, we are aware of no principle which would allow the administrator of the guardian's estate to go behind the adjudication of the probate court, and obtain a credit for a payment made before the adjudication.

As to the first proposition, we think it should have been given, but as to propositions 2 and 3, they do not contain correct propositions of law, and they were properly refused. We find nothing in the record which shows a willful violation of duty on the part of the guardian, and hence there is no ground for charging him with compound interest. After the final settlement, the ward chose to leave her money in the guardian's bands. She made no effort to obtain it, nor does it appear that she deserved the money, under such circumstances. So long as she voluntarily left the money in the hands of the guardian after she was of age, and after be had rendered a final account, and made final settlement as guardian, he ought not to be charged with more than 6 per cent. interest on the amount found due from and after the date of final settlement. Gilbert v. Guptill, 34 Ill. 141. For the error indicated the judgment of the appellate and circuit courts will be reversed, and the cause remanded to the circuit court. Reversed and remanded.

1. Where a replevin bond is made payable to the coroner "and to his successors in office, executors, administrators, and assigns," the coroner may bring suit thereon in his own name after the expiration of his term of office, since under Rev. St. 1874, c. 119, § 25, which authorizes the ofcer to whom a replevin bond is given to sue thereon if at any time the condition of the bond is broken, the successor of the officer has no right to sue on the bond. 41 Ill. App. 476, affirmed.

2. In declaring on such a bond the words "and to his successors in office" may be omitted without creating a variance, since they are mere surplusage.

3. It is no defense to an action on a replevin bond that it is brought in the name of the officer to whom it was given, for the use of a person other than defendant in the replevin suit, since

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

the allegation as to whose use an action is brought is not traversable, and need not be supported by proof. Blatchford v. Boyden, 13 N. È. Rep. 801, 122 Ill. 657, distinguished. 41 Ill. App. 476, affirmed.

4. In an action on a replevin bond the record of the proceedings in the replevin suit is conclusive against surety as well as principal. 41 Ill. App. 476, affirmed.

5. Under Rev. St. 1874, c. 51, § 13, which provides that court records shall be certified "under the hand of the clerk of the court," a certificate by the clerk by his deputy is sufficient, since Rev. St. c. 25, § 9, authorizes the clerks to appoint deputies, and at common law a deputy can do whatever his principal can do. 41 Ill. App. 476, affirmed.

6. A general objection to the introduction of evidence is not sufficient to allow the objector to raise the point on appeal that it constitutes a variance from the pleading.

7. In an action on a bond given in a replevin suit against a sheriff, the defendants attempted to prove in mitigation of damages that the property replevied belonged to a third party. Held, that the plaintiff might show the sheriff's title in rebuttal by the introduction of the execution under which he seized the goods, although there was no reference in the declaration to such execution, or to the action in which it was issued.

8. Asking a witness whether the property replevied was regarded by its former owner as personal or real property is harmless error, so far as the obligors on the replevin bond are concerned, since they are estopped by the recital in the bond that the property is "goods and chattels."

9. It is no defense to an action on a replevin bond that the property could not be returned be. cause it had been burned up after it was re. plevied. Suppiger v. Grauz, 27 N. E. Rep. 22, 137 Ill. 216, followed.

10. Where one of two obligors makes an assignment for the benefit of creditors, and the obligee files his claim on the bond with the assignee, and obtains an adjudication thereof in his favor in the county court, such adjudication, not being a common-law judgment, does not merge the cause of action on the bond so as to release the other obligor.

11. The omission of a creditor to prove up his claim against his principal debtor, on the latter's making an assignment for creditors, does not release the surety even to the extent of the dividend which the creditor would have received.

Error to appellate court, fourth district. Action by Charles S. Youree, late coroner of Madison county, for the use of Timothy Gruaz, against Martin J. Schott, on a replevin bond executed by him as surety for J. Ryhiner & Co. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant brings error. Affirmed.

A. W. Metcalfe, for plaintiff in error. Wise & McNulty, for defendant in error.

SCHOLFIELD, J. This appeal is from a judgment of the appellate court of the fourth district, affirming a judgment of the circuit court of Madison county in favor of Charles S. Youree, late coroner of that county, for the use of Timothy Gruaz, against Martin J. Schott, on a replevin bond executed by him as surety for J. Ryhiner & Co. as principals.

