Opinion of the Court.

Although Lloyd had security by mortgage for a portion of his claim on Davenport, that did not prevent him from obtaining a judgment on the note, and subjecting other property of his debtor to its payment. Vansant v. Allmon, 23 ib. 33. As this security held by Lloyd was on the property of Mrs. Davenport, and placed upon it by the husband, it was his duty, if he could do so, to relieve it by incumbering his own, or by requiring his own property to pay a debt he owed, and had secured upon the property of his wife. We see no injustice or wrong in this. It was equitable and right.

As we have said, the rights of appellant were disposed of in the opinion delivered when the case was under consideration at a previous term. The only question to be raised in the circuit court, on remanding the cause, was that of fraud in the confession of the judgment. As we are unable to perceive any indications of fraud, but only a desire to protect Lloyd and pay his debt, we are bound to uphold the transaction as fair and honest.

An objection is made, that the execution issued before the term of the court had ended at which the judgment was confessed. It is stated in the answers of Lloyd and Davenport, that the fi. fa. was issued on an affidavit of plaintiff, but no affidavit appears in the record.

The question arises, who is the party to take advantage of this on the ground of irregularity? Usually the debtor, it being presumed he desires to put off the evil day as long as possible. In this case, he makes no objection to the irregularity. We have no statute upon the subject, but only that a judgment shall be a lien from and after the last day of the term at which it was rendered. But it is not held to be necessary a judgment should be a lien, to entitle the owner of it to redeem. Sweezy v. Chandler, 11 Ill. 445. Any judg ment debtor may redeem. Ch. 57 R. S. sec. 14.

It is further insisted by appellant, the redemption was not legal, inasmuch as the amount paid the sheriff for such purpose lacked four cents of the full amount due.

Syllabus.

We agree with appellant, that great strictness is required in the exercise of all these statutory privileges. Had he known the objection in time, when the redemption money was tendered him by the officer, it might have availed, but he chose rather to accept the amount, and it is now too late to urge a deficiency. But the appellant has nowhere in the original bill, or in the amendment filed on remanding the cause, alleged this as invalidating the redemption, nor does it legitimately come within the scope of the ground on which the remand was made. That was done to eviscerate the alleged fraud, and for no other purpose.

On a careful examination of the record, no error is discovered. The debt for which the judgment was confessed by Davenport was due Lloyd, and he but exercised a right given him by statute to redeem the land. The judgment must be affirmed.

Judgment affirmed.

SAMUEL E. BARRETT et al.

v.

ELIJAH S. ALEXANDER.

1. NEW TRIAL-verdict against the evidence. In this case the preponderance of the testimony was considered to be in favor of the appellee, and the judgment was affirmed.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. J. V. LEMOYNE and Mr. JESSE O. NORTON, for the appellants.

Syllabus.

Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This case has been already before this court, and is reported in 46 Ill. 226. We there stated the facts as then presented by the record, and our conclusion in regard to them. The case has since been re-tried, the parties having become witnesses since the former trial. They contradict each other in their testimony, and in other respects the record presents substantially the same facts as in the former trial. The court, a jury having been waived, found for the plaintiff, and we can not say that the finding is against the evidence. The case for the plaintiff is not as clear as it was before, but we are still of opinion the preponderance of the testimony is in his favor, or at least that it is so nearly balanced as not to justify us in disturbing the finding, of the court.

Judgment affirmed.

COOPER & Moss

v.

WILLIAM R. HAMILTON.

1. CONTRACTS-who shall prepare them. A party residing in this State, having obtained a divorce from his wife in Indiana, proposed a settlement with her in order to prevent her attacking the divorce. An agreement was entered into, in writing, the effect of which was to create a lien on the real estate of the former husband, to secure the payment of money to the wife: Held, that in the absence of any understanding on the subject, the contract should be prepared at the expense of the party whose lands were to become encumbered by it.

2. ATTORNEY AND CLIENT-when the relation exists. In this case, the attorney who prepared the written contract, did so at the request of the former husband, and though at the same time he was acting, in respect to

52 1191 51a 552

Syllabus. Opinion of the Court.

the subject matter of the agreement, as the attorney of the divorced wife, yet his relations to her did not prohibit him from preparing the contract at the instance of the other party, for which the latter could be compelled to pay him.

3. SAME of the mode of retaining counsel. It is not essential to the right of recovery by an attorney against his client for professional services, that there should be shown an express request, but if the services were rendered under such circumstances, as will reasonably imply, that they were performed with the assent and upon the request of such party, a recovery therefor may be had.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

The opinion states the case.

Mr. H. GROVE, for the appellants.

Messrs. ROBINSON & CALDWELL, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action commenced by appellants before a justice of the peace of Peoria county, against appellee, to recover for professional services, to the amount of fifty dollars. On a trial before the justice, the jury found for the defendant, and a judgment was rendered in his favor. The case was removed to the circuit court by appeal, where a trial was had before the court and a jury, with a similar result. A motion for a new trial was entered and overruled, and the record brought to this court on appeal, and various errors are assigned.

It appears that appellee had resided in the city of Peoria for a long period of time, but had been absent for two or three years. On his return he called on McCoy, an attorney in the city, and requested him see Mrs. Hamilton, from whom appellee claimed to have obtained a divorce in a court in

Opinion of the Court.

Indiana, and to see whether she could be induced to settle with appellee, and not attack the divorce. After seeing her, McCoy informed appellee what she said, and he then requested McCoy to see Cooper, who was Mrs. Hamilton's legal adviser, and get him to co-operate with McCoy in effecting an arrangement with her. McCoy called on Cooper, and they together made many visits to Mrs. Hamilton in reference to the settlement. She made larger claims than was finally agreed upon. McCoy says that Cooper considered himself Mrs. Hamilton's attorney, and manifested no want of a disposition to protect her interest. As a result of these interviews, a settlement was agreed upon, papers drawn and executed, and delivered.

After the terms of the agreement had been settled, appellee was very anxious that the papers should be so drawn as to be free from all doubt as to their validity. Appellee and Cooper talked the matter over, and it was arranged that Cooper should write to Washington and learn the requisite amount of stamps necessary to attach to the instrument, which he did. Cooper testifies that after the terms were agreed upon, appellee expressed a desire that the papers should be so drawn as to be binding, to which he assented, and suggested that the agreement should embrace every point, to which appellant assented, and suggested that, as Cooper was familiar with the matter, he could draw up the agreement better than any one else, which Cooper did, but having submitted the first draft to his attorney, appellee returned the paper with objections, and Cooper re-wrote the agreement and obviated the objections, and it was executed.

Appellants claim that appellee is bound to pay for the service rendered in drawing the agreement. On the other side, it is urged that Robinson was appellee's attorney, and Cooper was Mrs. Hamilton's, and that he, therefore, necessarily acted for her, and not for appellee, in what he did in the

matter.