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tively take from the taxpayer, and we see no reason why a limitation may not be applied to all the corporate authorities in the aggregate.

The judgment of the circuit court is reversed, and the cause is remanded to that court, with directions to sustain the demur

rer.

of the said attorney or solicitor should not be stricken from the roll, a copy of which rule shall be duly served upon said attorney or solicitor at least two days previous to the day upon which said rule shall be made returnable; and if, upon the return of said rule, it shall be made to appear to the said court that such attorney or solicitor has im

Reversed and remanded, with directions. properly refused or neglected to pay over

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MENT.

The fact that a client had recovered judgment against the attorney for money which the attorney had unlawfully refused to pay over to her after collecting it for her was no bar to a proceeding for his disbarment under Hurd's Rev. St. 1908, c. 13, § 7 (1 Starr & C. Ann. St. 1896, p. 491).

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 71; Dec. Dig. § 46.*]

Information, on the relation of John J. Healy, to strike the name of Milt H. Allen from the roll of attorneys of the Supreme Court. Respondent's name ordered stricken. John L. Fogle, for relator. Milt H. Allen, in pro. per.

HAND, J. This is an information filed in this court, upon the relation of the grievance committee of the Chicago bar association, to strike the name of Milt H. Allen, a regularly licensed attorney practicing his profession in the city of Chicago, from the roll of attorneys of this court.

or deliver said money or property so demanded as aforesaid, it shall be the duty of the said court to direct that the name of the said attorney or solicitor be stricken from the roll of attorneys in said court.".

The respondent appeared and answered the information, and the case was referred to George T. Kelly, one of the masters in chancery of the superior court of Cook county, as commissioner, to take the proofs and report his conclusions. The commissioner heard the proofs and made a report, in which he found that the respondent had in the capacity of attorney at law collected $224.59 for a client by the name of Cora A. Marnitz, of the city of Chicago, and $325 for a client by the name of William E. Scott, of Sheldon, Iowa, which several amounts the said Milt H. Allen, on demand, had improperly refused and neglected to pay to said Cora A. Marnitz and William E. Scott, respectively, and recommended that the name of Milt H. Allen be stricken from the roll of attorneys of this court. The respondent filed objections to the commissioner's report, which by the commissioner were overruled, and, a transcript of the proceedings before the commissioner having been filed in the office of the clerk of this court by the respondent, he has renewed said objections as exceptions to the commissioner's report in this court.

It appears from the evidence that the respondent is upwards of the age of 50 years; that he was admitted to the bar in the state of Iowa in the year 1881; that he removed to this state in 1902 or 1903, and was admitThe information charges the respondent ted to the bar in this state on October 18, with a violation of section 7, c. 13, Hurd's 1904; that in April, 1908, he was retained by Rev. St. 1908 (1 Starr & C. Ann. St. [2d Ed.] Cora A. Marnitz to obtain for her a divorce p. 491), which reads as follows: "In all cas- from her husband; that a decree of divorce es when an attorney of any court in this was entered in favor of Cora A. Marnitz on state, or solicitor in chancery, shall have re- the 6th of June, 1908, on which day the atceived, or may hereafter receive, in his said torney of the husband of Cora A. Marnitz office of attorney or solicitor, in the course of paid to the respondent $940 for Cora A. Marcollection or settlement of any claim left with nitz in full for her solicitor's fees and alihim for collection or settlement, any money mony in said divorce suit; that the respondor other property belonging to any client, and ent retained $125 as solicitor's fees, $15.41 shall, upon demand made, and a tender of which he used in paying a coal bill for Cora his reasonable fees and expenses, refuse or A. Marnitz, and on June 17, 1908, gave to neglect to pay over or deliver the same to the Cora A. Marnitz his check for $500, which said client, or to any person duly authorized several amounts aggregated the sum of $640.to receive the same, it shall be lawful for any 41, and left remaining of the $940 received, person interested, to apply to the Supreme in the hands of the said respondent, the sum Court of this state for a rule upon the said of $299.59; that on the 24th day of June, attorney or solicitor, to show cause, at a time 1908, Cora A. Marnitz made a demand upon to be fixed by the said court, why the name the respondent that he immediately pay to For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

her the said sum of $299.59 so remaining in | had received her money, and that she learned his hands as her attorney, which he improp- of the receipt of the money by the responderly failed and neglected to do, but subsequently paid her of the said amount at one time $50 and at another time $25, leaving due Cora A. Marnitz the sum of $224.59 at the time this information was filed, and which sum still remains in the hands of the respondent.