1. The bond is executed to "Charles S. Youree, coroner of the county of Madison, in the state of Illinois, and to his succes. sors in office, executors, administrators, and assigns." It is contended that, inasmuch as Youree did not succeed himself in office, this suit is improperly brought, and there is a variance between the bond described in the declaration, which omits

the words "and to his successors in office,' and that offered in evidence. Public officers can maintain an action, as successors, only when expressly authorized so to do by statute. "By the common law a suit on a bond payable to one and his successors or assigns can be maintained only by the obligee during his life, and by his executors or administrators after his death." There are exceptions to the rule, but they are not pertinent here. Stevens v. Hay, 6 Cush. 229; Lord v. Lancey, 21 Me. 468; Ferebee v. Sanders, 3 Ired. 360; Hoxie v. Weston, 19 Me. 322. Our statute simply requires that before the execution of any writ of repievin the plaintiff, or some one on his behalf, shall give to the sheriff, constable, or other officer, bond, etc. Chapter 119, Rev. St. 1874, tit. "Replevin," § 10. Section 11 requires that he shall return the bond so taken to the clerk, etc. And section 25 provides that "if at any time the condition of the bond required by section 10 of this act shall be broken, the sheriff, constable, or other officer, or plaintiff, in the name of the sheriff, to his own use, as the case may be, may sue and maintain an action on such bond," etc. There is therefore, plainly, no authority to make the bond payable to the successor, and no authority for a successor to bring suit on a bond taken by his predecessor. The word "successors" is therefore, in that connection, without legal meaning or effect, and mere surplusage that the pleader rightly disregarded. 1 Chit. Pl. 262, *263. And so in our opinion the suit was properly brought, and there was no variance between the allegations and the proofs in the respect contended.

2. The writ of replevin was issued against George Hotz, sheriff of Madison County, and Jacob Brunschweilin, who was the sheriff's custodian of the property, and it is contended that there is a variance between the allegations and the proofs because the suit is brought for the use of Timothy Gruaz instead of for that of George Hotz. But the bond in evidence and the bond declared on are precisely the same in legal effect. So much of the declaration as alleges for whose use the suit is brought is no part of the count in which the bond is described and its breach alleged. That allegation does not present an issuable fact, and no evidence is therefore necessary to support it; and none is admissible in denial of it. The statute provides (section 25, supra) that the action on the bond may be maintained, by the officer taking the bond, "for the recovery of all such damages and costs as may have been sustained in consequence of the breach of the condition." Necessarily, then, the defendant may, on the trial, resist the recovery of damages and costs, on the ground that they have not been sustained in consequence of the breach of the condition. The officer taking the bond, and who brings the suit for the breach of its condition, legally represents all parties beneficially interested in recovering in such suit, and all legal defenses that may be interposed as against any interest must be interposed to his suit. The statement of the use for which

the suit is brought is merely to enable the court to know who is equitably entitled to control the suit; and if no use were stated, or if it were inaccurately stated, the duty of the plaintiff to distribute the proceeds of the judgment, being prescribed by statute, would be wholly unaffected. He must, whatever he should state the use to be, distribute the proceeds of the judgment to those injured by the breach of the bond, and, in the case of several being thus injured, in the relative proportion of their respective injuries. But since the defendant litigates all questions with the party bringing the suit, that is, interposes all defenses that he may have as against any and every recovery because of a breach of the boud, in the suit brought by the officer taking the bond, it is, manifestly of no concern to him how the proceeds of the judgment shall be distributed. Buckmaster v. Beames, 4 Gilman, 443; Atkin v. Moore, 82 11. 240. But it seems to be supposed by counsel for appellant that Blatchford v. Boyden, 122 11. 657, 13 N. E. Rep. 801, lays down a different rule. This is a misapprehension, as an examination of that case will clearly show. In that case, as in this, the property was replevied from the sheriff, who held it on execution. One of the executions under which the sheriff held the property was in favor of Robert E. Jenkins, assignee of Josiah R. Butler. Jenkins and the other plaintiff in execution were made defendants with the sheriff to the replevin suit, and the bond executed to the coroner upon making the replevin assumes to describe who are defendants in the replevin suit, but it therein describes Jenkins as assignee of Josiah R. Barker. In the introductory part of the declaration in the suit upon the replevin bond it is said the suit is brought for the use of the sheriff and the plaintiffs in execution, naming each, and the count upon the bond describes it as it was made, but alleges that it is incorrectly therein recited, by mistake, that Jenkins is assignee of Barker,-that, in truth, he is assignee of Butler. It was objected that the bond described in the count and that offered in evidence were not in legal effect the same bond; and what was said in the opinion in that case, which counsel refer to as pertinent here, had reference to that question alone. There was no question of any kind in regard to the use alleged in the introductory part of the declaration. The opinion shows that Jenkins was unnecessarily made a defendant in the replevin suit, and his name was unnecessarily mentioned in the replevin bond; that the writ of retorno habendo could only be executed by returning the property to the possession of the sheriff, whence it was taken by the writ of replevin, and by whom it must be applied upon the executions by virtue of which he had held its possession; and it was afterwards, among other things, added: "Jenkins and the other plaintiffs in execution are but nominal parties, at most, and their being joined or not as beneficial plaintiffs can in no wise prejudicially affect appellant." And this is in entire accord with what we had before herein said.