court for further proceedings. Every thing beyond this constituted an exercise by the circuit court of an original, rather than an appellate, jurisdiction. When the appeal was taken the county court had not appointed a conservator, and, as we may presume, had not reached that stage in the proceeding. The appeal brought up for review, or for trial de novo, merely the matter which had already been passed upon by the county court, and could not have the effect of bringing up by anticipation such orders or proceedings as that court might enter or take as a proper sequence of the judgment appealed from. If the circuit court, as a part of its appellate jurisdiction, could appoint a servator, it might, upon the same principle, have gone further, and retained the entire proceeding in its own hands for all purposes of administration. That its doing that would have been improper seems to be conceded. Upon the same principle, it should be held that as soon as it had tried the question of the sanity of the person alleged to be distracted, and found her to be insane, and embodied such finding in a proper judgment, the matter should have been at once remanded to the county court for the appointment of a conservator, and the administration through him of the estate of the person so adjudged to be distracted.

con

Magruder, C. J. I concur in the views expressed by BAILEY, J.

(141 Ill. 572)

HARDING V. HAWKINS et al.1 (Supreme Court of Illinois. May 12, 1892.) JUDGMENT EQUITABLE RELIEF-REMEDY AT LAW -EQUITY PLEADING-ANSWER AS EVIDENCE.

1. A bill in equity will not lie to restrain the collection of a judgment on the ground that it was recovered upon a prior judgment, which was recovered on a note which the judgment creditor held as collateral security, and that the debt for which said note was collateral had been paid, where such payment was made 15 years before the recovery of the judgment sought to be enjoined, and the judgment debtor might have ascertained that fact by inquiry, since the judgment debtor had an adequate remedy at law before the rendition of the second judgment by motion to have the prior judgment satisfied of record.

2. In a sworn answer to such bill, an allegation denying defendant's knowledge of any defense to said note is not evidence, not being responsive to the bill.

37 Ill. App. 564, reversed.

Appeal from appellate court, first district.

Bill by Charles and Frederick Hawkins against George F. Harding and Rodney M. Whipple to enjoin the collection of a judg ment. The bill was dismissed for want of equity, and that decree was reversed by the appellate court. Defendant Harding appeals. Reversed.

Wm. J. Ammen, for appellant. D. Blackman, for appellees.

SHOPE, J. This was a bill filed by Charles and Frederick Hawkins in the Cook circuit court against George F.

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

Harding and R. M. Whipple, to enjoin the collection of a judgment recovered by Harding in the superior court of that county December 20, 1888, against the complainants on a prior judgment in favor of Harding against them, recovered in the superior court of Chicago, in May, 1867, for $3,530.31. The bill was taken as confessed as to Whipple. Harding an swered under oath, the oath not being waived; and the cause was heard on the bill, answer, replication, exhibits, and the testimony of the parties and witnesses taken in open court. The circuit court dismissed the bill for want of equity. Complainants appealed from this decree to the appellate court, where the decree of the trial court was reversed.

A brief statement of the facts is necessary to an understanding of the points determined. December 19, 1866, Whipple gave to Harding five promissory notes, aggregating $32,150.47, two of which were signed "R. M. Whipple & Co.," and the others "R. M. Whipple. At the time of their execution Whipple delivered to Harding divers notes and obligations, as collateral security for the payment of said notes, among which was the note of Charles and Frederick Hawkins, upon which judgment was obtained by Harding, as before mentioned, in 1867. The note was for $3,500, payable to Whipple three months after date, and by Whipple assigned to Harding as collateral to said five principal notes. As between the Hawkinses and Whipple, it was accommodation paper. There is, however, no evi. dence charging Harding with notice thereof. Whipple gave to Harding power of attorney, authorizing him to sell so much of these collaterals as might be necessary to pay the principal debt, and Harding agreed in writing to return the residue to Whipple. As we understand the record, it is not claimed that more than $15,000 of the principal debt had been paid at the time Harding recovered judgment against the Hawkinses on said collateral note. Harding then had the right to reduce the collateral to judgment, and a defense by the makers, so far as appears, would bave been wholly unavailing. The judgment took the place of the notes, and stood as security merely for the payment of the residue of the principal debt. On the 6th of April, 1887, Harding brought an action of debt in the superior court of Cook county, founded upon this judgment rendered against the Hawkinses upou said note. Appellees interposed the plea of nul tiel record only. The issue was found in favor of Harding, and judgment, entered against appellees for $8,200.

This bill is filed upon the theory that before the entry of the last judgment the five promissory notes given to Harding by Whipple had been fully paid and discharged by Whipple. It is conceded that, if Harding had received full payment from Whipple, the Hawkins note would be released from pledge as collateral, and, under the contract between Harding and Whipple, should be returned to Whipple by Harding, unless he had acquired a right to retain the benefit of the judgment in some other way. Upon the return of

that their note was accommodation paper, they would still be required to make their defense at law if available, and, upon neglect to do so, could not afterwards be relieved in a court of equity. Ramsey v. Perley, 34 Ill. 504; Mellendy v. Austin, 69 III. 15.

