space; the remaining one-third of that side | error to object to such offer, and, when the being blank. This was the condition until original note was offered, the plaintiff in erDecember 2, 1910, nearly two years later, ror did object because it was not offered when an indorsement of the note, without by the payee or any assignee of the payee, recourse, was written in the blank space on because the possession of it by the complainthe left side of the back of the note, which ant, who was a stranger to it, was not acwas not signed by any person. For eight counted for in any way, because no considyears longer the note remained in this condi- eration was shown to have passed from the tion, and then, under the date of December 2, complainant to the payee or any assignee, 1918, it appears that there was written in the and because the statute of limitations has run. blank space at the top of the right side of the The first two of these reasons raised the quesback of the note the following: "I hereby re- tion of the complainant's title to the note. new my promise to pay the within note. Har- When the objection is made to a note offered ry E. Parker, Jr." Photographs of the face by a complainant that it is not offered by the and back of the note appear in the record, payee or an assignee the objection may be which show the exact situation of the in- said to be somewhat argumentative, but there dorsements, as follows: can be no doubt that the objection, where the

At the taking of evidence before the mas- | note on its face shows that the complainant ter, the complainant offered a copy of the note with its indorsements, which was admitted with the understanding that the original must be produced, and it was stipulated that the original note should be considered as substituted for the copy offered in evi

is not the payee, is that the complainant is not the assignee and therefore is not the owner of the note. This note purported to be assigned by the representatives of the payee to Wade and by a stipulation such assignment was admitted, but the indorsements

(154 N.E.)

Wade, and no such assignment was admitted. mercial paper has put in into circulation by an The bill alleged such an assignment, which was denied.

indorsement in blank, the law will presume that whoever is found in possession of the paper, [1-3] Section 52 of the Practice Act (Smith- holds it rightfully, and he may bring an action Hurd Rev. St. c. 110), which forbids the de- upon it, and upon the trial, fill up the blank indorsement with his own name, so as to invest nial of the execution or assignment of an in-him with the technical legal title, and thus enstrument of writing on which an action has able himself to maintain the action. been brought, or which has been pleaded by When the paper is found in the hands of a way of defense or set-off, unless such execu- stranger to it, with a special indorsement, the tion or assignment shall be denied by affida- law cannot presume that it has come rightly into vit, has no application to cases in chancery. the hands of the holder; that would defeat the The practice in chancery is governed by the very object of the special indorsement, which Chancery Act (chapter 22 of the Revised Stat- is to notify the world that it can only be transutes) and not by the Practice Act, except in ferred to a stranger by the actual indorsement cases expressly or by clear implication refer- notice to the maker, not to pay to any one but of the special indorsee; and especially is it red to in the latter act. Moore v. Tierney, the special indorsee. If he pays it to a stranger 100 Ill. 207; Cavanaugh v. McConochie, 134 when he is thus notified that it, prima facie at Ill. 516, 25 N. E. 674; Railway Conductors' least, belongs to another, he must take the risk Ass'n v. Robinson, 147 Ill. 138, 35 N. E. 168; of being able to show that the person to whom he Brinkman v. Bowles, 280 Ill. 27, 117 N. E. paid it was the rightful holder. When the spe303; People v. Murphy, 296 Ill. 532, 129 N. cial indorsee negotiates the paper to a stranger, E. 868. The burden of proof was therefore the presumption must be, that he indorses it. on the defendant in error to prove the execu- and thus parts with the legal as well as the equitable title to it. If it is found in the hands tion of the indorsement by Wade. On this of a stranger, without such legal transfer, the issue he introduced no evidence whatever presumption is, that it has been lost or purother than the paper itself, and he argues loined or otherwise improperly got into circulathat the possession of the note is prima facie tion. Were the presumption otherwise, the evidence of the legal title to the instrument. very object of a special indorsement, which is In Burnap v. Cook, 32 Ill. 168, it is said that to guard against such accidents, would be dethis court has repeatedly held, and the doc-feated, and those safeguards which the law has, trine has been uniformly maintained and generally acquiesced in for such a length of time that it should not now be disturbed, that the party having the legal title to a promissory note must sue in his own name, citing McHenry v. Ridgely, 2 Scam. 309, 35 Am. Dec. 110, and Campbell v. Humphries, 2 Scam. 478.

for the convenience of commerce, thrown around negotiable paper, would be destroyed."

