Bradley v. Coolbaugh

Citations

• 91 Ill. 148

Syllabus

<p>1. Instruction—assuming facts. It is error for the court, in an instruction, to assume material facts, essential to the defence, to be true, that depend on testimony for their existence, and some of which facts are matters of contention between the parties. Such an instruction invades the province of the jury. When the evidence is conflicting upon a vital question, the jury should be left to find the facts without the interference of the court.</p> <p>2. Estoppel—by party's acts—whether a debt is against one or more. Where a party issues a distress warrant against two for rent claimed of both, under which goods attached as the property of one are taken from the custody of the sheriff, in an action of trespass by the sheriff for the use of the attaching creditors, against the party so taking the goods, such party will be estopped by his acts from denying he was a creditor of the two against whom he proceeded, and from claiming to be a creditor of one only.</p> <p>3. Fraud—as to creditors, when a question of fact. An agreement between certain creditors of a common debtor for one to bring attachment and another to become the purchaser of the debtor’s goods for the benefit of all, if not fraudulent per sc, is not in violation of the fourth section of the Statute of Frauds, unless made with the intent to disturb, hinder, delay or defraud creditors or other persons, and such intent is a question of fact for the jury and not one of law.</p> <p>4. Contract—one creditor attaching for the benefit of himself and others— whether illegal and against public policy. An agreement between several creditors of an absconding debtor, that one should attach the debtor’s goods on his claim and put them in the hands of another as custodian, who should become the purchaser for the benefit of all the creditors, and thus save a multiplicity of actions and save heavy expenses of litigation, with no intent to injure any one, is not an abuse of the process of the court, and is not void as be