The statute of Illinois enables the court to enjoin so much of the judgment as may be valid, and release the rest from the injunction. R. S. 1874, Chap. 69, Sec. 7; Duncan v. Morrison, Breese, 113.

Messrs. MILLARD & SMITH, for appellee.

The seal of a corporation has no particular virtue. If it is used by an agent or officer without authority, the sealing will not bind the corporation. Morawetz on Corp., 168; Koehler v. Black River, etc., Co., 2 Black. 716; Damon v. Granby, 2 Pick. 353; Jackson v. Campbell, 5 Wend. 572; Angell & Ames on Corp., p. 223.

The general officers of a corporation have no implied power to confess a judgment against the corporation. They can not lawfully exercise such a power unless it has been given to them in express terms by the board of directors. Adams et al. v. The Cross Wood Printing Co., 21 Chicago Legal News, Vol. 33; Hoyt v. Thompson, 5 N. Y. 321; The Joliet Electric Light Co. v. Ingalls, 23 Ill. App. 45; Stokes v. New Jersey Pottery Co., 46 N. J. L. 237; Thew v. Porcelain Mfg. Co., 5 S. C. N. S. 415; Freeman v. Plaindea'er Co., 9 Leg. Reg. 37; Bouton v. McDonough Co., 84 Ill. 392.

The judgment entered in favor of Chisholm, appellant, was valid as against the Circulating Boiler Company, and can be attacked by the boiler company or by its creditors, directly or collaterally, the boiler company being insolvent. Adams et al. v. The Cross Wood Printing Co., supra; Hoyt v. Thompson, supra; Stokes v. New Jersey Pottery Co., supra; Taylor on Corp., 202, 236-244: Angell & Ames on Corp., 299–302; Boone on Corp., 144; Morawetz on Corp., 251; Titus v. Cairo & Fulton R. R. Co., 8 Vroom, 98; Martin v. Judd, 60 Ill. 7s.

Appellant, Chisholin, is estopped in equity from asserting any prior lien to, or taking any advantage of, appellee, Bell. Flower v. Elwood, 66 Ill. 447; People v. Brown, 67 Ill. 437; Noble v. Christian, 88 Ill. 186; Ball v. Hooten, 85 Ill. 159; Longfellow v. Moore, 102 Ill. 290; Willard's Eq. Jur., 147.

The cross-bill of appellee, Bell, is germane to the matters. contained in the original bill, and was properly filed. Pattison

Chisholm v. McDonald.

v. Hull, 9 Cow. 747; Jones v. Smith, 14 Ill. 229; Quick v. Lemon, 105 Ill. 578; Daniell's Chancery Pl. & Pr., Vol. 2, 1647; Miller v. Davidson, 3 Gilm. 518; Wightman v. Hatch, 17 Ill. 286; Hutchinson v. Crane, 100 Ill. 269; Wightman v. Hart, 37 Ill. 123; Laflin v. Sherman, 28 Ill. 391.

GARY, J. This case is so largely made up of parol and contradictory evidence, the recital of which would be of no benefit, unless to satisfy the parties that the court knew what it was about, that only results and not the processes by which they are reached will be stated in this opinion.

There are decrees in favor of A. H. Holden and Caroline Green, intervening petitioners, of which nobody complains, and they are affirmned; also that portion of the decree dissolving the injunction against Melville E. Dayton, and directing him what to do with the patent and application for patent assigned to him, is affirmed.

From the record it appears that appellee, McDonald, was the president of and probably the whole corporation called the Circulating Boiler Company. The company had a contract to furnish a boiler for the price of $1,000, but had no money. December 16, 1886, appellant entered into arrangements with the company and McDonald to advance $1,200, or so much thereof as might be necessary to put in the boiler, and at the same time there was a further agreement between appellant and McDonald separately, for further business arrangements if the boiler proved a success. Patents were assigned to Dayton as security for appellant's advances, and by the formal agreement between the appellant of the first part, and the company and McDonald of the second part, appellant was to have the promissory judgment note, joint and several, of the company and McDonald for $1,200 to secure his advance. The note was made with a warrant of attorney on the same paper to confess judgment at any time. after the date of the note, but the note itself was payable ninety days after date, January 11, 1887, as the note says, though the date of the transaction in fact is in dispute; another note was given by the company and McDonald to

appellant for $500 on sixty days time, with a warrant of attorney on the same paper to confess judgment at any time after date. There is dispute as to the regularity of both of these notes with the warrants, but both of them have the corporate seal, and there is as much parol evidence in their favor as against them, so that prima facie they are valid. Joliet Electric Light Co. v. Ingalls, 23 Ill. App. 45, per Baker, P. J., and cases there cited.