This case was followed in Moore v. Maple, 25 Ill. 341, and Lockridge v. Nuckolls, 25 Ill. 178. Newman v. Ravenscroft, 67 Ill. 496, and Hall v. Freeman, 59 Ill. 55, are to the same effect that the legal holder of a note alone can maintain an action on it.

In Porter v. Cushman, 19 Ill. 572, an action In Bonner v. Gordon, 63 Ill. 443, the plainwas brought by Maria Cushman on a promis- tiff, William Bonner, declared on a promissory sory note payable to L. De Puy, and indorsed note payable to his order, by the name and by the payee to James Strain or order. On style of the First National Bank of Centhe trial, the, plaintiff's counsel erased the tralia. A demurrer to the declaration was name "James Strain" and substituted the sustained, and the court, in reversing the plaintiff's, making the indorsement read, judgment in favor of the defendant, stated "Pay Maria Cushman or order," and a ver- that it was extraordinary that Bonner should dict was returned in favor of the plaintiff have taken a note payable to himself by the for the amount of the note, for which a judg-name and style of the First National Bank ment was rendered. In reversing the judgment, this court held that the court erred in permitting the plaintiff to strike out the name of Strain and insert her own as indorsee. The court said that, in actions upon commercial paper

"courts of law have, as far as possible, adapted their rules of proceedings to the principles of equity, so that they may, even upon the trial, allow an equitable holder of commercial paper to invest himself with the legal title by erasing indorsements and filling up blanks in indorsements; but this can only be done where the

Farty proposing so to change the legal title to the paper is shown by the proof, or is presumed by the law, to be the equitable owner of the раper; and the question here is whether there is any such presumption of law in favor of the plaintiff below, for no proof was offered on the subject. Where the payee or indorsee of com

of Centralia, but the demurrer admitted that he did so and that the defendants gave it. The judgment was reversed, but the court took occasion to remark that on the trial the mere production of the note would not prove the averment in the declaration that the note was made payable to the plaintiff by the name and style of the First National Bank of Centralia, but the fact would have to be proved on the trial.

[4] The cases cited were actions at law, but they establish the rule of evidence, which is as binding in equity as in law, that the mere

possession of a promissory note payable to the order of a person who has not indorsed it, or who has indorsed it to a named indorsee who has not indorsed it, is not evidence of the legal or equitable ownership of the note by the possessor. While the contrá

ry has been held by the decisions of some, [51 N. E. 691, 66 Am. St. Rep. 290], cited and other states, particularly such as have adopt- relied upon by appellant, has no bearing upon ed a code of practice which has abolished the issue here. In that case the person holdcommon-law rules and all distinction between ing the property in dispute did not rely upon legal and equitable causes of action, and de- mere possession as her evidence of ownership. but upon proof which clearly showed that she clared that all actions upon promissory notes was put in possession of the property as the shall be brought by the real party in inter-owner, and not in any sense as an agent or in est, this court has always followed the rule any other capacity than that of owner." announced in Porter v. Cushman, supra. where the question was thoroughly considered and the reason of the rule well stated that, were it otherwise, the very object of the special indorsement would be defeated, and the safeguards thrown around negotiable paper would be destroyed.