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It also appears from the evidence that in 1907 H. A. Scott, of Sheldon, Iowa, was killed in a railroad accident; that his son, William E. Scott, was appointed administrator of the estate of H. A. Scott, deceased; that he retained the respondent to represent him in enforcing a claim for damages against the Chicago, Milwaukee & St. Paul Railroad Company, claimed to have accrued against said company in consequence of the death of said H. A. Scott; that the respondent settled said claim with said railroad company for $500, which was paid to the respondent by said railroad company in settlement of said claim, $125 of which the respondent retained as his attorney's fees, leaving in his hands the sum of $375 belonging to William E. Scott as administrator; that after repeated demands, the respondent paid $50 to said William E. Scott, which left $325 in the hands of the respondent belonging to said William E. Scott as administrator, which amount, although repeated demands have been made for the payment thereof before this information was filed, the respondent had failed to pay.

ent through a party other than the respondent; that she called the respondent up by telephone and called at his office a number of times between the 6th and 17th days of June, and was unable to see the respondent or to hear from him during that time, except to the effect that he was very busy and could not see her; that on the 17th day of June she went to his office, in the city of Chicago, and remained in his office until she had an opportunity to see him; that on that day he paid her $500, and stated to her that he would pay her the balance within a very short time; that she returned to his office on the 24th day of June and demanded the balance of her money but that the respondent put her off and did not pay her, whereupon she employed another attorney to collect from the respondent the balance due her. The respondent testified that Cora A. Marnitz called at his office on the 17th day of June, when he had the amount due her and wanted to pay her the full amount due her, but she did not want to receive more than $150 or $200 of the amount due her, and desired the respondent to keep for her the balance of the money; that the respondent at first declined to retain any part of her money, but after some persuasion on her part he agreed to keep for her, for a time, $300 of the amount he had collected for her, and paid her $500 by check. A man by the name of Dan J. Dwyer claims to have been in the respondent's office at the time the $500 check was given to her, although Cora A. Marnitz denies Dwyer was present at that time, and Dwyer testified to a conversation which he claimed to have heard at that time between the respondent and Cora A. Marnitz, which, if true, tends to show that $300 of the money which the respondent had received and which was then in his hands was loaned to the respondent by Cora A. Marnitz.

The respondent admits that he has in his hands $224.59 belonging to Cora A. Marnitz and $325 in his hands belonging to William E. Scott as administrator, which several amounts he received as the attorney of said parties, respectively, and which he has not paid to them or either of them, although they have each repeatedly made demand upon him for the payment thereof, and claims that he has not improperly refused and neglected to pay the amounts in his hands to said Cora A. Marnitz and to William E. Scott within the meaning of section 7 of chapter 13 aforesaid, it being his contention that at the time he gave Cora A. Marnitz the $500 check she loaned him the balance of the money in his hands belonging to her for an indefinite peri-loan any part of said amount to the respondod upon his promise to pay the same to her when requested, and that the money which he received from the railroad company in settlement of the claim of William E. Scott, as administrator, was lost by him or was stolen from him, since which time he has been un-account in Chicago which was drawing interable, for want of funds, to pay the same to William E. Scott.

As to the first charge-that is, the charge of refusing to pay over to Cora A. Marnitz, on demand, the sum of $224.59 which the respondent collected as her attorney-the evidence is conflicting. Cora A. Marnitz testified she did not loan to respondent said sum of money or consent that he retain the same; that she did not know for some days after the hearing in the divorce case that respondent

We think the facts and circumstances surrounding the transaction with reference to the payment of the money to Cora A. Marnitz collected for her by respondent strongly tend to show that Cora A. Marnitz did not

ent. The respondent was almost wholly unknown to Cora A. Marnitz at that time, and he appears to have been without financial responsibility. At the time the $500 check was given, Cora A. Marnitz had a savings bank

est, and she deposited $490 of the amount she collected on the $500 check to that account. After she was at the respondent's office on the 24th of June and failed to get the balance of her money, she immediately went to the office of another attorney and placed the matter in his hands for collection. That attorney immediately called up the respondent by telephone, and he admitted he had $299.59 of Cora A. Marnitz's money in his hands, and afterwards so stated in writ