It seems that at common law, prior to the statute of 4 Anne, c. 16, § 12, payment after the day could not be pleaded to an action for money due by deed or other specialty. Fowell v. Forrest, 2 Saund. 48a, note h; 2 Black, Judgm. § 975. By the statute referred to, not in force in this state, it is provided, among other things, that, if the defendant had paid the judg ment, he might plead payment in bar of the action upon the judgment. It would seem that we have no equivalent legislation in this state. The remedy at common law would have been audita querela. Com. Dig.tit. "A;" Bac. Abr. tit. "Audita Querela;" 3 Bl. Comm. 406. Or the defendant had a right to demand a warrant to some attorney of the court, authorizing him to enter up satisfaction on the roll. Briley v. Sugg, 1 Dev. & B. Eq. 366; 1 Archb. Pr. 325; 2 Saund. Pr. Cas. 713. In most of the states the use of the writ audita querela has been superseded by the more summary mode of application to the court for relief by motion. 1 Amer. & Eng. Enc. Law, 1008. It also seems to have fallen into disuse in England, although perhaps revived within a later date. 3 Bl. Comm. 406; Sutton v. Bishop, 4 Burrows, 2286. We are not aware that the writ has been resorted to in this state, the more convenient and less expensive mode of proceeding by motion having been adopted in its stead. People v. Barnett, 91 Ill. 422. It is unnecessary to determine now whether the writ can be used with propriety under our practice. Nor do we intend to be understood as holding that, where the judgment has been paid in full, the plea of payment may not be interposed as a bar to an action on such judgment. It is stated by Black, Judgm. § 975: "There can be no question that such a plea would now be good in all the courts of this country. 4 Wait, Act. & Def. 494, and cases cited by these authors. We do not, however, find it necessary in this case to determine that question. It cannot, however, be questioned that, if the plea of payment was not good under our practice, appellees had their remedy by the writ of audita querela, if it is not to be regarded as obsolete; or by motion in the same court to have the judgment of 1867 satisfied at any time before it was merged in the later judgment. Both of these remedies were, as we have seen, provided by the common law. In this state, where a judgment is in fact paid, the court, on motion, may stay further proceedings, and compel the entry of satisfaction of record. Russell v. Hugunin, 1 Scam. 562; Hoag v. Starr, 69 Ill. 365; Neal v. Handley, 116 Ill. 423, 6 N. E. Rep. 45; Black, Judgm. § 1014. The same rule has been adopted elsewhere. Lister v. Mundell, 1 Bos. & P. 428, per EYRE, C. J.; Smock v. Dade, 5 Rand. (Va.) 639; Job v. Walker, 3 Md. 129; Dunlap v. Clements, 18 Ala. 778; Chambers v. Neal, 13 B. Mon. 256; Marsh v. Haywood, 6 Humph. 210; McMillan

v. Baker, 20 Kan. 50; Spafford v. Janesville, 15 Wis. 475; McDonald v. Falvey, 18 Wis. 571. In cases arising upon motion it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of audita querela. And such we find to be the practice. An issue is made, and sent to the jury to be tried as any other issue of fact. Lister v. Mundell, 1 Bos. & P. 427; Horner v. Hower, 39 Pa. St. 126; Cooley v. Gregory, 16 Wis. 303; Baker v. Ridg way, 2 Bing. 41, 9 E. C. L. 472; Black, Judgm., supra. The parties are thereby given their right of trial by jury. If, therefore, it be conceded the plea of payment could not be interposed, it is apparent that appellees, if the theory of their bill be true, and the judgment was in fact in any way satisfied, had an adequate remedy at law at any time after satisfaction was made. The latest period at which any one places the satisfaction is that given by Whipple as May, 1873, 80 that from 1873 outil the entry of the judg ment in 1888 the right to require satisfaction of the foriner judgment at law clearly existed. It is not shown or pretended that appellees were prevented from seeking redress or relief from the judgment by any act of appellant, or by any one acting for or on his behalf. They, having been served with process in the original action, must have known of the rendition of the judgment, which remained unsatisfied of record. After the bringing of the last action by Harding they might still have proceeded to obtain satisfaction of the judgment upon which that action was predicated. Both actions were brought in the same court, and the court, in the exercise of its sound discretion, would undoubtedly have postponed the action of debt until the determination of the motion for the entry of satisfaction, upon proper application being made therefor.

