Humiston v. Trustees of Schools.

been illegally issued, or that there was not a legal obligation on the part of the district to pay the coupons and bonds.

The statement of the settlement between Humiston and Belt, as it appears on the treasurer's book, shows that Humiston received from the county collector $660 in coupons, and that they were transferred or delivered to his successor in office. This was substantially all the evidence in the case, and as before stated, at this point the plaintiff below in open court made a tender of the coupons to the defendants, and the counsel for the defendants, inadvertently, perhaps, and without due reflection, received said coupons, and obtained leave to file a plea of set-off. This proceeding somewhat complicates the The demurrer to the plea was sustained by the court, and we think properly so.

case.

The plea does not contain such a statement of facts as shows an indebtedness on the part of plaintiffs to defendants, or such a state of case as would authorize the defendants to set-off the coupons in question.

A more important question is, did the proof sustain the averments in the declaration?

It will be remembered that the breach assigned in the declaration, is that Humiston received $660 in money from the county collector; that he failed to pay it to his successor in office, etc. Does the proof sustain this breach? We think clearly it does not. It is not, in fact, pretended in the proof that Humiston received any money that he did not account for; but that instead of money he received coupons from the county collector, and that with the consent of the school directors. Receiving coupons is not receiving money, nor is that evidence that he had money on hand belonging to the school district or directors.

If, as is claimed, the action of Humiston was illegal in receiving the coupons in lieu of the money, the facts should have been specifically charged in the declaration, showing why he was chargeable with the sum of $660; not because he then had and retained the money in his possession, but because by his illegal action in the premises the school district had lost or been deprived of the sum of $660

Humiston v. Trustees of Schools.

There is another question going, perhaps, to the foundation of this suit, that it may be profitable for us to consider now, and that is whether or not the directors of schools of said district No. Eight, for whose use this suit is brought, and who alone are interested in its prosecution, are not estopped by their own acts and declarations from preferring any claim against Humiston, because of this transaction.

It is worthy of remark, here, that the conduct of Humiston seems to have been perfectly fair and honorable, and he seems to have acted in the most perfect good faith. There is not the slightest evidence to show any personal interest on his part in the transaction; on the contrary, the evidence does show that he was actuated by a most commendable zeal, to faithfully discharge his official duties, at the same time giving to the direc tors, if there was any question about the legality of the bonds. or the coupons, an opportunity to protest against their payment, or to direct that they should not be received or paid. The testimony of Humiston is uncontradicted. If it had been untrue it would not have been difficult to introduce the directors and show its falsity. He states in substance that before receiving the coupons in question, he called upon the directors for orders in regard to receiving them. The directors seems to have regarded the coupons as orders on the treasurer, and he stated to them that if they did not desire him to receive them, to so order on the record. That they declined to make the order, and added that they had already directed him to pay them, etc. He acted on these declarations with the knowledge and consent of the directors, received the coupons, and in his settlement, transferred them to his successor in office.

It would seem that the doctrine of equitable estoppel is peculiarly applicable to this case. The doctrine of estoppel in pais is to prevent injuries arising from acts or declarations which have been acted upon in good faith, and which it would be inequitable to permit the party to retract. In order to create such an estoppel the party estopped must have induced the other party to occupy a position he would not have occupied but for such acts and declarations. The conduct and declarations must be such as would ordinarily lead to the results

Asher v. Mitchell.

complained of. Knoebel v. Keicher, 33 Ill. 308; Heffner v. Vandolah, 57 Ill. 520. It is to prevent injustice-a shield, not a sword and may be interposed to prevent injuries arising from acts or declarations which have been acted on in good faith. Ball et al. v. Hooten, 85 Ill.; Thomas v. Bowman et al. 29 Ill. 429; Bigelow on Estoppel, 475 et seq.

Many other authorities might be referred to on this subject. It seems very clear that Humiston was induced to receive the coupons in question by the declarations and conduct of the directors, and if he was it would be most unjust and inequitable to allow them to retract. We think a plea embodying the facts by way of an estoppel, and re-tendering the coupons which we suppose, as we have already stated, were inadvertently received, would be a good plea in bar. The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

JOHN A. ASHER

V.

JAMES MITCHELL.

PRACTICE-FAILURE TO FILE BRIEFS.-Upon a failure of defendant in error to file briefs in time, the judgment will be reversed pro forma.

ERROR to the Circuit Court of Jersey county; the Hon. CYRUS ENLER, Judge, presiding. Opinion filed August 13, 1880.

Messrs. WARREN & POGUE, for plaintiff in error.

PER CURIAM. The 28th rule of this court provides that in case of failure by the appellee to file his brief within the time prescribed, the judgment or decree will be reversed, pro forma, unless the court on examination of the record "shall deem it proper to decide the case on its merits."

McDowell v. Lucas.

The record in this case is voluminous and after examination, no briefs being filed by appellee, we think it proper to enforce the rule. The decree will be reversed, pro forma, and cause remanded.

Reversed and remanded.

WILLIAM H. MCDOWELL

V.

WILLIAM LUCAS ET AL.

APPEAL QUESTION OF FREEHOLD.-The question of freehold being involved, this court has no jurisdiction of the case.

ERROR to the Circuit Court of Wabash county; the Hon. T. B. TANNER, Judge, presiding. Opinion filed August 13, 1880.

Mr. S. Z. LANDS, for plaintiff in error.

Messrs. BELL & GREEN, for defendant in error.

PER CURIAM. This writ of error was sued out June 16, 1880.

The litigation involves a freehold. We have no jurisdiction of the subject-matter. Sess. Laws 1879, Sec. 2, page 222; Gage v. Basse, 94 Ill. 590.

We must dismiss the writ of error, People v. Hotz, 92 Ill. 426; Wright v. People, 92 Ill. 596.

The record may be withdrawn.

Writ of error dismissed

Eichelberger v. Garvin.

JOHN EICHELBERGER

V.

GEORGE GARVIN..

DISMISSAL OF APPEAL ON CALL, WITH PROCEDENDO-PLAINTIFF MUST PROVE HIS CASE.-On an appeal from a justice of the peace, the trial in the circuit court should proceed de novo; and it is error to dismiss an appeal on call for want of prosecution, without proof by plaintiff of a cause of action.

ERROR to the Circuit Court of Randolph county; the Hon. W. H. SNYDER, Judge, presiding. Opinion filed August 13,

1880.

Mr. A. N. SPRAGUE, for plaintiff in error; that there should have been a trial of the cause, cited Rev. Stat. 1874, 648; Langheim v. Stickney, 90 Ill. 361.

As to practice in setting aside dismissals: Mason v. McNamara, 57 Ill. 274; Sourbry v. Fisher, 62 Ill. 135; Union II. & L. Co. v. Woodley, 75 Ill. 435.

Mr. JOHN MICHAN, for defendant in error.

PER CURIAM. This case originated before a justice of the peace, where appellee obtained a judgment against appellant, from which an appeal was prosecuted to the circuit court When the case was called for trial, the attorney for appellant moved for a continuance until that afternoon, and in support of the motion filed his affidavit showing the absence of his client, but that he would reach the place of holding court by the train to arrive at 1.20 P. M. that day; that he had a good defense, and that his presence was necessary to establish the same. The motion was denied, and then on motion of the appellee-plaintiff below-the appeal was dismissed for want of prosecution, and a procedendo awarded, to which appellant then and there excepted. An affidavit filed in support of a motion to set aside this order, disclosed the fact that the order was entered about twenty minutes after eleven o'clock, A. M., and that

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