ing, but the respondent did not at that time, her upon demand should be held to be a bar and did not thereafter and until about the to this proceeding. We cannot accede to time this proceeding was commenced, claim this view. We have held that, where the that he held said money as a loan, but at all misconduct charged against an attorney intimes expressed a desire to pay the amount volves the commission of a criminal offense admitted to be due and only asked for a lit- and the attorney has been tried and acquittle time to get the money with which to ted of such offense, this court will not dismake payment. It is strange, if the claim bar such attorney on account of such charge. subsequently made that the respondent had People v. John, 212 Ill. 615, 72 N. E. 789. retained the money as a loan was true, that, The bringing of a civil suit to enforce paywhen called upon by Cora A. Marnitz, and ment of money unlawfully withheld by an atsubsequently by her attorney to make im- torney from his client, and a recovery of a mediate payment, he did not decline to pay judgment for the amount so withheld in a on the ground that the money was held by civil action, will not, however, relieve the him as a loan and that the loan was not attorney from the moral turpitude involved then due. At the time it is claimed by re- in the transaction. In a disbarment proceedspondent he borrowed the money no obliga-ing moral turpitude is involved, as it is in a tion was given Cora A. Marnitz therefor by respondent, and he does not claim to have agreed to pay her interest thereon, although her other funds were drawing interest in a savings bank. Neither does he claim there was any fixed time when payment should be made, and the evidence, when considered as a whole, is convincing that the respondent was at the time the $500 check was given in need of money, and very persuasive that the balance of Cora A. Marnitz's money had at that time been used by the respondent, and that he was then unable to pay to her the entire amount which he had collected for her from her husband. In any event, on the 24tb of June, when Cora A. Marnitz called, and subsequently, on the same day, when her attorney called, the respondent was unable to pay Cora A. Marnitz the amount then due her at least he did not pay her-and he made no claim at that time that he had borrowed the balance of Cora A. Marnitz's money at the time the $500 check was given to her by him. We are impressed from the evidence that the loan feature of the transaction as evolved by the respondent was an afterthought on his part.

trial upon an indictment for embezzlement, while in a suit before the municipal court on a money demand it is not. People v. John, supra. The civil suit brought by Cora A. Marnitz and the recovery of judgment for the amount of her claim is no bar to this proceeding. The commissioner saw and heard the witnesses testify, and from an examination of this record we cannot say that his finding that the respondent was guilty of improperly refusing and neglecting to pay over to Cora A. Marnitz the balance of the money in his hands collected by him as her attorney was not fully established by the evidence, but, on the contrary, we think the charge was satisfactorily established.

It was testified to by the respondent that he had the money collected in settlement of the Scott claim, together with a considerable amount of money of his own, in his pocket, and was on the way to a bank in the city of Chicago to procure a draft to remit to William E. Scott the amount collected for him in settlement of his claim against the railroad company, and that on his way to the bank he stopped at a saloon to see a client and where he obtained a lunch and there had a $50 bill changed, and that, when he arrived at the bank, the money which he had in his pocket had been lost by him or had been stolen from him. No claim of this kind was made by the respondent for some weeks after the money is now claimed to have been lost or stolen. The Scotts, father and son,. were old Iowa friends of the respondent, and it is singular if he had lost the money col

The section of the statute hereinbefore set out, and with the violation of which respondent is charged, is a wholesome law, and should be strictly enforced by the courts. No attorney has the right to collect money for a client and afterwards appropriate it to his own use, even for a temporary purpose. The only safe and honorable practice is for an attorney who has collected money for a client to treat the money in his hands belong-lected on that claim in the manner in which ing to his client as a trust fund and immediately account for and turn over to his client his client's money, and in case it is not paid over to the client at once, and particularly after demand, the attorney improperly withholding the same is an unsafe person to represent the interests of others and is not entitled to retain a license from this court authorizing him to practice law.

It is said by respondent the fact that Cora A. Marnitz brought suit in assumpsit in the municipal court against him and recovered judgment for the amount which the respondent had unlawfully refused to pay over to 91 N.E.-30

he says he did that he thereafter repeatedly wrote William E. Scott that he would soon remit to him the amount collected in settlement of his claim against the railroad company, and that he made no claim that he had lost the money or it had been stolen from him until after William E. Scott had written Mr. Lewis, the county attorney of Cook county, in regard to the failure of the respondent to remit to him the amount collected from the railroad company, and until after the county attorney had called upon the respondent with reference to the payment of the amount collected on said claim

of William E. Scott and retained by him. We are satisfied with the finding of the commissioner that the respondent improperly neglected and refused, after demand, to pay over to William E. Scott the amount collected of the Chicago Milwaukee & St. Paul Railroad Company for Scott in settlement of the Scott claim against said railroad company.

