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Opinion of the Court.

When, in our former opinion, in alluding to the evidence of Baldwin, we said it did not seem he was in any way interested in the debt, we meant legally or equitably interested, so as to entitle him to demand and receive it, or to negotiate in regard to its payment; and in Keener v. Crull and Wife, 19 Ill. 189, where it was said, “Like any other promise, having legal force and sanction, it must be made to the party seeking its benefits, or to some one anthorized to act for him," it was intended the party seeking its benefits was a person having a legal or equitable right to the claim, and not merely any party desiring to appropriate it to his own use.

What right has the creditor, merely as such, to collect and appropriate the debts due to his debtor? Could it be pretended that Cox, without appellee's knowledge or sanction, was authorized to collect what Carroll owed appellee, and appropriate it to the payment of appellee's debt to himn? Manifestly, had Carroll made such a payment, it would have been purely voluntary, and would not have been binding upon appellee. It would not have been the paying of Carroll's debt to appellee, but the voluntary payment of so much money to Cox, because of appellee's debt to him, which appellee might or might not, at his election, subsequently ratify as a payment of Carroll's debt to him. Without proof of such subsequent ratification, which is entirely wanting here, appellee, notwithstanding the payment by Carroll to Cox, might still sue Carroll and recover his debt, assuming, of course, that his claim was otherwise free from legal objection.

But may we inter, from all the circumstances, that Cox was authorized to act in the matter as agent for appellee? Whether Cox was agent or not was susceptible of direct and positive proof. He was a witness, and competent to disclose the capacity in which he acted. The burden was on appellee to show, not only that the promise was made, but that it was made to a person authorized, in the estimation of the law, to accept it. It was to be proved by the best evidence of which the nature of the case was susceptible; and Cox having testified, is presumed to have disclosed all he knew with regard to the char

Opinion of the Court.

acter in which he was acting. There is nothing left to inference. He speaks of no agency, and of no knowledge on the part of appellee, as to what occurred in the conversation between him and Carroll, and his evidence discloses simply the case of a creditor receiving the promise of a debtor to his debtor, for the payment of his debt, and his subsequent unavailing attempts to have him fulfill that promise, all in the absence, and without the knowledge or consent of his debtor.

We are of opinion that Cox was a stranger to the debt from Carroll to appellee, and, being such, Carroll's promise to Cox was not sufficient to revive Carroll's debt to appellee, as against the bar of the Statute of Limitations, on the authority of Keener v. Crull and Wife, supra.

We may say, in addition, we are by no means satisfied from the evidence that Carroll was, in fact, indebted on a sufficient legal consideration to support a promise, to appellee, in any sum, at the times of his alleged promises, made in the presence of either Baldwin or Cox. Appellee had been Carroll's bookkeeper, and the books kept by himself show that he was working for a stipulated compensation, which had been more than paid him at the conclusion of the term of his services. The indebtedness now claimed is for the same services, beyond the amount thus stipulated for and paid. His services were highly appreciated by Carroll, and he, undoubtedly, felt under moral obligation to increase the amount; and we incline to the opinion that all his promises were thus prompted, and this is supported, to some extent, by the evidence of Charles R. Carroll. The misfortune to appellee is that they were not performed in the lifetime of Carroll, since the unexecuted promise, resting only upon a moral consideration, affords no ground for the aid either of a court of law or equity.

We do not wish, however, to be understood as placing our decision on this view of the case; but we refer to it merely as divesting the application of the rigorous rule of law, in this instance, of the appearance of harshness which it might otherwise bear.

Judgment reversed.

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600 89a 1585

80 600 188 1318

80 600 f189 1421

PRACTICE-affidavit of claim-authority of officer taking must appear. It must appear that the officer administering the oath to an affidavit of claim filed with a declaration was authorized to do so, or the affidavit will be a nullity; and no affidavit of merits will be required with the plea.

80 600 104a 305

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. Gary, Judge, presiding.

Mr. A. GARRISON, for the appellant.