It is insisted that appellees were ignorant of the fact that payment of the principal notes had been made at the time of the rendition of the second judgment. This may be conceded without at all affecting the result. No sufficient reason is shown why they did not ascertain the fact, if fact it was. It is apparent from the whole record that Whipple, whom they now produce to testify to such payment, not only had knowledge thereof during all the years mentioned, but that the exercise of the slightest diligence on the part of appellees would have apprised them of the same fact. There is no proof of anything tending to raise a presumption that Whipple was in any way hostile to them, or would have declined giving the information upon simple inquiry. It is true that when Whipple testified on the hearing of this cause-practically 20 years after the transactions in controversy-he was unable to give the detail of what was done, or the precise terms of the satisfaction, without reference to papers and documents in his control, which, apparently, were for a time mislaid. But the fact that the principal debt had been paid, and thereby the judgment upon the collateral note discharged, was susceptible of proo!, in any event, as early as 1873, and contin

uously thereafter We are of opinion that appellees, upon the theory of their bill, and conceding it to be true, had a complete defense at law, and that they have not shown such a state of facts as will, under the rules governing this and other courts in like cases, excuse them from not interposing the same in the common-law courts There is a failure to show that diligence and good faith necessary to authorize the interposition of a court of equity in their behalf. It follows that the judgment of the appellate court is therefore reversed, and the decree of the circuit court dismissing the bill is affirmed.

(141 I11. 604)

.

STEPHENSON v. MCCLINTOCK et al.1 (Supreme Court of Illinois. May 12, 1892.) RESULTING TRUST-EVIDENCE.

In a suit by a sister to establish a resulting trust in land of which her brother died seised, the evidence showed that said land was bought partly with money belonging to their deceased father's estate, and partly earned by the brother and sister in cultivating the land before it was purchased; that the sister did more than the brother towards earning said money; and that the brother frequently admitted that the sister had the same interest in the land that he had. Held, that there was a resulting trust for the benefit of the sister in half of the land.

Appeal from circuit court, Winnebago county.

Bill by Agnes Stephenson against Anna McClintock, Katie McClintock, and David Hunter, administrator of the estate of James McClintock, deceased, to declare a resulting trust in certain land. The bill was dismissed at the hearing, and complainant appeals. Reversed.

Garver & Fisher, for appellant. Chas. A. Works, for appellees.

SCHOLFIELD, J. John McClintock, Sr., died in Ireland in 1852, leaving surviving him a widow, Catherine P., and three children, James, Agnes, and John. They resided together as a family, thereafter, in Ireland, until in 1866, when they removed to Winnebago county, and entered into possession of the quarter section of land which is the subject of this controversy, and thereafter occupied it as a family, for a homestead, and improved and cultivated it. The land, at the time they entered into its possession, belonged to James Peters, a brother of Catherine P., who resided in Pennsylvania, .but it was under the immediate control of William Peters, another brother of Catherine, who resided in Winnebago county. The McClintocks took possession of the land under and by virtue of an agreement between William Peters and James McClintock, whereby it was rented to James, and William was to buy the land of his brother, James Peters, and have him convey it to James McClintock, whenever his brother should be willing to sell it. James McClintock was to improve the land, and get credit therefor when the purchase should be made; and meanwhile, he was to put in the hands of William Peters all the money he then had, and whatever money

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

he should thereafter make from the proceeds of the land, and William Peters was to loan such money, and keep it loaned, at interest, until he should be able to buy the land for James McClintock, when he was to use it in payment therefor. When the McClintocks took possession of the land, Catherine had a draft on a bank in London, England, for £180 sterling, in gold, given for the proceeds of the sale of the property in Ireland belonging to the family. This draft, properly indorsed, was, at or near the time of their taking possession of the land, delivered by James McClintock to William Peters, and be sold it for $1,185.89, and retained the money under the terms of his agreement with James McClintock. When the McClintocks moved upon the land, there was on it only a house and a small tract of cleared land around the house; and they had to clear up and break the greater part of the land that was subsequently under cultivation. Each of the members of the family labored, in clearing and cultivating the land, for the common good of all, and they all labored under the personal control and direction of Catherine. John died, intestate, in the fall of 1866, and there was no administration upon his estate nor other settlement thereof. After his death, the members of the family remained together upon the land, and worked as before. They acquired live stock and farming implements of considerable value, and cleared and reduced to cultivation some 50 or more acres of land, which, being timbered, required much hard labor; and, while this was being done, several sums of money, the proceeds of the use of the land from the joint labors of all, were paid by James McClintock to William Peters under their agreement. The evidence is clear that Agnes did more than James to make the money which was thus paid to William Peters. Their mother, Catherine, favored James, because she feared that hard labor might aggravate a heart disease with which she thought him afflicted, and compelled Agnes to do the hardest work. Agnes assisted in clearing ground, in plowing, in removing and hauling manure, digging potatoes, shocking grain in harvesting; she milked a large number of cows, fed calves and other stock, etc., and kept things in order generally on the farm. James was intemperate in his habits, and in conducting farming operations careless and wasteful, while she was directly the reverse, and spent less money than he did. The evidence is, that James said, in explanation of why Agnes worked so much at the hard labor usually done, in this country, by men, that she had the same interest in what was raised on the farm that he had. Several witnesses testify that James said that Agnes had an interest in the land, and to another witness he stated that their interests were equal. Agnes was married to Adam Stephenson in December, 1874, and she did not, after that, reside with James, or upon this land; but James and his mother, Catherine, continued to reside together on the land, she doing the housework, and he managing the farm, until in May, 1883, when she died intestate. No administration was ever had upon her