While it is true, as is said by the respondent, that it is a severe punishment to respondent to be deprived of his right to practice law, still it must be remembered by the respondent, and all attorneys similarly situated, that this court owes a duty to the people to see to it that the members of the legal profession who are practicing law by virtue of a license issued by this court deal honestly and fairly with all persons who trust them in the capacity of attorneys at law, and that in case a member of that profession violates his obligation as an attorney at law and improperly neglects and refuses, upon demand, to turn over to his clients money which he has collected for them in his capacity as an attorney at law, it devolves upon this court to deprive him of his authority to practice law.

The findings and recommendations of the commissioner will be approved, and the name of Milt H. Allen will be stricken from the roll of attorneys of this court. Rule made absolute.

(244 Ill. 329.)

PETERSON v. MANHATTAN LIFE INS.
CO.

(Supreme Court of Illinois. Feb. 16, 1910.
hearing Denied April 7, 1910.)

would deprive the party of pleading the excep tions in the statute in reply.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1927; Dec. Dig. § 356.*] 5. APPEAL AND ERROR (§ 356*)-TIME FOR PROCEEDINGS-BAR OF WRIT OF ERROR-EFFECT OF DELAY.

The Supreme Court cannot judicially take notice that a writ of error is barred by limitations, as the limitation of time is no objection to the jurisdiction of the court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1926; Dec. Dig. 356.*] 6. INSURANCE (§ 146*) - CONTRACTS CON

STRUCTION.

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CON

8. INSURANCE (§ 300*) CONTRACTS
STRUCTION-INSURANCE COMPANY.
The Modern Woodmen of America, a fra-
ternal beneficiary society, is not an insurance
company, within the meaning of a question in
an application for life insurance, "Have you
ever been declined or postponed by any com-
pany?" and a negative answer would not de-
feat recovery on the policy, although the insured
had been rejected by this fraternal order.

[Ed. Note. For other cases, see Insurance,
Cent. Dig. § 679; Dec. Dig. § 300.*]
Re- 9. INSURANCE (8 291*)-FORFEITURE of War-
RANTY-MATTERS RELATING TO PERSON IN-

1. APPEAL AND ERROR (§ 356*)-REQUISITES AND PROCEEDINGS FOR TRANSFER OF CAUSE -TIME OF TAKING PROCEEDING.

The defense that a writ of error is barred by limitations can be interposed only by plea. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 1927; Dec. Dig. § 356.*] 2. EQUITY (§ 219*)-PLEADING-DEMURRER.

In equity, where it appears on the face of the bill that the action is barred by laches or limitations, the defect may be raised by demur

rer to the bill.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 498; Dec. Dig. § 219.*]

3. LIMITATION OF ACTIONS (§ 180*)-PLEADING-DEMURRER.

At common law, even where a declaration shows on its face that, the limitation prescribed by the statute has expired, a demurrer will not lie, since the plaintiff would thereby be prevented from pleading the exception to the statute, which would prevent the bar.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. 88 670-675; Dec. Dig. 180.*]

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Where an applicant for insurance answered, "No," to a question in his application: "Have you ever had rheumatism in any form? Number of attacks, dates, duration, parts affected. State also whether there were heart complications"-the applicant thereby warranted that he did not have rheumatism in any form, which involved heart complications, and evidence that he had muscular rheumatism, but with no heart complications, did not show a breach of warranty.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 681-690; Dec. Dig. § 291.*]

10. INSURANCE (§ 291*)-Forfeiture of WarRANTY-MATTERS RELATING TO PERSON IN

SURED.

Where an application for insurance contained a warranty that the applicant had not been sick within the last 10 years, but stated in another part that he had malarial fever within that time, the company cannot claim a forfeiture of the policy because of the breach of warranty that he had not been sick, since it had knowledge to the contrary when it issued the policy.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 681-690; Dec. Dig. § 291.*] 11. INSURANCE (§ 291*)—Forfeiture of WabRANTY-MATTERS RELATING TO PERSON IN

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For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

of this warranty it must appear that the in- [ true in every particular, and they are offered sured had had something other than a temporary as a consideration for the insurance applied ailment which readily yielded to treatment. for, which, however, shall not be forfeited by any misstatement made herein after three

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 689; Dec. Dig. § 291.*] 12. INSURANCE (§ 264*)—Forfeiture of WaR-years from the date hereof."