The defendant in error relies upon the case of Martin v. Martin, 174 Ill. 371, 51 N. E. 691, 66 Am. St. Rep. 290, in which the statement is made that the possession of an unindorsed note is prima facie evidence of ownership in

the holder. It was further said that:

"The right to the possession and full beneficial interest in an unindorsed negotiable paper may pass by manual delivery of the paper, and in the absence of testimony tending to disprove that the notes were delivered, the presumption will obtain that one in the possession of such paper came rightfully into possession. Hence, this evidence alone considered, it seems clear the finding and order of the court should have been for the defendant in error. But the defendant in error proceeded to produce testimony

in her own behalf to sustain her claim of ownership to the notes, and this testimony must be considered to determine whether it disclosed facts and circumstances adverse to her claim upon which the judgment of the trial court can be sustained."

After consideration of the evidence, the conclusion was stated that nothing in the testimony could fairly be deemed to militate against the presumption of ownership arising from the possession of the defendant in error or otherwise to operate adversely to her

cause.

"Upon the contrary, we think a fair and impartial consideration of the testimony sufficiently establishes that the defendant in error came into possession of the notes by acts of the decedent done for the purpose of constituting her the owner thereof."

Rothwell v. Taylor, 303 Ill. 226, 135 N. E. 419, involved a question of a gift of negotiable instruments without indorsement or written assignment by the payee to her niece, who was shown to have had possession of the instruments a short time before her aunt's death and claimed title to them by gift. It was held that, while it is well settled that negotiable instruments may be the subject of valid gift without indorsement or written assignment by the payee, if delivered to the donee by the payee with intent to transfer the title, the burden of proof of the gift is on the donee to prove all facts essential to a valid gift, and these facts include the delivery by the donor to the donee with intent to pass the title. The only facts proved showed that the niece had possession of the notes and certificates before the payee's death and claimed to own them, and it was held that this proof did not meet the requirements of the law to pass title in such cases.

The

case of Martin v. Martin, 174 Ill. 371, 51 N. E. 691, 66 Am. St. Rep. 290, was relied on in support of the plaintiff's contention that the undisputed proof of her possession of the property before her aunt's death made a prima facie case of her ownership, which defendant failed to overcome by contrary proof, but it was said in regard to that case that, aside from the fact that the donee was in possession and claimed the property before the death of the donor, there was other testimony tending to show that the donor. delivered the notes to the donee a short time before his death with intent to pass title, and it was further said that the court made some observations on the presumption of title from possession and the effect to be given to it, but it was evidently not intended to lay down a rule of law different from that found in other decisions of this court and the decisions of other states generally. The decision of the case was said to be correct because other

That case concerned the ownership of unindorsed notes in the possession of a niece proof than possession of the donee warrantof the deceased payee, and held under a claimed the conclusion that the donor delivered that the notes had been given to her by the the notes to the donee with intent to pass payee before his death. The facts in regard the title thereby. to the case are more fully set out in the previous case of Martin v. Martin, 170 Ill. 18, 48 N. E. 694.

In the case of Adams v. Adams, 181 Ill. 210, 54 N. E. 958, which was decided within a year after the case of Martin v. Martin, 174 Ill. 371, 51 N. E. 691, 66 Am. St. Rep. 290, by the same judges, the court said:

"We agree fully with the Appellate Court that the case of Martin v. Martin, 174 Ill. 371

It must be regarded as the settled law in this state that while an equitable interest in negotiable instruments payable to order may be acquired either by gift or contract without indorsement by the payee, the mere possession of negotiable securities payable to order and not indorsed by the payee, or, if indorsed specially, not indorsed by the special indorsee, is not alone evidence of title, either legal or equitable, in the possessor, but the

(154 N.E.)

burden of proof is on the possessor to prove | We agree that the words require no conhis equitable title by showing a delivery to him with the intent to pass the title.

