Chapin v. Dake

• Citation: 57 Ill. 295,1870 WL 6629,11 Am.Rep. 15
• Parties: GARDNER S. CHAPIN et al.v.MOSES W. DAKE.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

57 Ill. 295

1870 WL 6629 (Ill.)

11 Am.Rep. 15

GARDNER S. CHAPIN et al.

v.MOSES W. DAKE.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

This was a suit in chancery, brought by Moses W. Dake, against John Donaldson, the Fifth National Bank of Chicago, and Gardner S. Chapin and J. J. Gore, partners, doing business under the firm name of Chapin & Gore, to have two certain drafts for $1000 each, in the hands of Chapin & Gore, delivered to the complainant, in whose favor they were drawn by the Fifth National Bank of Chicago, on the Ninth National Bank of New York, and by him indorsed to Donaldson; and to have his indorsements thereof cancelled, and to enjoin the payment of the drafts by the Fifth National Bank of Chicago, the Ninth National Bank of New York having refused to pay them to Chapin & Gore, to whom Donaldson had indorsed them. The Fifth National Bank of Chicago filed a cross bill, averring its readiness at all times to pay the drafts to the lawful owner, but alleging that as there were several claimants it could not pay, etc., without an order of court, concluding with prayer, that Dake, Donaldson and Chapin & Gore interplead and settle the ownership of the drafts; offering to pay the amount into court, or to either litigant, being indemnified by the court, and praying that all the litigants be restrained from bringing suit against it for the collection of the drafts.

Donaldson failing to answer either the original bill, or the cross bill of the Fifth National Bank, default and decree pro confesso were entered against him as to both bills.

Upon a final hearing, the court found the property in the drafts to be in Dake, and that he was entitled to the money specified therein, less the sum of $100 to be paid to the solicitors of the Fifth National Bank for fees, and ordered that the Fifth National Bank pay into court for Dake the sum of $2000, less $100 for solicitor's fees; that the injunction issued on the original bill be made perpetual; that Chapin & Gore and Donaldson pay the costs of suit, and that Chapin & Gore pay all costs on the cross bill; that upon payment of $1900 by the Fifth National Bank into court, it should be forever released from any and all liability upon the drafts, and that the injunction issued on the cross bill be made perpetual; and that Chapin & Gore pay Dake $56.67 interest upon the face of the drafts, and the sum of $100 retained by the Fifth National Bank out of the drafts, in all $156.67, with interest on that sum from the date of the decree.

Chapin & Gore appeal.

Mr. C. M. HARDY, for the appellants.

Mr. W. T. BURGESS, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, filed by Moses W. Dake, to have two certain drafts for $1000 each, drawn by the Fifth National Bank of Chicago, upon the Ninth National Bank of New York, payable to the order of said Dake, at sight, by him indorsed and in the hands of Chapin & Gore, delivered to said Dake and the indorsements cancelled, and to enjoin the payment of the same to Chapin & Gore, on the alleged ground that the drafts were lost by Dake at gaming, and subsequently came into the hands of Chapin & Gore as indorsees.

It appears that Dake staked one of said drafts, after first indorsing it, and lost it, playing faro, and that it was delivered to one Donaldson, who was in some way concerned in receiving the proceeds of...