RANTY-MATTERS RELATING TO PERSON IN

SURED.

Although a policy of insurance refers to and makes the application a part of the policy, only statements made strictly in answer to the inquiries contained in the application can be regarded as warranties, and an answer, "Has not been sick," to a question in an application for life insurance, "Give the names and addresses of physicians who have attended you, or whom you have consulted during the last ten years, and for what diseases," was not responsive and created no warranty.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 562; Dec. Dig. § 264.*]

13. INSURANCE (§ 389*)-WAIVER AFFECTING RIGHT TO AVOID POLICY.

Where an answer to a question in an application for life insurance was not responsive, but the company elected to accept it and issue the policy without requiring any other answer, it thereby waived its right to an answer to the question.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 8 1028; Dec. Dig. § 389.*]

Cartwright and Carter, JJ., dissenting.

Error to Appellate Court, Second District, on Error to Circuit Court, Henry County; W. H. Gest, Judge.

Action by Martin J. Peterson, executor, against the Manhattan Life Insurance Company. From a judgment of the Appellate Court (115 Ill. App. 421) affirming a judgment for defendant, plaintiff brings error. Reversed and remanded.

The medical examination, which was a part of the application, contained, among others, the following questions, and answers made thereto by the applicant:

"Q. 68. Have you ever been declined or postponed by any company? State name of company. A. No."

"Q. 24. Have you ever had rheumatism in any form? Number of attacks, dates, duration, parts affected. State also whether there were heart complications. A. No."

"Q. 81. When did you last consult a physician, and for what reason? A. July, 1895; malaria. "Q. 82. Name and address of physician? A. W. S. Bryan.

"Q. 83. Give the names and addresses of physicians who have attended you or whom you have consulted during the last ten years, and for what diseases. A. Has not been sick."

These questions were printed in the printed blank form prepared by the insurance company to be used by its medical examiners in examining applicants for insurance, and the medical examiner who examined the apthe answers appeared in the handwriting of plicant for the company.

fendant in error at its New York offices, the When the application was received by depolicy was prepared and sent to W. N. Sattley, its state manager for Illinois. Before On October 11, 1897, Martin J. Peterson, it was delivered to Peterson, however, the executor of the last will and testament of company wrote Sattley to hold the policy unCharles H. Peterson, deceased, brought an til further investigation had been made reaction in assumpsit in the circuit court of garding the risk, stating that it had been inHenry county against the Manhattan Life formed that it was thought that the applicant Insurance Company, defendant in error, to had some lung trouble. Sattley thereupon recover the amount of a policy of insurance went to Cambridge, Ill., the home of Mr. Petheretofore issued by the said company upon terson, and, after making sufficient investigathe life of said Charles H. Peterson, deceased. tion to satisfy himself that the risk was good, To the declaration defendant in error inter- delivered the policy. The application was by posed the general issue and gave notice of the policy made a part of the contract of inspecial matters that it would rely upon insurance. The death of the insured occurred defense. The trial of the cause before the in March, 1897, within three years from the court without a jury resulted in the entry date of the policy and after he had paid two of a judgment against the plaintiff on March annual premiums thereon. The cause of 29, 1901. Thereafter, in August, 1904, the death was acute tuberculosis of the lungs. judgment of the circuit court was affirmed by the Appellate Court for the Second District, and to review that judgment Martin J. Peterson, as executor, has brought the record to this court by writ of error sued out by him in December, 1908.

On August 9, 1895, the deceased made application in writing to the defendant in error for a policy of insurance upon his life in the sum of $10,000. At the close of the application signed by him were these words: "It is hereby warranted that the above statements and answers are full, complete and

It appears from the record that during the month of March, 1895, the deceased made application for membership in the Order of Modern Woodmen of America and for benefits in that order in the sum of $3,000; that said application was rejected by the head physician of said order, and notice of his rejection was sent to Peterson by said order five months before he signed the application for the policy of insurance here in controversy; that in June, 1894, he was troubled with muscular rheumatism and consulted a physician in reference thereto, who prescribed

*For other cases see same topic and section NUMBER in Dec. & Am. D.gs. 1907 to date, & Reporter Indexes

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