struction, but we do not assent to the conclusion that Wade must be held to be an in[5] It is the contention of the defendant in dorser of the note. It is clear from an inspecerror that, because of the crowded condition tion of the document that he did not place his of the back of the note on account of the in- signature on the note in the capacity of an dorsements of payments there was not room indorser or for the purpose of transferring on the part of the note where the assignment the title, but he has clearly indicated by apwas written to write the date to which in-propriate words his intention to be bound terest was paid and E. B. Wade's signature, only for the receipt of interest to January 10, and therefore he wrote such date and his 1909. name where he did, intending his name to After the master had given notice of his be his signature to the written assignment. findings and conclusions, counsel for the comThe reason given is not in accordance with plainant in the original bill entered his mothe fact. A glance at the back of the note tion in writing that leave be given the comshows that there was at least as much room plainant to offer in evidence the testimony of under the assignment written on the left side | Richard J. Collins, Joseph P. Mahoney and of the note as where it was written on the Harry E. Parker, Jr., on the question of the right side of the note, entirely disconnected ownership of the note. It does not appear from the assignment. Indorsements of inter- that the complainant offered the witness or est are usually made at the time of pay- that he could produce them. No statement ment. The presumption is that all the in- is made as to what he expected to prove by dorsements were made at the dates they bear. them, and the master overruled the motion, The payments of interest on this note at no which was not renewed before the chancellor. time amounted to the interest due, according It was assigned for error in the Appellate to the terms of the note, at the time any Court that the circuit court erred in denying payment was made. The payment on July this motion, but the assignment was not sus11, 1906, was $125 short of the amount of in- tained, for the motion was not renewed in terest accrued to July 10 at 7 per cent., as the circuit court, and the court made no rulthe note was written, and was $35 short of ing on it. 6 per cent., but the indorsement was made to July 10, 1906. The four succeeding indorsements were of $30 each, which was the semiannual interest at 6 per cent., and the final indorsement, "to Jan. 10/09," indicated no amount. This fact does not change the rule that indorsements are presumed to have been made at the dates they bear. This indorsement may have been made subsequent to January 10, 1909, but, in the absence of evidence to the contrary, the presumption must prevail that it was made on that date.

[6] Section 17 of the Negotiable Instrument Act (Smith-Hurd Rev. St. 1925, c. 98, § 37), among other rules of construction, provides that:

The judgment of the Appellate Court is reversed, and the decree of the circuit court affirmed.

Judgment of Appellate Court reversed." Decree of circuit court affirmed.

PEOPLE v. FARNSWORTH.

(324 I11. 96) (No. 17544.)

(Supreme Court of Illinois. Dec. 23, 1926.)

1. Larceny 36-Larceny as bailee held sufficiently alleged by indictment, charging conversion of $750 delivered to defendant as bailee.

Indictment charging that defendant converted to his own use $750, delivered to him as bailee, with felonious intent to steal it, held to "Where a signature is so placed upon the in-sufficiently allege larceny as bailee. strument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser."

And section 63 (chaper 98, § 83), provides that:

"A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicated by appropriate words his intention to be bound in some other capacity."

2. Criminal law 304 (6) Court judicially knows that Chicago Heights and Homewood, III., are in Cook county.

Court will take judicial notice that Chicago Heights and Homewood, Ill., are in Cook county 3. Criminal law 564 (1)—Evidence held to show that transactions by which bailee obtained and converted money occurred in Cook county, Ill.

Evidence held to show that transactions by which defendant acquired money as bailee and converted it to his own use all occurred in Cook county, Ill.

4. Criminal law

The defendant in error insists that no other construction can be placed upon those sections than their express, unambiguous, and clear language, and that, in the light of that construction, it must be held that E. B. Wade indorsed the note, and that the defendant in Defendant's objection that he was not reperror is the legal holder and owner thereof.resented by competent counsel held untenable,

641 (1)-Defendant's objection that he was not represented by competent counsel held untenable.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 N.E.-45

where counsel was of his own choosing and, duct; and that erroneous instructions were proof of incriminatory facts was overwhelming. given for the people.

Court held justified in asking state witness questions, in prosecution for larceny, where witness lacked ability to express himself in English, and questions were to enable court and jury to understand him.