Messrs. SCATES & WHITNEY, for the appellee.

Mr. CHIEF JUSTICE Scorr delivered the opinion of the Court:

With his declaration plaintiff filed what is designated as an affidavit of claim. It purports to have been sworn to before a notary public in the State of Kentucky, but his certificate does not state that by the laws of that State he has authority to administer oaths. This was necessary, under our statute, to make his certificate prima facie evidence of that fact. R. S. 1874, p. 726, sec. 6. Nor does the record contain any other evidence that a notary public has authority to administer oaths under the laws of Kentucky. What is called an affidavit of claim is, therefore, a nullity, it not appearing it was sworn to before an officer having authority to administer, oaths and affirmations under any law of any State.

There being no affidavit of claim on file, it follows it was error to strike defendant's plea from the files for want of an affidavit of merits, for which the judgment must be reversed and the cause remanded.

Judgment reversed.

Opinion of the Court.

JAMES D. LEHMER

V.

80 601 120 108

80 601 142 298 145 122 146 350

80 601 151 260 80 601 161 30

THE PEOPLE ex rel. H. B. Miller, Collector, etc.

80 601 156 621

88

80 601 171 359

1. SPECIAL ASSESSMENTS—matters preceding application for judgment not open. On application for judgment against real estate for a delinquent special assessment thereon, all matters preceding the application for judg. 157 ment are res adjudicata, and not open to reinvestigation.

2. SAME-amendment of assessment rolls. There is no error in allowing amendments to be made in assessment rolls as to mere clerical errors and omissions not affecting a party's rights and interests.

3. SAMEdefense cut off by confirmation. It is too late, on application for judgment upon a special assessment, to show that the proposed improvement was private and not public. That objection must be made before the assessment is confirmed, where the party has notice of the application for confirmation.

APPEAL from the County Court of Cook county; the Hon. MARTIN R. M. WALLACE, Judge, presiding.

Mr. William BORDEN, for the appellant.

Messrs. BENNETT, KRETZINGER & VEEDER, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court :

This is an appeal from a judgment of the county court of Cook county, rendered for a special assessment levied and assessed upon certain lands and lots in the town of Lake, for the improvement of Parker's avenue, so called, and reported by the collector to be delinquent.

Several objections were made on the application for judgment, none of which do we deem valid.

As to all matters preceding the application for judgment, they must, under the anthority of The People v. Brislin, ante, p. 423, be considered res adjudicata, and not now to be again investigated.

As to the point made on the judgment, that the law authorizes but one judgment for taxes and special assessments, we

Syllabus.

fail to see in these proceedings any substantial departure from the provisions of the General Revenue Law, not provided for by the “ Act in relation to the collection of taxes and special assessments,” in force May 2, 1873. Sess. Laws 1873, p. 69. See, also, The People, etc. v. Brislin, supra.

There is nothing in the point as to amendments of the assessment rolls. These were clearly clerical errors and omissions not affecting appellant's rights or interests in any manner.

It is too late now to inquire into the nature of Parker's avenue—whether public or private. That objection should have been made when application for confirmation of the assessment was made, of which appellant had notice by publication.

It is now res adjudicata. It must have been adjudged a public street when the order of confirmation was entered, and there is no appeal from that.

We fail to perceive any error in the judgment, and it must be affirmed.

Judgment affirmed.

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80 002 83a 46

80 602 d193 1156

1. DEPOSITIONStime for objections to. Objections to depositions which may be obviated by issuing a new commission, and re-examining the witness, can not be heard after the case is called for trial. A motion to suppress for such objections, when the case is called for trial, or reached on the docket, comes too late.

2. The objection that the commissioner taking a deposition does not appear to have authority to administer oaths, if tenable at all, and formal ob. jections to the interrogatories and answers to the same, must be made before the case is reached for trial in its order, or they will be waived.

APPEAL from the Superior Court of Cook county; the Hon. Josiah McROBERTS, Judge, presiding.

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