January 13, 1887, appellant entered judgment upon his notes, which judgment still stands; no effort has been made to set it aside. Upon this state of facts, upon the bill filed by the company and McDonald, they are entitled only to such relief, if any, as equity and good conscience require. They had no right to require that the proceeds of the property levied upon should be diverted from paying appellant's execution, to the extent of all the money he had advanced. The warrants of attorney attached to the notes left to his discretion the time at which judgment should be entered, though the note had not matured. Adam v. Arnold, 86 Ill. 185. And it is very probable that his only prospect of securing anything laid in entering judgment when he did.

On the whole record it is clear that the appellee Bell has no beneficial interest in the judgment entered in his name. It belongs to the Park National Bank, as the note did, before. it was indorsed to him, merely that judgment might be entered in his name. Bell has, therefore, no standing as complainant in a court of equity, and no title to any affirmative relief based upon the judgment in his name. Oakey v. Bend, 3 Edw. Ch. 482; Field v. Maghee, 5 Paige, 539; Sedgwick v. Cleveland, 7 Paige, 287.

It is true that in Hutchinson v. Crane, 100 Ill. 269, the Supreme Court declined to reverse where there appeared to be a misjoinder of a party without interest, but that is not authority that he alone could have sued. But even if he had such interest, the evidence as to any agreement by appellant with the bank, by which his rights are postponed to those claimed by Bell, it is too loose, vague and unsatisfactory to have any such effect.

Valliquette v. McMahon.

As, upon the showing made, the rights which appellant had acquired by the levy of his execution ought not to have been disturbed, none of the expenses of this litigation should be charged upon him. The decree of the Superior Court as to the disposition of all the money derived from the property levied upon under the execution of the appellant must be reversed and the cause remanded to the Superior Court, with directions to ascertain the amount that the appellant has paid, either before he entered judgment, or since, upon his then liabilities for the company, and apply the money last referred to, to the reimbursement of the appellant for such payments, and to dismiss the bills, original and amended, of McDonald and the company, and the cross-bill of Bell, and tax all the cost of the receivership against Bell and the residue of the costs against McDonald and the company. If, after paying appellant the costs taxed against McDonald and the company, there shall be any money left of this fund, it belongs and should be paid to the company.

Affirmed in part and reversed in part and remanded.

DOROTHEA VALLIQUETTE

V.

ANNA MCMAHON.

Slander-Malicious Prosecution-Evidence.

In an action for slander and malicious prosecution, conversations between a constable and the plaintiff in the absence of the defendant are inadmissible.

[Opinion filed February 13, 1889.]

APPEAL from the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. JOHN LYLE KING, for appellant.

Messrs. BRANDT & HOFFMANN, for appellee.

30 182 44 239

30 182 66 554

GARNETT, P. J. This is an action for slander and malicious prosecution brought by appellee against appellant. Verdict for $1,000 was rendered against appellant, and judgment given thereon. Of the several errors assigned as grounds for reversal, we think none are tenable except that complaining of the improper admission of evidence in behalf of appellee. The trial court permitted, over the objection of appellant, to be given in evidence a conversation between strangers to the action, imputing an attempt on the part of the appellant to procure testimony against appellee by means of bribery. In a case of this character, it is of the utmost importance the defendant should stand fairly before the jury, and such evidence could not fail to be hurtful.

Evidence was also admitted as to conversations between several parties preceding the taking of the property, which was the basis of the arrest of appellee, and another conversation between the constable and appellee, the appellant being absent on both occasions. This evidence was not admissible, and though the objections thereto were not properly saved by appellant, we deem it prudent to say that on another trial evidence of these matters should be excluded.

What was said by the party taking the property at the time it was taken, may be, admitted as a part of the res gesta. What preceded that was simply idle gossip calculated to reflect upon appellant and has no proper place in the case. The judgment is reversed and the cause remanded.

Revers d and remanded. GARY, J., took no part in the decision of this case.

ALBERT RADGE

V.

CHARLES L. BERNER.

Practice Decree-Newly Discovered Evidence-Rehearing-Remedies.

1. Relief by rehearing is not granted after the recording of a decree. 2. The proper remedy in such cases is by bill of review, supplemental bill in the nature of a bill of review, a bill to impeach the decree, or one of similar character.