6. Larceny 60-Evidence held to support conviction for larceny as bailee.

5. Witnesses 246(1)-Court's questions to Verhait, whose property defendant is witness, in larceny prosecution, held justified, charged with stealing, applied to defendant, a in view of latter's inability to use English | real estate agent, about the first of May, 1923, language. for the purchase of a piece of real estate defendant represented he had for sale, and defendant showed Verhait a house and lot in Homewood, Ill., which Verhait agreed to buy and defendant agreed to sell to him for $6,000. One hundred dollars was to be paid in cash to bind the bargain, and the residue of it was to be paid later in installments. Verhait temporarily borrowed the money from a friend to make the $100 payment. The parties met again a day or two later to complete the transaction, and Verhait paid defendant by check or draft $650, in addition to the $100 already paid. There is no substantial dispute about defendant getting the checks and the money ($750) on them. Verhait speaks the English language so imperfectly that it is Hermann P. Haase, of Chicago, for plain- difficult to get a correct understanding of the tiff in error.

Evidence held sufficient to support conviction for larceny as bailee, where real estate agent converted purchaser's money.

Error to Criminal Court, Cook County; M. L. McKinley, Judge.

Mark H. Farnsworth was convicted of larceny, and he brings error.

Affirmed.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson, Clarence E. Nelson, and Charles J. Mueller, all of Chicago, of counsel), for the People.

transaction from his narration, but, in substance, it is not denied by defendant.

Defendant disappeared a few days after receiving the money and did not return again for about two years. He went to Nebraska and California. After his return, in 1925, Verhait learned of it and caused his arrest. FARMER, J. Plaintiff in error, Mark H. He was put in jail, and while in jail he wrote Farnsworth, was convicted of larceny in the Verhait on June 9, 1925, asking Verhait to criminal court of Cook county and sentenced help get him out of jail and promising to pay to imprisonment in the penitentiary. The the money back. He said if he could get out indictment contained two counts. The first of jail and go on with his business of real charged that in May, 1923, there were de- estate salesman and broker, he would pay livered to defendant, as bailee, checks (de- Verhait the $750, "which I got from you by scribing them) for the payment of $750, of the means of falsehoods and false representavalue of $750, lawful money of the United tions." He said he did not blame Verhait for States, the personal goods and property of causing him to be arrested and admitted that Andrew Verhait; that defendant converted he deserved punishment for what he had the same to his own use with the felonious done, but said if given a chance he could intent to steal, take, and carry the same undo the wrong and would pay Verhait out away. The indictment further charged that of the first money he got from the sale of real defendant was not usually and publicly a res-estate. Verhait was the only witness to testiident of Illinois since May, 1923. The sec- fy for the prosecution, and defendant the only ond count charged defendant with obtaining the same property by means of the confidence game. The state's attorney nolled the second count. There was no motion to quash. Defendant pleaded not guilty. The jury returned a verdict, finding him "guilty of larceny in manner and form as alleged in the indictment," and found the value of the property to be $750. Motions for a new trial and in arrest of judgment were overruled, and defendant sentenced on the verdict.

witness to testify in his behalf. There was some documentary evidence introduced. Defendant testified he left Chicago about the 10th or 15th of May on account of domestic troubles. He further testified he gave Verhait a note, while in jail, for $750, but testified the note had never been paid. He said he owed Verhait the $750.

The transaction between the two men has all the ear-marks of a crook dealing with an ignorant individual, but there is nothing in the transaction to relieve it from its criminal characteristics. Defendant received checks or drafts from Verhait for $750 to pay on property, which he never applied to that purpose but converted to his own use. Verhait never got the land.

The errors chiefly relied on by defendant for reversal of the judgment are that the evidence did not tend to prove him guilty of the crime of the larceny charged against him; that the prosecution failed to prove the venue; that defendant was not represented by competent counsel; that the court and [1] It is argued by defendant's counsel that state's attorney were guilty of improper con- the defendant was convicted of larceny as